Sunday, March 31, 2013

"All that we are saying . . . " Really, is that all?

I read this a few weeks ago in Alfred Jules Ayer's Language Truth and Logic, my car book for the last month or so, and have been meaning to post it ever since. Read it and then go back and read the first eight words again:

"For, roughly speaking, all that we are saying when we say that the mental state of a person A at a time t is a a state of awareness of a material thing X, is that the sense-experience which is the element of A occurring at a time t contains a sense-content which is an element of X, and also certain images which define A's expectation of the occurrence in suitable circumstances of certain further elements of X, and that this expectation is correct: and what we are saying when we assert that a mental object M and a physical object X are causally connected is that, in certain conditions, the occurrence of a certain sort of sense-content, which is an element of M, is a reliable sign of the occurrence of a certain sort of sense-content, which is an element of X, or vice versa, [a]nd the question whether any propositions of these kinds are true or not is clearly an empirical question."

THAT'S ONE SENTENCE!  That's "roughly speaking, all [he] was saying?" Thank God. Because I read it about 7 times AND his whole book and I have no idea what he is talking about.

All he is saying? Hysterical. And then I love the end too - ". . . is clearly an empirical question?"  Yes, clearly.

Legalizing gay marriage?

Sometimes the media coverage of a case or political matter so sucks the air out of the room that it is hard for me to write about anything else. The issue is topical, and it makes me want my say while anyone actually cares. Also, because I am way too busy doing things other than this blog (this working thing - whose idea was that exactly?), it is much easier to write about something very topical and legal than the other topics I have started in the past couple of months, but not finished, such as those on Jefferson, bio-ethics, guns and even reviewing two more of my favorite movies. Anyway, today the topical issue is gay marriage. Not a big surprise to anyone who has a tv or an internet connection.

Equal protection: There are two gay marriage cases orally argued before the Supreme Court this past week.  The first one, Hollingsworth v. Perry, came out of California and concerns whether the state has a right to ban gay marriage at all, or whether it is an impermissible violation of equal protection.  In other words, even though the state has spoken - here through California's very democratic ballot initiative - and amended their constitution to define marriage as between a man and a woman, federal courts have ruled that to do so violates the federal constitutional prohibition of violating the equal protection of the law.  
Even if you believe that gays are just as entitled to the happiness or misery associated with marriage as their straight counterparts, equal protection is often a very difficult question.  But it is not what people sometimes think it is.  Laws tend to discriminate between people - even criminal legislation - and government has always been allowed to do this. If equal protection meant government couldn't discriminate between people or groups, they would barely be able to make any laws at all. You might think in the abstract that government shouldn't be allowed to discriminate, but if that was the case it could also be argued that the government couldn't discriminate between who could vote, and a 3 year old could complain they were being discriminated against.  So, equal protection certainly doesn't mean everyone must be treated the same. It is supposed to mean that people similarly situated should be treated the same - and that is itself a goal and never a success. That is, the rule is that the law should not be arbitrarily applied (hah!) or based on personal feelings (double hah!) but on things the government has a sufficient interest in and in a way that makes at least a little bit of sense. In some cases, for what are considered very important issues, more is required of the government to sustain a challenged law.  At least that is the theory.  

Whether two people or groups of people are similarly situated is a matter of opinion that cannot be reduced to a set of rules that actually works in all cases. But, those rules that they do use broadly concern the courts making decisions about how strong the government's interest in something is, say something like regulating who can marry, and how narrowly the law accomplishes it.  Like any complicated legal issue, the opinions over the years are very inconsistent. Some matters, naturally, are easy. It is easy for us to say (now) that there cannot be a law that says people of Asian descent cannot have laundries in San Francisco.  But, it is a tougher question if the law says that you cannot have a laundry made of wood without a permit for safety reasons.  Does that sound like a neutral law? Generally speaking, yes, but not if it turns out most of the laundries are made of wood  and that almost no Asians get approved for permits. That hypothetical is from an actual case decided long ago, Yick Wo v. Hopkins. Very few people would disagree nowadays that you can't even have a very general rule that discriminates for no other reason than someone's ethnicity and those few people are so marginalized, they barely matter. 

Over the years the Supreme Court has decided that it will apply different standards for different types of cases to determine whether there is equal protection. That this is unequal treatment in a plain manner of speaking does not seem to be a great concern, because of the types of cases that get special treatment.  Some people call this constitutional theory. I call it unconstitutional, but what we prefer to do. One of the higher standards applied is strict scrutiny , which means that the government cannot make a  law discriminating on the basis of ethnicity or which restricts a fundamental right, like, say freedom of speech, unless its legitimate interest in doing so is considered compelling and they have narrowly tailored their legislation to meet those interests and that the means chosen to do it is the least restrictive way to accomplish the goal (the narrowly tailored and least restrictive elements of this scrutiny are very closely related).  In other words, it will be very difficult to have these laws found constitutional. They are considered suspect from the get go and the government has to meet a burden to sustain them.
Then there is heightened scrutiny, sometimes also called intermediate scrutiny, which means that the government has to have a really important or significant interest (but not necessarily a compelling one) in a field to discriminate and their solution must be at least substantially related to achieving that goal. It is much less clear what types of cases fit into this category, but they are often sex related. It also seems to apply to some other rights, like free speech issues where the "speech" has other aspects (like burning your draft card), etc., the rules for which are more complicated.  Unfortunately, it is not even clear to the Supreme Court if intermediate and heightened scrutiny are quite the same thing or not.

The last and the easiest test for the government, and by far the most common, to pass is that of rational relationship test, which basically means that the state has almost carte blanche to discriminate with respect to most any law not concerning ethnicity, fundamental rights or sexual issues just so long as they can show they are making some bare minimum of sense in what they are doing. These laws are presumed constitutional; the opposite of strict scrutiny. One of the contested issues in the other case we are going to discuss, U.S. v. Winslow, is whether the issue comes under the rational basis test, in which case the law might survive, or heightened scrutiny, in which case it has a better chance of being shot down.
I have tried to avoid getting too tied up in legalese and am trying to speak plainly here, but those are roughly accurate descriptions of the standards. They have been mocked by some, maybe most famously by the late Justice Rehnquist, and for good reason. They are kind of silly. What possible method can a judge have to determine whether a state's interest in some act or issue is compelling as opposed to just important, except by his own biased opinion or mere whim.  And isn't that why we bother to elect members to the legislature -- to represent our legitimately biased opinions?  And does the Constitution permit us to treat some matters differently than others because we think they are more important? 

While the above may be fairly termed legal mumbo jumbo by some, it is nevertheless crucial and the standard applied will determine the status of gay marriage in our country.  If in Hollingsworth, the majority (or maybe plurality) of the court determines that the right question to ask is whether California has a sufficiently important interest in regulating marriage which Proposition 8 substantially affects (that is, applies heightened scrutiny), it likely will also find proposition 8 unconstitutional. But, if the rational relationship test is applied, then it is obviously much easier for statute to be upheld and it probably will be. The court, perhaps, will determine this. But, maybe not, and here is why.
Standing: There is a second problem in Hollingsworth that seems very technical and legalistic, but it is also very important because it determines whether the court will even get to the equal protection question.   That is the standing issue.  It basically concerns whether the people suing have the right to do so at all, never mind the merits? The Constitution requires that federal courts can only take cases where there is an actual case or controversy. 

Standing is very important because we don't want everyone to be able to sue on every issue. Your neighbor can't go to court to sue for your car accident or oppose the foreclosure action against you either.  Those examples are fairly obvious. But it can get very complicated, especially when the government legislates on some civil right or tax matter that affects everyone generally or it is hard to say who the law affects specifically.  Just as an example, if the government passes a law saying that it can tap a telephone call if the speaker is speaking a foreign language - who should be able to sue on the law's constitutionality? Everyone, because we all let a foreign word or two drop into our conversation ("Oy vey!")?  Or no one, because it can't be shown that anyone has actually been tapped yet based on that reason?  

