Saturday, November 14, 2009

Political update for October/November, 2009

It is so very hard for me, when writing on politics, not to leap into the same few issues dear to my heart – in general, the negative effects of partisanship on our collective ability to find reasonable solutions to problems and the mistake of both parties in believing that spending money we don’t have in the hopes of creating a sustainable economy (value) is sustainable.

So, I’m going to try, really, really try not to slip down those paths, and just cover the topics of the past month or so for which I hope to have something to say you can’t read in the millions of other blogs out there.

Khalid Sheikh Mohmmamed

Presidents rarely do anything I like. Obama is no different. In fact, based on what I have seen so far, I suspect I may conclude someday that he is a worse president than even Bush II. Bush was in my opinion, the worst president of my lifetime, and yes, I am including Jimmy Carter. He was handed a golden if bitter opportunity for greatness when 9/11 occurred, but, instead of being Churchillian, he just tried to sound Churchillian, or his writers did, and he led us into two very badly run wars and much other nonsense I won’t go into here. I started blogging at a time when Democrats were regaining some power in government, and thus at a time when Bush was less powerful and therefore having his better years in my opinion, save the last few months of his administration when he engaged in the economic madness that I am trying to avoid discussing (and which Obama/Congress has multiplied fourfold). I have yet to chronicle Bush's eight years and might some day. No, he was not, in fact, up to the job, and I was not even then proud of my 2004 vote for him, which, had the Democrats put up someone other than Kerry, in my opinion one of the worst characters in politics, would not have been necessary for me or many others.

With Obama, I can find few things his administration has done (or not done) which either satisfies me or I find wise. Just thinking of the stimulus package, the continued bailouts, the looming health care fiasco, the parade of apologies on foreign soil, the middle east situation, the Iran situation, the Russian situation, the continued empty blather about what he is going to do for the middle class or gays in the military, etc., I can come up with little positive. Perhaps, as far as I know, the administrations efforts to keep the Mexican drug war out of the U.S. was successful. Given the state of the media - I am prepared to be disappointed.

So, it should be no surprise to me that he has decided to try Kalid Sheikh Mohammed (KSM) in a United States District Court. It is much like the apparent decision to warn combatants taken prisoner of their “rights”. A big mistake that must lead to problems down the road. The conservative criticism that liberals want to "criminalize" war is an accurate one.

There has been so much written on this already from people with a similar viewpoint to me, that I don’t want to go down that path to far. In short, it’s not a good idea, because it breaks with our law and our tradition that, at least, foreign combatants captured on a foreign battlefield, do not get the benefit of the U.S. judicial system. The trials should be held wherever our military or the commander-in-chief think best, and, arguably, when the conflict is over, or earlier if desired, be held before a military tribunal with the defendant given an opportunity to defend himself against charges of war crimes. Terrorism, obviously, is deemed a war crime by every nation. Indeed, even were KSM caught on our soil, the same rules should apply. In no manner do I understand how the Geneva Conventions might apply (although the Supreme Court seems to think so) except that I believe the prisoner's should not be tortured or abused (and I'm not engaging the incredibly rare, if ever, ticking time bomb situation here).

Whatever special rules are set for KSM's case, I fear we can count on a few things. The trial judge will almost certainly be on the prosecution team throughout the trial. Expect all but harmless rulings to go the defendant's way. The trial will likely be a show trial, made to have the trappings of justice, but few of the risks.

However, I do not believe (maybe I should have said hope) that the government would have decided on an Article III trial if they did not have rock solid, non-confessional evidence of KSM's guilt. But, someone, perhaps Obama and the AG, should have to write "Murphy's law is real" one hundred times on the blackboard, because something will certainly go wrong. There will be the inevitable fight over the defendant's constitutional rights. Indeed, if I were one of KSM's attorneys, I would raise every single constitutional defense I could think of including excessive bail (they couldn't take the chance he'd ever make it, even if a billion dollars).

There are two bad outcomes - a show trial of the type that found Saddam Hussein guilty or the O.J. civil wrongful death case, both of which were embarrassment to the legal profession, or, a bizzare acquital for lack of evidence and KSM being kept a prisoner anyway - something our legal system cannot countenance, but in his case, must. Even if his being convicted and sentenced to multiple murders is a more likely possibility, these are not risks that need be run. Other suspected terrorists have or are being tried under military courts, there is no good reason to try him otherwise. But, given sufficient reason to believe someone is Al Quaeda, they should be held indefinitely until AQ or its derivatives and imitators have largely ceased to operate. Admittedly, that will be difficult to tell, but this is a war they have chosen and we have to defend it.

