but it is not from this branch of government we have most to fear [Congress]. taxes & short elections will keep them right. the Judiciary of the US. is the subtle corps of sappers & miners constantly working underground to undermine the foundations of our confederated fabric they are construing our constitution from a coordination of a general and special governments to a general & supreme one alone

I AM OVERLAPPING with the last paragraph of Louis Boudin's introduction to Government by Judiciary I posted last time because it is necessary to understand what follows:

Unfortunately, the official theory does not at all tally with the facts. The actual practice of the courts is to declare any law unconstitutional of which they strongly disapprove, whatever the reason of such disapproval, and quite irrespective of the actual provisions of the Constitution, which very frequently says nothing at all on the subject. So much so, that to declare laws unconstitutional has become a matter of almost daily routine for the judicial machine, and “unconstitutional” has become a “term of art,” as the lawyers call it, a facon de parler, a manner of speaking, the real meaning of which is: “We, the judges, think this is a bad law.” The Constitution has ceased to be the measure of the Judicial Power or any check or limit to the judges' exercise of the power to declare legislation unconstitutional. The Judges have in fact become superior not only to the Legislature but to the Constitution itself, since the Constitution is what the judges say it is.

This is well-known to the elite of the legal profession, who speak of it more or less openly in the professional press. It is also stated occasionally by judges, usually in dissenting opinions, and almost always in technical language not easily understood by the uninitiated. But recently Mr. Justice Holmes has been goaded by his brethren on the Supreme Bench into saying it without circumlocution in plain and forceful English. In a dissenting opinion in the case of Baldunn v. Missouri, (281 U.S. 586), decided on May 26th, 1930, Mr. Justice Holmes, (Justices Brandeis and Stone concurring), said:

“Although this decision hardly can be called a surprise after Farmers' Loan & Trust Co. v. Minnesota, 280 U.S. 204, and Safe Deposit & Trust Co. v. Virginia, 280 U.S. 83, and although I stated my views in those cases, still, as the term is not over, I think it legitimate to add one or two reflections to what I have said before. I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this court as for any reason undesirable. I cannot believe that the amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred.”

It is the correctness of this statement of the great Associate Justice of the United States Supreme Court, that there is “hardly any limit but the sky” to the power of the Judiciary because the Constitution has ceased to be the measure of “constitutionality,” that these volumes prove, by giving a circumstantial account of the most
important judicial decisions during the past forty years. But these volumes do more than that: They cover the history of more than forty years, and consider more than the “constitutional rights of the States.” They give a fairly complete history of the growth of the Judicial Power, from the first modest assertion of its rights by John Marshall as a necessary “last resort” power—to be resorted to in extreme cases in order not to make the courts participants against their will in legislative defiance of the Constitution to its present position of command, when it can, and does, bid defiance to the people and the Constitution, so that its most distinguished member must repeatedly rise in protest and cry out in anguish that there is “no limit but the sky” to what it may and does do, since the Constitution no longer furnishes any restraint upon its action.

And in the course of this history, it becomes apparent that it is not even a question of “strict” or “liberal” interpretation of the Constitution. With the disappearance of the Constitution as the measure of “constitutionality,” these terms, which played such a great part in old-fashioned histories, have lost their meaning. While judges still divide into “schools,” these schools are not the result of different methods of interpreting the Constitution, but relate to the judges' general outlook upon life, chiefly economic life. Hence we find judges who in one case favored what might be called a “strict construction’* of the Constitution adopting in another case what used to be called a “liberal interpretation” of that document. The alignment —whenever there is an alignment— is seldom, if ever, based upon some particular method of constitutional interpretation; the line of division usually being some economic or political assumption or predilection which determines the judges’ opinion as to what is desirable or undesirable in legislation, or in the power to legislate which ought to be permitted to legislatures.

It is part of the official theory that the right of the courts to declare laws unconstitutional is necessary to the end that this may be a government of laws and not a government of men. Mr. Justice Holmes’ last statement not only proves our government to be one of men, but stamps it as one of irresponsible men. And of that, too, these volumes furnish abundant proof. For the details of our judicial history, recited in these pages, show how decisions of the gravest political consequence, decisions affecting the welfare of the people and the destinies of the country, frequently depended on the will or whim of some one Man, or on the accident of whether this or that Man happened to sit in the seat of power. A careful review of the facts of our history on this showing forces one to the conclusion that the only real difference in this respect between our government and the governments of other civilized countries is that in other countries the Men are accountable to the people, and their decisions subject to be revoked and reversed by the people; while in this country the Men who wield the real power of government are not accountable to the people, and their decisions are irrevocable and irreversible except by themselves. The net result is that we are ruled frequently by dead Men (not, however, the dead “Framers," but generations of dead judges), and always by irresponsible Men,

New York, May, 1931, 

The proof of what Boudin said about the Constitution being the plaything of the "justices" on the Supreme Court and, especially, those who manage to be in a working majority might best be shown by an article dealing with the further use of the 14th Amendment against the most basic rights of individuals, written almost 90 years after he wrote his introduction.  A use of an entirely different character than what Holmes complained about then.  

From: The 14th Amendment Was Meant to Be a Protection Against State Violence
The Supreme Court has betrayed the promise of equal citizenship by allowing police to arrest and kill Americans at will. By David H. Gans

The Fourteenth Amendment effected a fundamental transformation in the constitutional law of policing in two respects. First, it required states to respect basic fundamental rights, including those to life and personal security. State police could not indiscriminately search and seize Black Americans. Second, as Senator Jacob Howard—one of the amendment’s framers—explained in congressional debates, its guarantee of “the equal protection of the laws” demanded “one measure of justice” for all persons, regardless of race. The requirement of equal protection ended “the injustice of subjecting one caste of persons to a code not applicable to another,” according to Howard.

Together, these guarantees sought to put an end to racialized policing practices. In doing so, the Fourteenth Amendment embedded directly in the Constitution the idea that violence against Black people must stop. This reflected the obvious and most basic truth that bodily integrity and security are fundamental to freedom. The Fourteenth Amendment struck at centuries of history that permitted Black bodies to be violated indiscriminately, instead promising personal security to all. Open-ended police power, the framers of the amendment recognized, was a tool of racial oppression and violence. Equal citizenship and true freedom could not be enjoyed without limiting police abuses.

The history of how the amendment came to be reveals that foundational promise. In 1866, Congress formed the Joint Committee on Reconstruction to investigate conditions in the South. Some of the leading lights of the 39th Congress, including Senator Jacob Howard and Representatives John Bingham and Thaddeus Stevens, served on the 15-person bipartisan committee. The committee took testimony from white southerners, Black Americans seeking to enjoy freedom for the first time, and Union officers working in the South, learning firsthand of the gruesome violence and systemic violation of fundamental rights. The committee drafted the Fourteenth Amendment, and its findings and the testimony it heard bore directly on the amendment it wrote.

The committee’s report—released in June 1866 and widely distributed across the country—made the case for securing “the civil rights and privileges of all citizens in all parts of the republic.” If southern states were left to their own devices, Black people “could hardly live in safety” and “acts of cruelty, oppression and murder” would flourish.

Five different kinds of police abuse of power were detailed in the report: home invasions, theft of personal property, indiscriminate and pretextual arrests, wanton state-sponsored racial violence, and a refusal to protect Black people from private violence. In all these ways, the police and the criminal-justice system functioned as a lever to take freedom—and even life itself—from Black people. In vivid, terrible detail, the report cataloged how police officers acted “in respect to violence and ill usage, in every way equal to the old days of slavery”; how they arrested Black Americans as vagrants “simply because they did not have in their pockets certificates of employment from their former owners or other white citizens”; and how the police “go in squads and search houses and seize arms,” fleecing Black people of their possessions.

Police brutality and murder escalated in the summer of 1866, as Congress completed its work on the amendment and the ratification process began. In Memphis, Tennessee, and New Orleans, police officers led bloody massacres that left hundreds of Black people dead and many more badly beaten. These acts of murder and pillage, led by the so-called chosen guardians of the public peace, convinced Americans that the Fourteenth Amendment’s sweeping guarantees of fundamental rights and equal protection were necessary to redress state-sanctioned violence and inequality. As an investigation of the New Orleans massacre concluded, without new protections, Black Americans would continue to be “hunted like wild beasts, and slaughtered without mercy,” and police would continue to murder innocent men and women “with entire impunity from punishment.”

This history has been brushed aside. The Supreme Court has betrayed the Fourteenth Amendment’s promise of equal citizenship by allowing police to stop, seize, arrest, beat, and kill Black Americans at will.

For example, stop-and-frisk policies, first upheld by Earl Warren’s Supreme Court in Terry v. Ohio and repeatedly expanded during the Warren Burger and William Rehnquist Courts, permit the police to subject people of color to arbitrary, degrading, and humiliating intrusions on a regular basis. The upshot is that stop-and-frisk bears a startling resemblance to the enforcement of vagrancy laws that the Fourteenth Amendment took aim at. However, by turning a blind eye to the Fourteenth Amendment, the Court has allowed racial profiling to run amok. The Court consistently ignores the role of race, even as it pervades policing.