Here's another example. There could be good reason to argue that no one has standing to appeal abortion laws because by the time the appeals process can work, the pregnancy has long ago terminated one way or the other (so the question is moot). Roe v. Wade would not be law today except that the court basically made an exception for abortion issues, which otherwise they could never be decided.  In other words, when they want to rule on something, and their own rules won't permit it, the court changes or ignores them. When they don't want to rule on something, they use these rules as a shield.
The courts have worked out some principles for making determinations of standing, but in my opinion they are about as inconsistent on this difficult issue as they have been on any other. I can't say I like some of the standing decisions, particularly recently. However, it's obviously very important, because a good or bad standing ruling can affect many cases, far more than just those which concern the issues before the court on any given day.

In California, the State itself has decided not to be involved basically because Gov. Schwarzenegger liked the decision and so does his successor, Gov. Jerry Brown.  California's Supreme Court and then the 9th Circuit Court of Appeals (considered the most liberal in the country) determined that the laws original sponsor can intercede and challenge the ruling. I could hazard a guess here on what the Supreme Court will do, but it would be a pure guess.  I am less sure of the votes on standing in this case than I am with respect to what judges would hold on the merits if they decide to consider them.
I will say though that I am generally in favor of matters that involve the equal protection clause, the due process clause or any of the bill of rights being handled with more liberality than other issues with respect to standing.  Otherwise, you tend to get unchecked government power, as no one can prove they are injured sufficiently to sue and the merits cannot be reached. This usually bodes well for the government and rarely for those challenging it. Here, however, it is not clear who it helps. The proponents oppose the court's decision which denied governmental power. But, the government in question, California doesn't want that power, even if the people voted for it. If your head is spinning now, welcome to the club.

The other case argued before the court this week is United States v. Windsor, which is a challenge to federal taxation of the estate of a woman from Maine whose same sex partner had left her money, which she was taxed on far above what she would have been had she been allowed to have been married (they were engaged since 1967 waiting to do so).  The federal act, the Defense of Marriage Act or DOMA (1996) is at stake, or at least some parts of it.
There are many legal questions related to DOMA - does the federal government have the right to legislate on marriage, which is traditionally a state issue?  Does DOMA, which, among other things, defines marriage as between one man and one woman and permits states to ignore the same sex marriages from other states that permit it, unfairly discriminate against gays and violate equal protection under the law? In Windsor, the issues will be limited to the taxation question and it is not really clear how other parts of DOMA will be affected, if at all.

Standing is raised in Windsor too. DOMA was found to be unconstitutional by both the 1st and 2nd federal circuit Courts of Appeal. The holding was challenged by a created group basically consisting of congressmen. They did this because the United States itself has taken the position that the law is, in fact, unconstitutional.  Do the congressmen have the right to challenge the court's ruling? Again we have the unusual situation that the opponents of a court's decision limiting governmental power seek to restore power to a government that doesn't want it.
I have a bias in these matters and I believe writers (and judges) should state their bias, even where they think they have rational reasons for them.  I approve of gay marriage and have generally supported what are termed gay rights my whole life so far as I can remember. This was so even back when I was a teenager and made a lot of gay jokes and references that were typical of teenagers then and probably still are. Gay marriage was not then on my radar, or that of most people, but I was offended by any demonization or stigmatization of gays, and there was plenty of that.  I went so far as to let some people to think I was gay (though, I admit, it didn't sit right inside).  I did not see making jokes about them or calling my friends "gay" or a "faggot" or a "mo" (an expression of which I had no idea what meant when I started saying it in seventh grade) might hurt someone, but feel more that way as a grey haired man.  I don't mean that we cannot make jokes about gays, but at the very least when we do, we should recognize that they that there are sometimes people laughing who are crying inside.  So, these days, I personally try to avoid it. Usually, anyway. 

So, for me,  I recognize I have a bias against Proposition 8 and against DOMA, but, playing judge, I still try to look at the standing questions without that bias determining my answer.  There is way I use to try and do this that I recommend when considering constitutional and sometimes other questions - ask yourself how you would like it if what you support being done was in the control of someone or a government you did not trust at all? 
That probably sound rather vague, so here's an example of what I mean.  When a president takes actions that may or may not be within his powers, and the usual partisan divide occurs - supporters think it is constitutional and opponents do not - we should ask ourselves what if the president at the time was someone we didn't trust at all?  So, when Bush was president, I would sometimes ask Republicans whether they thought that Hillary Clinton should have the right to ignore the parts of laws passed by a Republican congress that she saw as unconstitutional, because that was the liberty Bush was asserting with his famous signing statements. I could ask Democrats the same question concerning Obama, who has taken that position with DOMA,  which ironically became law while his Democratic predecessor, Clinton, was in office.

As another example, with Obama president, I ask Democrats whether it would be okay with them if a President Sarah Palin had the power to engage in any war she wanted for as long as they wanted without congressional permission, as that was a liberty Obama took in attacking Libya. I have sometimes gotten surprisingly honest answers to these questions - that, yes, it is okay when someone likes the president and not okay when they don't. That really means, of course, that the person wants the rule of men and not of laws.

This question of presidential power is actually enormously important. The president's constitutional duty is to execute the laws that are in effect. DOMA is now, but President Obama has determined not to give it effect. The court actually spent quite a bit of time debating this issue in the oral arguments and it may be the most interesting part to me whether or not it plays a large role in the majority opinion. 

Applying this method to myself, since I am generally pro-gay rights and also tend to like civil rights claims to be heard on their merits, I like the result that a lower court has heard the case and struck down DOMA. When thinking about whether some congressmen challenging that ruling should be allowed to be heard too, I ask myself what if the issue was not one where I liked the lower court's decision and instead disliked it? Would I want the congressmen to be able to intervene in that case? The answer is, no surprise, yes.

I'm not suggesting that we should determine a legal principle on what we want to be the case, but that it is a way to check our biases at the door. Being aware of my bias (which a judge is not supposed to consider in making a decision but I think should be aware of), I come to an answer which is actually based on what I think the best neutral policy is, i.e., one that doesn't consider who is in power. My answer is yes, there should be standing here.  The neutral reason is that when there is an important civil or fundamental rights issue to be heard which might have broad application, at least someone should be able to contest it on either side of the question. There is not much point in having a Constitution if when there is a question, it cannot be determined in an authoritative way. 
I can't think of a reason that the person who challenges a law or ruling should be a congressmen instead of an ordinary person, but court's seem to like it a little better if congressmen sue on these matters rather than individuals. I suppose this is just the allure of official stature that has always existed to which even politicians and judges are subject. The court discussed this a little in oral arguments but might not get that deep into it in their decision.

So, it is my opinion that the Supreme Court should rule on the merits and not just allow the lower court rulings making DOMA unconstitutional to stand, even if it opens up the possibility that I won't like the decision made. My general rule would be to have the most liberal standing requirements for civil or fundamental rights cases. Obviously, that would engender argument about what fit into that category, but you never get rid of argument.
With Hollingsworth, I come to the same conclusion. Again, I support the decision overturning Proposition 8 because I do believe, even applying heightened scrutiny, that the state does not have a strong enough interest in determining who may have a marriage to discriminate against same sex couples as opposed to heterosexual couples. Paraphrasing a line of argument asked by Justice Kagan, who would approve banning marriage to people over 75 or those with sexual dysfunctions on the grounds they cannot have a natural baby? This is in line with my opinion that the states should merely be clerics with respect to marriage as far as possible to help with questions of inheritance and taxation and the like. But, any adult consensual couple who wants to have a legally recognized committed domestic partnership and call it "marriage" should be able to do so.  And, though I would not like it if the proponents of the law, who are challenging the decision striking it down, were successful, someone should be able to challenge it if the government does not.  I would, in fact, approve of anyone who merely voted for the law having that right, but as with Windsor, I will accept half a loaf rather than none.  Just so it is heard on the merits.

Some other stuff: There are a few other issues I'd like to discuss concerning these cases that do not involve standing:
I  occasionally listen to Supreme Court cases being argued on C-Span audio recordings.  I am pretty sure most people would find this very boring, but I find it exciting (usually; sometimes it is painful). Like Justice Thomas, I am not sure what value these arguments really have other than to show us the bias of the judges one way or another and to let the public have an avenue to hear the issues without reading the briefs. This time I think the arguments were enlightening in several respects. 

