Making Our Democracy Work: A Judge's View by Stephen Breyer

Oh, the places you'll go with a practical
approach to judicial interpretation.

As we have seen, the Court has the duty to ensure that governmental institutions abide by the constitutional constraints on their power.  And it must continue to do so.

Thus, the Court can and should take account of purposes and consequences, of institutional competences and relationships, of the values that underlie institutional collaboration, and of the need to assert constitutional limits.

...

Similarly, the expressive values underlying the Eighth Amendment's prohibition of "cruel and unusual punishments" suggest that today the amendment would prohibit flogging even if many eighteenth-century Americans thought flogging was neither cruel nor unusual.

Breyer's book is a prolonged attempt to respond to originalism.  Should judges merely construe the words of the text, or should they consider other factors?  Are judges logicians or are they problem-solvers?

Under Breyer's view, they are problem-solvers; as problem-solvers, they should answer legal questions under a practical approach, taking into consideration legislative intent, the purposes and goals behind a statute, and the respective roles of different institutions within the government.  Why should we consider legislative intent?  Because the intent behind the law is valid interpretive evidence.  For example:

Does a friend who says 'all bicycle shops carry water bottles' mean to include secondhand bicycle shops?  Context revealing a speaker's purposes, not a dictionary that explains a word's meaning, provides the necessary help here.  Sam's mother tells him, 'Go to the store and buy some ice cream, flour, fruit, and anything else you want."  It is context, not a dictionary, that will help us learn whether Sam's mother has given him permission to buy fifteen comic books.

I find this analysis to be pretty compelling.  Language is complicated, and our understanding of it is not limited to dictionary definitions.  When we interpret what a speaker is saying, we do not rely only on the plain-meanings of his words, we also rely on contextual clues.  And, though we may not necessarily assume an author's intent is absolutely determinative, we nonetheless pay attention to what he was trying to say.  So it is that we do care that Heidegger was a Nazi when we read Being and Time, though we do not necessarily assume that Being and Time is a Nazi text.

Breyer also places much emphasis on the respective roles of different institutions within our Constitutional scheme.  Administrative offices are thought to possess a special expertise; so, they're entitled to a degree of deference in their fields (who knows more about the environment, the Environmental Protection Agency or an Article III judge?).

Unfortunately, I read this book 6 months ago, so my recall...is not great.  I'll conclude with this:  Breyer's book is aimed more for a general audience (where Scalia's is aimed more for a legal/academic audience); nonetheless, I found Breyer's argument to be more convincing.  Still, Breyer's analysis lacks the persuasive punch of Scalia's.  I mention this last point because, insofar as we need a liberal judicial theory to counter-balance originalism, Breyer's theory is insufficient.  It doesn't have the rhetorical simplicity of originalism.

The Metamorphosis, In the Penal Colony, and Other Stories by Franz Kafka

My grandfather used to say: "Life is astoundingly short.  To me, looking back over it, life seems so foreshortened that I scarcely understand, for instance, how a young man can decide to ride over to the next village without being afraid that--not to mention accidents--even the span of a normal happy life may fall far short of the time needed for such a journey."

"The Metamorphosis" is the touchstone we go to when we hear that favorite word of pedants, kafkaesque.  It's pretty freaky: man becomes bug, terrifies his family, and then somehow, preposterously, keeps becoming more bug--until he dies from a rotten apple lodged in his carapace by his resentful father.

But what I never knew is that Kafka's other stories are so much stranger, so much more unsettling than "The Metamorphosis."  That story, at least, can be summarized effectively; many of the stories in this collection (which I believe is complete) seem to be made up of nothing at all, but they are all kafkaesque in their horrible way.  One of my favorites is the story of the Ondradek, whom I remember from Borges' Book of Imaginary Beings:

At first glance it looks like a flat star-shaped spool for thread, and indeed it does seem to have thread wound upon it; to be sure, they are only old, broken-off bits of thread, knotted and tangled together, of the most varied sorts and colors.  But it is not only a spool, for a small wooden crossbar sticks out of the middle of the star, and another small rod is joined to that at a right angle.  By means of this latter rod on one side and one of the points of the star on the other, the whole thing can stand upright as if on two legs.

