SUMMARY: Gore Vidal was in many ways the dean of American letters. More to the point, at least for many of us who happen to be queer, Gore (and yes, I remember him by his given name) was our first introduction to the idea that it was possible to construct a viable, culturally subversive, culturally critical, gay literature. He helped many of us learn to think critically about what it means to be cultural dissidents in a society that is only now coming to appreciate the beauty of Otherness.
By: Paul S. Marchand
Gore Vidal died yesterday.
I shall miss him terribly.
Gore (and I don’t apologize for using his given name; something about him seemed to call it forth) was one of those cultural dissidents who demanded a great deal of his readers. At the same time, he was one of those pioneers of queer literature whose writing forced us to ask serious, critical questions about the place of Others in society.
My first encounter with Gore’s writing was — as I expect it was with many queerfolk of my generation— his novel The City and the Pillar. While its story line takes place in a pre-Stonewall America in which the open expression of sexual Otherness was interdicted by state and church alike, it reminded young queerfolk that we were not alone. Reading The City and the Pillar as a teenager awakened me to the reality that there were others like me, and that we were not only queer, but also that we had been here for a long, long, time.
Reading his other works also awakened my mind to the importance of asking sharp, probing questions about the cultural assumptions that underlie so much of our society. For if Socrates was right that the unexamined life is not worth living, Gore Vidal insisted that we examine not only our own lives, but also the societies in which our lives are lived.
Of all Gore’s works, the one I most enjoyed was Creation, perhaps the least over-the-top of his novels, but perhaps the most intellectually provocative. Set in the 6th and 5th Centuries BC, the conceit of the novel is the exploration of various ideas of creation itself, expressed in the travels of the novel’s protagonist, Cyrus Spitama, a putative grandson of Zoroaster. Not only was Creation a tour de force of historical storytelling, but it also invited the reader to undertake a critical reappraisal of the accepted narrative of the Persian Wars as recounted by Herodotus.
Indeed, I might never have taken up a serious reading of Herodotus had I not been nudged there by Gore Vidal’s iconoclastic, revisionist, take on the conflict between Greece and Persia that in so many ways has shaped our own Greek-Roman civilization. A score of years after I last reread Creation, I remain grateful to Gore for inspiring me to visit the sources for myself, to learn on my own a history that finds so many parallels in our own time.
Gore Vidal inspired me to think; he inspired me to inquire; he left me unembarrassed to be an out, loud, proud gay man.
As I once similarly appreciated the late Sir John Gielgud, I appreciate the late Gore Vidal.
I shall miss him.
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Paul S. Marchand is an attorney who lives and works in Cathedral City. The views expressed herein are entirely his own.
Wednesday, August 1, 2012
Friday, July 20, 2012
AFTER THE LATEST MASS SHOOTINGS: TIME AGAIN TO TAKE A DEEP BREATH
Summary: Another mass shooting has shocked the nation, with yet another unhinged twentysomething young man bringing a virtual arsenal with him walks into a public venue, kills 12 and injures 38. Notwithstanding the temptation to want to create a narrative that will advance particular political or social agenda, now is not the time for the chattering classes to be throwing bombs. We need to take time out, ascertain what we think, what we know, and what we can prove. We need to be respectful of the suffering that has been inflicted, and avoid divisive rhetoric that only sharpens the wounds and aggravates the already fraught nature of our national conversation.
By: Paul S. Marchand
Oh God, not again.
America reels from another mass shooting, as yet another unhinged twentysomething young man carrying a virtual arsenal walks into a public venue and starts firing. This time, the carnage took place in a movie theater in Aurora, Colorado, and, at most recent report, twelve are dead and nearly twoscore have been injured.
These kinds of horrors seem to be like the refrain of a folk song that never tires of repeating itself.
Of course, we all want to know who has done this and why.
The shooter, like Jared Loughner, the gunman in the Gabrielle Giffords case, is in custody. We will not know his motives for some time.
Nonetheless, as I observed a year and a half ago at the time Congresswoman Giffords was gravely wounded and United States Chief District Judge John Roll was killed, the temptation to want to point fingers and assign blame will be well nigh overwhelming. We may expect, as we did after the events in Tucson, that the chattering classes on both sides of the political divide will take this opportunity to lob verbal broadsides at one another in the hope of advancing particular partisan, political, or other agenda.
Once again, however, we need to step back, to be moved --- if not by the better angels of our nature --- at least by some sense of social responsibility to put immediate, emotional reactions aside and seek truth from facts.
Once again, we need to ask basic questions: what do we know? What do we think? What can we prove?
As after the Tucson shootings, we know the butcher’s bill; a dozen are dead and 38 have been wounded. We know that the shooter’s mother is from San Diego, and that she right now is undergoing a kind of suffering that few can understand, let alone empathize with.
We know also that for survivors and family members of the dead and the injured, their lives will never again be the same; we may perhaps be excused for empathizing more with them at this moment then with the shooter’s mother, even though we should never forget that the Marian suffering of the mother of the perpetrator of so vast a crime is in many ways even more profound because aggravated by the circumstances of the criminal behavior of the offspring.
Our thinking about what has transpired is more problematic. As happened after the events in Tucson, the events in Aurora have become grist for the mill of just about every commentator with an agendum to push, an ax to grind, or a bomb to throw. Nonetheless, we may dare to hope that even in so divisive a time as a presidential election year, cooler, adult heads among us will realize the importance of taking time to engage in calm, careful, considerate reflection.
By: Paul S. Marchand
Oh God, not again.
America reels from another mass shooting, as yet another unhinged twentysomething young man carrying a virtual arsenal walks into a public venue and starts firing. This time, the carnage took place in a movie theater in Aurora, Colorado, and, at most recent report, twelve are dead and nearly twoscore have been injured.
These kinds of horrors seem to be like the refrain of a folk song that never tires of repeating itself.
Of course, we all want to know who has done this and why.
The shooter, like Jared Loughner, the gunman in the Gabrielle Giffords case, is in custody. We will not know his motives for some time.
