Thoreau and the test of innocence.

Thoreau is one of my favorite topics here as he is in my reading and life. A search of my site revealed 21 previous posts in which I have mentioned him. In two of them, he is the or a major topic. In Thoreau Meets Me (7/31/08) the topic is pretty obvious, and Death Match: Thoreau v. Socrates (3/28/10) has been one of my most viewed posts for some reason or another; lately the most viewed.  In The Bare Necessities of Tao (6/2/08) he merited a section and on 3/19/10 his words accompany some photographs from the Blue Ridge Mountains which I lived near. In the rest of them, he is mentioned in passing or a quote.

Far as I can tell, like many writers, he writes often on the same themes. Every time I read him I am stunned anew by how much I have in common with him in interests and philosophically. I knew that the first time I read him (although I have always said I cannot remember if I just found a kindred soul or whether he deeply influenced me). The more I read him the more I find it so. Of course, he writes like a Greek earth god reborn in Massachusetts and my comparison ends with him there. On the other hand, he was dead almost a hundred years before I was born, so I get to comment on him, and not he on me. Heh heh heh.

I've also been delving just a bit into his life autobiographically and learned about the tiniest dents in his halo of integrity, but nothing that would really show him as being anything less than a secular saint.  But, for whatever it is worth, as for his "faults" it looks like he protested a little too much against travel and its benefits. Though I agree with him that "I am sure that what we observe at home, if we observe anything, is of more importance than what we observe abroad," he goes overboard with "[a] man can hardly travel without diminishing self-respect and independence there."  He rarely went far, a brief stay in Staten Island, once as far as Minnesota before he died, to Canada and a few other places.  But, he was an exhaustive travel reader himself.  Though he deserved it immeasurably, he is perhaps famous only because he lived near Emerson, a great man even in his own time, who respected him and sung his praises. But it was more than a two way street. We have the recollection of a few that Thoreau would emulate Emerson unconsciously in speech and expression almost comically, but without any awareness. I think he would be aghast at the suggestion.  It is perhaps more ennobling of him that the conjectured affair between he and Lidian Emerson, inevitably raised in our scandal seeking world and which easily could have happened as Emerson had him stay with the family when he took long travels, has not the slightest evidence to support it. His appreciation for a woman seemed mostly to be because she recognized his genius and listened to him.  I suspect he died a virgin and that is the consensus (suggestions of his homosexuality also seem similarly groundless). On the other hand, when you read some of his comments about women below, you do realize that he was still a man of his time.  Opinionated? Check. Condescending? Check. Narcissisitic? I don't know. He says that we all write about ourselves, whatever we think, and I usually agree.

But, that's enough smearing of perhaps the greatest writer in American history and a man who I believe understood the secrets of happiness more so than others. I'd rather show you what he wrote and make a few comments of my own. Thoreau wrote thousands of journal pages. Though he was school teacher, a pencil maker, a carpenter and a surveyor at various times in his life, it might be said that his true and unpaid profession was as a note taker. I just made myself laugh on finishing that sentence, realizing how much time I spend doing exactly the same thing. 

The words below come from a collection I bought called The Heart of Thoreau's Journals edited by Odell Shepard. Thoreau is in red and my comments are in black.

This shall be the test of innocence--if I can hear a taunt, and look out on this friendly moon, pacing the heavens in queen-like majesty, with the accustomed yearning. His stoicism is ancient, of course. The Greek philosopher Epictetus wrote "If you would improve, submit to be considered without sense and foolish with respect to externals." As I get older, and find myself subject to more criticism, I noticed that I have less patience with criticism which is not based on reality. Where once I would say nothing, now I say at least something, and immediately regret it. I'm not sure why. Perhaps the stoicism epitomized in Kipling's If:

If you can keep your head when all about you
  Are losing theirs and blaming it on you,
If you can trust yourself when all men doubt you,
  But make allowance for their doubting too;
If you can wait and not be tired by waiting,
  Or being lied about, don’t deal in lies,
Or being hated, don’t give way to hating,
  And yet don’t look too good, nor talk too wise
. . .

is a parlor game played with oneself and no more enlightening than waiting in line patiently for your bagel. I find that though I have tried to obtain Kipling's pedestal, sometimes I fail, and perhaps more and more. And those I know who either claim they have attained it one way or another (e.g., those who say, one way or another, "nothing bothers me") often seem the most sensitive.

As the least drop of wine tinges the whole goblet, so the least particle of truth colors our whole life. It is never isolated, or simply added as treasure to our stock. When any real progress is made, we unlearn and learn anew what we thought we knew before. I'm working on this one. Is it true or just a noble sounding fancy, that has the ring of truth without the bell?

