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logomachy--1. A dispute
about words. 2. A dispute carried on in words only; a battle of words.
logomachon--1. One who argues about words.
2. A word warrior.
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2005-06-22
A Constitution for People Who Don’t Read
A couple of weeks ago, my brother, Vincent, visited his East Coast relatives from North Dakota, and we took my son, Colin, down to the National Constitution Center.
The center is in Old Town Philadelphia, just off Independence Mall, where Independence was Declared and the Constitution itself was drafted. The center’s architecture does not blend with the modest Georgian structures like the neighboring Independence Hall. It is post-techno governmental monumentalism, the successor to the New Deal’s neo-classical Fascistic governmental monumentalism. The vast, empty atrium takes up most of the first floor. Other than some flags suspended from the ceiling, there is nothing even remotely decorative except the second-floor balconies and a wide stairway. Perhaps it would have been impressive with some decoration—some marble and gilt. But unfinished concrete is simply vast and empty.
The show—or lesson—actually begins in a toroidal waiting hallway, where ticket holders listen in on imagined street conversations circa 1787 as various stereotypical citizens expound on the issues facing the delegates. At the appointed time, visitors are required to climb the bleachers of a techie amphitheatre that makes most high school gyms seem homey, where they are prepared spiritually and emotionally for the exhibit by a booming half-hour long sound and light show narrated by a booming live actor. Thence up the steps into the exhibit hall.
The metered admission ensures that the one-room exhibit hall is not overcrowded. No one came around to shoo us out before the next show, but I doubt that would ever be necessary. The extent and depth of material are nicely calculated to ensure that museum fatigue clears the floor in a timely manner. As I went through the exhibit, I was reminded of a grad school professor’s observation (he was on the staff of the Hagley Museum and Library), that museums are the only places where we expect people to read and learn on their feet. Adding to the museum fatigue is the incessant cacophony of talking exhibits, bangs, and repeated music tags. Colin took his place at a lectern so that through the miracle of electronic dissimulation he was merged into a video and became the “President” being sworn in by the Chief Justice. Colin was unimpressed by the solemnity of the oath of office. To the amusement of onlookers, he rubbed the Chief Justice’s bald head and pulled his nose. We got him away while the crowd was still amused.
My brother’s comment applied equally to the intellectual level of the exhibit and the media, “This is intended to teach the Constitution to people who don’t read anything”.
Indeed. If all you knew of U.S. Constitutional history and theory was what you learned at the center, you would have not just a forgivably superficial and conventional understanding, but a distorted one. As the exhibit describes the legislative process, Congress passes a bill, the President signs it, and the Supreme Court does or does not allow it to become law. The center accepts that the Federal judiciary is a sort of super-legislature charged with the care and keeping—and the expansion—of the Constitution. (My brother jokingly asked one of the docents where they kept the “living Constitution”. She either didn’t recognize the phrase or didn’t realize it could be used jokingly.) At the center, you learn only by implication, if at all, that all three branches are responsible for defending the Constitution, and that the Legislature and Executive exercise Constitutional checks on and balances to the Court, such as the President’s appointment power and Congress’ power to limit the Court’s appellate jurisdiction (Art. III, 2, 1). The latter has been little used, so the center’s historical case approach skims over it.
The focus on the Constitution’s history as written in the headlines also leaves untouched its sources. There is no mention of the Founders’ deep study of the classical democracies, and how they drew from Athens and Rome the lesson of the dangers and weaknesses of an overweening legislature that also exercises executive and judicial authority. What one takes away from the exhibit is that they were reacting only to the experienced deficiencies of the Articles of Confederation.
Curiously, the approach of telling the Constitution’s story as one of Constitutional problems and judicial responses makes no mention of the greatest problem with U.S. Constitutional jurisprudence. Supreme Court Justice Antonin Scalia has spoken extensively [PDF file] on the fact that we have a Constitutional legal system being adjudicated within a common law judicial tradition. Other countries with constitutional governments have separate constitutional courts, and more to the point, special training centers for the constitutional judges. A constitution should be applied, with the assumption that it means what it says. As Bill Buckley has put it, “when the Constitution says ‘Congress shall make no law’, it means that Congress shall make no law”, not that nobody shall make any law.
Common law judges, on the other hand, make law. They concoct and apply non-constitutional principles such as the “reasonable man” standard, the “exclusionary rule”, and the Incorporation Doctrine. Harry Blackmun may have invented a Constitutional right to unrestricted abortion in Roe, but he did not make up the “emanations which form penumbras” wherein he claimed to find the right. “Emanations” and “penumbras” are terms of art from Cicero, who used them in describing how (common law) judges must always seek to extend precedents, stretching the coverage of the law a bit here one day, and a bit there the next day. That was M. Tullius Cicero, the great orator, barrister, and senator of the Roman Republic, which the Founders regarded as a cautionary example rather than a model.