As we have seen so often, what begins with a stop often ends in brutal police violence. In fact, as the killings of George Floyd, Eric Garner, Philando Castile, and many others show, police stops for trivial offenses can easily end in death for Black people. But the Supreme Court has never recognized that ending state-sponsored racial police violence was a core purpose of the Fourteenth Amendment. Instead, it measures whether police violence is permissible according to a hazy “reasonableness” standard. By blessing police violence if reasonable—without any showing that it is necessary to respond to an imminent threat—the Court has allowed the vicious cycle of racist police violence to repeat.

The Supreme Court has simply refused to take the Fourteenth Amendment’s text and history seriously. It is a basic idea that we can better understand the meaning of the Constitution by looking at the context of its adoption and the abuses it aimed to eliminate. The Supreme Court does this regularly. But, in a vicious form of selective originalism, the Court has ignored that ending police abuse, including police violence, lies at the core of the Fourteenth Amendment. As police officers continue to destroy innocent lives, the Court has concentrated more and more power in the police.

Liberal or conservative, "constructionist" or whatever, Warren or Berger or Rehnquist, they lie about their consideration of the legislative record, they lie about the text as they put their preferences or predilections or prejudices above the very Constitution they claim to exercise their will on behalf of protecting it and the People that that document is supposed to serve.   While the Supreme Court has generally and always been devoted to the protection of surplus wealth of the class to which its members belong or aspire to belong, they have never been exactly careful about protecting the lives of those the power of government routinely kill.  As the author points out, especially if those are members of the underclass or racial and ethnic minorities. 

They can make the same text mean whatever they want it to mean for whatever occasion they want it to mean that for.  Putting themselves, a body of always fewer than 10 without the ability to do what David Gans proved the Congress did in drafting and adopting the 14th amendment, gathering real information about real life that isn't hemmed in by the habits of tidiness that the Supreme Court primly defines reality by.  That is how you can get Supreme Court members unbothered by the probability that a state is about to execute what may well be an innocent person on the basis that they missed an arbitrary court deadline for filing paperwork or a "justice" making jokes about painful methods of execution from the bench without their fellow "justices" so much as censuring them. 

The Roberts Court is in the process of ripping up a century and more of reforms sending us back to the most florid periods of corruption in our history using the ersatz virtues of legal babble to do it with.  They deserve to bring all of the rot that Boudin listed in his massive study of Supreme Court down.

You might want to also consider the letter of Thomas Jefferson to Thomas Richie on December 25, 1820 that the "sappers and miners" phrase comes from:

I ascribe it to the inattention of Congress to it’s duties, to their unwise dissipation & waste of the public contributions. they seemed, some little while ago to be at a loss for objects whereon to throw away the supposed fathomless funds of the treasury. I had feared the result, because I saw among them some of my old fellow laborers, of tried and known principles, yet often in their minorities. I am aware that in one of their most ruinous vagaries the people were themselves betrayed into the same phrensy, with their Representatives. the deficit produced & a heavy tax to supply it will I trust, bring both to their sober senses. but it is not from this branch of government we have most to fear. taxes & short elections will keep them right. the Judiciary of the US. is the subtle corps of sappers & miners constantly working underground to undermine the foundations of our confederated fabric. they are construing our constitution from a coordination of a general and special governments to a general & supreme one alone. this will lay all things at their feet, and they are too well versed in English law to forget the maxim ‘boni judicis est ampliare jurisdictionem.’ we shall see if they are bold enough to maintain the daring stride their 5 lawyers have lately taken.

Hate Mail - I Try To Keep Fairly Current With Serious Play Writing

I WOULD VERY much like to see a production of Marty Chan's play Bone House.   Which seems to make a criticism of the media (cabloid TV, specifically)  sensationalizing of serial murderers that I made in some blog posts about the same time he was writing it.   Of course I'd welcome a radio drama version of it if the author wrote the script and the actors and director were good and followed his intentions.

My question was if they ever asked themselves how many of the sickos watching their "true crime" programs were watching them for encouragement and ideas to put into practice and whether or not anyone involved would care if they knew that there were serial killers in their audience share. 

An audience comes to hear a lecture about serial killers. Self-proclaimed mind hunter, Eugene Crowley, recreates gruesome murders to convince the audience that a serial killer is on the loose. As the lecture progresses, the audiences suspects Crowley might actually be the killer himself. But before they can act, members of the audience are shuffled throughout the lecture hall so that they sit beside strangers. Crowley presents his final proof, an inkblot that the audience must scrutinize for a full minute. The lights are turned off and the negative image of the inkblot forms the face of the killer. However, in the blackout, the true killer makes his presence known and proceeds to eviscerate Crowley, leaving the audience’s imaginations to create the picture to go along with the sounds and sensations in the dark. This play is a psychological experiment about the nature of fear, imagination, and deification of serial killers. 

Update: What can I say?  I like to do a bit of reading and get bored with only reading the same kind of stuff.  What'reya gonnna make of it? .

Blogging Is Quick And Dirty Writing - This Ain't The Old Oxford University Press, De-ah

WHEN I WRITE something as long as these last two posts I do it on a text editor because I need to get rid of the formatting of quotes that I cut and paste to preserve accuracy.   The spell-check for the text editor I use is old-fashioned and clunky and doesn't have a very big vocabulary so it often doesn't catch things.  I am, as announced, fairly indifferent to the standard spelling of the English language so I'm rather shameless.  My misspelling the Powell's first name is due to the fact that I type these things in my spare time - most of the time I spend on this is researching and reading and checking citations - and I don't have that much on Tuesdays. 

I'm not going to lose sleep over misspelling a segregationist-fascist's first name, I'm too busy looking for more important things when I come back and get around to fixing my bigger errors. 

I'd rather get the evidence and reasoning fairly right than get fussed about the mechanics of writing. 

A Few Notes On The First Posting of Louis Boudin's Government By Judiciary

Eighteenth Burmaire, refers to a date by the silly  French Republican calendar, the date of  the supposedly bloodless coup by Napoleon and other military officers taking over the government of France from the rump of (their fellow) revolutionaries as those boobs who were left after the repeated fratricide of those governing under the banner of "Liberté, égalité, fraternité" as the liberty lovin' brothers individually and through their factions, sought to gain unequal power for themselves, imprisoning their political rivals (depriving them of their liberty) and chopping off their heads, lost steam.  The lesson of revolutions is they are as likely to produce a mockery of their announced ideals almost as soon as they are won, it is one of the most unreliable means of changing life for the better that there is.  America's did nothing to cleanse us of our original sins of slavery, subjugation of women, etc.  That said, the rarity of a hero of a revolution such as Washington was here, relinquishing power to a regular order of somewhat democratic succession, is sufficiently rare as to justify at least that act of his even as his many other character defects, slave-owning, genocide, etc. show the wisdom of not allowing the kind of self-granted power that Napoleon got for himself, making him a hero to many though many were put off when he crowned himself emperor.  A point that even the often meat-headed  Byron was smart enough to notice. 

I think it's entirely justified to make a comparison of the Supreme Court's self-granted powers which appear nowhere in the Constitution to the act of Napoleon in making himself a dictator though translated to American English.  The present day Supreme Court, led by a man who started the restoration of American apartheid in his destruction of the Voting Rights Act but who realizes if his fellow Republican-fascists go too-far, too fast people will notice the restoration of enough of of the program of the billionaire-millionaire oligarchs too fast that it will give the game away.  Roberts wants us to acclimate to oligarchy like the frog in the heating pot hoping enough will be lulled into complacency before we boil.   

I find myself hoping that they are so outrageous in their ambitions to destroy equality and self-government that there is a reaction that will once and for all end what Marshall started on February 24th, 1803.   I'm hoping the backlash to the destruction of Roe v. Wade,  the re-imposition of American apartheid and the myriad other evils they are delivering for their patrons and the members of their economic class will end with term limits, lifetime bans on having a financial interest in matters they adjudicate, real and binding and career ending ethics codes and an honest method of choosing members of that court.   I hope it ends in the exposing and discrediting of masses of corrupt Supreme Court and other precedent and of the corrupt conspiracy started by Louis Powell and pushed by the Federalist fascists and Republican-fascists. 

Boudin proves his case in his two-volumes quite convincingly,  I fully believe this is the case

It is our contention that Marshall’s act was not warranted by the Constitution, and that the present exercise of power by the Judiciary is not warranted by the courts' own theory of the Constitution as laid down by Marshall. And the second half of this double-header is in our opinion more important than the first half, important as that undoubtedly is. 

That bad as John Marshall's original usurpation of power for the court (I have no need to be as circumspect in that as Boudin chose to be) was, it became steadily worse in use by future Supreme Courts which went way beyond the theory that Marshall justified that Supreme Court amending of the Constitution with.   I think his argument is obviously true, that the steps taken to increase Supreme Court empowerment as of a century ago has, entirely, gotten out of hand.

The motivation of Louis Powell for laying out his mapping for the "Court Capture" in the 1970s was his hostility to the Civil Rights movement as its demands went from a theoretical "level playing field" to the demand for real equality.    I don't think it would be at all unfair to say that he, like Roberts is a genteel segregationist at heart, though they may tolerate a few Black People of the acceptable type on occasion.   This paper certainly makes a good case that in the years up to what should be a deservedly infamous plan to capture the court for the oligarchs such as himself and Roberts was his hostility to the Civil Rights Movement, though I would go much farther and say that like almost all Supreme Court made law - apart from the few things done in the Warren Court that break that mold - it was a means of establishing actual inequality in real life through the mere language of equality and the lie of judicial impartiality.* 

The lip-service paid to the Brown v Board of Education ruling by the Warren Court is belied by the fact that schools desegregated under it quickly became resegregated by various means, economic inequality being one of the most potent means of reimposing a de facto American apartheid in even public education in most places.  