The world is never the less beautiful though viewed through a chink or knot-hole. And, sometimes, it is more beautiful just because of the perspective.

The words of some men are thrown forcibly against you and adhere like burs. As Thoreau's do to me.

A man's life should be a stately march to a sweet but unheard music, and when to his fellows it shall seem irregular and inharmonious, he will only be stepping to a livelier measure, or his nicer ear hurry him into a thousand symphonies and concordant variations. There will be no halt ever, but at most a marching on his post, or such a pause as is richer than any sound, when the melody runs into such depth and wildness as to be no longer heard, but simplicity consented to with the whole life and being. He will take a false step never, even in the most arduous times, for then the music will not fail to swell into greater sweetness and volume, and itself rule the movement it inspired. Much like his most famous words, perhaps -- "If a man does not keep pace with his companions, perhaps it is because he hears a different drummer. Let him step to the music which he hears, however measured or far away." I find myself repeating (God, I hope not endlessly) that though I conform to 99% of my neighbors' conventions, the 1% off seems to drive people crazy.

I do not judge men by anything they can do. Their greatest deed is the impression they make on me. Some serene, inactive men can do everything. Talent only indicates a depth of character in some direction. We do not acquire the ability to do new deeds, by a new capacity for all deeds. My recent growth does not appear in any visible new talent, but its deed will enter into my gaze when I look into the sky, or vacancy. It will help me to consider ferns and everlasting. It sounds almost like sour grapes, but I think I get it (except for the line beginning "Talent only . . . ").  It seems a truism that because we cannot see inside others we are relegated to appreciate them only for what we can experience. I know that I have often baffled people by not seeming to care that they appreciate something I can do or have. It's not that it isn't nice to be complimented, and I remember the times I succumbed to praise almost as wounds, but I - maybe we - want people to appreciate us for who we are inside, though they would have to do so blindly, like a deaf bat feeling its way about a cavern roof (I'm just kidding with the last simile - playing Thoreau).

When I am going out for an evening I arrange the fire in my stove so that I do not fail to find a good one when I return, though it would have engaged my frequent attention present.  So that, when I know I am to be at home, I sometimes make believe that I may go out, to save trouble. And this is the art of living, too--to leave our life in a condition to go alone, and not to require a constant supervision. We will then sit down serenely to live, as by the side of a stove. This has been so much a part of my life, and so foreign to most people I know that I do not often try to explain it to them. Those who understand will read this and get it instantly.  For those who don't I say only that I admire those who can see past material things and who take the time to experience learning and their lives.

I think I will not trouble myself for any wealth, when I can be so cheaply enriched. Here I contemplate to drudge that I may own a farm--and may have such a limitless estate for the listening. All good things are cheap: all bad are very dear. It was difficult now for people to recognize this, and apparently just as difficult for others in his time. But, money's good too and he relied most of his life on the more traditional circumstances of his family. Perhaps the most wise course is that which an old girlfriend of mine used to say, which I think was hers uniquely - "Everything in moderation, but just a little bit more." 

I think I will not trouble myself for any wealth, when I can be so cheaply enriched. Here I contemplate to drudge that I may own a farm--and may have such a limitless estate for the listening. All good things are cheap: all bad are very dear. Pretty much the same sentiment as the one before.

The cheap piece of tinkling brass which the farmer hangs about his cow's neck has been more to me than the tons of metal which are swung in the belfry. He is choosing rural over urban, but really I can like both and never think which of the two I would like better. 

I must confess I have felt mean enough when asked how I was to act on society, what errand I had to mankind. Undoubtedly I did not feel mean without a reason, and yet my loitering is not without defense. I would fain communicate the wealth of my life to men, would really give them what is most precious in my gift. I would secrete pearls with the shellfish and lay up honey with the bees for them. I will sift the sunbeams for the public good. I know no riches I would keep back. I have no private good, unless it be my peculiar ability to serve the public. This is the only individual property. Each one may thus be innocently rich. I inclose and foster the pearl till it is grown. I wish to communicate those parts of my life which I would gladly live again myself. Although that could come across as a little bit conceited or narcissistic, what have you, I think I understand what he means. Thoreau does not feel that the business of America (or any country) should necessarily be business, as the saying goes.  Its business is in allowing each man and (though he barely seem to think them capable) woman to live their life enjoying the bounties of the earth and improving their minds and themselves as much as possible. He wanted us to love our work. You can see how this would not be very convincing to his neighbors who were heavily engaged in the hard, even grueling work of raising families, working farms or industry. You would not be wrong to say the world he lived in, the comforts and leisure he had, was the products of centuries of hard work by millions of people. No doubt. It is true, however, also for everyone else, and the degree to which they press themselves is determined, to some degree anyway, by them as well, at least in a free society. Unlike them, Thoreau was quite prepared to do without much that they required. I think in a nutshell, that is what his venture at Walden was all about. It was though, a very short experiment and a walk to mom's house.  