Nonetheless, as I observed a year and a half ago at the time Congresswoman Giffords was gravely wounded and United States Chief District Judge John Roll was killed, the temptation to want to point fingers and assign blame will be well nigh overwhelming. We may expect, as we did after the events in Tucson, that the chattering classes on both sides of the political divide will take this opportunity to lob verbal broadsides at one another in the hope of advancing particular partisan, political, or other agenda.
Once again, however, we need to step back, to be moved --- if not by the better angels of our nature --- at least by some sense of social responsibility to put immediate, emotional reactions aside and seek truth from facts.
Once again, we need to ask basic questions: what do we know? What do we think? What can we prove?
As after the Tucson shootings, we know the butcher’s bill; a dozen are dead and 38 have been wounded. We know that the shooter’s mother is from San Diego, and that she right now is undergoing a kind of suffering that few can understand, let alone empathize with.
We know also that for survivors and family members of the dead and the injured, their lives will never again be the same; we may perhaps be excused for empathizing more with them at this moment then with the shooter’s mother, even though we should never forget that the Marian suffering of the mother of the perpetrator of so vast a crime is in many ways even more profound because aggravated by the circumstances of the criminal behavior of the offspring.
Our thinking about what has transpired is more problematic. As happened after the events in Tucson, the events in Aurora have become grist for the mill of just about every commentator with an agendum to push, an ax to grind, or a bomb to throw. Nonetheless, we may dare to hope that even in so divisive a time as a presidential election year, cooler, adult heads among us will realize the importance of taking time to engage in calm, careful, considerate reflection.
This is no time for radio and TV talkers to fan the flames of an already fraught national conversation.
Of course, events may well move so quickly as to overtake this, or any, commentary upon what has happened. Our knowledge is necessarily incomplete, and drawing conclusions on the basis of incomplete knowledge is always problematic. As I wrote following the Tucson events:
“[T]he first and greatest challenge is to take a metaphorical deep breath, to wait before rushing in with theories, allegations, or accusations. As Donald Rumsfeld might have put it, we have very few known knowns at this point. There are far more known unknowns, such as the true motivations of the shooter, or whether he had assistance, or whether there were in fact others involved.”
As the situation develops further, we will have more information about the shooter, his motives, the existence of accomplices, and whether --- as appears likely, the incident was the horrifying result of an imbalance of the mind of a lone actor. As was the case in Tucson, the evidence at this early stage is too thin to draw any significant conclusions, notwithstanding our felt need to do so.
Once again, we know very little, we think -- perhaps -- too much, and we don’t know at this moment what, if anything, can be proven.
Nevertheless, it may be safe to draw a very preliminary conclusion that the shootings were not necessarily political; a conclusion we could not safely draw when Congressman Giffords and Chief Judge Roll were gunned down.
So today, let our thoughts and prayers be with those nearly twoscore souls who were injured for their recovery, as well for the repose of the souls of the dozen victims whose lives were so tragically cut short. Tomorrow, and on the days that follow, it will be time again to ask: What do we know? What do we think? What can we prove?
Of course, events may well move so quickly as to overtake this, or any, commentary upon what has happened. Our knowledge is necessarily incomplete, and drawing conclusions on the basis of incomplete knowledge is always problematic. As I wrote following the Tucson events:
“[T]he first and greatest challenge is to take a metaphorical deep breath, to wait before rushing in with theories, allegations, or accusations. As Donald Rumsfeld might have put it, we have very few known knowns at this point. There are far more known unknowns, such as the true motivations of the shooter, or whether he had assistance, or whether there were in fact others involved.”
As the situation develops further, we will have more information about the shooter, his motives, the existence of accomplices, and whether --- as appears likely, the incident was the horrifying result of an imbalance of the mind of a lone actor. As was the case in Tucson, the evidence at this early stage is too thin to draw any significant conclusions, notwithstanding our felt need to do so.
Once again, we know very little, we think -- perhaps -- too much, and we don’t know at this moment what, if anything, can be proven.
Nevertheless, it may be safe to draw a very preliminary conclusion that the shootings were not necessarily political; a conclusion we could not safely draw when Congressman Giffords and Chief Judge Roll were gunned down.
So today, let our thoughts and prayers be with those nearly twoscore souls who were injured for their recovery, as well for the repose of the souls of the dozen victims whose lives were so tragically cut short. Tomorrow, and on the days that follow, it will be time again to ask: What do we know? What do we think? What can we prove?
For now, however, we should observe a principled and considerate time of silence, leaving off with partisan rhetoric and poisoned comments.
A decent respect for the dead and the injured should demand no less of us.
-xxx-
Paul S. Marchand is an attorney in Cathedral City, California, where he practices law, and where he two terms on the Cathedral City city Council. The views expressed herein are exclusively his own, and are not necessarily those of any entity or organization with which he is associated.
-xxx-
Paul S. Marchand is an attorney in Cathedral City, California, where he practices law, and where he two terms on the Cathedral City city Council. The views expressed herein are exclusively his own, and are not necessarily those of any entity or organization with which he is associated.
Wednesday, July 4, 2012
CONCEIVED IN LIBERTY: BENDING THE ARC OF OUR MORAL UNIVERSE
Summary: Americans love to dicker and dispute over everything imaginable, including the meaning of Independence Day and the Declaration of Independence. As we come together to celebrate the 236th anniversary of the signing of the historic document, we should also rededicate ourselves to bending the arc of our moral universe toward justice.
By: Paul S. Marchand
We Americans are a disputatious bunch.
We differ on just about anything people are capable of differing on. Whether it’s Dodgers and Angels, Yankees or Red Sox, New York or Los Angeles, kielbasa or chorizo, PC or Mac, we Americans love to debate just about anything and everything.
Independence Day is certainly no different. Since practically before the ink dried on the Declaration of Independence we have been debating the meaning, intention, and promise of our American Union, that “new nation, conceived in liberty and dedicated to the proposition that all men are created equal” of which Abraham Lincoln spoke so movingly at Gettysburg.