The fury and rage of the American elite over integration at the most elite of training grounds for the ruling class, such as the case to destroy affirmative action through Harvard, the announcement of which inspired me to start this discussion, shows how they will protect those private bastions of reliable class branding even though they were ready to relinquish the public schools on a lower level, at least theoretically.  That is what Powell's conclusion that 1960 was the high water mark in racial equality means, the racial equality that retained most of American apartheid under the Constitution and which is resurgent under first Rehnquist and now Roberts. 

The present day romantic fantasies about the Supreme Court are entirely anachronistic and largely due to the entirely atypical use of judicial review for a few years in the 1950s to the early 1970s  to do the opposite of what that tool has most  been used for.   It is a reaction against that atypical use of Government by Judiciary which led to Powell's Court Capture scheme because it's obvious that they had no problem with a Supreme Court exercising both legislative and executive-regulatory powers as long as it was on behalf of the elites and the rich and not on behalf of the least among us.   I would not argue that the Warren Court's every decision even with the best of intentions was wise or sustainable.  I think much of what they did played right into the hands of the enemies of equality and, especially, government of, by and for The People.

Class as much as race is behind this, which I am quite certain played the biggest part in Louis Boudin's massive effort to document and expose the corrupt practices of the Supreme Court.   I am certain that he was aware that his association with Marxism was a liability which would be used against his scholarship, knowing that today anything he said would be attacked because of that, one of the reasons that I have not done what I've encouraged for the past several years, reading his book and checking his references and his reasoning.  

That's the thing about argument backed by evidence and logic, the foibles and even the character of the person making the argument can be surpassed by a well and honestly evidenced logical argument.   Of course, today, with our TV-trained, entertainment-internet addled population - perhaps even more those with college-credentials than those without, dishonest use of Boudin's Marxist associations will be used as a weapon by those interested in maintaining government by judiciary because it works so well for the oligarchs today as it almost always worked so well for the slave owners such as John Marshall and a majority of pre-Civil War members of the Court, for the segregationists after and those who use "equal justice under law" to enrich the rich and impoverish the poor.

 

* However, Powell’s critiques of King and the movement in the 1960s are worth revisiting, not least because they provide insight into his ideas about black rights, racial justice, and the appropriate relationship between law and social equality, all ideas that went on to shape some of his most important opinions in the 1970s and 80s. Though remembered as a moderate, Powell displayed little sympathy for the black struggle in the 1960s, concluding instead that Brown’s mandate had been met with the dismantling of overt segregation, and that the quest for racial reform had, by the close of the 1960s, reached its logical conclusion. This view reflected a larger sense on Powell’s part that the Constitution was not a vehicle for reform so much as a framework for pluralism, a guarantor of procedural fairness, and a bulwark against socialism; a doctrine that Powell felt was emerging increasingly, and alarmingly, in the words and writings of Dr. King. While Martin Luther King’s early call for the eradication of overt Jim Crow laws in the South in the 1950s struck Powell as an acceptable, if not completely copacetic, constitutional position; King’s shift from overt segregation to more aggressive demands that the federal government end poverty, abolish racial inequality and provide “compensatory” justice to blacks in the 1960s were not, as Powell saw it, legitimate constitutional matters.11 Social inequality, believed the Virginia native, constituted a basic reality of life in the United States, even contributing to what he termed America’s “pluralistic society,” a society
marked by racial, ethnic, religious, and economic “diversity” – a diversity of experience and achievement that the Constitution was bound not to change but to protect.12

Powell’s faith in diversity and doubts about equality provide particularly relevant insight into one of the single most important questions confronting litigation in the school arena today, namely the continued constitutionality of race in university admissions.13 To Powell, who sanctioned the consideration of color by admissions committees, diversity warranted constitutional protection on its own terms, independent of affirmative action or other “compensatory” schemes, precisely because it was a defining characteristic of American civilization  that distinguished the United States from the Soviet Union.14 Though his negative views of the movement reeked of Confederate mothballs, Powell’s vision of diversity and pluralism as bedrock values that distinguished the United States from Russia provides an intriguing, perhaps even useful frame for assessing the continued relevance of diversity in university admissions today.15 Courts have tended to miss this, presuming instead that diversity constitutes little more than a guise for affirmative action programs aimed at addressing racial discrimination,an argument popularized by Robert Dahl in the 1980s.16 However, Powell’s vision was different. He discounted the need for affirmative action, arguing that African Americans had not suffered any more discrimination than whites and did not deserve special dispensation by the state. However, he conceded that blacks might nevertheless bring a unique perspective to the classroom, as might certain privileged whites, both of whom could have low scores forgiven to achieve. 

Just as Marshall's original usurpation of power, under use by later Supreme Court "justices" became more extreme, Powell's genteel racism and hostility towards equality is changing in both strength and character under the present Roberts Court. "Judicial impartiality" is a potent and treacherously dishonest slogan to cover the very partiality of the elitists of the Supreme Court and you should always look for that whenever it or its equivalent is claimed

The Constitution has ceased to be the measure of the Judicial Power or any check or limit to the Judges exercise of the power to declare legislation unconstitutional. The Judges have in fact become superior not only to the Legislature but to the Constitution itself, since the Constitution is what the judges say it is.

OVER THE PAST FEW YEARS as the Supreme Court was packed with Republican-fascists by the Republican-fascist controlled Senate and Republican, now Republican-fascist presidents and as things were rigged by them to deprive Democratic presidents of their appointments, I've repeatedly advocated a serious curbing of the self-granted powers of that most reactionary roadblock to progress peddled as a sacred protector of exactly what they have had almost as much of a role in killing as the anti-democratically constituted Senate. 

In doing that I have repeatedly advocated people read the paper of 1911 and then the massive two-volume book on the subject by the radical lawyer Louis Boudin.  I have long wished that I had the time and stamina to go through at least it's major arguments for reigning in the imperial court which  has, except for the rarest exception in its history, proven the virtue of elected officials making the actual law that judges and "justices" are supposed to administer.  

It would be a massive undertaking probably taking at least a year and it would probably dominate all of my time and it would definitely tax whatever audience this blog has.  

But with the announcment of the radical Republican-fascist majority on the court getting ready to send us back to Plessey v Furgusson  something has to be done. 

Here is the beginning of the first volume of the book Government By Judiciary, it has some eye-opening things to say as well as a few things that probably need going over, I'll try to keep my commentary to a minimum.  

I will ask you to note several things in mind, 

1. I am doing something I hate to do, using the machine generated text of the book as found at Archive.org, I generally prefer to type it out from a pdf file.  I have attempted to catch all of the "typos" the machine made, machines not being intelligent at all.  I am sure there are some I will miss and I'll, no doubt, introduce new flaws. 

2. Louis Boudin's writing style is academic and old fashioned, though he was not a bad writer at all of the type at that time.  He is always worth the effort of reading him because he was a very good scholar as well as someone who looked at it from the unaccustomed point of view of someone who was a radical egalitarian and, in his early days, a Marxist.  I believe, from what I've read, even before he became somewhat disenchanted with communism as he saw it put to the test of use, he was honest enough to denounce the jackasses around such figures as destroyed the old and somewhat successful Socialist Party crackpots, which most of them are.  

3. Since Boudin uses so many lengthy quotes in his text I will alter my usual practice and only highlight his text so I can put things he quotes in italics.  Any comments by me will  not be highlighted and unitalicized. 

------------------------

By Way of Introduction


IN a sense it may be said that it is the purpose of the present work to prove one statement made by Mr. Justice Oliver Wendell Holmes and to disprove another,—although both of these statements were made after the present work was practically finished and at the time of its commencement the writer had no expectation that Judge Holmes would make either of them.

The earlier of these statements—the one the present writer has endeavored to disprove—was made by Judge Holmes in an official opinion, handed down by him as Associate Justice of the United States Supreme Court in the case of Blodgett v. Holden, (275 U.S. 142), decided November 21st, 1927. It refers to the right of our Judges to declare laws unconstitutional and occurs in the following paragraph. Says Judge Holmes:

“Although research has shown and practice has established the futility of the charge that it was a usurpation when this court undertook to declare an act of Congress unconstitutional, I suppose that we all agree that to do so is the gravest and most delicate duty that this court is called on to perform.”

Such a statement coming 'from such' a source should give pause to any one—and the present writer is- second to none in his admiration for the Grand Old Man of American Jurisprudence. Nevertheless, he ventures to assert that the present work disproves the correctness of this statement as contained in the italicized words; and that the charge referred to by Mr. Justice Holmes, frequently made before and reiterated by the present writer in an essay published by him twenty years ago in the Political Science 'Quarterly (Government by Judiciary, 26 P.S.Q, 238; June, 1911), is fully sustained by the facts and considerations presented in these volumes.