Of course, Thoreau was a voracious reader and intellectual. As many college grads were at the time, he was a linguist with Greek, Latin and all four of the major western European languages under his belt to various levels.  But he actually did conventional work and could be the most helpful to his fellows, competent at a multitude of tasks, including - pre-assembly line - making extremely high quality pencils, surveying properties and collecting specimens. He was a lecturer and a guardian of Emerson's family when he traveled.  He wrote in response to Harvard that  "I am a Schoolmaster--a Private Tutor, a Surveyor--a Gardener, a Farmer--a Painter, I mean a House Painter, a Carpenter, a Mason, a Day-Laborer, a Pencil-Maker, a Glass-paper Maker, a Writer, and sometimes a Poetaster."  

I don't want to write a complete essay on his economic philosophy here, but it is briefly and essentially, if not comprehensively spelled out in his little read but much cherished (by me and others, I'm sure) Life Without Principle.  It poses the question for us - had he not become famous after his death, through no efforts of his own, but only his brilliant writings, and was judged only on what he did and thought during his life, would we think he lived a full life with principle? Without claiming his talent, I share some of his sentiments expressed there and experience a tug of war between what society would have me do and what I would do if left to my own decision. I know what everyone else's answer is, but my answer begs to differ.  It seems to me his did too.

The really efficient laborer will be found not to crowd his day with work, but will saunter to his task surrounded by a wide halo of ease and leisure. There will be a wide margin for relaxation to his day. He is only earnest to secure the kernels of time, and does not exaggerate the value of the husk. Would the hen set all day? She can lay but one egg, and besides she will not have picked up materials for a new one. Those who work much do not work hard. This last phrase would not apply, I think, to those who love their job or what it provides them and their families - perhaps others? But, Thoreau would ask, what business do you have in a job that does not fulfill you? Of course, not many can do what Thoreau was capable of doing privately though undoubtedly there are others who just have not come to public renown. 

I do not prefer one religion or philosophy to another. I have no sympathy with the bigotry and ignorance which make transient and partial and puerile distinctions between one man's faith or form of faith and another's--as Christian and heathen. I pray to be delivered from narrowness, partiality, exaggeration, bigotry. To the philosopher all sects, all nations, are alike. I like Brahma, a Hari, Buddha, the Great Spirit, as well as God. I like all them all too, but only that part of each which is universal or I can find explained by a reverence for nature or a wonder at its bounty or which entertains me in the mythological or story. The adoration, ritual, dogma and solemnity which gives others comfort or at least companionship, he could not make sense out of at all. Nor I. Unlike Thoreau, I do not believe in a deity or creator at all. He seems to me to have believed deeply, and with a reverence far beyond those of many I see in my own time who address themselves to the form, but not the spirit of "their religion." 

What is peculiar in the life of a man consists not in his obedience, but his opposition, to his instincts. In one direction or another he strives to live a supernatural life. Maybe true. At least, in long term successful civilizations the men seem to realize they have to resist their worst desires and replace them with traditions that work.

As to conforming outwardly, and living your own life inwardly, I have not a very high opinion of that course.  And he spent a lot of time being criticized for it. When he died, many of his neighbors still saw him a ne'er do well and to a large extent, he them. His views let him no more than his neighbors understand that others having different needs or wants, or even the need to screw up in their own ways - by conforming or living their life inwardly.

Some circumstantial evidence is very strong, as when you find a trout in the milk.  I will someday, mark my words, given an opportunity, use this brilliant simile in a trial.

Perhaps I am more than usually jealous of my freedom. I feel that my connections with and obligations to society are at present very slight and transient. Those slight labors which afford me a livelihood, and by which I am serviceable to my contemporaries, are as yet a pleasure to me, and I am not often reminded that they are a necessity. So far I am successful, and only he is successful in his business who makes that pursuit which affords him the highest pleasure sustain him. But I foresee that if my wants should be much increased the labor required to supply them would become a drudgery. If I should sell both my forenoons and afternoons to society, neglecting my peculiar calling, there would be nothing left worth living for. I trust that I shall never thus sell my birthright for a mess of pottage.  He could repeat himself endlessly, and eloquently, much to the same point. I'm not Thoreau and will just shut up.