At the very, very least, trying KSM in a military court would be a much better solution. I'm not suggesting that he not be given an opportunity to defend himself, and the notion that a military court has to be a kangaroo court is unfair and untrue. The rules should be clear and fair.

Carrie Prejean

Why is Carrie Prejean on my radar again? Are we serious? Do we really want to spend time wondering why a teenage beauty queen might have sent her boyfriend salacious images? It was bad enough when I heard her say at a speech that God had chosen her to say that marriage is between a man and a woman. At least God has a good eye for the chicks, I guess.

I've said this before, so I'll be brief. Carrie Prejean took, seemingly with humility and appreciation for hurt feelings, the same position as Barack Obama takes - marriage is only between a man and a woman. I disagree, but am greatly outnumbered by my fellow citizens who routinely defeat every opportunity to change the law. Her being denied the Miss America crown was wrong in my book - if you can get past how silly the whole contest is - but her lionization by the right is even sillier.

Her performance as a conservative speaker is, to be kind, an embarrassment to the conservative movement, and, were I Newt Gingrich, or Sarah Palin, I wouldn't want to be on the same stage with her. In fact, I'd be embarrassed.

But, of course, this is exactly the type of stuff that fascinates America. So, we are stuck with her for a while. At least she's nice to look at - but if we want beauty queens, we only need to turn on FoxNews.

Sarah Palin

When John McCain chose Sarah Palin for his running mate, I was surprised only because of the ongoing ethics investigation regarding her brother-in-law (which eventually went away). But, the public had made it clear that they were not interested in things like that or Jeremiah Wright or other side shows this election. I thought she was a good choice, in that she was a fresh face, and despite the unfamiliar accent, and colloquialisms, she spoke better than any of the three men in the race, much freer of wacky mistakes, if not as soaringly as Obama. I liked her anti-spending position and the fact that she wattacked people in her own party. Those both gets bonus points with me.

That was a first impression, of course. She wilted under the media attention. The Katie Couric interview was a disaster that just didn't have to be. Watching it made me think of the Titanic, if the captain had in fact seen the iceberg, but kept drifting towards it anyway. Could you not think of one newspaper or magazine? No doubt, she was following her handlers' advice. This is often a mistake for both presidential and vice presidential candidates, but one that is inevitable in our scripted phony times.

I do believe there has never been a worse roasting of a major candidate than the press gave Palin - it was never fair, and ridiculous rumors about her, it seems mostly, if not all untrue, were given credence by both the media and the left. My opinion - if everything about her was the same except she was pro-choice, the media and the left would have loved her and the right would have dismissed her. Such is the power of the abortion issue in American politics. Everything is colored by it even when it is not a campaign issue itself.

I have heard a number of people say they decided to vote for Obama after McCain had chosen her. The people I've met anyway, who say that, have in most cases never voted for a Republican candidate for president anyway. The polls show she had no more impact on the race than Biden did. People voted for Obama because they hated George Bush or because of the economy or because they wanted the ill-defined "change". Also, I think, because of the horrible campaign run by McCain's team who tried to help him win the election - unfortunately, it seemed like that election was the 2000 Republican primary.

I believe very few of the negatives I hear about Palin. I have never, for example, seen any indication that she wants to force people to be Christians, although I've certainly heard that from people on the left (in fact, it is just moronic). Nevertheless, her post-campaign existence has far from impressed me. She has been full of excuses and recriminations, won't acknowledge a mistake (even that she was awful in the Couric interview), and, she gave up her governorship to be a media personality and cash in on her memoirs.

It is not clear whether she will be a candidate in 2012. Right now, many on the right seem enamoured of her, at least social conservatives. I don't understand why they believe the crucial independent block will vote for her for president. Yes, Obama also had very little experience when he ran for president, but now he has experience few people in the world have had and none of them will be candidates. But, she quit halfway through her first term as governor for no explained reason. In fact, the speech she made to explain it may best be described as double tongued, cross-fingered gobbledy goop. There's always a second act in American politics, but the right is making a mistake if they adopt her in 2012.

For the far right, she will be a vindiction of what they believe in most - pro-life and pro-christian values, states' rights and Hayekian economics. Even independents and moderates who believe that Obama has not performed well will stick with him rather than vote for someone who gave up her one ticket to the show.

The truth is, as I pointed out ad nauseum during the campaign season, neither Republicans nor Democrats really care about experience - they care the candidate agrees with them on a few core issues. Governing experience is, in reality, no more important than most political rhetoric.