This belief notwithstanding, the term “usurpation” has never been used by the author in this work as his own characterization of the assumption of power involved—for the reason that the use of this term places the emphasis on a wrong aspect of the historical phenomenon under consideration. To the ‘legitimist” the most important question about the Napoleonic regime was the great Corsican's “usurpation.” But to the true historian this is a comparatively minor matter in estimating the character and quality of that regime. Also, the use of that term is misleading, in that it gives an entirely erroneous impression of the meaning of Chief Justice Marshall's act in delivering his famous dictum in Marbury V. Madison, The impression created is that on the American Eighteenth Brumaire, which happened to be February 24th, 1803, John Marshall put the crown on his head by delivering his celebrated opinion, and that thereupon the American Court Empire as we know it was complete. This is history as she is usually written, by official historians as well as “muckraking” radicals. With this difference: According to the official historians the crown was forged in the smithy of the “Framers” and lay more or less hidden in the folds of the Constitution,— like Wotan's sword embedded in the oak, waiting for Siegmund to bring it forth and use it for mighty deeds—so that nothing actually took place on February 24th, 1803, but a legitimate coronation, when the rightful heir assumed the crown rightfully his. While the “muckraking” radicals contend that the act amounted to a usurpation of powers never granted by the Constitution, and the exercise of which by the court is a continuous invasion of the rights of the Legislature.

But nothing is further from the truth. Marshall's decision was far from the dramatic event which it is usually pictured to have been. Nor did it have the implications usually ascribed to it. It is our contention that Marshall’s act was not warranted by the Constitution, and that the present exercise of power by the Judiciary is not warranted by the courts' own theory of the Constitution as laid down by Marshall. And the second half of this double-header is in our opinion more important than the first half, important as that undoubtedly is. Hence the actual plan of this work, which—while giving to the pre-Marbury history of the Judicial Power all the attention it deserves—devotes most of its attention to the development of that power since the decision of that famous case, in an endeavor to prove that there was not one dramatic assumption of power, but rather a continuous and gradual encroachment by the courts upon the legitimate rights of legislature, executive and people. So that what was admittedly intended to be a government consisting of three equal and coordinate departments, with the primacy in the Legislature and the ultimate power in the people themselves, has in course of time, through work which Jefferson had characterized as that of “sappers and miners” steadily working to undermine the Constitution, become what some of the Judges have themselves termed a Judicial Despotism, with all powers lodged in an irresponsible judiciary.

This brings us to the second of Mr. Justice Holmes’ statements. As we have seen, Mr. Justice Holmes believes that the courts rightfully exercise the power of declaring laws unconstitutional. But what is that power?  The official theory as laid down by Marshall in Marbury v. Madison, and as it has been re-affirmed and re-asserted many times since, is that it is a necessary consequence of our system of government, and that its existence depends upon, and its exercise is measured and limited by, that necessity. It is a fundamental point in this theory that the courts have no general supervisory power over legislation, but that when in the course of the regular administration of their own business, the courts are confronted with the dilemma of following either the Constitution or legislative enactment which conflicts with the Constitution, they are of necessity compelled to follow the Constitution rather than the legislative enactment, since the Constitution is superior to both courts and legislature. It is a necessary corollary to this fundamental position, and therefore a canon of  constitutional “interpretation” well-recognized by the official theory, that before a statute can be “disregarded” its conflict with the Constitution must be clear and beyond doubt. In other words, the primary duty of judges is to enforce the law as made by the Legislature, unless they have a clear mandate from the Constitution itself to do the contrary. If this theory, announced by the courts themselves, were observed in practice, the question of the rightfulness of the power, while still important, would not be so pressing a problem to the people of this country as it actually is, for the simple reason that cases where either Congress or state legislatures disregard a clear mandate of the Constitution are so rare—if any have ever occurred at all—that the question would be rather of theoretical interest to philosophically-minded students of our system of government than of practical import to the ordinary citizen.

Unfortunately, the official theory does not at all tally with the facts. The actual practice of the courts is to declare any law unconstitutional of which they strongly disapprove, whatever the reason of such disapproval, and quite irrespective of the actual provisions of the Constitution, which very frequently says nothing at all on the subject. So much so, that to declare laws unconstitutional has become a matter of almost daily routine for the judicial machine, and “unconstitutional” has become a “term of art,” as the lawyers call it, a facon de parler, a manner of speaking, the real meaning of which is: “We, the judges, think this is a bad law.” The Constitution has ceased to be the measure of the Judicial Power or any check or limit to the Judges exercise of the power to declare legislation unconstitutional. The Judges have in fact become superior not only to the Legislature but to the Constitution itself, since the Constitution is what the judges say it is.

The Interview Is Shattering Enough I Can Only Guess What The Book Will Do

BEING GREATLY REDUCED in income due to the Covid epidemic and the devastation it's had on my profession I haven't yet ordered this book but it's one I will get as soon as used copies start appearing on the online small-bookstore sites.   I don't usually talk about a book before I've read it but just as The Gospel In Solentiname filled a huge gap in my understanding of the Scriptures, commentary by Nicraraguan peasants living more as the image of God than any academic theologian do, I'm expecting  Shelter Theology: The Religious Lives of People without Homes By Susan J. Dunlap  will fill in yet more of those big gaps.  

This interview with the person who is credited with producing the book is pretty revealing by itself. It starts with a description of her work and how the book became an expression of that.

Durham, N.C. — Three mornings a week, Susan Dunlap holds a half-hour prayer service for the overnight guests at Urban Ministries of Durham, a shelter for people without homes.

Unlike other shelters, some of which often require attendance at such services, there's no sermon here, no order of worship, no hymnal.

The idea is to allow shelter residents to create a zone of belonging and recognition that is not controlled or scripted by others, she writes in her new book, Shelter Theology: The Religious Lives of People without Homes.

The description of the book in the introduction in terms of "anthropology" almost put me off of it but this doesn't sound like a traditional condescending "study" where the People who are the center of the book are "interpreted" to make them safe for elite, polite, academic digestion.   Like the irreplaceable Jonathan Kozol, the author is obviously aware of why that's especially wrong when it's a white professional doing it. 

RNS: You write that, as a white clergy person, you hesitated for a long time before writing this book. How did you overcome that?

Dunlap: There are risks trying to represent people different from you, particularly if they're very vulnerable. You risk violating them. It can be an act of violence. But it can also be an act of violence not to represent them. I thought to keep hidden what I learned about their insights and theology and lives was also wrong. My teacher, Mark Lewis Taylor, said these representations can be justified if you're actively involved in changing the circumstances that victimize them. The whole time I've been working with them, I've been involved with Durham CAN [Congregations, Associations and Neighborhoods] to build affordable housing. That also justifies telling the stories of vulnerable people on the margins.

You refrain from calling the shelter's guests homeless, for the most part. Is there a new style around that?

It's become accepted to call them unhoused or people without homes. I prefer "people living without homes." It's a people-first language. I prefer saying they don't have homes rather than saying they're unhoused, because a home is a place of safety and nurture, more than just a house.

You talk about the horror of homelessness. Describe what you mean.

One of the things that symbolized that for me was walking down the street and one of my guides who lived at the shelter said, "That's where Black people go for sex. That's where white people go for sex. You see that pile of rocks? That's a good place to hide for drug deals." There's a place under a railroad trestle where there was an old mattress, and he said, "That's where you go to trade sex for drugs." To me, that's horror.

You have to wonder how many of the people talked about in the Gospels lived the first century equivalent of that.  I think the lives of the destitute throughout time must have similar qualities, far more so than the lives of the rich and famous of today.   These People are the ones who are presented as identical to God, in terms of how we treat them by Jesus.   The Lord trading sex for drugs, I think I should meditate on that for a month or a year to see what I learn from it.  I have a beloved member of my extended family who lived a lot like that for several years.   I don't think I know her nearly well enough.

What did you have in mind when you created the prayer service and what did it become?

I had in mind creating a space that was not a place for my agenda, but theirs. They would walk into a quiet room and bring their own prayers to the front and light a candle, and meditative music would play in the background. It would be a place of nurture that affirms their connections to the divine. But they brought their religion with them, which is mostly Southern evangelical Black church. The music evolved from being instrumental to being gospel and organ music and singing. Rather than long spaces of silence, people gave testimony, they gave sermons, they encouraged each other, they praised God using common African American prayers like, "I thank God for waking me up this morning!" The music I felt was calming, they didn't like. One woman told me, "It sounds like a funeral."

It's tempting  to just post the entire interview but I hope I've given enough to make you want to read the rest of it and the book.   I expect it will jar me a lot, maybe even more than I have been by the interview.  I am jarred out of the comfortable idea of morality and religion that is so tempting, calming like the music described.  What good is that to people who are forced to live such dangerous, chaotic lives?   It's enough to make me question even my musical life in a shattering way.  Who is it who needs 18th century counterpoint and who is it who needs music that doesn't sound like a funeral?  Maybe I should have been serving them instead of me.

Rethinking The Noble And Terrible Truth Of Pain As Steps Forward On The Death of Thitch Nhat Hanh

THE ANNOUNCEMENT OF THE DEATH of the great and small, powerfully influential but gentlest of Buddhist Monks, Thitch Nhat Hanh at age 95 was the opposite of unexpected.  He's been living his last years in seclusion in his first monastery in Vietnam after some debilitating strokes had robbed him of his ability to communicate.  A man who had given endless instruction in meditation and morality, written many books in several languages must have found that to be quite a change to mindfully accept.   Considering he was a Buddhist, a monk in a religion that is among the most conscious of all religions about the inevitable end of our lives, he had a long lifetime to prepare for that.  His reputation might be marred by his associations with the Western Buddhism fad in its Silicon Valley-celebrity school, but it is clear from his less publicized work that he wasn't just another jet-set guru.