Men are very generally spoiled by being civil and well-disposed. You can have no profitable conversation with them, they are so conciliatory, determined to agree with you. They exhibit such long-suffering and kindness in a short interview. I would meet with some provoking strangeness, so that we may be guest and host and refresh one another. It is possible for a man wholly to disappear and be merged in his manners. The thousand and one gentlemen whom I meet, I meet despairingly, and but to part from them, for I am not cheered by the hope of any rudeness from them. A cross man, a coarse man, an eccentric man, a silent, a man who does not drill well--of him there is some hope. Your gentlemen, they are all alike. He takes his point too far here just to make it, but again, I know what he means. Only a brute or someone looking for ugly contention would desire rudeness with those who would debate him. Nor am I all that interested in those who immediately create of you a straw man and argue against what they imagine you believe, which is all too often the case, particularly with politics (and I have been occasionally guilty myself - it is an easy trap to fall into). And not every discussion need be long. Sometimes positions are obvious or easily stated in a sentence and not every disagreement need end in a debate. Undoubtedly though, there is a tipping point, perhaps as few as five or six people, where discussion ends and banter reigns (not that there's anything wrong with banter). The more people at a gathering the more politeness reigns out of fear that disagreement will lead to unpleasantness and spoil the party.  Franklin said that you could not readily convince anyone of anything in public debate and claimed not to try; just to ask questions. If he practiced what he preached, I lack his stoicism too. But, I'd like the opportunity and am willing to take the chance of disagreement from you.

May I love and revere myself above all the gods that men have ever invented. May I never let the vestal fire go out in my recesses.  Once again you could think this is narcissism or egotism. But, he is absolutely right. If you do not love yourself, why would you want to go on? Can humans like but not love themselves?  Those who take their own lives, whether from unfortunate circumstances out of their control or not, have for one reason or not decided they do not love themselves. Shakespeare knew it and wrote Hamlet, whose vacillation in view of the almost certain murder of his father by his mother and his brother, hesitated in taking vengeance, and loathed himself for it - which led to the To be or not be soliloquy. People who love an idea more than themselves may be great heroes or great villains, for they are more than willing to sacrifice themselves or others for it.  In fact, whether they see themselves as one or another is a matter of perspective. Hitler saw himself as a hero.

I fear that the character of my knowledge is from year to year becoming more distinct and scientific; that, in exchange for views as wide as heaven's cope, I am being narrowed down to the field of the microscope. I see details, not wholes nor the shadow of the whole. I count some parts, and say, "I know." It stopped me, but I am not quite sure I understand this. To quote Frodo, it would seem like wisdom but for the warning in my heart. Sometimes the only way to get know something is by the little pieces and to thereby form the entire framework in your head. I have a bad tendency to initially try to learn complicated things all at once, but it doesn't work. Knowledge must be learned bit by bit and never fully. Is this what he is saying or the opposite?

There is some advantage, intellectually and spiritually, in taking wide views with the bodily eye and not pursuing an occupation which holds the body prone. . . A man may walk abroad and no more see the sky than if he walked under a shed. . . Throw away a whole day for a single expansion, a single inspiration of air. Sounds nice. Even if you are working like the dickens, take a day, smell the roses and pay attention.

I omit the unusual--the hurricanes and earthquakes-and describe the common. This has the greatest charm and is the true theme of poetry.  You may have the extraordinary for your province, if you will let me have the ordinary. Give me the obscure life, the cottage of the poor and humble, the workdays of the world, the barren fields, the smallest share of all things, but poetic perception. Give me but the eyes to see the things which you possess.  Though he could work with exactitude, as in his surveying, he made it clear he was a poet, not a scientist. We all take what is readily visible to us and see it almost not at all, or as lacking any beauty. Sometimes it takes a great artist like Van Gogh to remind us how to look at the ordinary. One day I was looking at my ordinary orange colored tabby when I was a kid and suddenly realized, if I had never seen such a creature, and then saw a picture of her in a book, how remarkably colored I would find her. And my canary. And how beautifully arrayed pigeons and sparrows are if you really look at them with fresh eyes each time. When you make this a firm habit, any day where there are trees and clouds is remarkable and unique.

Is not the disease the rule of existence? There is not a lily pad floating on the river but has been riddled by insects. Almost every shrub and tree has its gall, oftentimes esteemed its chief ornament and hardly to be distinguished from the fruit. If misery loves company, misery has company enough. Now, at midsummer, find me a perfect leaf or fruit. The rule? No. But, one of two, like almost everything. It does seem to have an eastern flavor to it.