To some, Independence Day and the Declaration of Independence take on a kind of sacred, quasi-religious aspect. To such people, Independence Day ranks with the descent of Moses from Sinai carrying the Tablets of the Law. At the other extreme are those who hold Independence Day to be a shameful commemoration of a hypocritical past, who, like the late Edward Said, cleave to a narrative of America as a disturber of the peace “to be resisted at every turn.”
As much as true believers at either end of the political spectrum engage in often acrimonious dispute over what Independence Day (and, by extension, the Declaration of Independence itself) should mean, American society also finds itself caught up in an equally heated conversation about who “owns” Independence Day.
Forty-plus years ago, when Richard Nixon was in the White House and I was just becoming politically conscious, the 37th President’s administration, perhaps the most politically manipulative administration until that of George W. Bush, wasted no effort in seeking to appropriate to the exclusive use of Mr. Nixon and his Party all of our national symbols, the flag, Independence Day, the Declaration of Independence, mom and apple pie -- indeed, the whole kit and American caboodle.
Not surprisingly, many on the progressive side felt deeply uncomfortable at the way in which the Nixon White House sought, by wrapping themselves in the flag, to monopolize the very concept of patriotism, turning “patriotism” into a vulgar adjunct of political ideology. And because many thoughtful progressives regarded Nixon’s efforts as vulgar, their reaction was the predictable one of shrinking from a fight over custodianship of our national symbols. Even today, some of my oldest old-line old-school progressive acquaintances refuse to own, possess, or display the national colors, let alone celebrate Independence Day, regarding such things even now as unspeakably tacky.
Fortunately, however, the vast majority of progressives understood what the Nixon administration and its ideological fellow travelers were trying to accomplish. Enough of us refused to allow Richard Nixon and the GOP to monopolize those common national symbols that are the joint patrimony of every American, living, dead, or yet to be born. We refused then and refuse now to allow the American right to define patriotism as the exclusive possession of any particular political ideology or outlook, bomb throwers like Ann Coulter and Glenn Beck notwithstanding.
Yet, if, as John Adams so famously urged, today should be a day of celebration, it should also be a day for reflection. It should be a day when we think carefully and critically about where we have come from, where we are, and where we hope to go.
For at our best, we have been a progressive people. At our best we have dared to look in the mirror and acknowledge ourselves, warts and all, as a people whose work is not complete. As Americans, most of us share the views of 19th century abolitionist Theodore Parker and of Martin Luther King, Jr., that “the arc of our moral universe is long, but it bends toward justice.”
Of course, because we Americans are as impatient as we are disputatious, the length of that arc of our moral universe sometimes frustrates us; it seems too long, and the time we have to accomplish justice, to build what 17th-century Massachusetts Gov. John Winthrop famously called “a city on a hill,” seems so very short by comparison. And so some on the progressive side of our ongoing national debate become disappointed and step away from the work of forming a more perfect union, even as some on the conservative side (perhaps remembering William Buckley’s famous definition of a conservative as someone “standing athwart history, yelling ‘stop!’”) come to a grimly reductionist conclusion that a just society is unattainable, and thus not worth seeking at all.
Yet, over and over again we have refused to heed those counsels of despair which have urged us to turn away from the difficult task of “securing the blessings of liberty to ourselves and our posterity” no matter how we or our posterity may look, live, love, work, or worship. Indeed, we have steadily enlarged our metaphorical American table, inserting new leaves to create places for women, for people of color, for those with disabilities, for queerfolk, for immigrants, and for all those who were not originally considered fit to form part of the body politic.
So, today, let us enjoy the festivities John Adams called us to indulge in, whether it’s burgers, dogs, chicken, or something veggie on the grill, or taking in a fireworks display, or gathering with family, friends, and neighbors to celebrate what we have been, what we are, and what we can become. But let us also reflect upon the great work in which we are all perforce still engaged, of making good on the promises made on our behalf on a steaming summer day in Philadelphia 236 years ago. The arc of our moral universe is still long, and it is still in our trust to keep bending it toward justice.
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Paul S. Marchand is an attorney who lives and works in Cathedral City, California. The views expressed herein are his own, and not necessarily those of any entity, agency, or organization with which he is associated or of which he may be a member. They are not intended to constitute legal advice, and should not be so construed, but if you intend on putting a lot of ketchup on your burger or hot dog this afternoon, avoid wearing a white shirt.
Saturday, June 30, 2012
LITTLE SNAPPERS REDUX: BYE-BYE DESERT SUN READER BLOGS; CHIEF JUSTICE ROBERTS AND THE IMPREGNABLE ISLAND FORTRESS, AND MITT ROMNEY'S CONCERN ABOUT MY TEETH
Summary: As the Desert Sun drives a stake through the hearts of its reader blogs, John Roberts takes refuge on the impregnable island fortress of Malta, while we gear up for the silly season of politics, complete with Mitt Romney's toothpaste advertisement campaign signs. All form grist for the mill of this installment of Little Snappers.
A couple of months ago, I observed that from to time, when he was Chief Justice, Warren Burger would write short concurrences or dissents to opinions of his Supreme Court colleagues. Though most of his "little snappers," as he called them, were never filed, he wrote them to let off steam. Sometimes, we all need to let fly with a little snapper or two. These are a few of the things that have pressed my buttons were tickled my funny bone since my last collection of Little Snappers.
NO MORE DESERT SUN READER BLOGS
The reader blogs in our local Coachella Valley Gannett newspaper, The Desert Sun, went away today, with stakes driven through their hearts. As other local bloggers have noted, TDS appears to be in some degree of difficulty. And while I leave to such other bloggers speculation over the future of Palm Springs’ local hardcopy newspaper, the departure of the TDS reader blogs strikes me as no great privation. Most Desert Sun reader blogs appear to be written by the same small group of bloggers (I., admittedly, being one of them) essentially talking to one another in the echo chamber.
Indeed, some of the Desert Sun reader blogs were clearly the product of professional writers working for astroturf political organizations, while others reflected in the usual collection of bomb throwers, tinfoil-lined hat wearers, and the occasional local activist. I cheerfully plead guilty to being in the last category.