The justices are often jovial, sometimes cracking bad jokes (I've never heard a good one there) and other times being minimally tough on the lawyers. They are usually very civil. But, this time I sensed some frustration or anger behind some of the questioning. Justice Scalia nearly blasted out to one pro-gay marriage advocate - "I don't care if it works!"  If you google Scalia and the phrase "I don't care," you will get a lot of hits.  Justice Roberts also became a little testy with the same attorney when she followed the path of the Attorney General in avoiding answering his question about federalism with a bromide about equal protection.  Justice Ginsberg lectured one attorney as if he was a criminal defendant who she was sentencing and used the phrase "skim milk marriage" with contempt in her voice. That pretty much shows me where her thoughts lie if it wasn't so otherwise obvious. Justice Kagan kept her poise better but also seemed affronted by anti-same sex marriage arguments. 

Though I recognize that the judges are human, and that this is a very controversial subject, I can't say that we should be pleased that the judges are letting their feelings get away with them here, because it is a good indication that many of them will be voting based on other than what the law is or should be. You can argue that this is always the case. I don't think so, but it is a fair argument and it is certainly often true.  But, with these two cases it seems very true.
It is a little disturbing to me that some of the judges are at least said to be wondering if it is too soon to come to a judgment on gay marriage. This is framed in the idea that there just isn't enough information for anyone to know whether gay marriage may have negative effects. But, legislatures have never been held to only legislate only when something is ready and the court's determination on whether it is true or not should not be based upon how effective the law is, unless they find it irrational.  What this really indicates to me is that the justices are waiting for public opinion to move further towards gay marriage so that their decision will be popular with most people. I understand when legislatures hold back on legislating because of public opinion, but it is the very opposite of what courts are supposed to do, which is apply the law.

Public opinion very often lags court decisions. It certainly did in a case I think roughly analogous to this one, Loving v. Virginia, when laws against bi-racial marriage were held to be unconstitutional. Approximately two thirds of Americans were then against interracial marriage, which is a large number for a poll of American opinion on a controversial issue.  It was too bad on the public. The court had a case before it and made a decision. It is no different here.
This brings us to an excellent question Scalia asked to Ted Olsen, the conservative who has surprised many by championing gay marriage. He asked him when discriminating against gays became unconstitutional. Scalia's point is that if it wasn't thought so by a founder or at least the drafters of the 14th amendment, it cannot be unconstitutional. This is the argument about whether the constitution is living or not in the sense that as our culture changes, so does the constitutionality of an issue.

Olsen kind of hemmed and hawed, giving the kind of answer that Scalia hates.  His best answer would have been to point out that during Justice Scalia's confirmation hearing, he himself pointed out that he would find lashing prisoners unconstitutional now, because times have changed, even though the founders certainly did not find it cruel and unusual.  I believe it is Scalia who would have been hemming and hawing had he done so. And, though Olsen's mentioning it might have irked him, he isn't going to vote for gay marriage anyway.
Other attorneys who argued for gay marriage also made statements indicating that there has been a "sea change" in public opinion in favor of gay marriage and in fact, as a people, Americans have significantly changed in a short period of time how we think of homosexuality. Only in the matter of a decade, we have come from homosexuality being a crime to a small majority being for allowing gay marriage.  Some states  now have gay marriage (I think it is 9), though more of them by court decision rather than a vote.  And, of course, many more people are comfortable coming out as gay who even a few years ago would have remained quiet about it. Many still do hide it, but legitimizing gay marriage will certainly lessen the stigma that still attaches to it.

Justice Sotomayor also asked an interesting question to the attorney for the proponents of Proposition 8 as to whether outside of the area of marriage, the federal government could use sexual orientation as a factor in denying benefits or putting a burden on homosexuals.  The proponents attorney answered no, that he was only thinking about marriage. And, shortly after that he indicated that it was because homosexual couples cannot procreate. This seems to me to be a very weak argument.

The answer is important for two reasons.  His inability to answer it highlights what I think are the fallacies of the arguments that have been offered to oppose in lieu of solid ones.  The worst of the them is that marriage is a word that can't be modified or defined, as if, it alone among the billions of words that have been uttered, it cannot be changed (though it has been many times) or made to apply to anything other than heterosexual marriage. This is the fallacy of failing to differ between a thing and a word for a thing.
The other reason it is important is because it further signals to me that this whole argument about gays is coming to a close.  Frequently, when I comment online about gay marriage issues, I make a prediction that in a generation this will not be an issue at all and that it will be even difficult to find conservatives who remember that they were against gay marriage, just as you cannot easily find a conservative leader or commentator who still argues that homosexuality should be criminalized again - even though it is only 10 years ago  - more recently than 9/11 - since the Supreme Court decriminalized it in Lawrence v. Texas.

The procreation argument is especially weak because gays can adopt in some states and there are many other people who get married who cannot procreate (or adopt, for that matter). Opportunity was given by several justices, but particularly Kagan, to attorneys to expand on the purported negative impact of gay marriage, but there was no real answer given. In fact, Scalia, acting as his attorney in a sense (they sometimes do this and it always bothers me when they do) tried to come to his side's rescue. But, if you read the transcript, he also was dealing in speculation.
Neither side wants to tell the truth in open court about the emotions surrounding these laws in my opinion. Opponents of same sex marriage do not want to admit that they just don't want to see what they are used to being the law and the custom changed and that it arouses strong feelings in them. Proponets of same sex marriage also do not really want to acknowledge the animus against gays among both parties who passed DOMA, preferring to suggest that we are now more enlightened as a people.  I am not saying that all those voting for DOMA had animus against gays either, but surely many did. 

If you want to know what opponents really feel, go to any article opposing gay rights that allows comments and see what people write there. Some of it is downright ugly. Here's part of a reply I got to a comment I made on an article where the author suggested that if gays accepted Christian theology, they wouldn't be gay: "DHE, you are hands down the dumbest person to ever post on this website. . . You are a smug gay obsessed idiot."  You can say that this is just anecdotal (or that he is right) - one person - but I am telling you it is very common to read comments like that online. Homosexuality is certainly not the only topic that raises people's ire like that, but it is one of the most likely to do so. Like with many sexual, social and cultural issues, people are driven by their emotions and one of them is hate or animus. Topics like same sex marriage and abortion just arouse more anger than topics like immigration and guns, even though they are very important to people too. Why not admit it?

I don't like it when attorneys, even ones I am in agreement with, respond to a question beginning with the phrase "I'm not sure that . . . " and then refuse to acknowledge something they don't have a good reason to deny.  The expression is so obviously a hedging technique that judges should call them on it more often. "Yes or no, or I don't know, please" or "When you say you 'are not sure,' I think you mean that you don't have an answer for me. Is that right?" 

I am also annoyed by the insistence of so many attorneys arguing before the court to use the judges' names when responding to them. "Yes, Justice this," "No Justice that." The Supreme Court actually publishes suggestions for attorneys arguing before them that asks them not to do this. No one seems to care very much. I was so happy during the Bush v. Gore arguments that one attorney kept mixing them up.

A number of fascinating questions have arisen from these two cases which will not likely be answered, but we need resolution on.

One question I'd like to see raised is an aspect of DOMA that is not at stake. That is the law permits states to deny the marriage of people legally married in another state. This seems to me obviously in violation of Article Four, Section 1 of the Constitution which requires each state to give full faith and credit to the public acts, records and judicial proceedings of every other state, and permits congress only to prescribe "by general laws" the manner these are proved and the effect they will have. In other words, states normally MUST give full faith and credit to another state's declaration of marriage and congress can not specify that with respect to marriage (or any other subject) it cannot do so. It can only make general procedural laws on the issue. How this strange and obviously unconstitutional provision has stood so far is baffling to me.
Yet another issue here, and actually, quite a large one entitled to its own astericks is the issue of federalism. It was discussed in oral argument quite a bit, but it is hard to tell if it will define the majority opinion. That is, why is congress legislating about marriage at all? Traditionally, it is a state's right to define or regulate marriage and the federal government has nothing to do with it. That those who are most insistent on DOMA being constitutional are also usually the loudest voices in support of state's rights just emphasizes my ever present point that partisanship blinds everyone.