He and his teaching about the methodology of meditation, particularly walking meditation, had a great effect on me in the years leading up to my adult conversion.  I'd never been able to tolerate sitting meditation for long,  it just never took for me at all.  Adding the movement of walking got me started on something that worked for me far better, though I gave up his "mindfulness" objects of meditation for the sayings of Jesus, the Law and the Prophets which is the largest part of my current near daily practice.  I honor the memory of TNH, for that and for the enormous advance in Buddhism in the "Engaged Buddhism" movement which he is often credited with.  I would expect that he is in heaven, with God though, of course, Buddhism doesn't conceive of those things the way a Christian would.  I'd expect to see him there before some of the more recently canonized Catholics.  A couple of them Popes.

Perhaps it's not entirely a coincidence that his death came in the same week that I've been thinking of writing in profound disagreement with something said by another great figure of religion who has had a huge influence on me, the 4th century Cappadocian Father St. Gregory of Nyssa.  I've been reading and re-reading him this winter and I came back to his long essay On Virginity.  Specifically I'd like to go over this long paragraph from it.

But in writing this sad tragedy what will be a fit beginning? How shall we really bring to view the evils common to life? All men know them by experience, but somehow nature has contrived to blind the actual sufferers so that they willingly ignore their condition. Shall we begin with its choicest sweets? Well then, is not the sum total of all that is hoped for in marriage to get delightful companionship? Grant this obtained; let us sketch a marriage in every way most happy; illustrious birth, competent means, suitable ages, the very flower of the prime of life, deep affection, the very best that each can think of the other , that sweet rivalry of each wishing to surpass the other in loving; in addition, popularity, power, wide reputation, and everything else. But observe that even beneath this array of blessings the fire of an inevitable pain is smouldering. I do not speak of the envy that is always springing up against those of distinguished rank, and the liability to attack which hangs over those who seem prosperous, and that natural hatred of superiors shown by those who do not share equally in the good fortune, which make these seemingly favoured ones pass an anxious time more full of pain than pleasure. I omit that from the picture, and will suppose that envy against them is asleep; although it would not be easy to find a single life in which both these blessings were joined, i.e. happiness above the common, and escape from envy. However, let us, if so it is to be, suppose a married life free from all such trials; and let us see if it is possible for those who live with such an amount of good fortune to enjoy it. Why, what kind of vexation is left, you will ask, when even envy of their happiness does not reach them? I affirm that this very thing, this sweetness that surrounds their lives, is the spark which kindles pain. They are human all the time, things weak and perishing; they have to look upon the tombs of their progenitors; and so pain is inseparably bound up with their existence, if they have the least power of reflection. This continued expectancy of death, realized by no sure tokens, but hanging over them the terrible uncertainty of the future, disturbs their present joy, clouding it over with the fear of what is coming. If only, before experience comes, the results of experience could be learned, or if, when one has entered on this course, it were possible by some other means of conjecture to survey the reality, then what a crowd of deserters would run from marriage into the virgin life; what care and eagerness never to be entangled in that retentive snare, where no one knows for certain how the net galls till they have actually entered it! You would see there, if only you could do it without danger, many contraries uniting; smiles melting into tears, pain mingled with pleasure, death always hanging by expectation over the children that are born, and putting a finger upon each of the sweetest joys. Whenever the husband looks at the beloved face, that moment the fear of separation accompanies the look. If he listens to the sweet voice, the thought comes into his mind that some day he will not hear it. Whenever he is glad with gazing on her beauty, then he shudders most with the presentiment of mourning her loss. When he marks all those charms which to youth are so precious and which the thoughtless seek for, the bright eyes beneath the lids, the arching eyebrows, the cheek with its sweet and dimpling smile, the natural red that blooms upon the lips, the gold-bound hair shining in many-twisted masses on the head, and all that transient grace, then, though he may be little given to reflection, he must have this thought also in his inmost soul that some day all this beauty will melt away and become as nothing, turned after all this show into noisome and unsightly bones, which wear no trace, no memorial, no remnant of that living bloom. Can he live delighted when he thinks of that? Can he trust in these treasures which he holds as if they would be always his? Nay, it is plain that he will stagger as if he were mocked by a dream, and will have his faith in life shaken, and will look upon what he sees as no longer his. You will understand, if you have a comprehensive view of things as they are, that nothing in this life looks that which it is. It shows to us by the illusions of our imagination one thing, instead of something else. Men gaze open-mouthed at it, and it mocks them with hopes; for a while it hides itself beneath this deceitful show; then all of a sudden in the reverses of life it is revealed as something different from that which men's hopes, conceived by its fraud in foolish hearts, had pictured. Will life's sweetness seem worth taking delight in to him who reflects on this? Will he ever be able really to feel it, so as to have joy in the goods he holds? Will he not, disturbed by the constant fear of some reverse, have the use without the enjoyment? I will but mention the portents, dreams, omens, and such-like things which by a foolish habit of thought are taken notice of, and always make men fear the worst. But her time of labour comes upon the young wife; and the occasion is regarded not as the bringing of a child into the world, but as the approach of death; in bearing it is expected that she will die; and, indeed, often this sad presentiment is true, and before they spread the birthday feast, before they taste any of their expected joys, they have to change their rejoicing into lamentation. Still in love's fever, still at the height of their passionate affection, not yet having grasped life's sweetest gifts, as in the vision of a dream, they are suddenly torn away from all they possessed. But what comes next? Domestics, like conquering foes, dismantle the bridal chamber; they deck it for the funeral, but it is death's room now; they make the useless wailings and beatings of the hands. Then there is the memory of former days, curses on those who advised the marriage, recriminations against friends who did not stop it; blame thrown on parents whether they be alive or dead, bitter outbursts against human destiny, arraigning of the whole course of nature, complaints and accusations even against the Divine government; war within the man himself, and fighting with those who would admonish; no repugnance to the most shocking words and acts. In some this state of mind continues, and their reason is more completely swallowed up by grief; and their tragedy has a sadder ending, the victim not enduring to survive the calamity.

Who can argue with any of that?   All of those venues of pain are a result of the choice to get married, to have children, to be constantly anxious for their welfare, to be constantly conscious of not only the possibility but the certainty that sooner or in the end we will lose those we love to death?   And all of the terrible things about loving others in between, the pain, injustice, being victims of intentional wrongs and accidents, seeing those we love suffer the pain of being unloved.  

We open up ourselves to all of those by making relationships and having children - those of us who have children.  I believe that Gregory was speaking from personal experience, someone once speculated that of all the Cappadocians he was the one who had almost certainly been married.   I greatly love and respect most of what Gregory of Nyssa said.

The trouble is, I don't believe his conclusions about that for a minute. 

You don't have to have sex or marry or be the parents of children to suffer from the moral and responsible choice to love them, to care for them, to experience the sorrows that come from that attachment to them AND TO KNOW THAT TO WITHHOLD WHAT MAY BE THE MOST POSITIVE HUMANE  RELATIONSHIP IN THEIR LIVES WOULD BE EVEN CRUELER and entirely selfish. 

I think from the pains of even love that doesn't expect to get much of anything in return is proof that those pains are not only worth the price, they are an irreplaceable part of why we are here, why we are living our lives.  I don't think we'd have been given that pain without there being a reason that our logical and practical calculations can't resolve and that what we are left with cannot become a satisfying statement in an argument for the supposed virtue of not having sex.  

I remember reading about the Buddhist meditation on a list of components of the human body, various organs and tissues, fluids and excrement.  It seemed to me to be designed as an aid to the practice of sexual abstinence by making you think about the body as a rather messy and unattractive object.  Only one of the commentaries warned it was one of the most dangerous forms of Buddhist meditation suitable only for strict monastics because someone doing it risked becoming hostile or, perhaps worse, indifferent to the physical pain and suffering and conditions of other people as well as themselves. 

Like people who change their gender, something I don't understand AND SOMETHING MY INABILITY TO UNDERSTAND IT SHOULD NOT FIGURE IN FOR A SECOND, I would not say that someone who chooses a life of sexual abstinence shouldn't decide that for themself.  But I think that will never be something that is for most people, most people will have sex, most people will at least be open to giving birth to children, hopefully most of them ready to take care of those children they are responsible for.  I don't think that that is in any way a less worthy thing than living a lifetime of virginity, it may be both the more admirable and the more difficult and, so, when well done, best way to heaven.   Of course, doing it badly and selfishly is far worse than if they hadn't done it, but you can say the same thing about some of those who do chastity for bad things.  I don't think the history of the Catholic priesthood after chastity was a requirement shows it's anything like a guarantee of moral superiority. 

Virginity can be as sure a path of evil as sexual selfishness and irresponsibility.   Being responsible and adult about sex and its consequences can be a lot more virtuous than chastity can be.

