Outliving this Day and Coming Safe Home

Norwegian painter Edvard Munch became the most expensive artist at auction Wednesday when his 1895 pastel of a terrified man clutching his cheeks along an Oslo fjord, “The Scream,” sold for $119.9 million at Sotheby’s—the most ever paid for a work of art at auction.

French National Front leader Marine Le Pen on Tuesday said she would cast a blank ballot in Sunday’s runoff election for President of France, meaning she will not endorse either incumbent Nicolas Sarkozy or Socialist challenger François Hollande. Most observers believe Hollande is the probable victor. While Sarkozy is probably the closest to Le Pen’s party’s political ideology, she may be biding her time until the next election hoping the Socialist will make a mess of the economy.

Marine, not Marianne (no wardrobe malfunction)

The real Marianne

Peter Berger reported the following in The American Interest (which I edited and condensed, and added the last paragraph as my take):

Judge Martin Hoffman, of a Dallas County civil district court, dismissed a lawsuit brought by Mikey Weinstein against Gordon Klingenstein. Weinstein, a former Air Force lawyer, is an avowed atheist and founder of the Military Religious Freedom Foundation, which opposes what it claims to be unconstitutional religious activities in the armed forces. Klingenstein is a former Navy chaplain and an ordained minister of the Dallas-based Full Gospel Church, a very conservative Protestant congregation. What led to the lawsuit was the fact that Klingenstein had made public a so-called “imprecatory prayer” directed against Weinstein—that is, a prayer that asks God to harm somebody. Supposedly, Psalm 109.

Subsequently, unpleasant things happened to Weinstein and his family—death threats, vandalism, a dead animal left outside the house. The legal issue came down to the question whether Klingenstein’s curse caused these actions.

Judge Hoffman ruled that such causation could not be established. Klingenstein did not drag, or enjoined others to drag, the carcass to Weinstein’s house, or did not otherwise directly threaten or harm him. Therefore, the curse fell under the category of protected speech. Apparently an appeal is being planned. But for the time being, cursing people is legal in Texas.

 

Judge Hoffman followed an established tradition in American law: Speech, no matter how offensive or hurtful, is protected under the first amendment—unless it directly threatens or harms the targeted individuals. A classical case for this legal doctrine was the 1977 incident in Skokie, Illinois, where the United States Supreme Court ruled that a group that called itself the National Socialist Party of America had the right to parade with full Nazi regalia through the streets of this largely Jewish suburb of Chicago—despite the fact that one in six inhabitants was a Holocaust survivor. The same doctrine was invoked when the Supreme Court ruled that a Protestant fundamentalist group had the right to demonstrate at military funerals with the message that God was punishing America for its sins—despite the fact that this action inflicted great hurt to the grieving families. I wonder whether this doctrine will come unglued, as the new concept of “hate speech” makes its way through the courts: Could not an atheist claim that a ceremonial curse constitutes “hate speech”? There is also the delicious irony in the fact that, if Weinstein had stipulated that a curse in the name of God could have real effects in the empirical world, he might not have won in a Texas court in 2012, but he would surely have won in a Salem, Massachusetts court in 1692—though thereby implicitly denying his atheism. (Of course both defendant and plaintiff might have been hanged eventually, the former for witchcraft, the latter for atheism.)

The United States is practically alone in the world when it comes to freedom of expression. The Skokie parade alluded to would be punishable by up to five years in prison in Germany and Austria. It would be also harshly punished in most European nations, and the rest of the world. , Even our supposedly liberal neighbor to the north proscribes so-called “hate speech.” This nearly absolute freedom of expression is part of American exceptionalism.

Berger’s complete AI column is here

Our media and various policy wonks have never ceased to talk about the “boomer generation” as if it were a monolithic phalanx. I suppose that makes sense statistically for targeted advertising, but for other reasons?   Well, you know what comes after lies and damned lies.

The most recent bete noir concerning the boomers is the prospect of an aging horde continuing to drive automobiles past their ability to safely do so and thus put themselves and all other drivers and pedestrians in grave peril.