For this reason I was not impressed with Paul Clement's argument in Winslow that the federal government needs one definition of marriage for the purposes of its own Acts concerning things like taxes and inheritance, etc.  There is no area of law where it would not be simpler for the federal government to manifestly impose a single standard on everything. But, that is precisely what states' rights is all about. Every state and sometimes many subdivisions have their own laws, which may be  inconsistent. It is not surprising, of course, to see the two ideological camps switch positions, even dogmatic ones, for practical purposes.
If Justice Kennedy, likely the swing vote on both cases,  determines that the federal government should not be making these decisions at all, that will not only strike down the federal marriage law - DOMA, but might also possibly help the proponents of Proposition 8, a state constitutional amendment.

Another similar question, raised by many, is why is any government involved at all in determining which adults can marry?  Marriage has been determined by the court to be a fundamental right. We can lock someone up for murder and possibly still not be able to stop them from choosing a spouse (there is at least some indication that this is the case). In a free society why should the government be in a position to determine what committed consensual relationships someone wants to be in concerning their public identity, their inheritance, their children and their property?

Frequently, when gay marriage is discussed, the question comes up - If gay marriage is allowed, why not then polygamy or between man and beast marriages or adult and minor?  I'll stop there with possibilities on the slippery slope. The second two are easy.  They involve consent issues. At least, a legislature could base its determination on that fact.  It is obvious an animal does not consent to a marriage and it would invest the animal with rights that our laws do not allow it (the laws against cruelty are not actionable by the animal - but have to do with people's feelings about them, not their feelings about themselves). With respect to a minor, it is more arbitrary of course - you can argue that many minors are old enough to consent and states differ on how old is old enough, but our law is very comfortable with making distinctions for children and they have been mostly found constitutional.

But as to polygamy, I say yes, that is right, even though the Supreme Court has held against it multiple times.  There are arguments that there are safety and health issues concerning polygamy, but that same argument could be made of many heterosexual marriages too. We just ignore them as too difficult to determine at large and take it on a case by case basis with the government or party alleging abuse or violence having to prove it. The same approach should be the case with polygamy. It doesn't surprise me at all that those who participate in polygamy now might act in ways that are consistent with their being stigmatized as criminals, because it is illegal everywhere.  The main questions that arise are abuse issues and of course they are important.  But, unless someone shows me that abuse is inherent in a polygamous relationship, I can't go along with it.  

Long enough for today. I think I at least touched on all the relevant issues. 

Wednesday, March 20, 2013

The Star Wars Conspiracy.

My nephew, who pretends to be a doctoral candidate at a well known university, cannot explain to me why he likes Star Wars, but doesn't like The Lord of the Rings. Anyway, he wrote to me recently  about a relatively short video he wanted me to watch, parodying the truthers (9/11 was a conspiracy):

Watch it before continuing with my comment below. I am not that knowledgable about the Star Wars universe and will gladly stand better informed correction:

"So childish. Very well, if I must, I will just say a couple of things, bringing myself down to you and your friends' infantile level:
Interesting theory, but I don't think the video takes into consideration four very important factors.
Factor 1: Luke's high level of training: Luke did not have just a little bit of training. He and his friends used to target womp rats while flying their T-16s. The level of training of imperial troop pilots is difficult to discern, but, if Luke had significant hours of piloting and bombing on his home planet merely for fun, it is quite possible it was equivalent or superior to that of imperial pilots, who were probably seen as expendable by the Empire (you know how empires are). I recommend Malcolm Gladwell's Outliers: The Story of Success, which explains that doing something for 10,000 hours provides people with expertise that seems well above their peers. It is impossible to know, of course, how many hours Luke spent killing womp rats, but, if you recall how young his father started flying, it is quite possible that Luke also started as a young child and easily surpassed that number of hours as a grown man likely in his young twenties.

Factor 2: Luke was groomed to do this: According to Gladwell, people who end up stars in sports often get an advantage earlier on. He cites the fact that most NHL superstars were born in the same few months. How is that possible. It turned out that those who, because of the month they were born, started playing hockey a year earlier than others born even a month or two later gave them a huge leg up. Luke was not only the child of a very special princess, but the son of one of the most powerful beings ever to grace the universe. He was also being watched over and groomed by someone very special, one Obi-Wan Kenobi, a Jedi knight, who spent time mentoring and training Luke, just as he mentored his father. Notice how often professional athletes' children end up professional athletes themselves. Do you think Kobe Bryant wasn't helped by the fact that his father and maternal uncle were professional basketball players? Eli and Peyton Manning, Danny Schayes, Rick Barry's four sons and many others. It's not a coincidence. Thus, the connection between Luke and the great adventure was no accident, but a result of Obi-Wan's intervention.

Factor 3: Luke has a genetic advantage: You do not get to be a Jedi knight because you are a Zen master or just try real hard. It is sometimes vastly underrated how important it is to have significant levels of mido-chlorians in your bloodstream in order to hear the force speaking to you. No one had a higher midi-Chlorian level than Darth Vadar, perhaps as high as 20,000 per cell, far above everyone else's. What was Luke's? We don't know, but in order to have been a Jedi knight, it is probable it was at least 15,000 count and likely closer to his father. Though Luke's mother, a princess, did not seem force-sensitive, and a normal human count is 2,500 (you cannot have life without midi-chlorians, which are intelligent beings inhabiting all living cells), it has to be presumed that you can inherit your count from one parent, or there would have been nothing very special about Luke. As it was, his father could sense his presence from a great distance and he picked up the use of the Force rather quickly.


Saturday, March 16, 2013

Political update for March, 2013

Francis I

It's nice to have a blog to record predictions.  You know, so you can say - hey, look -- I said that this is what would happen and it did.  So, a few nights ago, I was sitting with my evalovin' girlfriend (I'm not supposed to use "insignificant other" anymore although I still think it's funny), when I say to her, maybe I should do a very short blog post saying - The new Pope will be from South America. Doesn't matter who it is, so long as he is from South America.  This stems from my deep knowledge of Papal politics. Actually, I know nothing of Papal politics, but I had heard that Catholicism is growing in South America and shrinking in Europe. So, I figured the South Americans have some pull now. That may not be true, but it is what I had heard. So, then Wednesday, she-who-mixes-her-metaphors calls me up and says, "Did you hear the new Pope is from Argentina?"  I said, "I'm so excited. My prediction was right - South America." And, of course, she said, "No, not South America.  Argentina."  Sigh. Women and geography go together like peanut butter and tomatoes.
Paul II

I wrote last month, concerning potential Republican 2016 presidential candidates:

"Rand Paul, Ron's son, is also trying to craft a public identity different from his father. He has gone to Israel as if on a pilgrimage, but it was obvious what he was trying to do. If you are considered weak on Israel, you aren't going far in Republican circles. It was damage repair. The truth is, he is still a young man who is trying to figure out a way to remain true to libertarian principles while also figuring out how to appeal to conservatives that don't always see eye to eye with their uncomfortable partners. If you read conservative columnists, they are often extremely critical of libertarians, sometimes saying that they have no values. He has a couple of years to craft. I do not rule him out."
Since I wrote that, he's made a big splash with an old-fashioned 13 hour filibuster concerning drones and whether they can be used to kill Americans on American soil. At least, not having listened to his speech (I wonder if anyone other than himself and perhaps some poor clerks who couldn't get out after an 8 hour shift heard it all), I think that is what he spoke about. He probably could have summed it up in a few sentences.  We have a constitutional right to due process.  Whoever might have this right, there is no doubt that Americans on American soil have it, and no president or other authority can take anyone's life, liberty or property without it except because of some present national security emergency.

Some believe that his speech has rocketed him towards the top of the heap. Even some (few) Democrats have joined on this cause - and I applaud that. Some Republicans, notably John McCain and Lindsay Graham, have noisily attacked him on it.  I'm not going anywhere near that yet but stick with my "I do not rule him out." Not the bravest prediction, but he has in the past said some things that have really hurt him and there is a long way to go. Good start though. No one else has made a splash like this among the wannabees.