The Health Care Police

There are so many issues with health care it is a virtual blogging embarrassment of riches. Two stand out with me. First, the suggestion that health care will pay for itself by reducing fraud and waste is so laughable, we need to all stop and give a collective hardy har har har har har. If that were true, the good news is that we will be able to make medicare, medicaid and social security solvent again the same way. Imagine, no more problem with the defense budget. There's tons of fraud and waste we can collect there. Okay, joke over. Not funny. Health care reforms will add to our budget and our deficit. The truth is, few politicians on either side of the aisle have ever cared about the deficit, believing we will eventually grow our way out of it. That, after all, is what the Reaganites were saying back in the 80s.

The problem is, our deficit now far exceeds all prior deficits for the last century, except for the time period of the two world wars. Far, far, far exceeds. In fact, even in the 80s, the highest deficit/gdp ratio was far less than half of what it is now.

And what of the threat in the pending bill - pay for health insurance or go to jail. Probably you've seen the video where Nancy Pelosi said that this was fair. It doesn't seem fair to me. Those backing her suggested it's like the requirement in many states that we buy car insurance. Except, that's only for people who want to own and drive a car. No one else has to do it.

But, opponents of the provision make too much of it as well. They even claim it is unconstitutional to do so, forgetting that the government could, constitutionally, tax 100% of your income and has since almost the beginning required things of its citizens which would make the founders spin so fast in their graves we could probably use it for a renewable power source. The belief that this provision is unconstitutional goes along with the frequent absurd notion that if people don't like something, it must be unconstitutional, and if they do like it, it is. Of course, the constitution has become so divorced from the original meaning and intentions, it is as much an unwritten constitution now as a written one. Perhaps it always was. This notion of mine is not too popular, but I think, rationally, it is inarguable.

If the federal government wants to, it can draft you, and no one now would seriously claim that as being unconstitutional. It can force farmers to grow what it wants them to grow and regulate pretty much anything it wants to, tax you to paupery, make civil fines where criminal ones aren't available, criminalize normal activities, forbid you from the most personal of choices. If the government can force you to wear a seatbelt, tell you you have to racially balance hiring, require you to go to school, it can certainly require you to buy health insurance.

We don't have to like it.


I really don't know much about marijuana. If you put some tobacco in front of me along side it, I probably couldn't tell the difference. About 15 years ago, a date of mine was in stitches because I referred to a joint as "a marijuana cigarette". Just never been interested in it.

But, as much as the whole marijuana culture turns me off - the "oh, wow man," mentality always left me cold, and I could never figure out what it was people were getting out of it to begin with (I do realize I'm a "fag" and you are all laughing at me), I still do not understand why pot is illegal and alcohol is not. Forgetting for a minute that driving while under the influence, which I'm fine with, give me a choice between a road filled with drivers high on pot or alcohol, and I'd rather every one light up instead of drink up. Frankly, I think we should do away with most crimes of possession for personal drug use, but I'll be happy if we start with pot, even if it's not for me.

Don't get me wrong. I generally think it's bad for you. But, just as Prosac and the like has improved many people's lives, maybe some people need pot for the same reason. Shouldn't we be free to screw up our lives as we see fit, like I do by ingesting large amounts of refined sugar, bread and McDonalds whenever I break my diet. When they make that illegal - then comes the revolution.

California and a few other places have had medical marijuana available for a long time but the federal government didn't care and arrested people anyway based on federal laws. When the matter came up to the Supreme Court, it ruled that since federal government laws trump state laws and the feds had the right to raid and arrest (Gonzales v. Raich [2005]). That's certainly a correct decision legally, but, given the innocuousness of the "crime," it just seemed ridiculous to many people like myself. The Obama administration justice department has reversed the previous policy and has announced it will no longer enforce its laws against medical marijuana sellers and users in state's where it is legal. And the Supreme Court itself has turned down a recent appeal by a California anti-marijuana county. I applaud that. Not only is there greater liberty, but it means more tax revenues and we sure need that. Will California turn into a state filled with pot smoking morons? Maybe, but maybe it will be hard to tell the difference.

Burn the Witch

I'm not a Nancy Pelosi fan. I'm not a fan of most politicians. But, the recent decision by the tea-baggers not to burn her in effigy was a good one. Seriously, what were they thinking? Do I really need to blog on this one, or will all of you at least give me on pass and just say "Amen"?

Friday, November 13, 2009

Holy Moley

Today I’d like to look at two court cases, one which was recently argued in front of the Supreme Court of the United States and one which was recently decided in a high court in England.

The first amendment states in part – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The first part is called the establishment clause and the second part the free exercise clause. If you can’t figure out why, read it again.

That seems straightforward enough, and I’m pretty sure the founders thought that it would be easy to work with. After all, at the time, it applied solely to the federal government, and the states were free to establish and prohibit away, although they tended even by then towards the same principals in their own constitutions or laws. They just didn’t want an American version of the Church of England.