Virginity is also no safe guarantee of avoiding those pains Gregory of Nyssa enumerated and if you pursue virginity for that, you aren't living a life of virtue.  If it's done the right way it certainly shouldn't be pain free.  Any consecrated virgin who avoids caring for a child so they won't suffer along with the child is a selfish coward. 

"Why aren't you posting audio drama anymore?"

I'VE BEEN TAKING a bit of a break from radio drama, it's true.  It's not because I don't wish I was listening to it it's just other things have gotten in the way.  I am hoping to get back to it, soon.  Maybe I'll post a rerun later.

In related news, there are people who majored in theater who I respect and like quite a lot,  I think Shaun Johnston is a very fine actor and, from everything I've read about him, a very nice and intelligent man.  And he was a theater major.  

And thinking of him, I also think Jonathon Young is a very good actor who, looking him up out of curiosity, also was a theater major.   I remember watching a show they were both in a long while ago and the scenes between them were something I could watch over and over without it becoming tedious. 

Course, they're Canadian, I tend to prefer Canadian actors to Americans or Brits.   I don't think it's only because living where I do I've seen more of their work on TV than most Americans used to. 

While Listening To Boris Epshteyn Lying His Friggin' Head Off On Ari Melber's Show

WHY ISN'T HE DEPORTED BACK TO RUSSIA WHERE HE WAS BORN?  He's an agent of the Putin regime on behalf of Putin's puppet.  

He's yet another fine Georgetown Law School product.   Another shame of Catholic elite education. 

And while we're at it, why hasn't Gavin Mcinnes been deported back to Canada?  He should never be allowed to set foot across the border again.  I'm sorry Canada but he really shouldn't be here.  You've at least got some minimal anti-hate speech law up there, he might be less dangerous there than he is here. 

Well, Here's Another Fine Mess The Women Haters Club Has Got Us Into

THE CATHOLIC CHURCH will be reaping the whirlwind that was sown by the papacies of John Paul II and Benedict XVI for a long time to come.  Both had a reactionary, hierarchy-centered view of the Catholic Church, Benedict XVI infamously hoped for a radically smaller Catholic Church in which those who disagreed with him would leave and leave what I'm sure he saw as "his" Church in what he regraded as a purer form than the large, messy thing he was chosen to lead by his equally reactionary predecessor.   I somehow doubt he sees his present predicament, if he's even been told about it, as the Holy Spirit telling him he was barking up the wrong tree.

Now a professional and independent legal analysis of his time as Cardinal Ratzinger shows that in at least four cases of priestly sexual abuse, he was guilty of serious, likely criminal misconduct. 

The Jan. 20 report was conducted by an independent law firm at the request of the German archdiocese. Its authors identified nearly 500 victims of abuse in the archdiocese over seven decades, and implicated Benedict and two living Catholic cardinals for what it deemed "misconduct" in handling abuse cases.

"In a total of four cases, we came to the conclusion that the then-archbishop, Cardinal Ratzinger, can be accused of misconduct," said one of the reports' authors, Martin Pusch.

At a press conference, investigators said that they believe the actual number of cases of abuse to be far higher than what is included in the report's findings.

"Far too often, despite clear knowledge of acts of abuse, priests continued to be employed in pastoral care," the investigators said.

German Jesuit Fr. Hans Zollner, one of the Vatican's point persons for clergy abuse, told NCR he is sure that abuse survivors again are "devastated" and "angry" to once more hear the church's failures recounted.

The numbers of victims are "shocking and cruel," said Zollner, who added that while it is necessary to produce such reports to account for past failings, many survivors relive their pain each time a new report is published.

"Numbers are always people and behind those numbers are people whose lives have been destroyed. And the clear message is that the church must wake up and take responsibility," said Zollner, who is a member of Pope Francis' clergy abuse commission.

This is the same Cardinal Ratzinger who played a role in the response to the developing scandal when pedophile priestly abuse was coming to the head, when it fully broke open under JPII  in the Boston Archdioceses then led by Bernard Law, who was allowed to flee certain legal action to compel him to provide evidence in the certain to come legal cases he was responsible for, his elevation to an honored position within the Vatican, etc. etc. etc.   He did, I will admit, try to somewhat chart a more responsible course after JPII's death,  JPII was truly the worst Pope of my lifetime which extends back to the time of Pius XII.  But Benedict, for all of his academic brilliance as an academic theologian, was never good at any kind of administrative job I'm aware of.

It is almost certain that the glacial pace of Vatican movement will assure that Benedict XVI will be allowed to die rather than any action farther than this being taken.  He is nearly 95 and, since his use by his fellow reactionaries to attack Francis last year, even more isolated than he had been.   

It is a scandal that he is still allowed to style himself "Pope emeritus," something that survivors said he should be stripped of.  And it is certainly a bad idea for his long-time secretary, the conniving Bishop Georg Ganswein to have control over access to him and what comes from him.   Though at this point removing him is probably not going to be done for what will be considered humane reasons.  Ganswein is reportedly saying that they will take time to go over the 1,000 page report, no doubt he's hoping that his claim to fame will also die before that review is done.  I don't know if his association with Ratzinger goes back that far, I'd very much like to know if it does. 

I love Pope Francis but I'm well and truly fed up with this stuff. 

So there is  another article I read this week, a Woman Religious asking why Women Religious in the Catholic Church are still tolerating the same patriarchy controlling their activities.  It's a good question.  I have enormous faith in the good intentions of Pope Francis and in his judgement but he has what might be an impossible task, to hold together the Catholic Church as it is now, a church with an enormous number of members, MOST OF WHOM ARE NOT WHITE AMERICANS FROM NORTH AMERICA.  

He has to contend with the legacy of reactionaries in the hierarchy appointed by his predecessors, a number of well financed billionaire back schismatic factions who can cause something any Pope hopes won't happen on his watch, a serious schism.  I think that's probably unavoidable because if it's not going to come from the billionaire financed astro-turf "trads" it's going to come from those who actually do the work of the Church such as women religious.  And they have a large number of lay Catholics with them in the same basket. 

If there were some effective means of Roman Catholic Women Religious to mount an independent supporting structure independent of the control of males,  I'd certainly donate to that, just as I donate to the Roman Catholic Women Priests.  I think an independent, entirely Woman managed, Woman determined order of Woman religious would be welcomed by even more People.  Sisters have always been more popular than bishops and, as JFK pointed out, there are more of them (and, as was his point, they tend to vote Democratic even as the bishops tend more Republican).

And a slight ray of light, here's an article about the current state of affairs for LGBTQ Catholics and some of their supporters.   I have to say that Sr. Jeaninne Gramick is a lot more charitable to the man who persecuted her, Joseph Ratzinger, than I'm feeling.  Maybe that's the difference between having lived a life dedicated to the Gospel of Jesus than the kind of life I've led.   I am not capable of that level of forgiveness as of now.

A Long Answer To An Ambitious Objection - Yeah, I Can't Give Up Answering The Hate Mail

 

THAT DARWINISM, the theory of natural selection, is not, as promised, an explanation of how new species arise isn't something I made up, it's something that's obvious if you take a serious look at just the currently known issues involved in the change to a new species would involve UNDER THE TERMS SET BY THE DARWINISTS. 

 The evolution of organismal form consists of a continuing production and ordering of anatomical parts: the resulting arrangement of parts is nonrandom and lineage specific. The organization of morphological order is thus a central feature of organismal evolution, whose explanation requires a theory of morphological organization. Such a theory will have to account for (1) the generation of initial parts; (2) the fixation of such parts in lineage-specific combinations; (3) the modification of parts; (4) the loss of parts; (5) the reappearance of lost parts [atavism]; and (6) the addition of new parts. Eventually, it will have to specify proximate and ultimate causes for each of these events as well.

Only a few of the processes listed above are addressed by the canonical neo-Darwinian theory, which is chiefly concerned with gene frequencies in populations and with the factors responsible for their variation and fixation. Although, at the phenotypic level, it deals with the modification of existing parts, the theory is intended to explain neither the origin of parts, nor morphological organization, nor innovation. In the neo-Darwinian world the motive factor for morphological change is natural selection, which can account for the modification and loss of parts. But selection has no innovative capacity; it eliminates or maintains what exists. The generative and the ordering aspects of morphological evolution are thus absent from evolutionary theory.

Muller, Gerd B. (2003) Homology: The Evolution of Morphological Organization. In Origination of Organismal Form: Beyond the Gene in Development and Evolutionary Biology.

A lot of that listing of what is involved in the change in a line of organisms that would result in the development of a new species from older ones would have been unknown or incomprehensible in the early years of Darwinism, Darwin, himself, would not have suspected some of it.  Some of his closest colleagues, Haeckel would have rejected the orthodox view of genetics that became a foundation of the "canonical neo-Darwinian theory" because the "Modern Synthesis" that was taught as evolutionary dogma before the turn of this century and is still the prevailing concept of evolutionary science today when it, as well, is known to be inadequate.  Haeckel, with the approval of all of the Darwinists I checked, said that Darwin and he agreed on the inheritance of acquired traits in line with Lamarck, something that almost to a person current champions of Darwin claim he didn't believe in, though he, himself, published a theory in line with that.  Darwinist's must be some of the most lax readers of their hero in the history of ideological warfare.

I have been reading and thinking about an article by the evolutionary scientist  David Sloan Wilson that is a good example of how all hell breaks loose when biologists claim a permission for them to break all the rules and extend the results universally.   