Perhaps what did in the Desert Sun reader blogs was the undeniable fact that no newspaper website (by itself almost a contradiction in terms) can ever hope to meet, let alone beat ,the worldwide reach of social networking; more people have accessed this blog through Facebook than ever did through TDS. It may well be safe to speculate therefore that Facebook killed the Desert Sun reader blogs in the same way that (with due credit to the Buggles) “video killed the radio star.”
AN IMPREGNABLE ISLAND FORTRESS
If John Roberts thought being in a 5-4 Supreme Court majority in Citizens United had brought him any lasting or ongoing street cred with the Tea Party and the American right in general, the Chief Justice can certainly think again. Their reaction was that of an angry, jilted bride. I must confess, I didn’t giggle at the abuse that came the Chief’s way after Thursday’s healthcare decision; I laughed, largely, richly, rudely, with a generous infusion of schadenfreude. After all, one would have to be grossly naïve to believe that the American right can or would tolerate any deviation from its increasingly reductionist worldview.
I also laughed, largely, richly, rudely, cynically, at Chief Justice Roberts’ comment, as he prepared to depart for a summer teaching gig in Malta that he was going to “an impregnable Island Fortress.” He’s right, of course, Malta has never been carried by siege; the last effort in that regard failed in 1565 when Suleiman the Magnificent’s Ottoman troops were unable to dislodge the Knights of Malta. An impregnable island fortress may be just the place for John Roberts to do some teaching while the dust settles, even as he contemplates the reality that when the Court reconvenes on the first Monday in October, the madness begins all over again.
THE SILLY SEASON
You can tell we are ramping up for another episode of the ongoing reality TV series known as Campaign Season, a tragicomedy in which a panel of judges, known as voters, tried to navigate its way through a sea of claims and counterclaims, promises and counter-promises, gaffes and counter-gaffes, soundbites and counter-soundbites, all seasoned with generous doses of TV and radio spots, and mailers, to say nothing of a bumper crop of bumper stickers, buttons, decals and other artifacts, some of which will probably crop up on some far distant future edition of the Antiques Roadshow. Could somebody please explain to me why the Romney logo looks like a toothpaste ad? Is the quondam Massachusetts governor really that concerned about whether I brush my teeth and floss after every meal?
A couple of months ago, I observed that from to time, when he was Chief Justice, Warren Burger would write short concurrences or dissents to opinions of his Supreme Court colleagues. Though most of his "little snappers," as he called them, were never filed, he wrote them to let off steam. Sometimes, we all need to let fly with a little snapper or two. These are a few of the things that have pressed my buttons were tickled my funny bone since my last collection of Little Snappers.
NO MORE DESERT SUN READER BLOGS
The reader blogs in our local Coachella Valley Gannett newspaper, The Desert Sun, went away today, with stakes driven through their hearts. As other local bloggers have noted, TDS appears to be in some degree of difficulty. And while I leave to such other bloggers speculation over the future of Palm Springs’ local hardcopy newspaper, the departure of the TDS reader blogs strikes me as no great privation. Most Desert Sun reader blogs appear to be written by the same small group of bloggers (I., admittedly, being one of them) essentially talking to one another in the echo chamber.
Indeed, some of the Desert Sun reader blogs were clearly the product of professional writers working for astroturf political organizations, while others reflected in the usual collection of bomb throwers, tinfoil-lined hat wearers, and the occasional local activist. I cheerfully plead guilty to being in the last category.
Perhaps what did in the Desert Sun reader blogs was the undeniable fact that no newspaper website (by itself almost a contradiction in terms) can ever hope to meet, let alone beat ,the worldwide reach of social networking; more people have accessed this blog through Facebook than ever did through TDS. It may well be safe to speculate therefore that Facebook killed the Desert Sun reader blogs in the same way that (with due credit to the Buggles) “video killed the radio star.”
AN IMPREGNABLE ISLAND FORTRESS
If John Roberts thought being in a 5-4 Supreme Court majority in Citizens United had brought him any lasting or ongoing street cred with the Tea Party and the American right in general, the Chief Justice can certainly think again. Their reaction was that of an angry, jilted bride. I must confess, I didn’t giggle at the abuse that came the Chief’s way after Thursday’s healthcare decision; I laughed, largely, richly, rudely, with a generous infusion of schadenfreude. After all, one would have to be grossly naïve to believe that the American right can or would tolerate any deviation from its increasingly reductionist worldview.
I also laughed, largely, richly, rudely, cynically, at Chief Justice Roberts’ comment, as he prepared to depart for a summer teaching gig in Malta that he was going to “an impregnable Island Fortress.” He’s right, of course, Malta has never been carried by siege; the last effort in that regard failed in 1565 when Suleiman the Magnificent’s Ottoman troops were unable to dislodge the Knights of Malta. An impregnable island fortress may be just the place for John Roberts to do some teaching while the dust settles, even as he contemplates the reality that when the Court reconvenes on the first Monday in October, the madness begins all over again.
THE SILLY SEASON
You can tell we are ramping up for another episode of the ongoing reality TV series known as Campaign Season, a tragicomedy in which a panel of judges, known as voters, tried to navigate its way through a sea of claims and counterclaims, promises and counter-promises, gaffes and counter-gaffes, soundbites and counter-soundbites, all seasoned with generous doses of TV and radio spots, and mailers, to say nothing of a bumper crop of bumper stickers, buttons, decals and other artifacts, some of which will probably crop up on some far distant future edition of the Antiques Roadshow. Could somebody please explain to me why the Romney logo looks like a toothpaste ad? Is the quondam Massachusetts governor really that concerned about whether I brush my teeth and floss after every meal?