Of course, nothing is as simple as it looks. There were, actually, very few establishment or free exercise problems in America, and few Supreme Court cases too, until the 20th century (actually, the first Supreme Court opinion concerning religion and government finance was in 1899), when the federal government gained even greater powers and began to spend in such a manner that interaction with religion became unavoidable.

With spending came the problem of what happens when the government does so in a way that effects religious institutions or practices. This has been handled by the Supreme Court in such an inconsistent and juridically schizophrenic manner as to satisfy no one and offend practically everyone at one time or another. But, the way they handle financial issues is methodical and astute compared to the way they handle government use of religious symbols. The last major religious issue – prayer in school – has actually been handled somewhat more consistently – although this is probably the most controversial issue of all.

The question of the wall has been central to the dichotomy of interests in this subject. By wall, I mean the “wall of separation between church and State,” conceived by Jefferson as a metaphor for the first amendment religious clauses in a letter to a New England congregation. And, although his little buddy, Madison, probably thought deeper and wrote more about governmental religious interaction than Jefferson, it was the renowned Sage of Monticello (I will not take this opportunity to bash Jefferson, as usual) who has captured the public imagination on it as well as that of many judges thanks to his ability to turn a phrase.

The “Wall,” some protest, is not enshrined in the constitution, and inaccurate. However, the concept has come up in many constitutional cases and virtually always with approval, the first time in 1878 (I count 25 instances in Supreme Court cases). However, nothing in the law is ever so rigid as not to admit of exceptions or, at least, “fuzziness”. Thus, in the famous “Lemon” case (named after a person, not a fruit), the court opined:

“Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. . . Judicial caveats against entanglement must recognize that the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”

Two ideologies have developed concerning this issue that are somewhat coordinate with liberalism and conservatism. Separationists are those who tend to believe in a firmer higher wall and emphasize the establishment clause. Accomodationists tend to believe that the first amendment means only that the government can’t prefer one religion or sect to another, and, that the government can accommodate religion in general. They emphasize the free exercise clause. If I were so foolish as to label myself, I would say I tend to a separationist view, but with a wall that melts a little in the sun. There is room in my jurisprudence for accomodation as well, as long as the tail doesn’t wag the dog. Of course, the more extreme separationists or accomodationists would probably not believe I was wishy washy at all, but firmly committed to the wrong side.

Freedom of conscience is high among the most important of our rights, and religious belief is certainly a form of conscience, as that term is meant when used in this way. The founders seem to recognize that government involvement with religion hurt both institutions and they singled it out as being a special problem and therefore having a special status. Madison’s Memorial and Remonstrance is the most famous writing on this topic although it reads like a lead balloon compared to Jefferson's flowing prose.

The problem in judging first amendment arises because quite often the two clauses are not mutually exclusive. There is a ying/yang thing to it which many judges recognize as problematic. Enforcing one clause often has a negative effect on the other clause. To come to a decision some seek a compromise position and recognize their inability to do otherwise. As Chief Justice Burger wrote in a case concerning the right of Wisconsin to require children to be educated until 16 as opposed to the rights of the Amish to continue to have their tradition of older children working at home:

“By preserving doctrinal flexibility and recognizing the need for a sensible and realistic application of the Religion Clauses,

‘we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a “tight rope,” and one we have successfully traversed.’”

Naturally, this doesn’t please everyone and like most cases in America, you can probably find something like a rough 50/50 split. But, let’s get to the cases.

Salazar v. Buono was just argued before our high court. It concerns an issue which has been well covered before, the use of religious symbols on government property, with a twist. In this case, a cross, obviously a Christian symbol, has sat in the vast 2500 square mile Mojave National Preserve in California, originally put there by the VFW in 1934. In a remote spot, it has been used as a site for religious services on Easter pretty much since then. In 1999 there was a request to put up a Buddhist Memorial. The national park service declined but also said it was taking the cross down. The next year, however, congress legislated that federal funds couldn’t be used to take it down.

The following year, Frank Buono, a former park superintendant who regularly visited, sued to have the cross removed, stating that he, a Catholic, was not offended by the cross or any religious displays on government land for that matter, but he was offended because other religious groups couldn’t put their monuments up. The lower court found that he had the right not to be subjected to an offensive religious display and thus standing to bring the case (“standing” essentially meaning sufficient injury to sue). It also found that the purpose of the cross was to advance religion and therefore violated the establishment clause. But while the appeal was pending, congress legislated that the land be sold to the VFW in exchange for a few similar acres owned by the VFW but that if it was not used as a war memorial, it should revert to congress.