After an apt and justifiable criticism of Walrausian 19th and 20th century economics coming up with a superficial and rather stupid attempt to make economics into a science like the then prevailing Newtonian physics was, he wants to substitute the very problematic and far less scientifically founded dogmas of Darwinism in its place.*

But, before you read it, read the quote I started with to consider how it fits in with the claims made below. 

Evolution might have a role to play in filling this theoretical vacuum but, first, it’s important to acknowledge that evolutionary theory is not at all like Newtonian physics. Newton could provide a complete mathematical description for the movement of physical bodies because their properties and interactions are relatively simple. When interactions become more complex, our ability to describe them mathematically breaks down. You can see this dynamic at play in complicated, non-living systems such as the weather, which can be very difficult to predict. But it is even more the case in biological systems or economic systems, which are not only complex but change their properties and interactions over time. No matter how alluring to the 19th-century imagination, the project of devising a ‘physics of social behaviour’ was doomed from the start. But that’s OK; a theory needn’t resemble Newtonian mechanics to be successful.

Indeed, evolutionary theory achieves its generality in a very different way. Evolutionists have a conceptual toolkit that can be applied to the study of any aspect of any organism. This includes asking four questions in parallel, concerning the function, history, physical mechanism, and development of the trait. For example, species that live in the desert are typically sandy-coloured. How do we go about explaining this fact? First they are sandy-coloured to avoid detection by their predators and prey (a functional explanation). Second, the sandy colouration is achieved by various physical mechanisms, depending upon the species — fur in mammals, chitin in insects, feathers in birds (a physical explanation). What is more, the particular mechanism is based in part on the lineage of the species (an historical explanation) and develops during the lifetime of the organism by a variety of pathways (a developmental explanation). Answering these four questions results in a fully rounded understanding of colouration in desert species. All branches of biology are unified by this approach.

Other than the absolutely true statement that:

. . . it’s important to acknowledge that evolutionary theory is not at all like Newtonian physics. Newton could provide a complete mathematical description for the movement of physical bodies because their properties and interactions are relatively simple. When interactions become more complex, our ability to describe them mathematically breaks down. 

none of the rest of it follows anything like rigorous scientific methodology. 

Every statement he makes about the "sandy colouration" of desert dwelling species and its inspecifically claimed reproductive advantage is 100% speculative.  Every single claim made about that as an explanation of how species arise is 100% speculation, none of it is based on actual observation of the species developing, none of it is based in actual counting of examined offspring and the offspring of the next generations resulting in the generation of a new species, something which has never, once been observed, measured and analyzed with scientific methods. 

What he is doing is telling a Just-so story, which every single claim of natural selection boils down to.  And, note, he's telling us, well, yeah, "Social Darwinism" is back but, hey, this time it's a good thing!

I think that, first, the Modern Synthesis that did some careful cutting and measuring to try to fit natural selection to Mendelian genetics (an understanding of which, at the time, now seems somewhat quaint) added new complexities to the massive n-factorial problem that Darwinism is.  The current efforts to come up with an "Extended Synthesis" adds even more and more factors into the equations that measure how big a bite they are attempting to take of a largely unseeable, unmeasurable, and so unanalyzable 3 billion year plus history, which left virtually no significant physical evidence and even less in terms of what that meant in terms of reproductive success AND NOTHING IN TERMS OF FACTORS LIKE BEHAVIOR AND RANDOM CHANCE EVENTS.  

It seems to me the problem for the alleged scientific study of evolution seems to grow ever bigger by what seems to be an increasingly large number of variables with every passing decade.  The problems are ever larger not smaller and even the original problems have never really been addressed honestly by biologists with a vested interest in pretending the ever increasing uncertainty of it is actually resulting in  greater lucidity.

And now people like David Sloan Wilson want to pretend that they can use Darwinism - in their preferred extension of it into uncertainty - in something totally unlike questions of physiology and genetics, something as man-made and artificial as economic structures and behaviors.  

* I could point to the really dangerous and disturbing attempts of the likes of Oliver Wendell Holmes jr. to come up with something like that to govern not only legal theory but the working methods of judges and "justices" in a scientific administration of the law.   His theories gained little traction but if they had things would be a lot grimmer than they even now are. 

Update:  I should add that since the theory of natural selection began in Darwin's reading of the putrid class-based economic theories of Thomas Malthus, the attempt to turn Darwinism into the basis of economic theory seems to risk the original assumptions of Malthus, supporting an even more putrid "enlightenment" scientific articulation of the artificial, late-feudal extension of the British class system ever onward into the future.  Natural selection is often criticized as a tautology of "survival of the survivors" with the assumption that because they survived the survivors were better, but if what I said here was true, its tautological character is even more than just a danger to logical coherence but to any kind of decent life.  The popular literature of Darwinism and its extension into fiction bears that out nearly uniformly.

McCoy Tyner And The Latin All Stars - Afro Blue

 

Direct link to video

    McCoy Tyner - piano
    Gary Bartz - saxophones
    Claudio Roditi - trumpet, flugelhorn
    Steve Turre - trombone
    Dave Valentin - flute
    Avery Sharpe - bass
    Ignacio Berroa - drums
    Johnny Almendra - timbales
    Giovanni Hidalgo - congas & percussion

"which I think is the Right of every free-born Subject to make, when the Matters so published can be supported with Truth" - Two Issues

AS I RECALL THE CASE of Peter Zenger the issue successfully argued with the jury was that THE TRUTH was an absolute defense against a corrupt accusation of libel.  His landmark defense in the case that his lawyers made TO THE JURY, NOT TO THE CHIEF "justice" who was an appointed puppet was absolutely in line with what I said. 

I mean in putting Mr. Attorney [the prosecutor] upon proving, that my Client printed and published those Papers mentioned in the Information; yet I cannot think it proper for me (without doing Violence to my own Principles) to deny the Publication of a Complaint, which I think is the Right of every free-born Subject to make, when the Matters so published can be supported with Truth; and therefore I'll save Mr. Attorney the Trouble of examining his Witnesses to that Point; and I do (for my Client) confess, that he both printed and published the two News Papers set forth in the Information, and I hope in so doing he has committed no Crime.

That was what ANDREW not Alexander Hamilton, by the way,  argued, the reason that the trial was a huge step forward for the principle that publishing the TRUTH is a right that must be protected.  Publishing a lie was never something he or his lawyer supported.  So bringing him up in this supports my point the lies should be punished AND THAT THERE IS NO RATIONAL OR MORAL CASE TO BE MADE FOR PROTECTING LYING AS A RIGHT. 

The novel idea that was introduced by the Supreme Court in 1964 was that there was a right to lie that turned the vague, hastily written, ill considered First Amendment language into something it hadn't been, a permission for the mass media to lie with impunity about public officials, about many private citizens, it had always been allowed to lie about entire groups of People, members of races and nationalities, of members of religion in ways that fomented violence, murder and oppression.  Until the blockbuster, bombshell issuing addicts of the Warren Court did that it was possible for a politician who was lied about to sue.  The results of that have been the downward descent of our politics into the sub-gutter level they're at now. 

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Though I haven't read nearly enough about the frequently vilified and notorious Alien and Sedition acts signed into law by John Adams, they were clearly a freakout by the Federalists over the Reign of Terror in France FOR WHICH A NUMBER OF AMERICANS, FOREMOST AMONG THEM THOMAS JEFFERSON, WERE WILDLY ENTHUSIASTIC.   

The extent to which the friggin' founders were all beginners at this self-governance by representatives stuff should never be forgotten.  The concepts of "democracy" such as they conceived of it were untried on the scales they proposed.  At the time of John Adams' presidency the foremost example of that other than the fledgling United States was Revolutionary France and things there went to fucking hell in a way that I'm sure they could well imagine happening in the United States.  

That Jefferson, himself had enthusiastically waxed over the "tree of liberty" requiring a steady diet of "the blood of patriots" I have no doubt that John Adams was aware of.  I'm sure the first and only one-term president for the first four decades of the country - all the two-termers being slave holders - wondered if his good friend Jefferson would figure his blood and that of his party were a small price to pay for what France got through its revolution.   If he wanted any example of that among "friends" and comrades, he would certainly have gotten it in reports from the United States Embassy to the French Republic.  He was Vice President as that other numbskull hero of Revolution, Thomas Paine, then a member of the French Revolutionary Government was begging for Washington to save his ass from his fellow revolutionaries there.  I'm sure he was not unaware of the situation.

We should face the fact that Jefferson was way too enthusiastic for the sacrifice in blood from other veins.  He, never a soldier, never found a cause for which he ever seemed to think worth putting his own in danger.   Here's the passage from his 1787 letter letter to William Stephens Smith, the son-in-law of John Adams, in which he issued those stupidly stirring words.