Friday, June 29, 2012
NIXON GOES TO CHINA: CHIEF JUSTICE JOHN ROBERTS AND YESTERDAY’S TWO CONSEQUENTIAL SCOTUS DECISIONS
Summary: In upholding the individual mandate of the Affordable Care Act, and in finding unconstitutional the Stolen Valor Act, the Supreme Court rendered two highly consequential decisions that will affect Americans for the foreseeable future. By keeping alive the promise of heightened access to healthcare, the Court helped bring this country a little more in line with other industrialized nations whose healthcare systems are considerably more efficient and less dysfunctional than our own. By striking down the Stolen Valor Act, the Court recognized that sometimes we don’t need to send liars to jail; the humiliation of setting one’s own pants on fire can often be an even worse punishment than anything a federal prosecutor could ever dish out.
By: Paul S. Marchand
And so the legal challenges to the constitutionality of “Obamacare” seem finally to be at an end. While the political wrangling will continue, the Supreme Court has had the last legal word on the subject, at least for the time being. As Justice Robert Jackson famously put it: “[w]e are not final because we are infallible, but we are infallible only because we are final.”
The Supreme Court surprised us yesterday not only when it handed down its decision in National Federation of Independent Business v. Sebelius, upholding the constitutionality of the individual mandate in the Affordable Healthcare Act (“”Obamacare”),” but also affirming the judgment of the Ninth Circuit in U.S. v. Alvarez that the so-called Stolen Valor Act violates the First Amendment.
Both opinions, coming on the last day of the Court’s 2011 Term, are potentially hugely consequential. What may be even more consequential is that in both cases Chief Justice John Roberts voted with the so-called liberal bloc of the court. Indeed, it was the Chief Justice who authored that portion of the Court’s “Obamacare” opinion that upheld the individual mandate requiring Americans not otherwise insured to purchase health insurance.
What made Chief Justice Roberts’ opinion upholding the individual mandate so interesting is the intriguingly 19th-century tone in which it was written. For page after page, Chief Justice Roberts appeared to be at pains to discuss all the ways in which the individual mandate represented an impermissible exercise of Congressional power to regulate commerce under the Interstate Commerce Clause of the Constitution.
If one had not read the syllabus and headnotes accompanying the Court’s slip opinion, one might soon have reached the despairing conclusion that the Court had struck down the individual mandate. Instead, however, Roberts’ decision harks back structurally to a writing style reminiscent of the 1800s, when it was a not uncommon practice for the author of an opinion to raise up a whole series of straw men, so to speak, only to knock them down again before reaching the ratio decidendi, that is, the actual basis and legal justification for the decision.
In the “Obamacare” case, Chief Justice Roberts, having at length rejected the Commerce Clause, finally upheld the individual mandate by invoking Congress’s power to lay and collect taxes. It is almost as if the Chief Justice, like his 19th-century forebears, had deliberately raised up his own series of straw men simply in order to knock them down again.
We may never know, unless or until Chief Justice Roberts either publishes his memoirs or spills all to a lucky journalist, what motivated him to draft his opinion as he did. We can speculate that he may have done so in order to obtain a working plurality, or perhaps that he wanted to demonstrate very clearly that he, at least, intended to set very clear limits on the permissible use of the Commerce Clause by Congress, or --- according to certain conspiracists --- he saw to plant a poison pill to give the Republicans an anti-tax talking point for the November elections.
Perhaps, however, Roberts came to a similar conclusion as that Richard Nixon came to 40 years ago, when he became the first American President to visit what was then known as Mainland China. It has long since become a staple of conventional political wisdom on both sides of the aisle that only so famous a Red-Baiter as Nixon could actually have pulled off so dramatic a demarche as going to Beijing; consensus held then and holds now that no Democratic President could have pulled it off. Indeed, the phrase “Nixon Goes to China credibility,” has -- in some variant or other -- become a virtual shorthand for a bold stroke carried out by an unexpected actor, as, for example, when Anwar Sadat traveled to Jerusalem.
It may be that John Roberts realized that if the Affordable Care Act, which represents the best solution any American Congress has yet found for the discontents of our dysfunctional health care system, were to be upheld, he himself would have to be the author of the opinion, in much the same way as then-Chief Justice Warren Burger authored the opinion in U.S. v. Nixon, the Watergate tapes case.
At all events, the Chief Justice’s authorship of the most critical portion of the “Obamacare” decision may well have saved the Court, at least for the time being, from being caught up in an even worse political nightmare than that into which it descended with its ill-considered decision in Citizens United. Certainly, John Roberts’ decision to uphold the individual mandate has confounded not only conventional wisdom, but also the confident expectations of many on the right who had expected the Chief Justice to be a predictable conservative vote. It gave Roberts "Nixon in China" credibility.
The late William Buckley once defined a conservative as someone “standing athwart history, yelling ‘stop!’” Yesterday, the Chief Justice of the United States declined to be that angry men standing athwart history, yelling “stop!”
As much as the Chief Justice declined to stand athwart history yelling "stop!" as the fifth vote to overturn one of the most important pieces of legislation in recent American history, he also confounded expectations by being the fifth vote to uphold the decision of the Ninth Circuit in U.S. v. Alvarez, the so-called Stolen Valor case.
Alvarez, a serial liar and fantasist, had falsely claimed to be a 25 year U.S. Marine veteran and Medal of Honor recipient. He was prosecuted under the Stolen Valor Act, 2005, which made it a crime to falsely claim that one had received military decorations, and included an enhanced penalty for false claims of receipt of the Medal of Honor.
The Supreme Court, in an opinion by Justice Kennedy, joined by Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor, with Justices Breyer and Kagan concurring, held, in effect, that while lying about one’s military service or what decorations one may have received is objectionable, there exists no justification for carving out a broad and generalized exception to the First Amendment’s broad protection of speech. It has often been said that the remedy for offensive speech is more speech, and that the remedy for lies of the type the Stolen Valor Act sought to criminalize is ---as Justice Kennedy observed--- effective counterspeech.
While it is always tempting to want to criminalize conduct that, among decent people, is reprehensible, mere social lies, absent more, should be the subject at most of social sanction, not grounds for criminal prosecution. Indeed, there will be times when the telling of an untruth may be preferable to causing hurt feelings or, worse, putting people in harm’s way.