All perception of truth is the detection of an analogy; we reason from our hands to our head. 
Douglas Rich Hofstadter, a cognitive scientist whose father was a physicist, wrote a prize winning book in 1979 I will probably never read entitled Gödel, Escher, Bach: an Eternal Golden Braid. Though some loved it, it is apparently a lot of work to go through it; you need mathematical help and it is filled with puzzles. I'm not sure what you get out of it at the end except mental exercise, though the general ideas about consciousness, the meaning of "self" or "I" and artificial intelligence are plain enough. This year he has had published another book called Surfaces and Essences: Analogy as the Fuel and Fire of Thinking. He argues there (I read the introduction) that analogy is central to thinking ("without analogies there can be no concepts"). But, of course, that's pretty much what Thoreau wrote long ago. Not that he invented the idea. The word "analogy" is itself ancient Greek and though I haven't studied it, I understand you can find a discussion of analogy as far back as Pythagoras. 

The obstacles which the heart meets with are like granite blocks which one alone cannot move. She who was as the morning light to me is now neither the morning star nor the evening star. We meet but to find each other further asunder, and the oftener we meet the more rapid our divergence. So a star of the first magnitude pales in the heavens, not from any fault in the observer's eye nor from any fault in itself, perchance, but because its progress in its own system has put a greater distance between. He and his brother actually competed over a woman. He stood aside for his sibling (who died quite young) and neither got her. Perhaps, though I doubt it, he loved Emerson's second wife, Lidian (originally, Lydia) as some speculate. Clearly he could yearn, but it looks like he did not let it get in the way of his life's mission, to describe his life in his hometown. Were his long walks in nature and his mellifluous outpouring of poetic descriptions of nature (which I do not share here, but could fill books) his distraction and projection, his armor for protection?

My friend will be bold to conjecture; he will guess bravely at the significance of my words. This actually how he ended that last paragraph. It lends some mystery to it. Could he have been talking about his friend Emerson or some other women's husband? Or was he referring to the woman himself? And what did it mean? That, I would guess, we will never know.

Today you may write a chapter on the advantages of travelling, and tomorrow you may write another chapter on the advantages of not travelling. The horizon has one kind of beauty and attraction to him who has never explored the hills and mountains in it, and another, I fear a less ethereal and glorious one, to him who has. That blue mountain in the horizon is certainly the most heavenly, the most  elysian, which we have not climbed, on which we have not caped for a night. But only our horizon is moved thus further off, and if our whole life should prove thus a failure, the future which is to atone for all, where still there must be some success, will be more glorious still. That covers a lot of ground. Let me dare to rewrite my literary hero in very prosaic terms - you can always argue things two ways; experience brings a different perspective and lessens the anticipation; anticipation heightens appreciation, but, if it does not pan out as we imagined, there is always the golden future to which we can look forward.  Okay, he said it better, but I think that's it.

Just sent a couple of hours (eight to ten) with Mary Emerson at Holbrook's. The wittiest and most vivacious woman that I know, that certainly that woman among my acquaintance whom it is more profitable to meet, the least frivolous, who will most surely provoke to good conversation and the expression of what is in you. She is singular, among women at least, in being really and perseveringly interested to know what thinkers think. She relates herself surely to the intellectual where she goes. It is perhaps her greatest praise and peculiarity that she, more surely than any other woman, gives her companion occasion to utter his best thought with hospitality, and is not prevented by any intellectuality in it, as women commonly are. In short, she is a genius, as whom I know. In that sense she is capable of a masculine appreciation of poetry and philosophy. I never talked with any other woman who I thought accompanied me so far in describing a poetic experience. Miss Fuller is the only woman I think of in this connection, and of her rather from her fame than from any knowledge of her. Miss Emerson expressed tonight a singular want of respect for her own sex, saying that they were frivolous almost without exception, that woman was the weaker vessel, etc.; that into whatever family she might go, she depended more upon the "clown" for society than upon the lady of the house. Men are more likely to have opinions of their own. This is Emerson's aunt who helped raise him and often lived with him. Thoreau's opinion of her seems quite a bit to depend on her view of him, that she lets him talk away (not that this should surprise) and of her opinion of women in general, in which she shares his less than admiring views. But, I'm not done with Thoreau and women.

In the evening went to a party. It is a bad place to go to--thirty or forty persons, mostly young women, in a small room, warm and noisy. Was introduced to two young women. The first one was as lively and loquacious as a chickadee; had been accustomed to the society of watering-places, and therefore could get no refreshment out of such a dry fellow as I. The other was said to be pretty-looking, but I rarely look people in their faces, and moreover, I could not hear what she said, there was such a clacking-could only see the motion of her lips when I looked that way. I could imagine better places for conversation, where there should be a certain degree of silence surrounding you, and less than forty talking at once. Why, this afternoon, even, I did better.  There was old Mr. Joseph Hosmer and I ate our luncheon of cracker and cheese together in the woods. I heard all he said, though it was not much, to be sure, and he could hear me. And then he talked out of such a glorious repose, taking a leisurely bite at the cracker and cheese between his words; and so some of him was communicated to me, and some to me to him, I trust.  Personally, I can understand how that last scene could be a delightful few hours, but there is room for both men and women in our lives. 