Emily Yoffe, who writes a somewhat edgy agony-aunt column called “Dear Prudence” for Slate, published a column on the magazine, and in last Sunday’s Dallas Morning News. Ms. Yoffe provides a number of anecdotes about elderly persons who have been involved in accidents with sad consequences and presents some statistics that indicate that drivers over 80 years of age are nearly as likely as teenagers to have fatal wrecks. She then goes on to lament how difficult is to persuade or coerce those over a certain age to give up driving. Except for the parade of horribles aspect, Ms. Yoffe is rather balanced and to point out to a real dilemma: How can incapable and thus unsafe elderly drivers be kept off the road?

Actually, that is the wrong question. The right one would merely eliminate the “elderly” description. The answer is rather simple. It is not requiring folks over a certain age to submit to renew their licenses in person, arbitrarily submit to physical examination, or have to take driving tests to renew. It can be modeled on an existing procedure in the law that provides a mechanism to restrain and protect incapacitated or incompetent persons – guardianship.

All states have a legal method for establishing a guardianship and appointing a guardian for persons who have lost the capacity to care for themselves in varying degrees. Here in Texas, and many other states, the procedure is designed to protect the rights of the individual from overreaching relatives, and others who might not appreciate eccentricities many persons have. Establishing a guardianship requires that a court proceeding be commenced, the prospective ward be duly served with notice, that an independent court investigator prepare a report, and that an attorney be appointed specifically to represent the ward’s interest, all before a court can consider declaring the prospective ward incompetent and appointing a guardian. Even then the court is required to use the least restrictive means commensurate with protection of the ward and others. The concept and legal procedure of guardianship (for adults, anyway) is thus based on respect for the rights of individuals, which are to be restricted or abrogated only when it is abundantly clear that one is a danger to himself and others because of an inability to function on the most basic level. Eccentricities are not incapacities, and poor old Aunt Sally or Uncle Henry cannot be adjudicated incompetent because they are liable to spend their money foolishly and not leave any to their survivors.

Driving can be handled in a similar vein. The legislature can provide that the Department of Public Safety (or the equivalent agency in other states) set up a procedure somewhat like this: If a relative, or any person, observes another, of any age, whose ability to operate a motor vehicle is impaired, the observer can submit a sworn statement to the agency stating the facts observed. If the statement on its face rises to a reasonable belief the person is impaired, the agency could further investigate, and if the investigative findings warranted, could convene a tribunal to hear both sides, perhaps order a medical examination and/or a driving test, and then decide whether revocation or restriction of the driver’s license is necessary. The driver affected could have the tribunal’s decision reviewed by a court of law. There already is a somewhat similar procedure in place to determine if a concealed handgun license should be revoked. This procedure would avoid the use of a one size fits all, over inclusive stereotype that a person over a certain age is ipso facto impaired.   It would be more cost effective that having every such person submit to a medical examination or driving test, which has been implemented in some states.

This system is not perfect, and will miss some. Some relatives or friends might be reluctant to turn in a person who might be impaired. The perfect, however, is often the enemy of the good. A procedure like the one described would respect individual rights, which should prevail except in the case of a clear and present danger.

I am not sure of the proper terminology for the different forms of female dress favored by Islamic fundamentalists, but the cover of the current issue of Foreign Policy magazine has a photo of a woman wearing an all black outfit that reveals only her eyes – eyes that exude fear. This is what the editors term “The Sex Issue” wherein a number of articles discuss the treatment of women in the Muslim nations, mainly those in the Middle East. The lead article by Mona Eltahawy, an Egyptian-American journalist who was beaten and raped by Egyptian security force members last year, shows that it is worse – much worse – than we think.

I would like to believe the editors did not entitle the issue merely to gin up interest, but also to take a shot at the pervasive use of the euphemistic “gender” when making reference to sexual identity issues. Gender properly refers to grammar. Words, mainly nouns and pronouns, are assigned a gender based to some degree on the sex, or lack of it. In English, it is less important that in some other languages, where assignment of a gender to inanimate objects of generic animals is more or less arbitrary. But the use of the word has become common, in my belief, because so many are afraid that using the “s-word” must be a reference to the biological activity that still has varying degrees of taboo, depending on the situation. But I digress.

Ms. Eltahawy, and the other authors, describe the horrific manner in which women are still treated under Islamism. The so-called “Arab Spring” that overthrew long ensconced dictators in North Africa last year is not an improvement, and in some cases may be worse. The Islamic Brotherhood in Egypt will bring no better treatment of women than under Mubarak; the named successor to the 87-year old King Abdullah, Prince Nayef, will make the present king “look like Susan B. Anthony.”

