Thoreau - The end of innocence

I wrote a little bit about my American literary idol, Henry David Thoreau (apparently born David Henry Thoreau) a few months ago. I was sure I had posted this follow up, but apparently not.  All I really did was quote from his journals (I found a book which made a pithy summary of his volumes of notes) and make my own comments beside him, but, I was glad to do it. I am mesmerized by and even envy his writing ability which is entirely modern and at the same time both feathery light and filled with gravitas. Of the 19th century American writers I can think of only Lincoln and Twain that were in his league (and though Lincoln was a speech writer, some of Thoreau's best known works were actually speeches, such as what is known as Civil Disobedience).  His philosophy is often my philosophy, but (like almost everyone) he is more of a purist than I am.  Sometimes I wonder if he isn't drawn to ideas by his own circumstances or shortcomings and in the last post about him I considered some of the mild - really mild - demerits against him.  But, if the worst you can find to say negative about this unusual, literary, courageous, wise and experimental man is that when he was young he emulated a more famous man in his own circle, and had the condescending view of women so typical of his time (and for a long time thereafter), then you are really saying something quite positive about his character.

He was born in 1817. To put it in perspective - a number of the founding fathers were still alive and had quite a ways to go - Adams, Jefferson, Madison, Monroe and the much maligned Burr, to name some.  He was a little younger than Lincoln and died less than a hundred years before I was born, which shows you how short our history really is.  America was in the upswing after the War of 1812 and would be at peace with other large countries for most of his life - the Mexican War, of which he greatly disapproved when he was shy of 30 and then the Civil War as his life ended in 1962, were exceptional.

He is many things - a transcendentalist (see Wikipedia, if you want) foremost, a naturalist, a moralist, a philosopher and a champion of the common man, to name a few things.  I started to see a difference in his journal starting in 1856. More and more he seemed to be caught up with some bitterness concerning his friends and lack of love in his life. However much he must have treasured nature walks or floats, it had to be lonely sometimes. In any event, as he approached or was in middle age, he seemed to get crankier to me.

As the last time, the following are some of his journal entries and my comments:

___________

The papers are talking about the prospect of a war between England and America. Neither side sees how its country can avoid a long and fratricidal war without sacrificing its honor. . . .

It is not hard to imagine that after the Revolutionary War Britain and America remained at best suspicious competitors and at worst bitter enemies before friendship came. And that came long after Thoreau was dead. The War of 1812 ended not long before he was born and even in the Civil War, during which conflict Thoreau perished, the two countries were often at loggerheads and London considered entering the fray on the Confederacy's side. But that was the highest point of disaffection. Sometimes issues arising as a result of the shared border with Canada, then British, also caused friction. But, at the same time, after 1815 there was a slow simmering as they saw they often had more in common than in opposition and negotiated settlements until during Roosevelt's terms a close friendship solidified and eventually became known as the special relationship. You would have difficulty finding what Thoreau was talking about online without resorting to newspaper archives. In fact, the problem surrounded the British seeking recruits on American soil for the Crimean War and a dispute involving British intrigues in Central America. We don't really hear about it anymore because it was a bump on a log. Nevertheless, for a while there was for a  discussion of war, which I do not believe many took seriously, particularly the two governments.

I had two friends. The one offered me friendship on such terms that I could not accept it without a sense of degradation. He would not meet me on equal terms, but only be to some extent my patron. He would not come to see me, but was hurt if I did not visit him. He would not readily accept a favor, but would gladly confer one. He treated me with ceremony occasionally, though he could be simple and downright sometimes; and from time to time acted a part, treating me as if I were a distinguished stranger; was on stilts, using made words. Our relation was one long tragedy, yet I did not directly speak of it. I do not believe in complaint, nor in explanation. The whole is but too plain, alas, already. We grieve that we do not love each other, that we cannot confide in each other. I could not bring myself to speak, and so recognize an obstacle to our affection.

I had another friend, who, through a slight obtuseness, perchance, did not recognize a fact which the dignity of friendship would by no means allow me to descend so far to speak of, and yet the inevitable effect of that ignorance was to hold us apart forever.

Huh. So what is going on here?  Thoreau was 39, middle aged at the time. I am middle aged myself, and though older than he was, given greater longevity now, it's probably roughly comparable. And, I think I understand him.  I heard a comedian not so long ago talking about how people in their 50s think all their friends are crazy. It hit home with me. Many of my middle age friends think I'm crazy, think each other are crazy, and I think many of them are crazy. Not crazy as in they have a crazy belief - like ghosts or UFOs or that the U.S. government was involved in bringing down the Twin Towers, or crazy as in genuine lunatics (well, some) - but in general philosophy of life and daily activity stuff.  Maybe this is the way it has always been and will be. Without going all psych 101 on it, I have always been something of an Adlerian (who I tried to read this year; Oh my God - soooo boring) whose main thesis was that most, perhaps all psychological questions are dominated by feelings of inferiority. Why there seems to be an uptick when people enter their 50s may just be an illusion or some people's anecdotal experience, but it could have something to do with a loss of hormones, or feelings of vulnerability, increased illness and feebleness, etc.  In people of that age group it may be countered with financial security or status symbols, respect, etc.  Generally, of course, it is natural for us to want to be admired or thought well of, and that need is perhaps even beyond the powers of a stoic philosophy to truly counter.  But, like all things, there are matters of degree between people.  As I go through life and learn more and more about friends and family, it seems to me that Adler was mostly right.  I don't know if we are capable of judging ourselves along these lines anymore than we can see ourselves in an objective light about anything.