I confess that I am lacking a sense, perchance, in this respect, and I derive no pleasure from talking with a young woman half an hour simply because she has regular features. The society of young women is the most unprofitable I have ever tried. They are so light and flighty that you can never be sure whether they are there or not there. I prefer to talk with the more staid and settled, settled for life, in every sense. 

Frankly, other than being someone to hike with who could tell me what kind of tree that is over there, I'm not all that sure I would have liked him all that much once I had gotten to know him. Okay, that's enough, but it was fun. More Thoreau to come.

From the Wikipedia article. Portrait by Benjamin D. Maxham (daguerreotype) of Thoreau in 1856, just shy of his 39th birthday. Wikipedia says it might be copyrighted, so, so will I, but it seems like after 150 years or so, a copyright would have expired, no? 

Political update for October, 2013 - Paradox and the fourteenth amendment

When I was in law school I had no political understanding. I don't mean I didn't have the basic political knowledge we hope (against experience) everyone has, that is, things like separation of powers and the three branches, what democracy is, blah, blah, blah - unless you are resistant, you get that by osmosis and the little bit that is covered in school that even people like me who weren't really listening can't help but absorb. But, I was already heavily invested in the partisan warfare on which I was raised (in my case, very much on the left) and which I now regularly decry and did not understand what lay underneath it all - particularly what the other side thought important. I had long been very conversant with history up to about  the 1700s. But, despite being an American law student, I knew very little about American history. Don't think I was alone - it apparently isn't necessary to know much about history or politics at all to be a lawyer and such knowledge is not even tested in applying to law schools. I also had very little understanding about how law worked. One of the things that some professors would talk about that I could understand intellectually, but not in practical terms, was about how policies and values lay underneath the law. To me and I'm sure many other of my fellow students, it should be black and white.

But, I learned, more from self-teaching and practical experience as a litigator than school.  Now, when I read cases, that is the first thing I try to understand.  When I briefly taught some college classes in constitutional law I tried to imbue that understanding in my students as much as possible for two reasons. One, because I felt I was not taught this very well in college or law school (though I was such a lazy and disinterested student, maybe I just didn't notice) and two, because it is really important. Last, it makes it so much more exciting.

There is a case before the court now that brought all this to mind.  If you don't think it is really about policies and values, take a look at the lead respondent's name:

Bill Schuette, Attorney General of Michigan, petitioner

                                             v.

Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN) et al.

Seriously, that's the name of the respondent. If you were casting a movie, you might market it as a battle between the stodgy legally constituted represented of the state majority and the scrappy minority advocates who could care less about the rules if they hold back what they see as the interests of minorities. Sounds a little like the movie Footloose.

Technically the case is about a constitutional amendment to Michigan's constitution. You may know that Michigan has been the locus of some of the most important Supreme Court educational affirmative action cases.  These cases, of course, concern race.  

In Grutter v. Bollinger (2003), the Supreme Court held in an opinion written by Justice O'Connor (at the time, the swing vote on the court - a conservative who occasionally voted with the liberals) which was joined by the four liberal justices, that Michigan's state law school could have an admissions program that favored underrepresented minorities but also considered many other race-neutral factors, was constitutional because it had a compelling interest in promoting racial diversity, which was the official legalistic question. I'm not going to go into what compelling interest means legally, but just go with this - is promoting racial diversity in colleges so important that we will allow racial preferences for certain minorities even though it violates any reasonable interpretation of the meaning of equal protection under the law in its discrimination against whites and also Asians.

Justice O'Connor started out by discussing the last affirmative action case from 1978, University of California Regents v. Bakke, in which the court banned quotas or set asides for racial or ethnic groups. In a very divided court, Justice Powell wrote an opinion which included a statement that seems like common sense: "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." He also held though, that it there could be racial preferences  if there was a compelling interest that was "precisely tailored" to serve that purpose and which was not unduly burdensome on others who bore no fault in our racially divided history. 

Leave aside the silliness of a majority of judges on a court deciding what is a compelling interest or too burdensome to others rather than state governments, individuals or even congress, but he found only one proffered interest which fit the bill - the schools interest in a diverse student body. He was careful to note that race/ethnicity could only be one factor among other race neutral ones.

Nevertheless, jump back to 2003 when Grutter and its sister case Gratz v. Bollinger were decided. There Justice O'Connor noted that her opinion was a deviation from a central purpose of the fourteenth amendment to do away with racial discrimination of all kinds. It astonished me and many others that, reasoning that it had been about 25 years since Bakke, she concluded that: "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

In other words, we will continue to break the constitution for twenty five years. After that minorities will be caught up and we can have equal protection as required by the Constitution.