By: Paul S. Marchand
And so the legal challenges to the constitutionality of “Obamacare” seem finally to be at an end. While the political wrangling will continue, the Supreme Court has had the last legal word on the subject, at least for the time being. As Justice Robert Jackson famously put it: “[w]e are not final because we are infallible, but we are infallible only because we are final.”
The Supreme Court surprised us yesterday not only when it handed down its decision in National Federation of Independent Business v. Sebelius, upholding the constitutionality of the individual mandate in the Affordable Healthcare Act (“”Obamacare”),” but also affirming the judgment of the Ninth Circuit in U.S. v. Alvarez that the so-called Stolen Valor Act violates the First Amendment.
Both opinions, coming on the last day of the Court’s 2011 Term, are potentially hugely consequential. What may be even more consequential is that in both cases Chief Justice John Roberts voted with the so-called liberal bloc of the court. Indeed, it was the Chief Justice who authored that portion of the Court’s “Obamacare” opinion that upheld the individual mandate requiring Americans not otherwise insured to purchase health insurance.
What made Chief Justice Roberts’ opinion upholding the individual mandate so interesting is the intriguingly 19th-century tone in which it was written. For page after page, Chief Justice Roberts appeared to be at pains to discuss all the ways in which the individual mandate represented an impermissible exercise of Congressional power to regulate commerce under the Interstate Commerce Clause of the Constitution.
If one had not read the syllabus and headnotes accompanying the Court’s slip opinion, one might soon have reached the despairing conclusion that the Court had struck down the individual mandate. Instead, however, Roberts’ decision harks back structurally to a writing style reminiscent of the 1800s, when it was a not uncommon practice for the author of an opinion to raise up a whole series of straw men, so to speak, only to knock them down again before reaching the ratio decidendi, that is, the actual basis and legal justification for the decision.
In the “Obamacare” case, Chief Justice Roberts, having at length rejected the Commerce Clause, finally upheld the individual mandate by invoking Congress’s power to lay and collect taxes. It is almost as if the Chief Justice, like his 19th-century forebears, had deliberately raised up his own series of straw men simply in order to knock them down again.
We may never know, unless or until Chief Justice Roberts either publishes his memoirs or spills all to a lucky journalist, what motivated him to draft his opinion as he did. We can speculate that he may have done so in order to obtain a working plurality, or perhaps that he wanted to demonstrate very clearly that he, at least, intended to set very clear limits on the permissible use of the Commerce Clause by Congress, or --- according to certain conspiracists --- he saw to plant a poison pill to give the Republicans an anti-tax talking point for the November elections.
Perhaps, however, Roberts came to a similar conclusion as that Richard Nixon came to 40 years ago, when he became the first American President to visit what was then known as Mainland China. It has long since become a staple of conventional political wisdom on both sides of the aisle that only so famous a Red-Baiter as Nixon could actually have pulled off so dramatic a demarche as going to Beijing; consensus held then and holds now that no Democratic President could have pulled it off. Indeed, the phrase “Nixon Goes to China credibility,” has -- in some variant or other -- become a virtual shorthand for a bold stroke carried out by an unexpected actor, as, for example, when Anwar Sadat traveled to Jerusalem.
It may be that John Roberts realized that if the Affordable Care Act, which represents the best solution any American Congress has yet found for the discontents of our dysfunctional health care system, were to be upheld, he himself would have to be the author of the opinion, in much the same way as then-Chief Justice Warren Burger authored the opinion in U.S. v. Nixon, the Watergate tapes case.
At all events, the Chief Justice’s authorship of the most critical portion of the “Obamacare” decision may well have saved the Court, at least for the time being, from being caught up in an even worse political nightmare than that into which it descended with its ill-considered decision in Citizens United. Certainly, John Roberts’ decision to uphold the individual mandate has confounded not only conventional wisdom, but also the confident expectations of many on the right who had expected the Chief Justice to be a predictable conservative vote. It gave Roberts "Nixon in China" credibility.
The late William Buckley once defined a conservative as someone “standing athwart history, yelling ‘stop!’” Yesterday, the Chief Justice of the United States declined to be that angry men standing athwart history, yelling “stop!”
As much as the Chief Justice declined to stand athwart history yelling "stop!" as the fifth vote to overturn one of the most important pieces of legislation in recent American history, he also confounded expectations by being the fifth vote to uphold the decision of the Ninth Circuit in U.S. v. Alvarez, the so-called Stolen Valor case.
Alvarez, a serial liar and fantasist, had falsely claimed to be a 25 year U.S. Marine veteran and Medal of Honor recipient. He was prosecuted under the Stolen Valor Act, 2005, which made it a crime to falsely claim that one had received military decorations, and included an enhanced penalty for false claims of receipt of the Medal of Honor.
The Supreme Court, in an opinion by Justice Kennedy, joined by Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor, with Justices Breyer and Kagan concurring, held, in effect, that while lying about one’s military service or what decorations one may have received is objectionable, there exists no justification for carving out a broad and generalized exception to the First Amendment’s broad protection of speech. It has often been said that the remedy for offensive speech is more speech, and that the remedy for lies of the type the Stolen Valor Act sought to criminalize is ---as Justice Kennedy observed--- effective counterspeech.
While it is always tempting to want to criminalize conduct that, among decent people, is reprehensible, mere social lies, absent more, should be the subject at most of social sanction, not grounds for criminal prosecution. Indeed, there will be times when the telling of an untruth may be preferable to causing hurt feelings or, worse, putting people in harm’s way.
Sometimes we don’t tell our moms, gal pals, or spouses that those pants really do make them look fat, any more than we would, in a moment of unguarded truth-telling, reveal to the Taliban the itinerary of a NATO troop convoy in the wilds of Afghanistan. In love and war, as Winston Churchill used to say, the truth must often have an escort of lies.
When Mr. Alvarez chose to set his own pants on fire with his narcissistic tall tales, the shame and humiliation he brought upon himself constituted punishment far more humiliating than anything any federal prosecutor could ever have meted out. In recognizing this basic truth, the Supreme Court struck a significant blow for free speech yesterday.