Paul is a bit of a puzzle in other ways, a libertarian and son of the most famous libertarian in the country, he is also a tea party member, which means very conservative in some senses. I have a feeling he is trying to bridge the gap between conservatives and libertarians that has always existed  since the late William F. Buckley, Jr. and friends tried to wire the two together a half century or so ago. The last year or two, more often than not, I read conservative writers criticizing libertarians for not having values, rather than the reverse, but I think that is because conservatives are ascendent in the party and libertarians have only a little more pull than the Log Cabin Republicans.
Now, there seems to be a split between the more moderate conservatives like McCain and his friend, Lindsay Graham, who are actually not particularly associated with either the fiscal Republicans or the tea partiers like Rand Paul and Ted Cruz. In their case it is more like the old guard versus the new.  It has not helped McCain that he chose to engage in what he believes is polite name calling - "wacko birds," but others take more seriously. It enabled Paul to take the high ground - to say that he treats McCain with respect, but does not get it in turn. It will help him less if he runs again in four years when the tea partiers turn even more of their guns on him. It makes him a target.
Ideally, parties are unified, if not identical in their beliefs. You can get away with some members believing this or that, even on core issues, though it may make the association a little uncomfortable. Not every conservative must be pro-life or 100 percent against a path to citizenship, though it helps them in the party if they are.  The Nate Silver chart I referred to last month shows that. Not every Democrat must be pro-choice or pro-amnesty, though it helps them immensely, particularly in urban areas, if they are.  But a different view as to the general direction of the party leads to rents in a party.  Perhaps a big tent can also be less stable. We've seen that more than once, most notably in the 1950s and 1960s, when the Democrats dissolved into southern and northern parties, and eventually the southern left, and a hundred years earlier when slavery ruptured and eventually evaporated the Whigs and other parties. It is not the people, of course, who go away. They re-emerge almost immediately in another form. In the 1800s, the Republicans were formed from these other parties (and some disenchanted Democrats) and in the 1900s the solidly Democratic south became the solidly Republican south for some decades.

At this juncture in history though, the Democrats are simply more unified than Republicans. And it shows. It is not the only consideration since a restive un-group of moderates and independents has also formed, but until they find a popular leader, which seems necessary for them to get anywhere, they just can't compete in elections as a group.
It is interesting that Sen. Paul's filibuster - one can barely call it speech -- was so well received without anything in it that was memorable and it was also successful as Eric Holder took pains to write that he was correct -- Americans on American soil not engaged in combat cannot be targets.  I'd still feel better if we all got to see the policies. It should not be a secret.

Bush III
In re-reading last month's political review a few days ago, I saw that I also snubbed Jeb Bush. I don't know why.  You can't think of everyone, I guess. On the other hand, he just finished telling Meet the Press host David Gregory that the Washington media is on crack for being obsessed with politics for even asking him about it. Though that makes me look smarter, it is hardly fair if he doesn't want to say "no, no, no, a thousand times no." And even that doesn't mean much anymore. Chris Christie asked if he needed to threaten suicide last cycle to get people to recognize he wasn't in interested in VP, and then later considered it.

A few years ago, I watched him say on a television interview that he was going to concentrate on making money for a few years.  If you want to run for president, it would sure help.  I'm not saying he's going to run or not, but I'm not certainly not feeling it, even before his last statement.  He would be the second candidate from Florida and it would put him in opposition to golden boy Rubio. And, just as his older brother benefitted from his father's presidency, I think he might suffer the reverse from his brother's reputation, as GWB was not very popular in conservative circles either when his second term ended.
There was a time I thought a lot of Jeb Bush. It is just one issue, but I was very put off by his tone during the very sad Terry Schiavo matter.  If you don't remember it, the issue that occurred while he was governor was whether the ex-husband of a woman in a coma, Terri Schiavo, should be allowed to terminate her life according to what he said were her wishes--but with which her parents disagreed. I'm not going to go into detail on that sad affair. I recall thought that I tended, from the little I knew, to side with the ex-husband - she was in a permanent vegetative state. I'm raising the issue though not because JB was on the other side of it, but because I thought that he went too far in trying to use his power to have the ex-husband should be prosecuted for at least abuse, and I seem to recall him talking about murder, though I'd rather have something documented than just my memory.  It reminded me too much of Mayor Giuliani, who though I agree with on policy more than most politicians, I could not stomach his tyrannical disposition.  Giuliani did not have a "my way or the highway" attitude, but "my way or your life will be destroyed" if I can attitude. But, this is judging him on one issue and I will keep an open mind.

In order for Jeb to really throw his hat in the ring, several things need to happen. Rubio must not be a serious contention or take himself out of it. That seems unlikely. Or, the Republican Party must be as fractured this next time as it was last time, so that everyone whose friends tell them they are just wonderful, thinks they have a shot.
Republican 2014-16

The Republican Party continues to be the interesting story because with Obama elected for a second term, it is still too early for other Democrats to throw their hats into the ring to contest for 2016, and we've had four years already of quiet on that.  I can't wait until it starts, particularly if Biden and Clinton start throwing down, but, that is wishful thinking right now.
There's no doubt after the drubbing Romney took and the almost self-hypnotic lemming like way the base followed conservative commentators in believing he was winning, that the party had better cure its schizophrenia or it is difficult to see how it can hope to win the presidency in four years or Senate majority in two.  Usually the split is between so called fiscal conservatives and so called religious conservatives, but sometimes between libertarians and conservatives too.  Okay, cultural conservatives and everyone else.  Yet there is no sign yet that anyone has changed their mind very much. Instead, they simply become more strident. Erick Erickson wrote recently on his popular conservative website, Red State, that Republican "should really spend a week listening to Rush three hours a day and perhaps they would not be so stupid."  Given that Rush has led conservatives in 2008 to sneer at independents and in 2012 at moderates and was so wrong about the polls this last time that he didn't even try to explain his mistake - "stupid" does not seem to be appropriate to me for those who don't follow him blindly.  "Wise" seems more like it. I say this also because right now, though I remain a moderate-independent who, I  at least feel closer in some policies with some  Republicans who are libertarian, fiscal, RINO or socially liberal, than I do either Democrats (who are almost completely of the liberal mindset) or the Bible thumping right wing. But that "motley troop" (a phrase stolen from my favorite 1960s television show - F Troop) are not a group at all, but are more and more fractious. So all I can do is like this part of Senator McCain and that part of Senator Paul, etc., and continue to wait like Tevya in Anatevka for the coming of the Messiah (an imaginary non-partisan moderate independent candidate who leans libertarian and reads this blog).

McCain 567,000,000
I still like John McCain. I know he is not popular with many on the right and many on the left. His positions sometimes seem stodgily conservative and other times he appears to be the maverick he ran on in 2008. But, I'm a moderate and that means, among other things, that I like politicians I think tell the truth (well, of course not always, or they'd be saints, not pols) and who say it when it doesn't help them. So, in 2008 I admired the John McCain who campaigned in Iowa, but came out against ethanol subsidies or in Michigan and said, these auto jobs are not coming back. And, I admire the guy who has opposed Obama where he believes he deserves it (Obamacare) and supports him when he believes he deserves that (the drone program). In other words, though sometimes partisan too - he is a member of a party - he bucks his own party when he believes they are in the wrong. That is rare and admirable. He is far more eloquent than often given credit for (though, not so much when campaigning for president).

For many years he has been in the forefront of those who oppose the reckless spending of congress - including when the Republicans are in charge. Last week he got up and blew up the defense budget which was layered with unbelievable expenses in the defense budget which had just been cut by the sequestration. What gives?  You can watch his speech on C-Span where he reads some of the crazy defense expenditures of $567 million, but, the point is - too few others are saying what needs to be said - our spending is out of control and this sequestration isn't even real in any sense of the word. It is just a political tool that might help minimally, and I mean, minimally, slow the spread of government. The other Arizona senator, Jeff Flake, new to the Senate this year, has been even more voluble about our spending habits in the House in past years, and tougher on the political leadership, but doesn't have McCain's weight.
Conservatives can pick on McCain if they like. It seems to me he has broad shoulders and is simply a bigger, more honest, more charitable man than most of them, even if I frequently think he is wrong. If he ran for president tomorrow, I'd probably still vote for him, though he also seems like an economic illiterate to me.  I would not mind one, just so long as he opposes our insane spending.