Say, what? Even two of those who joined her opinion, Justices Ginsburg and Breyer, wrote, essentially, how would we possibly know that ("one may hope, but not firmly forecast"). Though it is impossible to listen to Justice O'Connor and feel any personal hubris, this is an incredibly hubristic or arrogant statement. It would be as astonishing as if a president made the statement in 1978: "[W]e entered intervened in Vietnam in the past 15 years or so, and there are many regrets of having done so.  We expect that fifteen years from now the United States will no longer invade other countries."

Of course, other judges opposed to the majority felt very differently. Justice Thomas wrote what I thought was one of the most interesting opinions of the last decade. He quoted the former slave and then abolititionist, Frederick Douglas:

"'[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us... . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury.'  

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the [law school]. The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of 'strict scrutiny.'

No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.

 The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court's opinion. First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years. . . I respectfully dissent from the remainder of the Court's opinion and the judgment, however, because I believe that the Law School's current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months."

It's ten years later. Now the court is determining whether a state may have a constitutional provision, voted upon by its people, banning racial discrimination. And the respondent not only rejected this constitutional amendment as being discriminatory itself -- but it won. You heard me - it won! The Sixth Circuit court has held that the constitutional amendment is discriminatory and violates the federal constitution, which requires equal protection under the law.

You already know without my telling you that lawyers and judges can so pervert the meaning of the law by  "a specious and fantastic arrangement of words, by which a man can prove a horse-chestnut to be a chestnut horse."  I love to quote Lincoln with these words, though, admittedly, his use of them to argue that he was not for the political or social equality of blacks kind of takes the sting out of it. Nevertheless, the abstract point is, when a court tells us that black means white or wrong means right, we lose faith in the institution.  Yet, the Sixth District Court of Appeals has said so. Will the Supreme Court? As so often has happened since Justice O'Connor's retirement, the answer may fall upon the shoulders of Justice Kennedy, the ultimate swing vote.

I can fantasize that everyone who wants to argue about a case has to read the briefs first.  Hah. And they are interesting here. Michigan argues a common sense reading of the equal protection and case law: "They claim that the elimination of race-based policies is endorsing race-based policies."

The Sixth Circuit relied on what is known as the "political process doctrine." Whenever I write about legal topics I have to do a lot of editing and cutting and foolishly feel as if I should apologize for doing so. I do my best to be fair but even my own self imposed if verbose space limitations don't let me put down what everyone argues and opines, and try to here even if it is an impossible task. In short, the doctrine holds that laws (including State constitutions) which targets a program or policy which primarily benefits minorities or changes the political process in such a way that it puts burdens on a minority's ability to achieve his/her goals through the process, violates the federal equal protection clause. That sounds like it might be fair at first blush - but only in a vacuum.

A former litigant, Eric Russell, submitted a "friend of the court" brief at an earlier stage which provided a litany of reasons that this doctrine leads to absurd results, but I will submit my own summary of his: If  the  doctrine is a fair interpretation of the fourteenth amendment equal protection clause, probably any modern law that tries to eradicate race as a factor automatically unconstitutionally prohibits the many laws aimed at affirmatively benefitting minorities even though, as Justice Powell wrote in Bakke and pretty much everyone agrees, one of the core purposes of the equal protection clause is to eradicate race as a factor in our laws. In fact, if you take this doctrine to its logical conclusion - the equal protection clause would itself present a paradox - by its very own terms it would itself be unconstitutional. Of course, that is not the case once you recognize a point made by Michigan - "To begin, this Court has applied the political restructuring doctrine only to laws that impede protection against unequal treatment, never to laws that preclude preferential treatment." All of a sudden, it makes sense again and I believe that may, if the case goes to the State, will be the deciding distinction.

On top of that, if the doctrine applies as the schools and other advocates desire, then neither the democratically elected legislators of a state, nor the people through an amendment of the constitution have no say once an unelected state administrator puts a policy into affect that favors a minority.

The respondents in the appeal - that is the successful plaintiff in the case - argue in a different tone than the state, though much in that of some quite famous civil rights advocates. Yes, it argues black letter law it interprets as supporting it - but it starts with a quotation from one of our presidents that I believe states one of the basic tenets of what we call liberalism or progressivism:

"Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. It is stretched or stunted by the family you live with, and the neighborhood you live in--by the school you go to, and the poverty or richness of your surroundings. It is the product of a hundred unseen forces playing upon the infant, the child, and the man. . .