The court of appeals affirmed the lower court’s order that he had the right to sue and that the cross violated the establishment clause. Buono went back to the district court which then held congress’s attempt to sell the property to the VFW unconstitutional, because congress was obviously controlling the land, by requiring the land to be used as a war memorial (for which they would use a cross, naturally, as it is a classic war memorial) and taking the property back if it wasn’t used for that purpose. Again the court of appeals affirmed.

The questions before the Supreme Court might disappoint court watchers. The issue is not whether the cross was unconstitutional. It seems that the U.S. Department of Interior (Commisioner Salazar) didn’t want to pick that fight. They instead chose two safer routes – that Buono’s beliefs were ideological, not religious, and that there was no injured plaintiff (the usual requirement to have standing in most cases). Additionally, the govenment claimed that the sale of the property to a private group cures any constitutional problem.

The matter was argued by the Supreme Court this past week. Justice Scalia, who I have sometimes defended for what I believe are unfair attacks against him, was quite inconsistent with his famous jurisprudence which, among other things, insists that the court only to determine the arguments before it (as its rules state). For example, when the most recent abortion case came before the court a few years ago, he and Thomas both wrote that they believed that congress was without power to make such a law concerning abortion, an issue which was within the sole province of the states. However, as no party raised the issue, they could not rule that way (naturally, had they, they would have to find a federal abortion law they liked unconstitutional). Here, the issue of whether the cross itself was unconstitutional was not raised by any party and the rest of the justices did restrict themselves to the questions before them during oral argument (except perhaps Thomas who remains silent during oral argument). Scalia, however, kept trying to bring the issue back to whether the cross itself was a violation of the constitution, despite the fact that it is not before the court.

We have to wait for the court to rule. As with most controversial cases, it would not be hard to suspect that the conservatives would go one way and the liberals the other, with the “soft” conservative, Kennedy, making the deciding vote one way or the other. I’m going to go out on a limb and say that Kennedy will get this right and vote that congress’s purported sale was a see-throughable attempt to circumvent the first amendment establishment clause. Their refusal to allow the park department to use funds to remove the cross is a perfect example of what happens when there is religious-governmental entanglement – it snowballs. The further act of the purported sale to the VFW is precisely what the government claims it is not – a sham. In fact, it is such an obvious sham, that I cannot help imagining how the same lawyers arguing for the government here would howl if a defendant in a criminal case tried to claim it did not violate a crime by such an obvious ruse.

My guess is that Scalia and Thomas will argue that lower court was wrong about the cross being a violation of the first amendment in the first place even though this was not argued before the court. And they, and Roberts and Alito might argue that there is no standing as there really isn’t any injury to Buono. It certainly is hard to argue there really is. Obviously, anyone can be offended by anything. There would be a stronger argument for Buono if he had been refused to put up his own monument for religious reasons.

However, sometimes the court has extended standing to first amendment religion cases, without the requisite “injury” component, because it recognized that by holding citizens to this standard, there would be almost no curbing congress from violating the first amendment whenever it wanted, free of any check by the court. Although a couple of years ago a HORRIBLE decision by the court stepped back this judicial rule where the rule challenged was an executive order instead of a legislative act, but, it would probably require Kennedy to go there too. I view him as the equalizer on the court and I would be quite disappointed in him if he does.

The second case comes from Britain. There is no first amendment in Britain and although their unwritten constitution provides for religious freedom, it is not the same thing. Keep in mind, in Britain the Church of England still has some power and input into government. However, as I have no expertise at all in British religious freedom law, I will look at the case more from the policy point of view. That is, what should Britain do?

The case in question, decided this year, actually determined what a Jew is. I kid you not, the government of Britain, in the guise of avoiding discrimination, now determines what a Jew is. It wouldn’t matter to me whether they wanted to determine what a Muslim or a Christian or Buddhist is either. The fact is, the worst thing Britain could have done, even with its continued allowance of privilege to the Church of England, was to stick its governmental nose into religious beliefs. I imagine John Wyclif is rolling in his grave.

Here’s the case. An religious Jewish family applied for their 12 year son to go to the Jews’ Free School, which has been in since George Washington was born. Although the school may not always reject students because of religion, under the law it can give preference to Jews when it has more applicants than open spots. He was rejected because although his father was born a Jew, his mother is a convert. The Orthodox Jewish school believes that because she was not converted in an orthodox church, her son isn't Jewish.

It is amazing, in the country which inspired the notion of freedom in America and therefore throughout the world, it has been determined that a religion determining who is a member of its own group is discriminatory.