North Korea, Iran, Egypt and Afghanistan and zero
Does anyone seriously think we have any real weight in the world when we don't actually attack a nation?  Certainly not just because we give them money.  Do you know we've given North Korea, who still (and I am ignoring treaties for the moment) acts like it is in a state of war with us well over a billion dollars in aid since 1995 (China gives far more and has little influence) and they threaten us with nuclear weapons.  Iran talks to us diplomatically, but sneers at us with every other breath . Egypt takes our money - We pledged over a billion after they overthrew our ally, Mubarak (someone often described as a tyrant - but our tyrant) and just gave them a quarter billion more in military aid this year.   Their government is clearly more opposed to us and our allies than ever in the last 30 years and is certainly no better for its people.  Would it not be cheaper and easier to say, go ahead and attack Israel, but we aren't stopping them this time and give half as much to their hated neighbor?  Afghanistan's leader, our supposed puppet, Karzai, sometimes sounds more like Hugo Chavez than David Cameron and is as almost open in being as corrupt as they come. We support him only so that we can pretend all of our efforts there were worth it in the end, when we have as much influence over that country as Ms.  Lanza had over Adam (do you forget already?)   I have a bad feeling about all these countries. You never know, but somehow I think we are going to have yet another presidential election, with nothing really happening good for us with any of them. I am a believer in negotiation with countries we are at open war with, but not support for countries that take significant money without also at least generally supporting us and not threatening us or allies. And even less so when our debt is so great it threatens our national security.

This president is going to continue the standard policies so long as he is in office.  Our next president needs to change this.  Sometimes when parents I know are dealing with unruly children I suggest they don't worry so much about punishment and simply stop being nice and giving them more than food and shelter until they are nice back - it works.  Zero should be the standard for foreign aid for every country and every penny given or loaned should come with strings - that they be our friends. But, I recognize a pipe dream when I write it.
Gay Rights 3, Gay antagonists 0

Those aren't real numbers, but reflects the recent defection of Rob Portman, a moderately important Republican figure, who joins Dick Cheney and Anita Bryant (I think she is alive; young folks can look her up) as prominent conservative figures who stopped their knee jerk resistance to gay marriage because their own child came out of the closet.  If our countries history has meant anything it has been a steady march towards giving the same opportunities to minority groups as it does the majority. I have felt for at least a couple of years that the tide has turned in America with respect to gay marriage or whatever you wish to call it. 
This is not like I saying - I suddenly feel more charitable to Jihadists because my son went to Pakistan. It is saying I recognize that my blind partisanship has driven a wedge into my family because of my dogmatic resistance to my child's natural desire for my support and sympathy.  It is sad to think that Cheney did not do come out as a gay rights supporter when he still needed political support and Portman did not do so when he was being considered for the vp slot by Romney.  But, let us take what we can. I am pleased to see that they did let their faith make them bad parents. But, how many others are caught in that web and reject their own children, who, whatever the rhetoric about gays is, can no more help their sexual attraction to the same gender than I can help mine to my evalovin' gf  (you thought I was going to say someone like Shakira, didn't you; I know who reads this thing to see if she is mentioned every week or so and it isn't Shakira).

My own so-called plans

I haven't veered from my Jefferson article and Movie Night III plans, but life sometimes dictates its own plans and one is being written s l o w l y and the other still in the planning stages. Even I don't know what is coming next day to day.  Every week is a war zone when it comes to competing time and interests and lately the must do's have won over the wanna do's.  But, there is always time for something - just not everything and I even have leisurely demands on my time that come before posting here.  If I didn't make studying a priority, and a discipline, it would never get done at all. There are many things I'd like to study I never will (math, probably, for one). But, there are many things I feel so fortunate to learn about that I'm very glad I made the time for them. I still get a lot of pleasure out of writing this blog, though it is of course a non-pecuniary interest (like, unfortunately, most of my interests). And, of course, I recognize that it would be much smarter for me not to say what my writing plans are, but I say them because it helps remind me as to what I want to write about.  Otherwise, I actually forget and find stuff I started a few years later.
In the meantime, a different topic has caught my attention and may get in the way yet again. We'll see. 

Saturday, March 02, 2013

Movie Night II

 Movie Night II

On July 31st, 2010 I posted Movie Night, a review of 4 movies which has revolutionized movie criticism (in a parallel universe centered around my blog). The four movies covered were Casablanca, The Outlaw Josey Wales, Groundhog Day and  Love, Actually.  
I was planning on covering more movies that day but due to my usual blah, blah, blahness my last line had to be,  "[a]nd, now, as usual, I’ve exhausted everyone’s ability to keep reading, and must finish this another day." Oh, I'm sure that there are people who would happily read dozens of pages (in a parallel universe where Borders did not go out of business and a popular idiom is "sex, drugs, rock n' roll and reading") but generally speaking, in this universe I try to be at least minimally conscious of modern day internet impatience.

In retrospect, I can't believe I managed to fit in four movies the first time. Today I wanted to do four and can managed two (having now written the entire post and come back to clean up the beginning.) This time I even have a theme across all four - Super heroes with no super powers. Perhaps while I continue to dawdle on my Jefferson post, I will do the other two next week. That's the plan, anyway. You know what they say about plans. Anyway, I probably should give a spoiler alert, if you haven't seen these before, but they are not exactly knew movies, and having seen both several times, knowing what is going to happen didn't make any difference. In fact, it was pretty obvious the first time. But, it's not the plot that matters and I try and just give you the flavor with some dialogue.
The Punisher (2004)

Suppose you are on vacation with your family after deciding to retire from a special forces followed by a sterling FBI career, when your entire family is slaughtered by a thug  right before your eyes and you are yourself presumed dead. You might want vengeance. It's certainly motive for murder. Suppose you also had the means and the opportunity. Would you take it? In our imagination, yes, we would pick up the gun, surprise the villain and shoot repeatedly. What if it was a gang that killed your family or mobsters? Would you dare wreak havoc among them, slaughtering them one by one? In the safety of our imagination, we think we would  ---  if we could. That is, if they left themselves unprotected, did things like leave their club guarded by only one watchman and no cameras. The heroes of revenge movies have not only our motive, but nerves of still, superhuman stamina, incredible competence and last, a lot of luck.
Frank Castle, played by actor Thomas Jane, has all those thing. Castle -- The Punisher -- is a Marvel super-hero. Not one that flies or has super-strength, but one highly trained and so focused on killing his enemies that little can stop him. Fortunately, in 2004 Mr. Jane also had some really strong writers and direction unlike Dolph Lundgren had in an attempt at bringing the character to the screen just a few years earlier.

There are lots of revenge movies. There is something about this one that makes me watch it whenever it is in on.
It was, in some senses, a movie about families. Frank Castle's first family is killed off - wife, kid and father. There's the bad guy, Howard Saint's family and last Castle's second "family," who made the movie for me, particularly in one long dramatic scene.

After Castle's real family is destroyed, he sets himself up in a slummy apartment out in the boonies which is also inhabited by a few losers. Actor John Pinette,  a stand up comedian some people mistake for Louie Anderson, also had something of a tv and movie career. I can't find any great successes in it - he appeared on Alf and Seinfeld, for example, and The Punisher was probably the high point. There he played the charming if hapless Bumpo -- a sort of Oliver Hardy like character a somewhat more successful actor, Ben Foster's Stan Laurelish Spacker Dave - a tortured soul whose face is bejeweled by jewelry. The third family member is Joan (a Rebecca Romijn I could not even recognize), a beautiful if sad woman who almost gets to be Castle's love interest, if his testosterone was not completely directed to killing and perhaps some bad timing.
No doubt when Castle selected this run down tenement to live in, he thought he was getting isolation from anyone, that he would have little if any contact with the other outcasts who live there. He can't and ends up rescuing Joan from a bullying boyfriend. Somewhat reluctantly, he finds himself the father of a family seemingly more dysfunctional, but actually more intact and closer than many real ones. I am not guessing, I know. When Dave, a frightened loser, faces torture rather than give up Castle, he shows unbelievable courage in order to protect him despite Castle's former standoffishness. When Castle asks him "why?" he answers, still in agony - "You're one of us. You're family."