Thus, the only context is the conventional wisdom of today’s liberals. In some cases, though, the bald description of the Court’s decisions will lead the alert reader to a heterodox conclusion. One interactive exhibit steps you through a decision ( Katz v. United States (1967)) that found a police listening device near a public phone had violated a bookie’s Fourth Amendment right to be “secure” in his “person” “against unreasonable searches and seizures”. The exhibit commentary acknowledges that the decision “extended” previous applications of the amendment. Balance would have required including a dissent or commentary pointing out that the decision is based on a facile distortion of the way person is used in the amendment, but the blatant absurdity is there for all to see.
The National Constitution Center is not a complete loss. The center’s Web site is varied and rich in reference resources, if not exactly the virtual National Original Constitution Center one might wish for. But the physical building is a exercise in glitzy miseducation. Justice Scalia has lamented that the Supreme Court and the Federal judiciary are “day by day, case by case, busy designing a Constitution for a country I don’t recognize”. You can see that “Constitution” at the National Constitution Center.
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2005-06-14
Swallowing the "Deep Throat" Line
By coincidence, the week that all the press world was in a tizzy of self-congratulation at the revelation that FBI man Mark Felt was “Deep Throat”, I picked up John Buchan’s John McNabb from a pile of second-hand books.
The argument of John McNabb is simple, as is its relevance to the mystery of Deep Throat. Three forty-something Englishmen, with good war records, at the tops of their professions (law, politics, and banking) find they suffer from the same complaint: life has lost its savor. Seeking to create artificially the zest they have lost, they retire to a friend’s Highland lodge and, using the name John McNabb, send the same letter to three of the great landowners of the neighborhood. Each proprietor is told that over a short span of days, “McNabb” proposes to poach a deer or salmon from his property, defying whatever defensive measures the proprietor might take. The poached game will be returned, and McNabb bets £100 against £50 on his success, the stakes to go to charity. Each of the three patient-adventurers in turn makes his attempt, but not before the story becomes the sensation of the journalistic “silly season”, and each, in the course of gathering allies, has to introduce himself as “John McNabb”.
So Mark Felt says “I am ‘Deep Throat’”. As Ann Coulter remembers, "The fictional Deep Throat knew things Felt could not possibly have known, such as the 18 1/2-minute gap on one of the White House tapes. Only six people knew about the gap when Woodward reported it. All of them worked at the White House. Felt not only didn't work at the White House, but when the story broke, he also didn't even work at the FBI anymore. Beyond that, Deep Throat was a smoker and heavy drinker, unlike the abstemious Felt, and the stories W&B told about how they signaled Deep Throat and how they picked the nickname turn out to be impossible. No, the shadowy figure who made his first appearance in a late draft of All The President's Men was a composite of several sources—among them, apparently, Mark Felt. But in telling the glorious story of "How The Washington Post Saved America," it was more thrilling to portray Deep Throat as a single mysterious individual, spilling his guts to Bob Woodward. Obviously, as with the doubly fictional John McNabb, more than one person can say with all honesty, “I am Deep Throat”.
That “Deep Throat” is fictional is easy to believe. But the fiction may have gone deeper. Years ago, I think it was an article in Esquire, the point was made about the way Woodward and Bernstein used Deep Throat. Whenever they had only one source for an assertion, Woodward would check with Deep Throat, and son-of-a-gun, good ole Deep would confirm it.
It may be that several people were Deep Throat, and sometimes “Deep Throat” wasn’t anybody.
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2005-06-02
O tempora, O mores department
A Web-based casino that likes to bid on weird stuff—like paying parents to name their baby after the company—was the (in retrospect, predictable) winner of a Langhorne woman's online auction to sell ad space on her newborn.
So for the month of July, Michele Hutchison will clothe her second child, Devon ... in logoed baby togs provided by GoldenPalace.com.
Hutchison said ... folks at the Caribbean-based gambling Web site promised they would clad her babe in nothing but the most stylish of onesies and other stuff as the family travels . . . in July. (“Newborn to be a casino billboard”, Phila. Inquirer) To the Editor:
There I was, ateing my breakfast and wenting through the paper, when what done I beheld but a story about a woman solding advertising rights on her baby’s clothes. My toast started to caught in my throat, but what made my gorge risen was sawing that the casino had “promised they would clad her babe in nothing but the most stylish” outfits. I can't bore to saw someone trodding roughshod on the English language without spoking up: No, no! That should was would clathed her babe. Clad was the past tense indicative. What you want in this case was would clathed, which was the passive periphrastic pluperfect subjunctive.
Sincerely,
Concerned Citizen
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