“Why do they hate us?” Ms. Eltahawy asks. The truth is that the Muslim men in the Islamic culture do hate women. Why may be a mystery, or maybe not when one stops and thinks about it. It is something we need to be concerned about in our nation, with the many immigrants from those nations that have arrived here. To be fair, most Muslims who come to the United States are seeking to get out of those hell-holes and have no desire to import misogyny. There are some, however, who bring it with them. Anyone who is unaware of honor killings and other atrocities against girls and young women from immigrant Muslim families here in the U.S. is not paying attention. The Texas Penal Code has added a prohibition against female genital mutilation within the past ten years or so. It was never there before because it never occurred to anyone here that the practice existed, let alone in our country.

I received some e-mails asking about my reference to the Aristotlean-Medieval “Great Chain of Being” theory in the recent post. The following is a summary of the class notes I prepared for an introductory lecture in my American History class.

The concept of a Great Chain of Being was derived from Aristotle’s Historia Animalia, which was his attempt to develop a taxonomy for living beings, animals in particular. This idea of classification was extended to the universe by later thinkers, into a sort of earlier day “theory of everything.”  Nowadays the quest for a theory of everything is often a topic for reporting and discussion. Present day theoretical physicists are striving, so far without success, to discover the basis for an explanation that will describe the way the universe works. Einstein’s relativity and the quantum theory seem to be at odds with each other in a manner that has yet to be reconciled. Some quests transcend time and place, it seems.

The GCB (no relation to the fifth-rate TV show that appear this spring) theory was sometimes termed the “Ladder of Nature” (scala naturae), but is was decidedly not a ladder or stairway that beings could move up or down on. Everything had its place, which was immutable.

Chain of Being

God was at the top of the GCB, and rocks were at the bottom in a hierarchical continuum. Humans occupied the space on the continuum between the wholly spiritual (angels and demons) and wholly physical worlds. Within their category, humans had their own hierarchy. For example the king was God’s lieutenant on earth, at least in his own kingdom. Below the king were the nobility or aristocracy, commoners of various ranks, and serfs and slaves. Everyone was born into his place, and stayed there. Moving up and down was not possible, and to attempt to do so was a crime and a sin.

Obviously, such a mind set had great benefit for those in power. It was a wonderful way to keep the hoi polloi in line. Try to change your station in life and you are punished by death; since you have committed a serious sin by attempting to interfere with God’s order, you go to hell for eternity. And the journey is not at all pleasant, to wit:

Auto de fe of a heretic

This idea began to come apart in the West with the Renaissance and Reformation in the 15^th and 16^th Centuries and received its greatest impetus in the Enlightenment of 17^th and 18^th Centuries. The United States of America became the Nation of the Enlightenment, its founding document for the first time ever declaring that all men are created equal, and possess certain unalienable rights. That Declaration established an intellectual basis for the rights of individuals being superior to any so-called rights of the collective.

Obviously, the ideal did not immediately become reality. More than three millennia of tradition and established institutions did not roll over and play dead. The rest of the world, furthermore, was steeped in the same ideological mind set, and for the most part, it still is. Breaking the GCB is an ongoing task and it not yet completed. One reason may be that history is a chronicle of people who are mostly lazy, scared, and greedy. Such people can take comfort in a system where everyone has a place.

Notes: The “Nation of the Enlightenment” was coined by Leonard Peikoff in his the Ominous Parallels (1982). “Lazy, scared, and greedy” people is Ian Morris’s description in Why the West Rules; For Now (2010). For those interested, a readable, more detailed narrative of the GCB (as it applies to the subject matter of their book) is contained in the first chapter of Robert Bucholz and Newton Key’s Early Modern England (Blackwell Publishing 2004), pp. 22 – 30.

Today I received an invitation to support the Dallas Democrats by becoming a sponsor of their annual “Jefferson Jackson Day Dinner.” The fact that I often receive these kind of invitations must be someone’s idea of an ironic joke. There is little the present Democratic Party stands for with which I agree, so count me out.