For Negro poverty is not white poverty. Many of its causes and many of its cures are the same. But there are differences--deep, corrosive, obstinate differences--radiating painful roots into the community, the family, and the nature of the individual. . .

Freedom is the right to share, fully and equally, in American society--to vote, to hold a job, to enter a public place, to go to school.  It is the right to be treated, in every part of our national life, as a man equal in dignity and promise to all others.

But freedom is not enough. You do not wipe away the scars of centuries by saying: Now, you are free to go where you want, do as you desire, and choose the leaders you please.

You do not take a man who, for years, has been hobbled by chains, liberate him, bring him to the starting line of a race, saying "you are free to compete with all the others," and still justly believe you have been completely fair.

Thus it is not enough to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity--not just legal equity but human ability--not just equality as a right and a theory, but equality as a fact and a result."

And should this case go in favor of the schools and groups advocating for minorities, I believe that perspective will be the deciding factor.

But, I want to argue something more. The two different perspectives in this case are central to the two prevalent ideology's views on the equal protection clause when it comes to discrimination.

In the general conservative's perspective, the clause requires equal treatment now, incorporating only present intentional discrimination, and not taking into consideration the past inequities of our country's racially unfair past. No one starts in a precisely equal status or providential circumstances with anyone else - and that is life - what counts is that they now have equal opportunity under the law. Thus, racial preferences are not permitted because they unfairly prejudice others who have no deserved guilt of their own in past unfairness.

In the general liberal perspective the past matters because it must by necessity have an effect on present circumstances. Where all cannot start in as equal circumstances, we must remedy it by providing benefits which are apparently unequal but allows for groups that have been traditionally discriminated against and have not flourished to do so. Most especially it must remedy past inequities due to skin color and ethnicity, even where the beneficiary has less merit than an excluded majority party or has not suffered at all from racial prejudice.

You could phrase the central issue a number of ways - for instance, you could say that one side sees "equality" as meaning everyone now has the same rules, though it be inherently unequal in result, and the other side believes equal means that past inequities must be remedied, perhaps hypothetically perfectly, even if it means that different rules apply to different races.  

 

You can agree or not with these perspectives. I believe they are presently considered more important in our national debate than any other constitutional issue and I am including those surrounding abortion. They have now been so engrained in us that they dominate the conversation legally, politically and culturally. I am not arguing here that it is deserving of this primacy or not.  It just is.

Ironically, the two perspectives are also completely the opposite of  the chronological directions the two ideologies traditionally look to - conservatives backwards and progressives forward.  But, this is no surprise as rule number one of partisan ideologies - they can switch their policy preferences on a dime if it suits them politically. But that is not the point of this piece and I'll visit it again another day.

While writing this post I happened to also watch Bob Costas give a little opinion piece on sport team names which contain indigent Americans or Indians references.  Costas clearly aimed at being balanced and first argued that while a number of teams have changed their names, those that remain are generally devoid of any ill intent. In fact, they were admiring and respectful just as are team names like The Patriots and The Pirates. This perspective is in accord with conservative perspectives. Then he said, but look at the name "Redskins." It is different than other similar team names and there is nothing respectful about it. It is still a slur even if the present usage is purely benign. Can we imagine a team named black skins or white skins? This perspective, which ignores whether the intent is innocuous or not, is from the liberal ideology - past prejudice counts and is not wiped clean by present intentions. Again, agree or disagree. My point is the centrality of the issue in our lives.

And though it is certainly  far more complex and concerns any number of issues, the central political debate this past month also is affected by this argument. For, much of the question of whether the government spends too much and whether it is worthwhile to suspend some of our government in order to demonstrate the importance of reducing spending, often concerns the issue of so-called entitlements and protecting the economic prospects of the lower class, a high proportion of whom are minorities.  

This debate should not be unexpected. It was inevitable. There was no equal protection clause in the original Constitution or Bill of Rights. It was written in the fourteenth amendment primarily in order to protect the rights of black Americans after the slaves were freed. Nevertheless, we could apply it as it is written, neutrally, without favoring any group. It is a basic tenet of equal protection cases that it protects individuals, not groups anyway.  But, on the other hand all three post Civil War amendment had remedial clauses empowering congress to enforce its provisions, and, logically, this can only be done by legislating as to groups, not individuals. For some, it takes little legal razzle dazzle to apply that to judges who now regularly act as legislators. The puzzle is endless as what doing so can result in is appointed judges not subject to election determining the validity of their constitution amendment as directly voted upon by the people of the State of Michigan, and, in the name of equality, ruling that only inequality of law is necessary to achieve a hoped for equality in fact.

As they say about quantum physics - if it makes sense to you, you don't understand it all.