At one point when Castle was off to what Joan thought was his own death at the hands of the bad guys, she had asked him "What makes you any different from them?" He answered, "They have something to lose." It reminds me more than a little of Kristofferson's classic lyric from Me and Bobby McGee -  "Freedom's just another word for nothing left to lose"? Maybe it's supposed to. But when The Punisher says he has nothing left to lose, you knew some bad guys were going to die.
And then there is John Travolta, who has an uncanny ability to make every movie he is in fun. No doubt his Howard Saint is much like his other villains although you suspect all through that Saint is not quite as competent as some other ones. ). Frankly, in the last big fight scene, Saint's security is so lax that one wonders how long he's been a mobster. Castle remaining unseen by them so long as he approaches them in the end is a little unbelievable even for a comic book character. Did he ever hear of video surveillance?

Whatever the similarity among Travolta characters, they are meant to bear his own manic stamp. It's what we want to see and a little difference is enough. Oddly, this Travolta character reminds me of lyrics from another Kristofferson song:
Hey, little girl, don't you know he's the devil.
He's everything that I ain't.
Hiding intentions of evil,
Under the smile of a saint.
All he's good for is getting in trouble,
And shiftin' his share of the blame.
And some people swear he's my double:
And some even say we're the same.
But the silver-tongued devil's got nothing to lose,
I'll only live 'til I die.
We take our own chances and pay our own dues,
The silver tongued devil and I.

I would not be surprised to find that one of the writers listened to those words at one time or another, although more likely the similarities just struck me and I'm stretching. Anyway, this Saint is everything The Punisher isn't. He's charming, smiley, smarmey and usually relies on everyone else to do his dirty work. A silver-tongued devil. He's ethically challenged, of course. He wants what he wants and he takes it by force or guile. But, he also wants to be a family man and even describes his number one henchman as his brother. His wife is played by the radiantly sexual Laura Harring (if you haven't seen her in David Lynch's psychological melodrama, Mulholland Drive, which had me thinking for days -- let me just give a Bob Hopish "Grrrrr" and move on). She seems not to be a natural candidate for The Punisher's vengeance until you remember that having suffered the loss of her son at Castle's hands, she was the one who insisted that his whole family be killed. She and Saint had twin sons (who were conveniently played by one actor), one of whom Frank Castle kills in his last mission before retiring. It is this act of revenge by Saint's family upon Castle's that makes him The Punisher.
Where Travolta plays Saint in his usual electric way, Thomas Jane plays a stoic, Eastwoodish, avenging angel, like a blunt sap on the back of the head. He is not Saint's double - as in the Kristofferson song, but rather his negative image. Where Saint is sunny, garrulous and excitable, Castle is sullen, silent and outwardly stoic with a heart empty but for revenge and punishment:

A fisherman: Vaya con Dios, Castle. Go with God.
 God's going to sit this one out.

Saint: How is he still alive? I don't know, Quentin, I wasn't there. Why is he still alive? Now that's an interesting question. Maybe he's still alive because he was meant to suffer more, I don't know. But how can we make him suffer if we can't find him?
No. 1 Henchman: He's daring us.
: No, no. He misses his family and he wants to die. He's asking for help. So, let's help him.

In the best scene in the movie - really two scenes merged together - Castle is tricked into dinner by his outcast neighbors and it is a little awkward, thanks to his reticence. After they eat, Joan asks them all to say what it is they are thankful for. Castle, seated at the head of the table, had said nothing during dinner and when it is his turn, he merely mumbles words so plain and obvious that his companions cannot help but realize that life has left him with nothing to offer than his skills. They know. They do not have those skill but only an unvanquished spirit -- well, in Joan's case, she's also hot.  After dinner, trying to reach Castle (she should have just jumped him) she tries to relate and promises him a better tomorrow: "I know what it's like. I know what it's like to make your memories go away. You can make new memories; good ones. Good memories can save your life." You think it is going the way of most movies, but he merely says, "I'm not what you're lookin' for" and walks off.  Later, after he has killed off Saint, his family, friends and crew, shooting, blowing up and incinerating them in a Biblical send off in a memorable final fight scene, he sees Joan and says "You were right. Good memories can save your life." Short but effective. He also tells her "I have work to do. Read your newspaper everyday and you'll understand." She asks him the set up - "Which section?" to which, if you've seen a few movies, you could probably mouth the one word answer - "Obituaries."
But, having earlier failed to kill off Castle with a Johnny Cash like assassin, Harry Heck, who performs a really cool song for Castle on his guitar that he tells him he will sing at his funeral, Saint then sends someone after him named The Russian. After Joan fails to seduce Castle he goes back to his room and she goes to the kitchen where Bumpo and Dave are making dessert. They put on some opera (from Rigoletto - you'll know it) and the two begin dancing and miming the words to the music in order to make her laugh and feel better. Meanwhile, Castle is back in his room and hears a knock at his door. He puts his gun away and fixes his hair. It seems as if he may have had second thoughts about Joan. I'll let you find out in the movie what happens between them. But, when he answers the door, The Russian, played by huge Kevin Nash, a professional wrestler wearing a horizontal red striped white t-shirt oddly reminiscent of Bluto, is there ready to rip his head off -- literally. This is not your typical fight scene, although the Bond movies have been here before. The Punisher throws everything he can at this comic book monster, but to no avail.  At the same time, an apartment away, sometimes in sight of the mayhem through the window, the boys are entertaining Joan. Slowly the two scenes sets merge until . . . (okay, that would be a spoiler -- you'll see). But I will tell you that like Castle, the fight is blunt, funny and brutal all at the same time and we know him better after it.

As often is the case, it is more than one thing that makes a movie special. Roy Scheider and Will Patton are in it, but Scheider, who plays Castle's dad, isn't that significant; Patton's character has a more important role, and he was pretty good, particularly when Saint turns his wrath upon him. It wasn't the music, though that was good too or the fight scenes, which were also good, but not that much different than many in other movies (the fight with The Russian and perhaps the denouement standing out). There's a good guy you'd want to be in the same situation, characters you care about, a bad guy you love to hate and cool dialogue. That works for me.
But they also succeeded in letting us feel Castle's dark heart empty heart save for his purpose:

Castle: [I]n certain extreme situations, the law is inadequate. In order to shame its inadequacy, it is necessary to act outside the law. To pursue... natural justice. This is not vengeance. Revenge is not a valid motive, it's an emotional response. No, not vengeance. Punishment.
I'm not even sure that makes sense, but it gives us what we want. This is a fantasy and we know it rarely if ever plays out this way in real life in an age and place where we are trained to respect authority and let it take its long, painful and often unjust course. Justice is a part of this movie, but not societal justice - natural justice, which we may politely cringe from in public but recognize and want desperately in our minds. If only in real life those who have suffered having loved ones ripped violently away from them could know the object of their wrath with such clarity and avenge their deaths so certainly. You can't hope but wish, were you to suffer in that way, that you would have the determination, the opportunity and the means to destroy your enemies in this fashion.  We know that we are not Frank Castle. We do not have his skills or luck (though perhaps like me you possess awe inspiring basement mirror martial arts skills).  It wouldn't work out for us the way it did for him. But we can wish it would and that is what movies are for:

Those who do evil to others - the killers, the rapists, psychos, sadists - you will come to know me well. Frank Castle is dead. Call me... The Punisher.
The Last Dragon (1985)

Where I can see anyone but art film buffs (my brother once tricked me into seeing a movie in which animals suffered intensely; I will never trust him with picking a movie again) or stuffy film critics liking The Punisher, I admit that The Last Dragon ("TLD"), made by Motown producer Berry Gordy, is not for everyone. Yet it is even more fun than The Punisher. Though not based on a comic book, it is even more surreal and comic bookish than many action movies. I don't even know how to characterize it safely - a comic bookish, kung fuey, hip hopish comedic love story perhaps.