Today’s Democrats celebrate Thomas Jefferson as a founder of their party. There are historical arguments that assertion is incorrect, or at least incomplete. The Democratic-Republican Party of which Jefferson was an early adherent opposed the expansion of federal power advocated by Alexander Hamilton and his Federalist Party and practiced in the John Adams’ administration. After the Federalist Party imploded at the time of the War of 1812, Jefferson’s party split into two factions, one of which became the Democratic Party under Jackson, and the other the Whig Party under Henry Clay. During the 1850s, the Whigs dissolved and most joined the newly formed Republican Party. Thus Jefferson, like the Abraham of Genesis, seems to be the father of two sets of progeny in conflict with each other for the same land. Jackson, unlike Jefferson, is certainly an unambiguous founder of the modern day Democratic Party. I will not argue with that.

What I really find anomalous is the Party’s celebration of two Presidents who were both Southerners and notorious slave owners, given that its current propaganda falsely accuses Republicans (who ended slavery and were as much responsible as anyone for the landmark desegregation court decisions and civil rights legislation in the 1960s) of racism for opposition to the Democrats’ poverty pandering. The Democrats also insist on continuing to brand the Southern States with the mark of Cain for their slaveholding past, notwithstanding that slavery was legal and existed in all of the original States. Leftist historians and opinion writers insist that any slave owner or supporter of the institution, no matter the mores of their time, was ipso facto morally depraved and belongs in the lowest circle of Dante’s Inferno.

Don’t get me wrong. There is much to admire about Thomas Jefferson and Andrew Jackson. Both were at least near-great Presidents. Both would have left their stamp on the Nation even if they had never become the chief executive. You can count me among their fans. Like all humans, they had their flaws and failings. Jefferson did not manage his personal affairs very well. He was continually in debt throughout his life from living beyond his means and died insolvent. Being among the foremost proponents of the Enlightenment in America, Jefferson was troubled by the existence of slavery. He said as much in many of his writings. He was not sufficiently troubled, however, to free most of the slaves he owned. There is evidence, although inconclusive, that he took a female slave as a concubine and had a child or children with her. Sort of an Americanized droit du seigneur, a practice in which he would have had plenty of company.

Andrew Jackson, unlike Jefferson, had no such compunctions about slavery. That there was anything wrong with the institution does not seem to have crossed his mind. The Hermitage, his plantation near Nashville, was worked and staffed by dozens of slaves. Like Jefferson, who penned the Virginia and Kentucky Resolutions that held that States could and should nullify within their borders an unconstitutional federal law, Jackson believed the States were fully sovereign in their spheres. His spat with South Carolina over that State’s attempt to nullify a tariff that gave rise to his the “union must be preserved” speech, was a defense of an express power given to Congress by the Constitution. Jackson’s campaign to destroy the central bank he believed had too much power and was extra-Constitutional cast him as an earlier day Ron Paul. After vetoing the bill that would have renewed the charter of the Bank of the United States, he deposited federal revenues in State chartered banks.

Neither Jefferson nor Jackson created the institution of slavery. It was in existence long before either was born, and was the basis for the supply of labor in the pre-industrial economic system that existed in America, both pre- and post-colonial. Both inherited that system, and the interests of a lot of people were vested in it. Furthermore, slavery was philosophically part of the Aristotlean-Medieval Great Chain of Being theory that had been only recently challenged by the Enlightenment, and had arguable religious sanction in the Old Testament. That individual rights even existed at all was a suspect notion prior to the 18^th Century. According to the Great Chain, everyone had a place they were born into, and could not change. The abrogation of this philosophical system took many generations, and, indeed, is still going on. I argue that today’s liberal Democrats retard, and even retrograde the process by their passion for collectivist identity politics.

Both men would be horrified with the policies and politics of today’s Democrats. Jefferson was an individualist who advocated that the government that governs least, governs best. He believed that the States were sovereign within their own spheres, that is, everywhere that the Constitution didn’t delegate exclusive power to the Congress. Jackson was of similar mind, though his style was much different. He grew up on the frontier and was a military leader against the British and their Indian allies where he learned some hard lessons about the use of military force. Neither would have subscribed to the over-regulated nanny state, or the confiscation and spread the wealth schemes the recent Democratic regimes have sought to impose.

So I will celebrate two of our greatest citizens, leaders, and Presidents, with full knowledge of their flaws. I will even celebrate a day for Jefferson and Jackson together, but do not expect me to contribute a cent to today’s Democratic Party. Insanity can include many kinds of behavior, including helping to buy the rope they want to hang you with. I may be a lot of things, but insane is not one of them.