I cannot even comprehend the underlying ruling here. According to the court, the school did not determine admission based on the woman’s religion, since she practiced what she (and apparently the government) considered Judiasm, so that it must be based on her ethnicity – that is, she wasn’t born Jewish. This violated a national law known as the Race Relations Act, which, obviously concerns ethnic discrimination.

I do not argue, of course, that religious groups should be able to practice actual unlawful discrimination any more than any other group, but this ruling is not even internally consistent, as it cannot be contradicted that had she simply been converted in the Orthodox Jewish tradition, he would have been admitted. Thus, there clearly was no ethnic discrimination.

"If there is one thing that should be sacrosanct, it is who we “hang out with,” who we associate with, and who we deem, rationally or irrationally, to be a member of our own group.

The consequences of this are extraordinary. It means that one group of Jews may not distinguish itself from another by limiting its membership in a manner of which the government doesn’t approve. Once the principle is established, it means that not only are divisions within a religion safe, but in fact, no religious group, even the major religions, can be safe from evaporation by expansion of its membership by government decree. Although it is doubtful at this juncture in history, could it not be determined that all of the religions of which Abraham is the father figure, cannot distinguish itself from the members of another group. And, if that happens, won’t the most popular of the religions essentially be able to swallow the others? This is not as far fetched as it might seem. Despite Britain’s permissiveness to the Church of England, this is a serious blow to religious freedom. The trend towards government control of religion is one for which religious and other leaders in England and America, as well as other countries have long fought.

"There is an appeal pending to Britain’s high court, and I hope reason prevails. If not, in Britain, parliament is more powerful than any court. If it must, it should legislate an exception to its discrimination laws such that religious groups may set their own rules for admission. Likely that would forbid discrimination because of actual ethnicity. Although I would disapprove of any religion which discriminated on that basis, I would not be in favor of such a restriction. However, it would be better than the law which prevails now as interpreted by this court."

Despite our courts’ own wrestling with the first amendment, I do not believe a decision like this would have a prayer (pun intended) in the good ‘ole US of A.

The first amendment is certainly one way in which our government is superior to that of its parent. I will leave you with some words from Madison's Memorial and Remonstrance:

"Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves."

Saturday, November 07, 2009

Cheerful news for the Brothers Grimm

There once was a shoemaker, who, through no fault of his own, became so poor that at last he had nothing left but just enough leather to make one pair of shoes. He cut out the shoes at night, so as to set to work upon them next morning; and as he had a good conscience, he laid himself quietly down in his bed, committed himself to heaven, and fell asleep.

From the Elves and the Shoemaker

I thought that someone had sleighted two second tier heroes of mine in a comment on this blog, but, since my internal search came up empty for "Grimm," it was apparently either another blog I read or I imagined my heroes being sleighted so I can write about them. I'm betting on the first. But, the brothers, Jacob (some use Jakob) and Wilhelm were not some Hansel-come-latelies who penned or collected a few fairy tales in the way some hack editor might do if assigned it by a publisher. They were actually two of the most important literary figures from the early through middle 19th century and thereafter. Moreover, as far as I know, unlike say Hans Christian Anderson, they wrote no tales of their own. This post is dedicated to rounding out the picture of the two brothers, who are almost exclusively known for the fairy and folk tales, as the great scholars they were.

The boys were born a year apart in the 1780s in Germany, the second and third of eight brothers and one sister, six of whom survived infancy. Throughout their lives the two surviving oldest siblings worked together and lived together. Wilhelm often followed Jacob, and certainly Jacob was the greater of the two in all but his own reckoning, and he was probably just being humble out of affection for his brother. When Jacob went to law school, Wilhelm followed him. And when in law school Jacob was led by a professor to a deep interest in literature, Wilhelm followed him in that too. They never looked back on a legal career. Jacob became a librarian and then Wilhelm did. They moved to Gottingen to become librarians and professors there. Later, after they were dismissed for political reasons, Berlin finally called, and they went there together.

The brothers began to publish fairy and folk tales they had collected from word of mouth in the early 1800s, when their country was under the Napoleon’s control. The first two volumes were roughly coincident with the last few years of his reign - 1812-1815, and many editions followed over the years, with something over 200 tales collected. Nowadays, we mostly just refer to any of these collections as Tales from the Brothers Grimm or something similar. The family of Wilhelm’s wife (Jacob was always a bachelor), Dortchen, who cared for both men most of her life even though being frequently ill herself, provided a number of them.