-xxx-
Paul S. Marchand is an attorney who lives and works in Cathedral City, California. The views expressed herein are his own, and not necessarily those of any entity or organization with which he is affiliated. As he moves toward his sixth decade, he knows, from personal experience, that one of the most dangerous questions any man can ever hear is “Honey, do these pants make me look fat?”
Sunday, June 17, 2012
A FATHER'S GIFT
SUMMARY: Perhaps the greatest gift that a father can pass on, particularly to a son, is the gift of facing advancing years with serenity and grace. I will always be grateful to my dad for the way he has imparted, and continues to impart, this gift to me and to my family.
By: Paul S. Marchand
Last month, blogging about Mother’s Day gave me cause to think seriously about one of the two most nuanced relationships any human being can have, that of child to mother. It is perhaps the only human relationship that is universal to all of us.
For those of us who have been lucky enough to grow up with fathers, the parent-child relationship --- particularly between fathers and sons --- is equally nuanced.
It’s no secret that far more children in this world grow up in single-mother households than do in single-father households. I’ve known both friends and relatives who have grown up with single moms, and I think it’s safe to say that there are few human personalities as strong as a committed single mother, with the possible exception of single fathers.
My own particular blessing is to have two parents whom I love dearly, but of whom, more importantly, I am tremendously fond. For there is a difference between loving someone and being fond of someone. I’ve always considered being fond of someone to be inherently a relationship between adults, based upon an equality of discourse and views.. As my aunt has put it, “I love my children dearly, but when they became 20 they became people, and that was even better.”
By: Paul S. Marchand
Last month, blogging about Mother’s Day gave me cause to think seriously about one of the two most nuanced relationships any human being can have, that of child to mother. It is perhaps the only human relationship that is universal to all of us.
For those of us who have been lucky enough to grow up with fathers, the parent-child relationship --- particularly between fathers and sons --- is equally nuanced.
It’s no secret that far more children in this world grow up in single-mother households than do in single-father households. I’ve known both friends and relatives who have grown up with single moms, and I think it’s safe to say that there are few human personalities as strong as a committed single mother, with the possible exception of single fathers.
My own particular blessing is to have two parents whom I love dearly, but of whom, more importantly, I am tremendously fond. For there is a difference between loving someone and being fond of someone. I’ve always considered being fond of someone to be inherently a relationship between adults, based upon an equality of discourse and views.. As my aunt has put it, “I love my children dearly, but when they became 20 they became people, and that was even better.”
For me, the greatest gifts for my father may not have been so much the “dad stuff” of my childhood: things like learning how to paint a wall or hang a picture or change a tire. For me, as I teeter on the brink of my sixth decade, the gift from my father that I most appreciate is understanding how to grow older with grace and serenity.
I can see how my dad’s face lights up when my mom enters the room, and how her face lights up to see him. I know whenever I visit that both he and my mom will want to talk about what is happening in our community, our country, and the world. And when we speak of those things, he always applies to them a view informed by an unshakable sense of principle and good sense.
None of us remain static; all of us grow older, and some of us are lucky enough to grow older or old in the embrace of family and friends; my father has been one such man, and for the gifts and skills he passed on to me, for his sense of humor, his sense of fairness, and his commitment to his family, I shall always be tremendously grateful.
There is a quotation from Confucius which comes unbidden to my mind as I think about my dad on this Father’s Day:
“At fifteen my heart was set on learning; at thirty I stood firm; at forty I had no more doubts; at fifty I knew the mandate of heaven; at sixty my ear was obedient; at seventy I could follow my heart's desire without transgressing what is right.”
So, as a man of an age to have “no more doubts,” I can happily say to my dad, and to all the fathers I know, happy Father’s Day.
-xxx-
PAUL S. MARCHAND is an attorney who lives and works in Cathedral City, California. The views expressed herein are his own, and not necessarily those of any entity or organization with which he is associated, and are not intended as, and should not be construed as, constituting legal advice. Nonetheless, you should be nice to your dad, he’s probably the guy who drove mom to the hospital to deliver you.
Saturday, May 26, 2012
ON MEMORIAL DAY: BENDING OUR AMERICAN ARC TOWARD JUSTICE
SUMMARY: Memorial Day began after the Civil War as a commemoration of those who had fallen in America’s greatest struggle for social justice. Though we have engrafted additional layers of meaning onto Memorial Day, that original subtext is still very much at the heart of our commemoration of those who have died in this country’s service. If we are to do right by those who have laid the costliest of sacrifice on the altar of freedom, we must ensure that the arc of America’s moral universe continues to bend toward justice and toward a more perfect and inclusive Union.
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By: Paul S. Marchand
Of all the various holidays that festoon our American calendar, two specifically force us to confront the reality of war and sacrifice. Veterans Day (or Armistice Day as it is still called in some quarters) should rightly turn our minds toward those who have fought in our wars, facing foreign shot, foreign shell, and foreign steel on our behalf. Veterans Day is a time to think about the moral and social debt we owe to those who have gone to war and returned.
By contrast, Memorial Day is a time to commemorate those who have fallen in this country’s service. It is a time to give thanks for their service, but also a time to think carefully and critically about larger questions of war, peace, and the limbo in which societies often find themselves between the two, as we have found ourselves since the end of World War II.
On Memorial Day, I find myself ineluctably drawn back to words spoken half a century ago at West Point by Douglas MacArthur as he accepted the Sylvanus Thayer award. Addressing the Corps of Cadets, MacArthur spoke of hearing in his dreams “the crash of guns, the rattle of musketry, the strange, mournful mutter of the battlefield.”
For most of us now living, America has been at war or involved in military operations for more years than she has been at peace. The background music of the greater part of our lives has been “that strange, mournful mutter of the battlefield.”
Now Memorial Day began as Decoration Day, a commemoration of the Union’s Civil War dead. Though the passage of nearly a century and a half has led to considerable accretions of symbolism and meaning onto Memorial Day, it began, and remains still, a commemoration of the greatest struggle for social justice in American history.