It is almost certain that in the first paragraph above Thoreau was discussing Emerson, who did mentor him, and who many noticed Thoreau emulated. Emerson was older and, during life, far more successful. Thoreau eventually chafed under Emerson's desire to continue that mentoring beyond where Thoreau felt they were equals or perhaps in light of Emerson's greater success and travels. It might be a little unfair of him as in certain ways, as - were there no Emerson, there would likely be no Walden. No Walden and we would likely never have heard of Thoreau.  The irony is, of course, long after their deaths, Thoreau by far eclipsed his great friend in fame and influence.  Nevertheless, their relationship and its difficulties is one many of us would recognize from personal experiences.  There is a book out there, My Friend, My Friend: The Story of Thoreau's Relationship With Emerson, which I do not know if I will ever read, though it might be interesting.   

As to the second quoted paragraph above, I do not know. I've dabbled a little in Thoreau biography this year, but no one stands out to certainly fit that bill. Manners and mores were different than now and I can't say what matter he might have seen that he would find beneath his dignity to speak to a friend about. It might be something we would laugh at today. It might be hygiene or homosexuality or even heterosexual attraction - almost anything.

Farewell, my friends, my path inclines to this side the mountain, yours to that. For a long time you have appeared further and further off to me. I see that you will at length disappear altogether. For a season my path seems lonely without you. The meadows are like barren ground. The memory of me is steadily passing away from you. I have faith that, in the definitive future, new suns will rise, and new plains expand before me, and I trust that I shall therein encounter pilgrims who bear that same virtue that I recognized in you, who will be that very virtue that was you. I accept the everlasting and salutary law, which was promulgated as much that spring that I first knew you, as this that I seem to lose you.

My former friends, I visit you as one walks amid the columns of a ruined temple. You belong to an era, a civilization and glory, long past. I recognize still your fair proportions, notwithstanding the convulsions we have felt, and the weeds and jackals that have sprung up around. I come here to be reminded of the past, to read your inscriptions, the hieroglyphics, the sacred writings. We are no longer the representatives of our former selves.

We all have falling outs with friends, but the rest of us don't know how to put it so eloquently.  This was likely the Emersons too, though no one knows. As I read it I get more and more interested in My Friend, My Friend.

And now another friendship is ended. I do not know what has made my friend doubt me, but I know that in love there is no mistake, and that every estrangement is well founded. But my destiny is not narrowed, but if possible the broader for it. The heavens withdraw and arch themselves higher. I am sensible not only of a moral, but even a grand physical pain, such as gods may feel, about my head and breast, a certain ache and fullness. This rending of a tie, it is not my work nor thine. It is no accident that we mind; it is only the awards of fate that are affecting. I know of no æons, or periods, no life and death, but these meetings and separations. My life is like a stream that is suddenly dammed and has no outlet; but it rises the higher up the hills that shut it in, and will become a deep and silent lake. Certainly there is no event comparable for grandeur with the eternal separation--if we may conceive it so--from a being that we have known. I become in a degree sensible fo the meaning of finite and infinite. What a grand significance the word never" acquires! With one with whom we have walked on high ground we cannot deal on any lower ground ever after. We have tried for so many years to put each other to this immortal use, and have failed. Undoubtedly our good genii have mutually found the material unsuitable. We have hitherto paid each other the highest possible compliment; we have recognized each other constantly as divine, have afforded each other that opportunity to live that no other wealth or kindness can afford. And now, for some reason inappreciable by us, it has become necessary for us to withhold this mutual aid. Perchance there is none beside who knows us for a god, and none whom chance there is none beside who knows us for a god, and none whom we know for such. Each man and woman is a veritable god or goddess, but to the mass of their fellows disguised. There is only one in each case who sees through the disguise. That one who does not stand so near to any man as to see the divinity in him is truly alone. I am perfectly sad at parting from you. I could better have the earth taken away from under my feet, than the thought of you from my mind.

Holy cow! What is going on with my literary idol? What pathos! What ego!

I say in my thought to my neighbor, who was once my friend, "It is of no use to speak the truth to you, you will not hear it. What, then, shall I say to you?" At the instant that I seem to be saying farewell forever to one who has been my fined, I find myself unexpectedly near to him, and it our very nearness and dearness to each other than gives depth and significance to that forever. Thus I am a helpless prisoner, and these chains I have no skill to break.  While I think I have broken one link, I have been forging another.

We all have thoughts about people we are speaking to that we don't say aloud. But, this sounds exhausting. Yet, I do know people who obsess like this. About this point I started getting sorry I read his inner thoughts.

I have not yet known a friendship to cease, I think. I fear I have experienced its decaying. Morning, noon, and night, i suffer a physical pain, and aching of the breast which unfits me for my tasks. It is perhaps most intense at evening. With respect to Friendship I feel like a wreck that is driving before the gale, with a crew suffering from hunger and thirst, not knowing what shore, if any, they may reach, so long have I breasted the conflicting waves of this sentiment, my seams open, my timbers laid bare. I float on Friendship's sea simply because my specific gravity is less than its, but no longer that stanch and graceful vessel that careered so buoyantly over it. My planks and timbers are scattered. At most I hope to make a sort of raft of Friendship, on which, with a few of our treasures, we may float to some firm land.

Oh my God! Get therapy! What a drama queen.

That aching of the breast, the grandest pain that man endures, which no ether can assuage.

I have to stop reading this.

If I should make the least concession, my friend would spurn me. I am obeying his law as well as my own.

I think he's gone crazy.

. . . the sight of a marsh hawk in concord meadows is worth more to me than the entry of the allies into Paris. In this sense I am not ambitious. I do not wish my native soil to become exhausted and run out through neglect. Only that travelling is good which reveals to me the value of home and enables me to enjoy it better. That man is the richest whose pleasures are the cheapest.