Start with the star, a fledgling one named actor -- Taimak. It was his first role and he supposedly learned on the job. What he was, was an actual martial artist and -- don't take this the wrong way - handsome. Maybe beautiful is more accurate. He was a beautiful young man who looked like a bi-racial god back when Obama was still in school.

His character is Leroy Green, but he is known as Bruce Leroy for his admiration of Bruce Lee. He is the oldest of three kids born to two black parents who own a Harlem pizzeria with the motto, "Just direct-a your feet-za to Daddy Green's pizza." He runs a local karate school for the kids in their Harlem neighborhood and is obsessed with the Chinese martial arts and philosophy. Naturally, this makes him a little odd. Both he and his little brother, Richie Green, played by a charming black teenage actor with the interesting name of Leo O'Brien* -- the jive comic relief, are in love with the same woman, a singer/entertainer named Laura Charles, played by an actress beautiful enough to match her co-star, a fox and a half former girlfriend of Prince also bearing one name -- Vanity.

*O'Brien had a very sporadic film career and went through some bad times, including getting shot multiple times a few years ago. Taimak and he re-united for a movie in 2011 which I don't think was ever released. Then he went and died last Fall, though I cannot find online of what. Perhaps being shot earlier had taken a toll on him.  I don't know enough about him to know where he got the unusual name for a black man of Leo O'Brien. He does not look bi-racial, but for all I know he is adopted. His older brother -- and I did not know this until I started checking facts for this post - was Master Gee, one of The Sugarhill Gang, who made the first commercial hip-hop recording.  Of course, Taimak's name isn't very typical either. It is Guarriello. But, his father is Italian, so we can understand how he got it.

Vanity, real name Denise Matthews, had her 15 minutes but of fame, but however "vain" she was, she has had some life and is not the same person now. She is of Polish, Jewish, African, Hawaiian and Native American descent and has been a successful model, tv and movie star. She painted surreal and erotic art as a hobby and could make her own outfits for appearances. Prince dubbed her Vanity and is certainly responsible for a lot of her success. But, looking as she does, she "hooked up" (I can't write that stupid phrase without putting it in quotes) with a few rockers and entered into a destructive drug life. Then in 1994 she almost died from her longtime crack cocaine usage and while waiting out the three days to live they told her she had, found Jesus. She has since claimed to have cut off every tie to the entertainment world she had and thrown out everything she that connected her to it. Then she met and married an Oakland Raider, Anthony Smith, and divorced him the next year. I have no idea why they divorced, but it was probably a good thing for her. I swear I'm not making this up but he is now awaiting trial for being a serial killer. Weird, right? In the meantime, no longer wowing us with her looks and sexuality, she tours the world evangelizing and getting dialysis 5 times a day (thanks to all those drugs). Don't think I knew any of that except for the fact that she was pretty and had something to do with Prince before I read it all on Wikipedia (so it must be true) yesterday. I did double check her ex-husband's criminal status so I didn't slander some poor guy, but, he's accused of not only 4 counts of murder, but also torturing and killing three of them before he offed them. I'd say add excellent taste in men to her talents but she had already dated (engaged to, according to her) Nikki Sixx and that might be worse.
There were some other more interesting actors in TLD including Christopher Murney, a strange looking little fellow -- sort of the poor man's Wallace Shawn -- as one of the two villains. Mike Starr, who you probably think you don't know but has made a career playing dumb but loveable heavies who you would know if you saw him, played, well, a dumb but loveable heavy. There's also Ernie Reyes, Jr., who played a young student of Leroy's, claiming that he has mastered the art of fighting without knowing how to fight, but grows under under Bruce Leroy's tutelage. Reyes still doesn't look very old, but he has had a very kung-fuey acting and stunt man career, having roles in Red Sonja (with Arnold), Teenage Ninja Mutant Turtles (stunt double for Donatello in I and his own character in II) and the last and only bad Indiana Jones film, as well as other stunt work and roles. He also had a short kickboxing career and actually knocked out a world champion in his first fight. It was a real kickboxing league and the guy was a real champion, so who knows. Anyway, you'd know him if you saw him too. Chazz Palmintieri and William H. Macy had small roles. Keshia Knight Pulliam, who played Bruce Leroy's little sister in TLD, also played the little sister on The Cosby Show and, coincidentally, Carl Anthony Payne II who was the Huxtable family friend, Cockroach, also was in TLD.

But the best of the supporting actors was one of my favorites - Julius Carry -- actually, Julius J. Carry III - who played the karate master villain, Sho'nuff, the Shogun of Harlem. I knew him originally as the eccentric but fearsome bounty hunter, Lord Bowler, in one of my favorite all time television shows, The Adventures of Briscoe County, Jr. (starring Bruce Campbell - aka The Chin). Somehow Carry could play an over the top snarling tough guy in a very comical way without coming off like a Keystone Kop.  It's hard to describe Sho'nuff, but perhaps that is typical of the film. He's a sort of a hip hop, jive, karate guy whose is so powerful that his hands sometimes glow when he fights and he can the kick the ever living &*^%$ out of anyone but a true master. There are a few threads in the story, but his is the most fun. Unfortunately, Carry died a few years ago of pancreatic cancer in his late 50s. He could sing a bit too.
So, let's see if I can sum this strange movie up. On the one hand, young Richie loves Laura Charles, the singer, and she loves his older brother, the corny Bruce Leroy - "I'm tellin' you, pop. The boy's an awkward. Stupid old clothes, won't mess with no babes... People talk, you know." A filthy rich bad guy, Eddie Arkadian, wants Laura to promote his girlfriend as a new star, but, though a nightmarish version of Cyndi Lauper (whose Girls Just Want to Have Fun came out a couple of years earlier), she's just terrible.  Bruce Leroy ends up rescuing Laura a few times and she falls for him. He'd actually like to respond, but he has no "moves," which drives his little brother, already jealous, batty. At the same time Sho'nuff wants to fight Bruce Leroy just to humiliate him and be Harlem's toughest guy, and it sure looks like he can do it. Throughout it all, Bruce Leroy is on a quest from his kung fu teacher to find "The Master." Eventually, Eddie Arkadian kidnaps Laura Charles and Richie, forcing Bruce Leroy to face an unusual assortment of wannabe exotic martial artists (including one behemoth who pretty much kicks his ass before he is rescued; I never quite understood why they put that in) perhaps a little reminiscent of the bad guys who invade Rock Ridge in Blazing Saddles, in order to rescue them. When he thinks he has gotten through them all and can safely take apart Arkadian, he must face Sho'nuff in a factory. On the verge of defeat, Sho'nuff's hands start glowing and he wipes the floor with Bruce Leroy like . . . like . . . well, like The Russian wiped the floor with The Punisher. He starts dunking Leroy's head in a big vat filled with liquid, pulling him out repeatedly like a wet rat and asking him "Who's the master?" You can figure out the answer to that one (don't strain yourself; it's a movie and it's not hard). Kooky as it is, it's an inspiring scene and still gets me fired up when I think of it. And, it's not quite over. A few more goodies I'll leave for you.

I actually have my very own personal TLD related anecdote, which I may have told here before (as if you would remember). Going back about four years I was in the middle of a very bitter arbitration trial, and I expected that one of my clients was going to lose his temper when he testified. Unfortunately, my co-counsel may have inadvertently hinted that doing so might be a good idea at the right time (and perhaps sometimes it might be, but it is rare and you can't plan it). It was an emotional enough case that it could have happened. Before we parted on the day before he was to testify, he asked me how he could best prepare. He was a smart guy and already knew his testimony cold. I told him the only thing I wanted him to do was go to the video store, pick up a copy of TLD and watch it. He did. The next day, while he was being cross-examined by one of the most evil and crazy attorneys I have ever met, I could see that he was, in fact, about to lose it. I leaned over and whispered to him "Who's the master?" And, you know what? He hit it out of the park. See the movie and you will understand.

70s Karate Master and blaxpoitation film star Ron van Clief (who had the courage to get into the ring with Royce Gracie when he was in his 50s) choreographed the fight scenes and did a great job. Not that they looked real. They looked cool.

Good soundtrack. Fun movie. See it and find out who's the master.
Two more reviews coming soon in Movie Night III. And then Jefferson (some day, anyway).  

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 . . . .