For if the Civil War began as merely a fight to preserve the Union, it ineluctably evolved into a far larger moral confrontation as Americans realized that the Union could not be saved except by overthrowing once and for all the Peculiar Institution of chattel slavery. If the Union were to be saved, it could have no more truck with the proposition that it is ever permissible for one human being to own another.
Since then, the arc of our moral universe, however long, has bent, however slowly, toward justice. Starting with the abolition of slavery itself, America has engaged, over and over again, in a series of often agonizing internal struggles over who and who is not a part of our American body politic.
It has taken more than a century to rid ourselves of the grosser inequities and iniquities of the Peculiar Institution. Even now, with an African-American president in the White House, racial insecurities continue to bedevil our political discourse.
It has taken more than a century to accept the basic proposition that women ought to be entitled to all of the badges and incidents of first-class citizenship. Women’s suffrage means little if women can legitimately discriminated against in hiring and compensation or be denied access to basic reproductive autonomy or contraception.
We are still involved today in a great struggle over whether America’s queerfolk should even be allowed to exist, let alone enjoy first-class citizenship as out people in the Commonwealth.
Yet, the arc continues to bend toward justice; it continues to bend toward a more perfect Union and a more inclusive Commonwealth, even if some in our society find themselves apoplectic at such a prospect. But a society that cannot find room for people of color, for women, for the queer, and for all who are in some way Other, is a society that has yet to do right by those whose final resting places are to be found in our national cemeteries, who in this country’s service laid down what Abraham Lincoln so movingly called “so costly a sacrifice on the altar of freedom.” We must make it right.
On this Memorial Day, as we recall the sacrifice of those who fell for us, we should remember two things. First, let us remember that America is always at her greatest when she seeks purposely after justice. Second, let us remember that from the earliest days of our history, those who have died for America have been of every sort and condition of human being.
Male and female they have died for us.
Old and young they have died for us.
Straight and queer they have died for us.
From every creed and confession they have died for us.
From every tongue and nation they have died for us.
From every race and region they have died for us.
And in the equality of their resting place, we have only one word for them: American.
--------------------------------------------------------------------------------------------
By: Paul S. Marchand
Of all the various holidays that festoon our American calendar, two specifically force us to confront the reality of war and sacrifice. Veterans Day (or Armistice Day as it is still called in some quarters) should rightly turn our minds toward those who have fought in our wars, facing foreign shot, foreign shell, and foreign steel on our behalf. Veterans Day is a time to think about the moral and social debt we owe to those who have gone to war and returned.
By contrast, Memorial Day is a time to commemorate those who have fallen in this country’s service. It is a time to give thanks for their service, but also a time to think carefully and critically about larger questions of war, peace, and the limbo in which societies often find themselves between the two, as we have found ourselves since the end of World War II.
On Memorial Day, I find myself ineluctably drawn back to words spoken half a century ago at West Point by Douglas MacArthur as he accepted the Sylvanus Thayer award. Addressing the Corps of Cadets, MacArthur spoke of hearing in his dreams “the crash of guns, the rattle of musketry, the strange, mournful mutter of the battlefield.”
For most of us now living, America has been at war or involved in military operations for more years than she has been at peace. The background music of the greater part of our lives has been “that strange, mournful mutter of the battlefield.”
Now Memorial Day began as Decoration Day, a commemoration of the Union’s Civil War dead. Though the passage of nearly a century and a half has led to considerable accretions of symbolism and meaning onto Memorial Day, it began, and remains still, a commemoration of the greatest struggle for social justice in American history.
For if the Civil War began as merely a fight to preserve the Union, it ineluctably evolved into a far larger moral confrontation as Americans realized that the Union could not be saved except by overthrowing once and for all the Peculiar Institution of chattel slavery. If the Union were to be saved, it could have no more truck with the proposition that it is ever permissible for one human being to own another.
Since then, the arc of our moral universe, however long, has bent, however slowly, toward justice. Starting with the abolition of slavery itself, America has engaged, over and over again, in a series of often agonizing internal struggles over who and who is not a part of our American body politic.
It has taken more than a century to rid ourselves of the grosser inequities and iniquities of the Peculiar Institution. Even now, with an African-American president in the White House, racial insecurities continue to bedevil our political discourse.
It has taken more than a century to accept the basic proposition that women ought to be entitled to all of the badges and incidents of first-class citizenship. Women’s suffrage means little if women can legitimately discriminated against in hiring and compensation or be denied access to basic reproductive autonomy or contraception.
We are still involved today in a great struggle over whether America’s queerfolk should even be allowed to exist, let alone enjoy first-class citizenship as out people in the Commonwealth.
Yet, the arc continues to bend toward justice; it continues to bend toward a more perfect Union and a more inclusive Commonwealth, even if some in our society find themselves apoplectic at such a prospect. But a society that cannot find room for people of color, for women, for the queer, and for all who are in some way Other, is a society that has yet to do right by those whose final resting places are to be found in our national cemeteries, who in this country’s service laid down what Abraham Lincoln so movingly called “so costly a sacrifice on the altar of freedom.” We must make it right.
On this Memorial Day, as we recall the sacrifice of those who fell for us, we should remember two things. First, let us remember that America is always at her greatest when she seeks purposely after justice. Second, let us remember that from the earliest days of our history, those who have died for America have been of every sort and condition of human being.
Male and female they have died for us.
Old and young they have died for us.
Straight and queer they have died for us.
From every creed and confession they have died for us.
From every tongue and nation they have died for us.
From every race and region they have died for us.
And in the equality of their resting place, we have only one word for them: American.
Requiescant omnes in pace, et lux aeternam luceat super omnes. Amen.
-xxx-
PAUL S. MARCHAND is an attorney who lives and works in Cathedral City, California, where he served for two terms as a member of the city council. The views contained herein are his own, and not necessarily those of any entity or organization with which he is associated. They are not intended to constitute, and should not be construed as, legal advice, though effective Monday, white shoes may be worn without risk of committing a fashion felony.
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