The second to last sentence strikes me as something I have myself thought while on the road (or plane). The last sentence is, for me,  wisdom that speaks to life's central meaning.  If I could do one thing for my friends and family, it would be to pass on to them that notion. I don't really try because, it will almost certainly get me in trouble.  They will have to march to their own drummer too.

. . . I seek acquaintance with Nature--to know her moods and manners. Primitive Nature is the most interesting to me.  I take infinite pain to know all the phenomena of the spring, for instance, thinking that I have here the entire poem, and then, to my chagrin, I hear that it is but an imperfect copy that I possess and have read, that my ancestors have torn out many of the first leaves and grandest passages, and mutilated it in many places. I should not like to think that some demigod had come before me and picked out some of the best of the stars. I wish to know an entire heaven and an entire earth. All the great trees and beasts, fishes and fowls are gone. The streams, perchance, are somewhat shrunk.

Here too there seems wisdom, but perhaps that is an illusion of its eloquence. Like Bruce Lee said of old Chinese sayings, they sounded better before you started to think about them.  This one strikes me as Emersonian in its message. But, whereas I frequently agree with Thoreau, I frequently find Emerson the possessor of rose colored glasses, which, in the end, do not work so well.  What troubles me is the craving to seek and impossibility of knowing anything entirely.  I recognize it well and have probably held myself back in life because of a feeling I needed to know everything before I entered a particular fray.  But, this cannot always be and we are better off realizing there are limits to what we can know.  In my experience, you have to pick and choose your problems and try to solve them. We might reach expertise in this and that - some more than others, but to seek to know something in its entirety, even oneself, is a delusion and obsession.  On the other hand, if you sit on your hands waiting for enlightenment with everything, you will accomplish little. As perhaps with most everything, there is a rule of reason for everything.

Love is a thirst that is never slaked. Under the coarsest rind, the sweetest meat. If you would read a friend aright, you must be able to read through something thicker and opaquer than horn. If you can read a friend, all languages will be easy to you. Enemies publicly declare themselves. They declare war. The friend never declares his love.

Now that one is just depressing. And dumb. None of it is true.  He should have written about squirrels or rivers or sunsets that day.

My themes shall not be far-fetched. I will tell of homely every-day phenomena and adventures. Friends! Society! It seems to me that I have an abundance of it, there is so much that I rejoice and sympathize with, and men, too, that I never speak to but only know and think of. What you call bareness and poverty is to me simplicity. God could not be unkind to me if he should try. I love the winter, with its imprisonment and its cold, for it compels the prisoner to try new fields and resources. I love to have the river closed up for a season and a pause put to my boating, to be obliged to get my boat in. I shall launch it again in the spring with so much more pleasure. This is an advantage in point of abstinence and moderation compared with the seaside boating, where the boat ever lies on the shore. I love best to have each thing in its season only, and enjoy doing without it at all other times. It is the greatest of all advantages to enjoy no advantage at all. I find it invariably true, the poorer I am, the richer I am. What consider my disadvantage, I consider my advantage. While you are pleased to get knowledge and culture in many ways, I am delighted to think that I am getting rid of them. I have never got over my surprise that I should have been born into the most estimable place in all the world, and in the very nick of time, too.

How often I think these things about simplicity, meaning, advantages, what makes us rich and poor and the incredible fortune of when and where we are born. How often do I wonder why he and I and few others, seem to love Winter - even when we are cold.

A man cannot be said to succeed in this life who does not satisfy one friend.

Okay. Maybe. I don't know. Just one? That's a success?  And who is he talking about really? Himself? Someone who disappointed him?

How rarely a man's love for nature becomes a ruling principle with him, like a youth's affection for a maiden, but more enduring! All nature is my bride.

Me too, me too. Except, I also am not crazy about getting dirty. What can I say? I'm not Thoreau.

Up and down the town, men and boys that are under subjection are polishing their shoes and brushing their go-to-meeting clothes. I, a descendant of Northman who worshipped Thor, spend my time worshipping neither Thor nor Christ; a descendant of Northmen who sacrificed men and horses, sacrifice neither men nor horses. I care not for Thor nor for the Jews. I sympathize not today with those who go to church in newest clothes and sit quietly in straight-backed pews. I sympathize rather with the boy who has none to look after him, who borrows a boat and paddle and in common clothes sets out to explore these temporary vernal lakes. I meet such a boy paddling along under a sunny bank, with bare feet and his pants rolled up above his knees, ready to leap into the water at a moment's warning. Better for him to read Robinson Crusoe than Baxter's Saints' Rest.

You don't have to be a Christian to admire Christ in many ways. And Thor, hard to find fault in him in our or Thoreau's time as his myth has little relevancy to most people. But, perhaps Thoreau just means that religion, stripped of humanism is not interesting to him. I can certainly agree when it comes to rituals, most of which I find deadly dull and get no inspiration, as with other mythological or religious aspects. As for his affection for the young man ready to leap into the water, I am not certain. Undoubtedly, it is something about spontaneity, sincerity and naturalism. Why a boy? Most girls grow up to be women, and leave behind their dolls in all but nostalgia - longing for a certain future. Boys - we will always be a little bit boys in some ways - at least we will long for it when long past it. You'll have to forgive the generalization.

To a philosopher there is in a sense no great and no small, and I do not often submit to the criticism which objects to comparing so-called great things with small. It is often a question which is most dignified by the comparison, and, besides, it is pleasant to be reminded that ancient worthies who dealt with affairs of state recognized small and familiar objects known to ourselves.

Yes, yes, yes!  I don't really see how that is one complete thought - but I really like both parts of it. How often that strikes me as I dabble.