A lawyer’s motion to recuse a judge is always approached with some trepidation. After all, it is a suggestion that the judge cannot be impartial in a particular case – in other words, she cannot do her job. If the motion fails, then what? The lawyer must plead his case before a jurist who he has irritated, if not insulted. If the motion succeeds, what happens when the lawyer appears before that judge in a later case? Same thing, though somewhat attenuated. In the Zimmerman case, attorney Mark O’Mara has nothing to worry about.

No doubt it was with a sigh of relief Florida Circuit Judge Jessica Recksiedler recused herself from the Zimmerman case because of a potential conflict that relates to her husband. The entire order is sealed along with the other papers in the case file, but published comments indicate that, while she didn’t believe the recusal was legally required, she was seeking to avoid even the appearance of impropriety. Fairly standard practice. Perhaps the rising star that became a crispy meteorite otherwise known as Judge Lance Ito crossed her mind. Now Judge Kenneth M. Lester Jr.,who has 15 years on the circuit bench and presumably less at stake for his future career, will preside over the case. The last media circus case, which happened to be in a neighboring county, was that of Casey Anthony. There Judge Belvin Perry competently presided, and the jury took the heat of public outrage over the not-guilty verdict. The judge in Zimmerman’s case may not be as lucky, no matter how competent. The matter appears to have media legs and the emotions continue to be high. For anyone who makes the hard decisions, judge or jury, this could be a no-win job.

The special prosecutor says she did not bring charges because of public pressure. Until more evidence is made public, we should take her at her word.. Nevertheless, as one who has been on both sides of probable cause determinations, I believe the affidavit supporting Zimmerman’s arrest would not fly in a Texas court.

This week’s The Economist, a British publication which styles itself as a newspaper but whose format is more what we would call a magazine, has an interesting and rather provocative cover on its U.K. edition for this week of April 14^th -20^th, 2012. It shows a map of Scotland intended as a pan of the Scottish independence movement. That cause has recently gathered some energy with the election of First Minister of Scotland Alex Salmond who has recently stated his desire to hold a referendum on the matter sometime in 2012. The cover labels the country as “Skintland” and the major cities as Edinborrow and Glasgone. The regions are the Highinterestlands, the Grumpians, and the Loanlands. All these parodies are intended to be predictive of the dire economic straits the country would be in if it became a nation independent of the rest of Britain. Needless to say, this cover raised quite a few hackles, particularly those of Mr. Salmond, who was highly offended.

The articles discussing the prospect of independence inside the magazine are more thoughtful than inflammatory, however, and set forth the pros and cons in a balanced manner. They nevertheless conclude that for Scotland to go its own way as a fully independent nation, even as a member of the Commonwealth like Canada and Australia, would be bad idea economically. It appears to be mainly a matter of ethnic or sectional pride, though individuals of Scottish descent reside in every part of the U.K. Great Britain has been great as much because of Scotland as England, and the benefits have been reciprocal.  The Queen herself has at least as much Scottish ancestry as English (Salmond reportedly wants to keep the monarch as Queen (or King) of Scotland, as the monarchs were prior to the Act of Union in 1707).

The Scots have a reputation as an ornery bunch. Kind of like Texans. The Lone Star State ‘s culture was greatly influenced by the original English-speaking settlers, who were mainly of Scots-Irish descent. Those folks, often incorrectly termed “Scotch-Irish,” were lowland and borderland Protestant Scots who were lured to settle in northern Ireland by Oliver Cromwell, who dispossessed the native Gaelic Irish in a pacification attempt.  Many didn’t like it there, and emigrated to the American colonies, quite a few ending up in Tennessee and Texas.

Last year, one of the more extreme reactions of some Texas politicians to the perceived triumph of oligarchical collectivism in Washington’s brave new world was talk of secession. That prospect makes about as much practical sense as that of today’s Scots separating from the rest of Britain – that is to say, almost none. The economy of scale of a commercially and politically unified nation that permitted free trade within its vast borders is what produced America’s standard of living – where the most obvious health problem for the poor is obesity, not starvation. Likewise, subsequent to the unification of Scotland with England and Wales in the 18^th Century is when the Empire really took off economically. If Scotland wants to become an economic backwater with plenty of pride and not much else, that’s what independence will bring, as it would to our Lone Star State. Fortunately, there is hardly any chance of that happening. Not in the homeland of Adam Smith, or in Texas, wherein reside some of his most faithful heirs.