I do not know whether it is to yourself or Mr. Adams I am to give my thanks for the copy of the new constitution. I beg leave through you to place them where due. It will be yet three weeks before I shall receive them from America. There are very good articles in it: and very bad. I do not know which preponderate. What we have lately read in the history of Holland, in the chapter on the Stadtholder, would have sufficed to set me against a Chief magistrate eligible for a long duration, if I had ever been disposed towards one: and what we have always read of the elections of Polish kings should have forever excluded the idea of one continuable for life. Wonderful is the effect of impudent and persevering lying. The British ministry have so long hired their gazetteers to repeat and model into every form lies about our being in anarchy, that the world has at length believed them, the English nation has believed them, the ministers themselves have come to believe them, and what is more wonderful, we have believed them ourselves. Yet where does this anarchy exist? Where did it ever exist, except in the single instance of Massachusets? And can history produce an instance of a rebellion so honourably conducted? I say nothing of it’s motives. They were founded in ignorance, not wickedness. God forbid we should ever be 20. years without such a rebellion.1 The people can not be all, and always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13. states independant 11. years. There has been one rebellion. That comes to one rebellion in a century and a half for each state. What country before ever existed a century and half without a rebellion? And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure. Our Convention has been too much impressed by the insurrection of Massachusets: and in the spur of the moment they are setting up a kite to keep the hen yard in order. I hope in god this article will be rectified before the new constitution is accepted. 

He was a slave holder who never wanted liberty for his human chattles, a fucking drunk and a crackpot as much as he was ever an inspired genius.  

No doubt the later attempt of Adams in the Alien and Sedition acts to prevent something like the Reign of Terror from being successfully exported to the United States was ham-handed but he, like all of the founders were total beginners trying to do things that no one had done before.   

As it turned out the bloodshed that Jefferson was so blood thirsty for was repeatedly performed, mostly on the bodies of Black People, of Native Americans, etc. and then in the horrors of the American Civil War, THE RE-IMPOSITION OF DE FACTO SLAVERY in the end of Reconstruction and the Jim Crow period the great Civil Rights struggles of the post-war period and, now, again as we face massively armed Republican-fascists who want to impose one-party, anti-egalitarian dictatorship under a Hollywood pagan strong man or a Ron Desantis.   The fertilizer recommended by Jefferson, as much as anything fed a "liberty" tree that meant liberty for the Jeffersons and other slave-holders and de facto slave holders at the expense of the freedom and equality of those whose blood was shed.

That's what we face when we take a hard and serious look at our national mythology, lots and lots of the ideas of those 18th century amateurs don't work.  Lots of them work as intended and the results are not anything like any decent person would want today.  I wouldn't copy any of them or uphold any of them without an extensive and honest criticism BASED ON OUR EXPERIENCE GAINED IN THE LAST TWO AND A QUARTER CENTURIES.  Something that none of them could have known or observed or guessed at.

You Can Always Count On Getting Angry Feedback When You Diss Sports - Maybe I Should Regularly Critique The Commercial Secular Religion In America

THE JOCK ANTI-VAXXERS in the news have left me with the biggest case of the "well, yeah" I've ever had.    I seldom remember the name of a Jock unless they're in the news much, generally for bad reasons,  so the ones I'm hearing about are fairly new to me.  I'd never heard of Aaron Rogers before last fall, I'd never heard of Novak Djokovic or Kyrie Irving till more recently. 

Why is it any kind of a shock that jocks, even those reputed to be smarter than the average athlete turn out to be not that bright?   I doubt that the ones I knew in my youth were atypical of the type, NONE OF WHOM WERE THE BRIGHTEST though some were not naturally stupid.  Their stupidity was cultivated.

Athletics is like ballet dancing, it is an intrinsically anti-intellectual pursuit.  It is something in which intelligence is an asset but it's intelligence about a very limited aspect of human action, the ability to perfect a skill and perform it as needed to get a result.   Time spent doing that is not time spent reading or thinking or writing to try to clarify your thoughts.  Music can be a lot like that, the time it takes to learn the skills of playing an instrument or singing can be time you don't spend on doing something else.  I regret many of the hours I spent on technique as something I could have spent on something I now value more.  

LOTS of highly skilled musicians are about as dumb as jocks and you can regularly hear some of them being that stupid, especially pop musicians and, especially, greedy rock stars.  Your movie actors, success in movie acting being a function of sexual attraction more than talent or ability, are probably an even better example in the, um, arts.  Especially those who had early movie success, got rich and then, their sexual allure being the sum total of their, um, "talent," they are left with little to do except blame "Hollywood liberals" for why the offers stopped coming. 

Though there are actors, directors and even people who work in opera who are real intellectuals and even some who go farther than that and actually think critically and clearly.   I would say that those are seldom working at the biggest venues with the biggest budgets.  In the arts small is a better bet on having something worth saying or hearing.  Musicals are probably the catch all of stupid combining so much of the worst of all of those worlds.  The history of massive and expensive flops, losing star struck millionaires millions of their disposable cash proves that the stupid and musicals being in the same place is a sure bet.  Mel Brooks got that right.

And, I have never observed stupidity being presented as a positive aspect in any of the arts.  Well, apart from the ballet.  Modern dance more encourages thought.

That is to say,  unlike the world of athletics and sports, music doesn't positively encourage anti-intellectualism and stupidity as the culture of sports do.   For many jocks being stupid is expected and more than just fulfilled, it is endorsed and encouraged.  Intellectualism is shunned and despised, coaches certainly don't in large numbers want their athletes thinking for themselves, Colin Kaepernick thought for himself and look what it got him.

It is one of the side-effects of the sexual attractiveness of people who spend too much of their time on their bodies is so often associated with stupidity, though that might have as much to do with hopes of leering lechers luring them into their schemes as anything else.  As we are also finding, a lot of sports coaches are those leering lechers such as Denny Hastert and that Penn State football pedophile or, as in the case of Jim Jordan, self-interested observers of that.  I strongly suspect that there is far more sexual abuse in sports at all levels, including youth sports, than in all of the clerical pedophiles.  Though you will never see a Spotlight style investigation of that because, unlike religion, sports are sacrosanct in America's secular piety.

On Laws Punishing Lies To Protect Egalitarian Government Of, By and FOR The People

I HAVE NEVER yet favored making it a crime to tell lies in the mass media I have favored making it possible for the kinds of people the media lies so flagrantly about to sue the likes of FOX, the New York Post, the New York Times, and all of the rest of the gutter press that lies about private citizens, public people and, yes, politicians with enough consequences for the individuals in the media and their parent companies to stop lying.   I favor that those trials be a more equal match in court, the super-rich and corporations not able to swamp their often powerless and poor victims with their stable of high-price lawyer-liars in front of judges who are too frequently all-in on that racket.

I do favor broadcast and cabloid and, now, internet media being shut down as a consequence of them lying seriously or flagrantly.  I do not for a second believe the First Amendment  myth that companies and corporations have rights, which inhere only to living beings, but privileges and there is nothing wrong with removing an abused privilege and one that endangers democracy should bring with it the ultimate sanction of corporate death. 

I have never favored the ability of the rich and connected to bring frivolous lawsuits,  THAT IS SOMETHING I DO THINK SHOULD BE A CRIME, to use the legal system and the courts that way, and it should have ruinous financial consequences that would not only prevent them from being tempted to try it but which would make certain they didn't have the means to do it.  I favor it being made a serious consequence for lawyers who file frivolous lawsuits of any kind on behalf of their clients.  I'd say "on behalf of their RICH clients" because I doubt lawyers on the make do such things on behalf of the destitute a number of times worth making law over. 

That said, we can only favor laws we can imagine and imagine consequences for and the never ending industry in lawyer-liars, those in prestigious law school faculties theorizing on behalf of the rich and powerful,  those who become judges and, especially, "justices" on supreme courts, looking for every way to corrupt the written laws and constitutions, and it is never safe to assume you can imagine all of what those lawyer-liars will cook up.

I can well imagine that things could get so bad that there are circumstances under which I can imagine limited and seriously watched over forms of criminally administered seditious libel laws for the protection of egalitarian democracy, self-government by an unlied to population encouraged to be of good will.  Our media lies and encourages cynical, selfish bad will.  Good will is routinely mocked and derided and driven out of power in the United States, comedians have had a huge hand in that, so has entertainment media.  Cynicism is a cheap substitute for creativity, it is an even cheaper substitute for humor.

If the choice is between the possibility of continued egalitarian democracy, self-government by a people of good will and whatever dangers that protecting that from lies intended to destroy that, I will go with taking the chance of protecting it against the attempts to destroy it we are seeing conducted by billionaire gangsters who despise equality and democracy and who have nothing like good will.   The tiny handful of billionaires of good will, if even that many, are probably more likely to screw things up royally like George Soros seems to have done.  I can see no evidence that his efforts to improve things have been anything but a serious miscalculation.  Look at his boy in his home country if you want all the evidence you can need that even as smart a billionaire as he can show so little understanding of what is needed.  Bill Gates may be another example but he was a little too close to Epstein, his ex-wife would seem to have better instincts in that regard.  

The rest of the billionaires, I would doubt you could find one who was even as good in effect as those two.  Most of them are thick as thieves with the Republican-fascists and such mobsters as run Russia and China these days.  I favor the leveling of billionaires and millionaires to the extent they cannot corrupt government as they do through the mass media.  I am a leveler, bringing down the billionaires and bringing up the least among us.  At the cost of the billionaires, not those closest to the destitute.

Old Gay Man Rant

I WILL NEVER GIVE UP MY absolute right to call Lindsay Graham, Chuck Gassley and Kevin McCarthy "sluts" or the New York Times The Great Gray Slut.  

You don't like it, I don't care.