It would be hard to say that the Germanic world has brought us many longer lived and popular books than these. They have been published all over the world. Disney built a company on the Brothers’ Grimm’s backs with his great triumvirate of damsels in distress – Snow White, Cinderella and Sleeping Beauty. Children of my generation, at least, read many more – Rumpelstiltskin, Little Red Riding Hood, The Elves and the Shoemaker, Tom Thumb, Hansel and Gretel and Iron John are all familiar to those my age and prettified versions are probably told or read to kids today. Although the Grimms' tales as they wrote them still sell quite well, I’m guessing that they are most often given as gifts these days, almost like coffee table books, and I wonder if modern American parenting allows for the telling of these often violent tales to their little princes and princesses. I’d say not so much, but that’s a guess and, of course, a generalization. But, I stopped giving it as a gift years ago, when I realized it would not be read to the kiddies.

Here’s the end from one of my favorites of their tales, although really only because modern political correctness makes it so offensive – The Jew Among Thorns.

"At length the judge cried, quite out of breath, “I will give you your life if you will only stop fiddling.” The good servant thereupon had compassion, took his fiddle and hung it round his neck again, and stepped down the ladder. Then he went up to the Jew who was lying upon the ground panting for breath, and said, “You rascal, now confess, whence you got the money, or I will take my fiddle and begin to play again.” “I stole it. I stole it!” cried he; “but you have honestly earned it.” So the judge had the Jew taken to the gallows and hanged as a thief."

The whole idea for the Grimms was to explore and preserve their beloved German literature. They spent their entire lives revising and re-editing the tales. But, when they weren’t working on them, they were producing far more material spanning the entire German history. Other than Goethe and a few other great names, they virtually became German literature. And who reads Goethe anymore?

A few years after they started collecting and publishing folk and fairy tales they published a couple of volumes on German legends and this time there were hundreds of them. Besides, they didn’t just collect all of these tales; they analyzed and edited them, trying to whittle them down to their original form to the best it seemed possible (although Wilhelm was interested in poetic renderings too). Despite frequent sickness, the unrelated work they had to do for money to survive, family and social responsibilities, their corpus of work was astonishing.

While the tales are their most popular contributions to literature, other work was much more scholarly and at least as important. Together they wrote a number of works like Old German Forests aka Old German Miscellany, a collection of essays with which they began their literary dissection of old German mythology and language and a volume of lays from the Elder Edda, a collection itself whose origins are uncertain and which I sometimes loosely describe as the Germanic Bible. But the most important work they did together outside of collecting and editing the tales was the German Dictionary. Not surprising, they are little known for this outside of Germany as you have to read German to use it.

The work is important for several reasons. It was begun when the Grimms were already in their 50s and was, in some ways, a culmination of their work, particularly Jacob’s. It sought not just to define words, but to the extent possible, to try and find the first uses of the words in print. To acccomplish this, just as editors of the Oxford English Dictionary would later do, they used correspondents who would read and report to the Grimms on what they found. Not surprisingly, they could not complete this astonishing enterprise in the time they had left – Jacob died in 1863 when they were only up to "F". In fact, he was working on the entry “”frucht” (“fruit”) when he died. However, they began the German Dictionary many decades before the British began theirs, and the latter owed much to the former. The German Dictionary was not published until 1960, almost a full century after Jacob died. It may be virtually unknown in America, and, obviously, there is no rationale to have an English translation, but it is famous throughout the German speaking world and also in philological circles. Even if the Brothers Grimm had not published the fairy and folk tales, they should be just as famous for the dictionary, which they worked on for over two decades.

By the time they began the dictionary, they were already quite celebrated. Of the two, Jacob was the more revered, but not just because he was a little older. He was the more interested of the two in uncovering the roots of the German language and its history. Wilhelm was interested in that too, but, just as he was the more social of the two, and the one with a family (which Jacob got the advantage of as well), he was also more interested in the poetry and story aspects of older German literature. Much of his solo work was related to those interests – Old Danish Heroic Lays, Ballads and Folktales; On German Runes; and, The German Heroic Legend, which was considered by Jacob and most of Wilhelm's followers, his greatest achievement. It includes a study of the Nibelungenlied, a wonderful epic (and a great favorite of your legendary hero loving blogger) still published in America, but little appreciated here. Wilhelm was ahead of his time in his understanding of it, recognizing it to be of German origin, and not a Scandinavian work as scholars and the public then thought.

But, Jacob’s work was more ground-breaking. I came to know the Grimms' history through my interest in philology and mythology, the same interests which make Tolkien's works so fascinating to me. Jacob's German Grammar, written in 4 volumes over the course of 18 years, made him a giant of philology. His most important contribution is known as Grimm’s law. Like so many discoveries, it did not begin with him. Other seminal German philologists had formulated a law concerning the way sounds have systematically changed from the proto-Indo-European language that they believe preceded virtually all European and many other languages (still a theory, but largely accepted as true - I slightly disagree with the prevalent theory but won't bore you here; someday I probably will bore you with it - and that's a threat). Jacob greatly expanded the law and is credited with “the first non-trivial systematic sound changes to be discovered in linguistics”. I put that description in quotes although I have failed to track down the origin of it; but I have seen it described thus in a number of sources, and it has to come from somewhere. Jacob himself called his contribution Grimm’s law of Permutation of Consonants.