"He does no harm to anyone that one can see;" says the narrator of the seemingly immortal Ondradek, "but the idea that he is likely to survive me I find almost painful."  I think one of Kafka's greatest traits is that he seems to have an unfettered imagination; many of us, I think, have creatures like the Ondradek peopling the corners of our nightmares, but would we be able to get them on the page without giving into the impulse to change them, filter them, make them somehow more recognizable?  With that last line, as he always does, Kafka manages to turn the screw just a little tighter, to transform the merely repugnant into the cosmically frightening.

The other titular story is "A Penal Colony," narrated by a visitor to a prison island who is being given a demonstration of a machine that executes rulebreakers by inscribing their crime on their bodies with thousands of exsanguinating needles.  This story, too, has that last turn that makes it even more awful than that description sounds--though I won't spoil it here.  Worth mentioning, too, is the equally famous "A Hunger Artist," about a man who starves himself professionally dealing with the decline in demand for his art.  But so many more of these stories are horrifying for reasons I just can't place--why is the father of "The Judgment" upbraiding his son so awfully; what is it all for?  Kafka knows that real horror is not even in the unseen, as Anne Radcliffe believed, but in the un-understood, the incomprehensible and the inscrutable.

Gone Girl by Gillian Flynn

It's a very difficult era in which to be a person, just a real, actual person, instead of a collection of personality traits selected from an endless Automat of characters.

Wife goes missing, all the evidence points to the husband.  Initiate the predictable flow of personalities, motives, and plot lines you'd expect.  The husband-narrator who won't admit to the reader that he didn't do it; the perfect wife, writing in her diary, about their almost-perfect relationship with hints of doom and gloom on the horizon.  The mistress, the detectives, the parents of the missing wife, the media, etc. etc. etc. etc.

We've all heard this story a million times.

Except not.  Flynn has done something remarkable; she has taken an over-told story and turned it into a page-turner thriller that presents compelling questions about: 1) personal identity in a society over-saturated with personalities/narratives, 2) the role of mass media in criminal investigations, 3) relationships, and 4) narratives and counter-narratives. (to name a few).

Flynn also does an excellent job of causing the reader to root for the wrong ending, multiple times.  Given that there is a major twist after the first part, it's remarkable that she nonetheless can trick the reader again later.

To shift focus to the thing of most interest to this reader, Flynn gives us a lot to think about re: media intervention in criminal cases.  Our constitution enshrines two rights that butt heads: our right to a fair and impartial trial and our right to a free press.  These rights crash into each other when we have a trial by media(fire): the media tells the narrative that sells, this is not always the narrative compelled by the (admissible) evidence.  Why should we care?  Because, when the media is telling everyone that a defendant is guilty, trifling things, like reading someone his Miranda rights, seem like an unnecessary interference in the guilty-verdict-machine.

Gone Girl, then, serves as a reminder that trial by media is an extremely broken process.  The media loves guilt-narratives, and hates defendants' rights narratives.  The presentation of the guilt narratives is destructive of how we feel about the criminal justice system.  I distinctly remember my aunt's response after Casey Anthony verdict: "I just don't understand how, with all that evidence, that jury could have found her not guilty."  However, she had not watched any of the trial at all.  (I also have not, but I do not purport to have an opinion as to her guilt).  I digress only to note that Gone Girl does not shy away from these questions, but embraces them and uses them to move the plot.

And that is only one thread, of many, that Flynn effectively gets across.  Definitely worth a read.

Hat tip to Brittany's and Billy's respective reviews.

The Greatest Gatsby

"You see I think everything's terrible anyhow," she went on in a convinced way.  "Everybody thinks so--the most advanced people.  And I know.  I've been everywhere and seen everything and done everything."  Her eyes flashed around her in a defiant way, rather like Tom's, and she laughed with thrilling scorn.  "Sophisticated--God, I'm sophisticated!"

 . . . 

"Look here, old sport," he broke out surprisingly.  "What's your opinion of me anyhow?"

A little overwhelmed I began the generalized evasions which that question deserves.

I love so many things everything about this novel.  For the sake of brevity, I'll focus on one (semi-)timely thing.  The narrator, Nick, is hilarious.  And, I ascribe to the narrator not just what he says to us throughout the novel, but also the things he chooses to narrate about.  The novel spans an entire summer, but he chooses specific episodes to reflect the unfolding story.  These episodes and his voice reveal that the narrator regards the characters and events around him with deep cynicism.

So, when Nick shares Daisy's reflection that she is sophisticated, I read Nick as offering Daisy's reflection ironically.  When Nick describes Gatsby, I see him as attempting to present the innocence of Gatsby's dream as tragically hollow.  Although Nick indicates that, "Reserving judgment is a matter of infinite hope," Nick can't help telling the portions of the story that reflect poorly on the people around him.

In contrast to this Nick, is Tobey Maguire's Nick: young, innocent, naive.  When Daisy tells him that she is sophisticated, he believes her.  When he meets Gatsby, he is impressed with him, his ambition, and his dream.  When he tells Gatsby that "They're a rotten crowd," and that, "You're worth the whole damn bunch put together," he says it as a cheerful happy-go-lucky boy, making an observation intended to please the listener.

I hated Tobey Maguire's Nick.  And, I have to admit, the rotten crowd line is one of my favorite in the novel.  Nick drops the veneer of reserving judgments and opens up, he tells Gatsby what he actually thinks about Daisy and Tom.  And the comment is scathing.  But not Maguire's Nick, who delivers the line as though he doesn't fully appreciate its significance.

I'm being very critical of one aspect of a movie I otherwise enjoyed.  I thought Leonardo DiCaprio nailed Gatsby; he got the perfect combination of ambitious and nervous apprehension.  Daisy, Jordan, Tom, and atmospherics were all perfect.

Fun fact: comparing Luhrman's Gatsby to Coppola's Gatsby is an interesting compare and contrast in interpretation.  I especially enjoyed seeing 1974 Tom Buchanan to 2013 Tom Buchanan.  They're both faithful renditions of Tom, but the cultural currency defining Tom-ness is...different.

The Adventures of Huckleberry Finn by Mark Twain

And got to thinking over our trip down the river; and I see Jim before me, all the time, in the day, and in the nighttime, sometimes moonlight, sometimes storms, and we a floating along, talking, and singing, and laughing.  But somehow I couldn't seem to strike no places to harden me against him, but only the other kind.  I'd see him standing my watch on top of his'n, stead of calling me, so I could go on sleeping; and see him how glad he was when I came back out of the fog; and when I come to him again in the swamp, up there where the feud was; and suchlike times; and would always call me honey, and pet me, and do everything he could think of for me, and how good he always was; and at last I struck the time I saved him by telling the men we had small-pox aboard, and he was so grateful, and said I was the best friend old Jim ever had in the world, and the only one he's got now; and then I happened to look around, and see that paper.

When it comes to the "Great American Novel," I feel like you have basically two options: Moby Dick and Huck Finn.  Then again, only one of those takes place on American soil--the other one's at sea and all.  Not only is Huck Finn a great novel, it's about America in a real sense.  The above passage comes just after Huck decides to do what he perceives is the "right" thing and notify Miss Watson that her slave Jim has run away, but his memories of Jim's kindness to him change his mind.  He rips apart the letter, exclaiming, "All right, then, I'll go to hell."  Huck is stuck in a kind of doublethink, caught between what he knows to be right and what he feels to be right, and that dissonance is at the very heart of slavery, as a philosophy and a legal institution.  Fumbling with that dissonance, trying to make these two "rights" one, trying to reconcile the ideal of America and its practical reality--these define American history, even past 1865.  I don't think I'm stretching when I say that Huck Finn attempts to do exactly that.

I've already written about Huck Finn here, so I'll refrain from writing a long review.  But the question that interests me now is: What's up with the ending?  The "I'll go to hell!" speech is so perfect and so cathartic, but it's then undermined by the "comic" ending in which Tom Sawyer reappears.  Huck convinces Tom to help free Jim, who has been captured, and Tom turns it into a Count of Monte Cristo-inspired game in which they dig tunnels under the shed Jim is kept in (instead of going through the door) and hiding useless implements in his food.  It's all very demeaning to Jim, whose humanity we thought had been firmly established in the above scene.  (Nor is it very flattering to Huck, who I hadn't thought of us as quite so stupid.)

If you were inclined to be critical, you might say that Twain squanders the moral seriousness of the novel, and that he compromises his artistic judgment to placate fans of Tom Sawyer.  I wonder, on the other hand, if the switch back into that book's mode isn't meant to make us queasy, to discomfort us.  Maybe it asks us: What are we doing when we tell stories?  Tom's is a story; so is Twain's--and history, a cognate of the word "story," is another.  What kind of story do we want our histories to tell?

The Subjection of Women by John Stuart Mill

That the principle which regulates the existing social relations between the two sexes - the legal subordination of one sex to the other - is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other.

Wow. This book is brilliant.  Mill isn't just a good feminist-considering-he-was-writing-in-the-1860s, he's just a good feminist.  In The Subjection of Women (which, btw, is not a how-to), Mill tears apart any and all arguments for women being legally and socially subordinate to men.  Obviously, women not being able to own property and being totally subject to their husbands isn't really an issue anymore, but his arguments extend further than that to
general inequality between men and women, some of which unfortunately are still relevant.

Mill starts by refuting the argument that tradition and custom are proof of a natural order and are justifications for men's domination of women.  Mill points out that the contemporary system wasn't arrived at by thoughtful deliberation of learned minds; instead, it is a vestige of a time when strength and brutality were paramount, "the primitive state of slavery lasting on."  Men wanted women for sex and procreation and were physically stronger, so they subjugated them.  Mill admits that it's not as bad as it used to be, but the patriarchy still "has not lost the taint of its brutal origin.  No presumption in its favor, therefore, can be drawn from the fact of its existence."  He points out that because we've largely abandoned a system of might equaling right, we pretend its remnants don't exist to feel better about ourselves; but that doesn't mean it doesn't still exist, and it's important to call it what it is.

Mill also explains why it makes sense that the subjugation of women still exists.  First, the power is enjoyed by half of the population.  When a single dictator or a small ruling class wield power over large numbers of people, that power becomes largely unpopular and easier to fight against.  When half the population enjoys the power, it's a lot harder to make a top to bottom societal change.  Further, it's much easier to exert control over subjects when the exertion is so direct.  It is hard for one or a few to control masses, who are spread out and often unsupervised.  However, each woman is constantly under the watch and control of her father/husband and is utterly dependent on him (fortunately this is one of the outdated observations).  "In the case of women, each individual of the subjected class is in a chronic state of bribery and intimidation combined."  The opportunities and costs of defying him is much greater.  Thus, men dominating women still existed not because it was "natural" or "right," but because bringing about systemic change was so hard.  And of course it was hard for men to acknowledge this, for, as Mill asks, "was there ever any domination which did not appear natural to those who possessed it?"

This dynamic still exists, even as women have gained greater financial independence.  Because men didn't want mere slaves or servants, they indoctrinated women to seek men's approval as well.  "All the moralities tell them that it is the duty of women...to live for others; to make complete abnegation of themselves, and to have no life but in their affections."  This still crops up today.  I've mentioned the Harvard Heidi-Howard study before, but this crops up in many areas.  Sisters are more likely to take care of aging parents their brothers; women are (still, somewhat) expected to give up their careers in order to raise children; girls are praised for being nice and sweet much more than boys, who are encouraged to compete and assert themselves.

"When we put together three things - first, the natural attraction between opposite sexes; secondly, the wife's entire dependence on the husband, every privilege or pleasure she has being either his gift, or depending entirely on his will; and lastly, that the principal object of human pursuit, consideration, and all objects of social ambition, can in general be sought or obtained by her only through him, it would be a miracle if the object of being attractive to men had not become the polar star of feminine education and formation of character."  

Mill goes on to explain how we all suffer from allowing being "born a girl instead of a boy...[to] decide a person's position through all life."  By only drawing from half of the population for skilled jobs and leadership positions, we drastically under use our human resources and we're all poorer for it (Mill also argues that any observable differences between men and women aren't dispositive because girls and boys receive disparate levels of education and are raised so differently).  Mill takes a free market approach: if you let everyone try to do whatever they want, those who are most suited for an occupation will get it.  If women can't perform a task because they are too fragile or not smart enough or something (he says for the sake of argument), then the market will prevent them from doing so and society won't have to bar them from it.  Another of my favorite truth bombs that he drops is when he points out that if it was in women's nature to remain in the home to bear and raise children, then the patriarchy wouldn't have to compel them to do it.  

I could go on and on.  Mill makes numerous great arguments and it was a treat to read, even if sometimes he was a little verbose.