For a man to pride himself on this kind of wealth, as if it enriched him, is as ridiculous as if one struggling in the ocean with a bag of gold on his back should gasp out, "I am worth a hundred thousand dollars!" I see his ineffectual struggles just as plainly, and what it is that sinks him.

Ummm. See it again and again. What a blessing, but what a curse wealth can be.

 . . . Men are the inveterate foes of all improvement. Generally speaking, they think more of their hen-houses than of any desirable heaven. If you aspire to anything better than politics, expect no coöperation from men. They will not further anything good. You must prevail of your own force, as a plant springs and grows by its own vitality.

No, he's wrong. But we do it slowly and sometimes it takes the rest of us a generation to get to the point those long before us came to more easily.

Preaching? Lecturing? What are ye that ask for these things? What do ye want to hear, ye puling infants? A trumpet-sound that would train you up to mankind, or a nurse's lullaby? The preachers and lecturers deal with men of straw, as they are men of straw themselves. Why, a free-spoken man, of sound lungs, cannot draw a long breath without causing your rotten institutions to come toppling down by the vacuum he makes. Your church is a baby-house made of blocks, and so of the state. It would be a relief to breathe one's self occasionally among men. If there were magnanimity in us, any grandeur of soul, anything but sects and parties undertaking to patronize God and keep the mind within bounds, how often we might encourage and provoke one another by a free expression! I will not consent to walk with my mouth muzzled, not till I am rabid, until there is danger that I shall bite the unoffending and that my bite will produce hydrophobia.

Interesting how he makes church and state equivalent and both beneath his own rights. That's American, in his view and in mine. Let all our rights fall first, before freedom of speech.   

It is no compliment to be invited to lecture before the rich Institutes and Lyceums. The settled lecturers are as tame as the settled ministers. The audiences do not want to hear any prophets; they do not wish to be stimulated and instructed, but entertained. They, their wives and daughters, go to the Lyceum to suck a sugar-plum. The little of medicine they get is disguised with sugar. It is never the reformer they hear there, but a faint and timid echo of him only. They seek a pastime merely. Their greatest guns and sons of thunder are only wooden guts and great-grandsons of thunder, who give them smooth words well pronounced from manuscripts well punctuated--they who have stolen the little fire they have from prophets whom the audience would quake to hear. They ask for orators that will entertain them and leave them where they found them.

Why does that give me the feeling he didn't think he was given enough speech making work, but that it went to others who gave people what they wanted? This is always the feelings of those who don't feel appreciated. 

All the community may scream because one man is born who will not do as it does, who will not conform because conformity to him is death--he is so constituted. They know nothing about his case; they are fools when they presume to advise him. The man of genius knows what he is aiming at; nobody else knows. And he alone knows when something comes between him and his object. In the course of generations, however, men will excuse you for not doing as they do, if you will bring enough to pass in your own way.

And, again, clearly talking about himself. See what I mean? Getting bitter.

When I hear the hypercritical quarrelling about grammar and style, the position of the particles, etc., etc., stretching or contracting every speaker to certain rules of theirs--Mr. Webster, perhaps, not having spoken according to Mr. Kirkham's rules--I see that they forget that expression shall be vital and natural, as much as the voice of a brute or an interjection: first of all, mother tongue; and last of all, artificial or father tongue. Essentially your truest poetic sentence is as free and lawless as a lamb's bleat. The grammarian is often one who can neither cry nor laugh, yet thinks that he can express human emotions. . . .

How I regret time wasted on excessive pickiness with this or that grammatical rule. But, is this not a matter of taste? Is this not the same thing we face everywhere - not one or the other, but how much of some?

Find out as soon as possible what are the best things in your composition, and then shape the rest to fit them. The former will be the midrib and veins of the leaf.

I don't know about the rest of you, but I will take Thoreau's advice on writing.

There is always some accident in the best things, whether thoughts or expressions or deeds. The memorable thought, the happy expression, the admirable deed are only partly ours. The thought came to us because we were in a fit mood; also we were unconscious and did not know that we had said or done a good thing. We must walk consciously only part way toward our goal, and then leap in the dark to our success. What we do best or most perfectly is what we have most thoroughly learned by the longest practice, and at length it falls from us without our notice, as a leaf from a tree. It is the last time we shall do it--our unconscious leavings.

I would have just said practice makes perfect, but that's why he gets the big bucks.

There was a remarkable sunset, I think the 25th of October. . . But it was hard for me to see its beauty then, when my mind was filled with Captain Brown. So great a wrong as his fate implied overshadowed all beauty in the world.

I wasn't there. But, I am sure I would have felt much the same. John Brown was a strange man and he could be a brutal one. But, he had the courage to give his life to fight something one hundred, one thousand, one million times more cruel. And got nothing for it but a noose and the rewards of posterity.

The old naturalists were so sensitive and sympathetic to nature that they could be surprised by the ordinary events of life. It was an incessant miracle to them, and therefore gorgons and flying dragons were not incredible to them. The greatest and saddest defect is not credulity, but our habitual forgetfulness that our science is ignorance.

So much so that I often think I can love scientists and philosophers who recognized it.

Talk about slavery! It is not the peculiar institution of the South. It exists wherever men are bought and sold, wherever a man allows himself to be made a mere thing or a tool, and surrenders his inalienable rights of reason and conscience. Indeed, this slavery is more complete than that which enslaves the body alone. It exists in the Northern States, and I am reminded by what I find in the newspapers that it exists in Canada. I never yet met with, or heard of, a judge who was not a slave of this kind, and so the finest and most unfailing weapon of injustice. He fetches a slightly higher price than the black men only because he is a more valuable slave.

I didn't know what he meant until I read the next paragraph.

It appears that a colored man killed his would-be kidnapper in Missouri and fled to Canada. the bloodhounds have tracked him to Toronto and now demand him of her judges. From all that I can learn, they are playing their parts like judges. They are servile, while the poor fugitive in their jail is free in spirit at least.

See.

It is true we as yet take liberties and go across lots, and steal, or "hook," a good many things, but we naturally take fewer and fewer liberties every year, as we meet with more resistance. In old countries, as England, going across lots is out of the question. You must walk in some beaten path or other, though it may [be] a narrow one. We are tending to the same state of things here, when practically a few will have grounds of their own, but most will have none to walk over but what the few allow them.

But most men, it seems to me, do not care for Nature and would sell their share in all her beauty, as long as they may live, for a stated sum--many for a glass of rum. Thank God, men cannot as yet fly, and lay waste the sky as well as the earth! We are safe on that side for the present. It is for the very reason that some do not care for those things that we need to continue to protect all from the vandalism of a few.

This came to me when I lived surrounded by rural fields and wilderness for a while, yet had to drive to get to anywhere to walk. Private property is wonderful, but I am a big fan of holding some land back for the public and were we better at it, such land would intertwine private property like a million snakes. As for most men not liking nature, probably more and more as we get the ability to more and more insulate ourselves from it. At least perhaps more and more we like it in small gulps to be experienced like a great movie.

A feeble writer and without genius must have what he thinks a great theme, which we are already interested in through the accounts of others, but a genius--a Shakespeare, for instance--would make the history of his parish more interesting that another's history of the world.

Whenever men have lived there is a story to be told, and it depends chiefly on the storyteller or historian whether that is interesting or not. You are simply a witness on the stand to tell what you know about your neighbors and neighborhood.

If you ever had a bad teacher in a good course, or a good one in a boring one, you know precisely what he means.  Of course, I do believe he is talking about himself again.

I can have enough even of renaissance art or reading Thoreau. Good night.

More football

I've fallen off the blogging wagon in early January, so decided to indulge myself with a little more football talk. Short subjects though.

Belichick v. Welker - Oh, come on. Belichick is a legendary coach in his own lifetime. Welker is a great receiver, one of the best ever. He played for Belichick until last year. Belichick now accuses him of going out of his way to "take out" a cornerback, one of NE's best defensive players, and who they needed desperately against Denver's awesome offense. Though I generally prefer NE to almost any other team, I am not pleased to hear this. My initial reaction is - "You lost. Shut up. They just played better. Shut up." Welker is a good guy. I can't see him trying to hurt anyone deliberately. He claims he was trying to force Talib out of the action and he thought Talib was trying to do the same, and that he didn't mean to hurt him. I completely believe him. First of all, football, despite the rule changes, is a very violent sport. People are going to get hurt and all the time. Second, these were crossing patterns. Just like when you cross anything, you get collisions. Welker is not six foot tall, not 200 pounds and has had two concussions this season. A few more and his brilliant career is over. It is hard to believe he or his coach would want him taking any dangerous hits. Now, of course, it is just my opinion, but it looked to me like Talib was more involved with initiating the heavy contact than Welker.  But, on a larger stage, I can't imagine this being even a conversation last year or any year before. These are football players and they hit each other.  It's dangerous.

Sherman v. Crabtree - Seattle and San Francisco were more evenly matched than the Broncos and Patriots. Sherman is a great cornerback, many say the best in the league. Crabtree is a great receiver, certainly one of the best and who has single-handedly made San Francisco a contender this year after his return. It's the end of the game and one play might decide it. Kaepernick throws to Crabtree in the end of the end zone and Sherman makes a great play knocking the ball away. Though fortuitously, it ended up in the hands of one of their linebackers that didn't matter. Game over and Sherman won it. He and Crabtree do not like each other. Sherman claims that Crabtree tried to pick a fight with him at a celebrity gathering last year. Maybe, but few talk trash like Sherman (he calls it "responding"). After the game he gave an interview where he was deliberately arrogant and cruel towards Crabtree. I'm watching his brother and business manager give an interview on NFL Network right now and he insists he is completely different off the field. Maybe. I've met some people who are great guys but put them in a sport become physical and even dirty. I don't get it, but, that's life. I'm sure there are people I've litigated against who don't like me much. Sherman has apologized, but really, I've seen him more than once and his on-field presence is a big part of who he is. Call me wimpy, but I don't like trash talking anymore than I like end zone dancing. Doesn't ruin the game, but it makes it less attractive. For the record, I also don't get all the after play violence and aggression by players. I get that it is violent. I get that it they need to be filled with adrenaline and testosterone to play well. I get it that it is the heat of the moment. But, it seems sometimes like every play, no matter how ordinary, there is after play action going on. Love football. Hate that stuff. Don't know if Crabtree started with Sherman or vice versa. I don't care. Play ball.

Extra-point  - They are discussing doing away with the extra point. Perhaps, says the commissioner, they might have a post touchdown play where if the team converts it is 2 points and if they don't it is minus 1. Is that necessary? Sure, extra-points are almost automatic, but every once in a while they aren't. That's what makes it exciting.I don't think so. Prefer they leave it the way it is. 

Picks - At the beginning of the season Bear wrote me picking Seattle-Denver in the Super Bowl. He was obviously right. I picked Denver too, and if not them NE. Obviously, that was right. I also picked San Francisco and if not them Green Bay. I was wrong, but actually pretty close. I overlooked Seattle, thinking that San Francisco would beat them again. I guess but for that great play by Sherman, I would have been right. But, that's the way it goes. Despite the fact that San Francisco came on strong at the end of the season and that if Welker was still in NE or Gronkowski did not get hurt, I think NE would be in the Super Bowl, injuries and trades are part of the game and you can do say pretty much the same for almost any team. Denver had their star linebacker for only half the season and not the playoffs.  In my opinion, now, the two best teams are in the championship game. I am calling Seattle for the championship. They have a very good offense and a super defense. Denver has an okay defense and a great offense. I think Seattle's offense is a little better than Denver's defense. That's my call. We'll see.

Done.

NSA

In my day job, which is basically commenting on media websites, particularly in the morning hours, I have lately been chiming in on the NSA phone data collection program, often called by its official governmentese - telephony metadata collection program. First, and least important, what is "telephony" all about? Really, they couldn't just say telephone? They had to add the -y? My comments on these sites  mostly indicate that I haven't made up my mind, which is only worth saying because I find that virtually everyone else who writes as dead certain, and I don't understand that certainty given the vagueness of the Fourth Amendment. I'm good at uncertainty. It's either one of my strong points or weak points. I'm not certain.

I've read the two recent cases, one by federal district court (first or trial level) Justice Richard Leon and the other by another district court Justice William Pauley, which were virtual polar opposites in their decisions, but frame the debate nicely for us.   I'm going to summarize these two opinions (both fairly lengthy) and leave a lot of stuff out because I don't want to bore anyone to tears, or possibly even death.

The NSA problem is one that makes strange bedfellows. This was - if it is possible you do not know - the government program has been in effect since 2006 which collects certain data about every telephone call made in the country, though (supposedly) not, as many think - the content of the calls. It came to the world's attention by the revelations of Edward Snowden, a government contractor who was alarmed at the program and felt his duty was to reveal it to the world. He fled the country (and, accepting his mindset that he is a whistleblower, he might be right. Guilty or innocent - he certainly would have spent many years in jail.  Ironically he sought protection from totalitarian countries, first China, and then Russia. It is ironic because had he done the same thing in either of these countries and was caught, he almost certainly would be dead now after a swift trial in which the outcome was certain, though possibly in Russia it would have been merely a life sentence.  Whatever people say about our country, he would not be dead here, nor would there be certainty of conviction. It is also ironic because if they are doing the same thing, and I feel it is likely they are, if not far worse, no one will likely know about.

But there are Democrats and Republican, conservatives and liberals on both sides. Libertarians are mostly on the anti-NSA side, but I lean libertarian (though a libertarian might disagree) and I am leaning more in favor of the program than against it.

First, Judge Leon's decision:

The threshold issue is whether plaintiffs have a reasonable expectation of privacy violated when the Government collects their telephone metadata along with that of millions of others without any suspicion of wrongdoing, retains it for five years, and then "queries, analyzes, and investigates that data" without judicial approval that these people be investigated.  If there is a reasonable expectation of privacy, then there has been a Fourth Amendment "search" and it will be asked whether the search is "reasonable."  

The important case to consider is Smith v. Maryland, 442 U.S. 735 (1979), which the FISC  (the specialized federal intelligence court) has said "squarely control[s]" when it comes to "[t]he production of telephone service provider metadata."  Smith basically holds that no one has any expectation of privacy in the telephony metadata that telecom companies and that therefore, the Bulk Telephony Metadata Program is not a search.

Judge Leon disagrees with the use of Smith,  because that case focused on the installation and use of a pen register, which was a device that, back in the 70s was able to give investigators the basic metadata about phone-calls.  In J. Leon's view, "the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies" are "so thoroughly unlike those considered by the Supreme Court thirty-four years ago that" that Smith no longer applies.

First, the NSA metadata collection/analysis now "almost certainly" violates a reasonable expectation of privacy. Back in the day, the pen register considered in Smith  operated for a few days and there is no indication in Smith that the Government was going to retain those limited phone records after the case. The NSA program keeps it 5 years.

Second, if it was true that people might expect phone companies to "occasionally provide information to law enforcement" is quite different to "suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government."

Last,  "the almost-Orwellian technology"  that allows the government to do this would have been science fiction in 1979.

The date they take  - the date, time, numbers dialed, etc. is pretty much the same now as then.  But, we use phones so much more than we did - even for two people to find  one another in a public place. The information no longer reveals a few things about a person but "an entire mosaic--a vibrant and constantly updating picture of the person's life."  Do we, as some assume, accept that these cultural changes mean must accept the "'inevitable' diminution of privacy" the new technology brings  that we have a reasonable greater expectation of privacy. He thinks the latter. Note that this is the nub of Judge Leon's opinion.   

So, forget the Smith pen register. It is so different from the NSA program it can't be used to determine if we have a reasonable expectation of privacy from the government, with no suspicion of wrongdoing,  collects and stores for five years in order to analyze it.

The government claims that the program helps "identifying unknown terrorist operatives and preventing terrorist attacks.".   Judge Leon thinks it is relevant that it also helps to do so faster than other methods they might use.   But, he believes the three instances the government cites no instance of the program stopping "an imminent attack," or of it being effective in any time sensitive way. He concludes it is really useful in this way.

He acknowledges that other judges have concluded differently. He relies on a Supreme Court cases which essentially held that the degree of privacy which existed when the Fourth Amendment was adopted in 1791 must be preserved. The Supreme Court noted in the 1960s that , the basic purpose of the Fourth Amendment was to "safeguard the privacy and security of individuals against arbitrary invasions by government officials."  Nothing could be more indiscriminate and arbitrary an invasion than this program.   James Madison, who wrote that we must "beware 'the abridgment of freedom of the people by gradual and silent encroachment by those in power,' would be aghast."

J. PAULEY

J. Pauley starts with al Qaeda, which succeeded on 911 because our conventional intelligence methods could not piece together the threads of intelligence. detect diffuse filaments connecting al-Qaeda. The NSA program is an attempt to correct that.  But, it only works if they collect all the information.

The program is subject to extensive oversight by all three branches. It does "not include the content of any call, the name, address, or financial information of parties to the call, or any cell cite location information."  The database cannot be queried unless one of a few high ranking officials believes there is "'reasonable articulable suspicion'" that an "identifier" (you can look up what that means, but you get the point, I'm sure) has a connection with an international terrorist organization the FBI is investigating so long as it is not solely based on information covered under the First Amendment.  From there the NSA collects the numbers only that that identifier called, then the numbers that all those numbers called. It's a lot of numbers and that's why this is only really possible with powerful computers.  They then determine which information contains foreign intelligence information that would be helpful to the FBI, which gets a digest of the work. But, if the information concerns a U.S. person, it can only be shared outside the NSA if one of the authorized officials determines that it is related to counterterrorism and is necessary to understand "'counterterrorism information or to assess its importance.'"

Because of the safeguards and despite the volume of data taken, between May, 2006 and May, 2009, there were only 277 reports with 2,900 telephone numbers given to anyone outside the NSA. But, it is the collection of almost all telephone data that allows the NSA to do this.  When this is the case, "courts routinely authorize large-scale collections of information, even if most of it will not directly bear on the investigation." Because they warehouse the data, it is also instantaneous. They probably could not get this information without the program.   

He considers Judge Leon's concern about the changes in how we use phones.  He doesn't disagree that there have been changes and phones are much more versatile and there are many more calls. But, it does not change the Supreme Court finding in Smith that there is no subjective expectation of privacy in the data, especially as the what the data is hasn't changed.   

Unlike Leon, he finds the program very effective.  He recognizes the government's concern about giving information on means and methods and finds what they have provided sufficient.

Last, he reminds us that the Fourth Amendment protection is "fundamental, but not absolute" and that the "the bill of rights is not a suicide-pact." (Justice Robert Jackson)

Ultimately, then, the question is - is the program reasonable? He sees no evidence of using the data for any purpose other than to prevent terrorist attacks.  There have been violations but they were self-reported and stopped, and there is oversight by all three branches continues.

He concludes the program is lawful and that the executive and legislative branches have to decide if we should use it; not him.

So, here we have two judges. I was not familiar with either before this, but let's assume they are reasonable human beings (which means, of course, we can't know them too well). They have the same facts but disagree on almost every level.

One thinks that Smith cannot apply because of the changes in technology and culture. The other judges that these changes do not matter because they are still collecting the same information with modern digital technology as they did with the pen register, and there is no more expectation of an individual's privacy with the phone company's data now than there was in the 70s. One judge thinks the government's evidence shows it doesn't serve the purposes it is supposed to and the other that it does.

You notice the things they do agree on. The Fourth Amendment protects important rights, but the law as has been developed, really this past century, is wrapped up in the question of the reasonableness of a search. There's a reason for that. The word is right in the amendment.

The Fourth Amendment states: " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The inclusion of reasonableness is both the blessing and curse of the Fourth Amendment. Legislatures can predict no better than the rest of us what the future will bring in term of culture or technology, but there will be changes and what will be thought of as reasonable will change. In fact, opinions as to what the founders thought was reasonable will change. It is hardly likely that the founders could conceive that these issues would even be determined in litigation in the manner we do now.  

There are overarching questions here about how to interpret the constitution and what the goals are. I find them all, when taken as absolutes, as absolutely ridiculous.  It is fundamentally impossible to have a system where we both adhere to the "meaning" of the Constitution (whatever that means) and at the same time have a system of precedent, where courts are bound by the rulings in prior cases. We know from experience that over time law often comes to resemble anything but its original text. Sometimes it seems justified and the majority comes to appreciate it.

I usually use the issue of whether certain of the bill of rights are "fundamental" and therefore the government has to have a really good reason and be really careful about how they violate them, as a good example of changing opinions on the law. This issue was hotly debated for decades. With the application of the doctrine to Second Amendment gun rights, even conservatives, traditionally opposed to doctrines which neither by text nor reason makes sense, got on board. Why? Because generally speaking, most of us agree that we like special protection for the rights we think are important. In the very same way, most everyone agrees to interpretations of the Constitution that just seem necessary, though they can't be found in the Constitution. These are numerous, and I don't intend to enumerate them, but you could include things like executive privilege and time, place and manner restrictions to the freedom of speech as examples.

These NSA cases come a half generation after 911. Had they come up in, say, the two years following it, it is not unlikely that far more people would be for the program than are now, just as many people actually thought George Bush's unimpressive faux-Churchillian speech soon after the attacks was - Churchillian, and there was far more support in congress for a draconic "Patriot" Act than there is now.  Today, bin Laden is dead and we have not suffered a major terrorist attack in America by al Qaeda or associates since 911 though certainly they have been planned and individuals or small groups inspired by jihad have succeeded in a less spectacular way.

I am neither a judge nor a legislator and have no need to have an answer other than to satisfy myself. I realized a long time ago that I am relatively more comfortable with not making up my mind, at least for a long time, than many others who are passionate about a subject and very certain of their conclusions from the onset. Some of that I realize is their adherence to one political party or the other, but that would probably not apply here given the political diversity and intermingling of opinion on this subject.  But, these are my main thoughts right now:

1) Of course the Fourth Amendment is important. You can read the text to mean that all searches require a warrant, but we also know that there have always been exceptions, such as emergency or hot pursuit, war and proximity to borders, just as examples.  But, we do still have a default that a warrant based on probable cause and limited in scope is necessary to search someone or their property. General warrants have been abolished, especially for the federal government, since our inception. We must remember that we do this not to protect criminals but to protect the rest of us who are (we believe) entitled to privacy.

2) The problem comes from the concept of what is our property or not. Put another way, what is it that the government can't look at just because it wants to because you have greater rights in it.  If you take your explosive device out in public and others can see it or you leave it on your back seat while you stop to get some lottery tickets, that's plain view, and no warrant is necessary to search and even seize it because you gave up your privacy by going out with it.  But, a bomb is a tangible thing. Other things are far more intangible and it is harder to discern when the notion of privacy ends and the notion of public begins. Because for some, now a majority, believe that "privacy" is very important and that what constitutes it should be expanded, the notion of an "expectation of privacy" was created as an outer limit to what was our property. Therefore it became a "search" for the government to look at it. For others, this is a made up notion not found in the Constitution. Of course, they are right. So we have always done and "they" almost certainly do too when it suits them.  Justice Black wrote a dissent in an important case, arguing that the Constitution protected us with respect to "things," and a phone call was not a thing. Also, that there was no protection given for eavesdropping in the Constitution. I am not a believer in strict construction (though better than limitless construction) or limiting ourselves only to the exact actual words of the Constitution's text, but an interpretation based on a number of things which include the text, but with cognizance that the world will change faster than any Constitution could possibly keep up with and that no system of interpretation can be complete or entirely reasonable in every situation. This assembly probably falls under the category of "pragmatism," but I don't call myself a pragmatist and it is subject to criticism like all theories.  Nevertheless, given the changeable world we live with respect to both technology and culture, I find expectation of privacy a reasonable constitutional approach to words in the constitution which can barely contain what is going on here.

3)  Telephone calls were an early question concerning the expectation of privacy, particularly those outside one's home.  Katz v. U.S. was a seminal case because it established expectation of privacy rather than the tangibility of a "thing" or what was technically property or not as a dispositive principal in Fourth Amendment law.  It involved the content of a conversation from a public phone booth, not the details of the phone company's records.  Thus, Smith, which was discussed above, is more applicable, involving the collection of the metadata only. However, Smith adopted the reasoning of one of the concurring justices (Harlan) opinion in Katz, which was that someone had protective privacy if they subjectively expected privacy and society at large would objectively think it a reasonable to expect it. Both of these notions, of course, requires someone to make a decision in each case as to whether it is true or false.  It's just an opinion and we may disagree.  I believe in a rule of reason with respect to most everything. 

4) So, do we have a reasonable expectation of privacy concerning not the content of our calls or texts, but the data surrounding the call which does not, until researched further, pull up a name? J. Leon says yes, J. Pauley says no. J. Leon says the new technology and ubiquity of phones makes the expectation of privacy even more likely and J. Pauley says despite the new technology, they are still only retrieving the same type of data.

5) On the one hand, I have never heard anyone quarrel that the phone company has their records. In fact, no one would argue but that it is the phone company's records and not the individual's. They aren't medical records. However, we wouldn't want our phone log sent to our neighbors, would we? So, there is some sort of confidentiality associated with it, but is it the type of confidentiality that we normally sweat over so much, such as with our social security number? In other words, is there really an expectation of privacy? I think some, but to the level where we think there should be Constitutional protection? Hard to say that when the records aren't even their own.   

6) But, there is another hand. Just because they are not our records, doesn't mean we want THE GOVERNMENT to have them. The phone company really has no power over us other than they can shut off our service if we fail to pay (or they screw up, as usual). The government does have power over us. Lots. The government can destroy our lives in a heartbeat. We don't want them investigating us, even if they don't know our name, without getting special permission.  

7) Second to last hand - at least hypothetically, the information is guarded so that it is very difficult for anyone to misuse it. Highly regulated, and rarely used (compared to the millions of phone numbers out there) - what is the risk?  

8) Last hand - who trusts them? I don't. Do you? The bill of rights were meant to protect us from the government, particularly the federal government. Sure, maybe they self reported themselves a few times. But, haven't we learned from the FBI and national security letters that even good faith investigations can be terribly invasive when they happen. It's like saying we shouldn't mind a sea wave or so in our house because it is just a little water. 

All that and where do I stand? Didn't I say I haven't made up my mind? But, I also said I was leaning a little to the government. And that's only because of the fact that the records belong to the phone company and not the people. It makes a big difference constitutionally. Arguably, in stretching the concept of what is our property to information about us owned by someone else is far beyond any constitutional text or any necessary implication that strict constructionists and textualists at least, would normally call critical.   

 

But, if I do lean towards allowing the program, it is not without limitations. And, in fact, President Obama has made some unilateral changes to the NSA, which is something a president can actually do (not that this stops many presidents anyway).  For one thing, he now requires the NSA to go to FISA to access the records. Some people don't even find FISA constitutional, or effective, but, there is not enough time to go into that in this one post. It is an improvement that may take much of the sting out of the cases that might come to the Supreme Court, though I have not heard that probable cause will be required, and that is an important concept too.  He also is asking that a 3d party, either the phone company or another official organization hold the data. That will certainly make people feel better, though it probably has no constitutional impact. If it is an unconstitutional search, it will always be the case, no matter who is holding it beforehand. A third change is that the search is now limited to two "hops" - who that person called and who those people called. It used to be three hops and that of course sweeps in a lot more people. Again, I can't say that this will change anything constitutionally, but it will make people sleep better. I'm positive the NSA doesn't like it.

Such are my thoughts. I wonder if the NSA collects and stores blog posts.

 

Of course they do.