Since the description of it was rather dry, I’ll give a couple of examples with some familiar words from Halsey’s Etymology of Latin and Greek written in 1882 (which, by the way, to show the loss of quality in bookbinding over time, my copy of Halsey is in much better condition than many of my books published very recently), examining the changes of consonants for the same word in Greek, Latin, English and German.

(Grk) thugater (Lat) -- (Eng) daughter (Ger) tochter

(Grk) odous (Lat) dens (Eng) tooth (Ger) Zahn

(Grk) tu (Lat) tu (Eng) thou (Ger) du

I don’t want to dumb down Jacob’s inspirational scholarship. It was a lot more complex, and, it seems obvious once someone figures it out. Philology is not exactly a popular field, and this might not excite you too much. But, even now, for philologists, Grimm's Law is considered a staggering achievement which led to so many other developments.

And although German Grammar and Grimm’s law were perhaps Jacob’s greatest solo achievement, he made many others, particularly in books titled German Legal Antiquities, German Mythology, and finally, History of the German Language.

German Mythology stands out in my mind. There is no Grimm’s Law to pull out from it, but it was still of great importance, if only because he applied scholarly techniques to a subject that had little of it previously. Today we have many sources for stories about the Norse or Germanic gods and other tales on our bookshelves. But his was the first clear, well-researched work on the subject. He connected German mythology to Roman descriptions of their northern neighbors, covered the great gods like Wotan and Thor as well as the sprites and elves, and spent a lot of time on linguistic aspects, which, given his expertise, is not surprising. As far as I can see, Jacob’s point in much of his work seems threefold – to impart the substantive scholarship, to show the depth and richness of the Old German culture (as opposed to the barbarian civilization the Romans described and which was still believed) and also to show that that the popular culture of his day was derived from their own ancient culture - in other words, they shouldn't be skipping right from the Romans to modern Europeans -- the old German contribution was immense.

The major modern scholarly work on German mythology by the Dutchman, Jan de Vries, is considered by many to be a continuation of Grimm’s work. German Mythology is still published, last in 2004, although thanks to the first translation in the 1880’s, it is usually titled Teutonic Mythology. Frankly, there’s much in the work that has been criticized as just plain wrong, but with seminal works in any field, that is typical. It was still a substantial advance from previous work. In fact, to this day much of modern study in German mythology is based on Jacob’s work.

There are other aspects of both Grimm’s work which are worth discussing, but the above should make my point. Of course, I’ve only included the brothers’ major works. I've left out a major political escapade where the Grimms were thrown out of a university because they protested a king who revoked the local constitution and released them from vows they did not think he could legally do. Now, a small footnote in history, it was of tremendous consequence to them and colored the rest of their lives. During the failed revolutions of 1848 and an early attempt to unite Germany, Jacob was elected to represent the district where he grew up in the new parliament, although, in reality, he was ill suited for it and soon lost interest. But, they were not really political, and for what it is worth, they were very conservative, monarchistic and anti-republican. I also haven't touched on their family relationship, which was quite benevolent, from what I can see. They were best friends as well as brothers, and when Wilhelm died a few years before Jacob, it was quite sad for him. He took a portrait of his brother to bed before he died.

And, for what it is worth, the brothers were greatly celebrated in their own day, not just in Germany, but throughout Europe, particularly Jacob. In Spring, 1841, he received the French Cross of the Legion of Honor and the next year he received Prussia’s first Pour le Mérite for arts and science. In 1846, a large group of German scholars from many fields dedicated to German unity assembled for a conference. They unanimously elected Jacob their president by acclaim.

But, as I like to say - this isn't Wikipedia, so I refer you to a few available biographies - I haven't read them all - but neither of the two I did read (Peppard's Paths through the Forest is the only one I know by name) are worthy of a recommendation, and the websites, which mostly concern the tales.

Here, I just wanted to shed some light on how important the Grimms were to literary scholarship - particularly in philology and mythology, two of my favorite subjects. Unlike other past figures I've highlighted in this blog, the Grimms are actually famous and celebrated, and I am not in any way diminishing their work on the tales, as those are very important and scholarly too, despite their entertainment value. So, I'm not complaining, just expanding.

About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .