Exile

For what felt like the first time, he saw the sun for what it really was. All at once, a distant star, a comforting ball, an ocean of hell, an impossibly dense core. Jets of plasma exploding out of a nonexistent surface streamed into space above him, and it all owed to the simple fact that there was so much of it. He could feel himself there, part of the source, not just a distant bather in brilliant radiation. And he was also able, lying there on the rough ground, to stare right into it without pain or even the need to blink. I know what you are, he thought. I’m made of your exploded sisters, and I’ll outlive you.

It was a great comfort to the old man that he would soon be dust, which would then be so many unjoined atoms in space temporarily blown apart before, maybe, transmuting in the heart of a future star, before bursting forth as heat and light shining down on a future world and a future dying man.

But the thirst! The agony was still agony though accepted willingly. This is right, he thought. This is good. The sun’s disk in and out of focus. He was aware of the dust covering the dried blood on his peeling lips.

He no longer knew why he was out here, unable to move, miles from his car in the Chihuahuan desert, Elephant Tusk in front of him appearing like his own worn down, rotten molars. He was naked and lacked any possessions. Without wind, it was as if there was no air at all. The man didn’t care to breathe. He knew he’d forgotten why he was here but not the paramount importance of his own death, which had to be in this spot in the desert of his dreams. He knew he wanted it more than anything.

Regularly, time would speed up, and the clouds would stream across the sky, dipping down to the Tusk, the sun dropped from the sky, and all the other stars would roll over him tilt-a-whirl. Then he was gone and flying over the cracked ice of glaciers, perfectly serene as the resultant static image of eons of geological causes yawned at him from below. Ice and rock cast together by a universe that mercifully let them lead just separate enough lives that still other bits of matter would call them by different names.

When he roused, as he always did, he was staring again at the sun and suddenly aware of his thirst and his pain. He’d linger in the oppressive stillness before finally weakening in spirit and calling out to people he could no longer remember. He used made-up names out of desperation. It felt safe, for while he knew he must die alone, no one would hear him scream. And so his yearning for the full presence of love could be given his weak, gurgley voice, even his full conviction, but only because that voice would assuredly fail to find a listener. Only so much vibrating air. He was becoming more sure all the time that there wasn’t any air anyway.

The Tusk stood there, indifferent. His whole life, he felt, he’d thought of himself as wholly unlike the rocks, dust, water, and even maggots and flies of this world. Now that he was seeing clearly, he regarded himself as a virus refined just enough to grow a body and brain. It would become unbearable, the thirst and the pain. His gut was wracked with wave upon wave of empty, twisting torture. The only fluid in his body was rattling in his lungs.

Eventually, he’d have to cry out. It escaped his lips as whimpering, or at least the motions of lips and chest of a whimpering man. There was no air and so no sound. And in the sun, he’d finally see relief. With his pain, so grew the sun. At the zenith of both sun and pain, our star was everything, and in its heart he’d see a human face. Sometimes a woman, sometimes a man, always a stranger. But a stranger with a look of compassion. Their mouths would move, all intent but without effect. The world was the sun, mouth moving. They exuded distant compassion, but the people of the sun were consumed with their own troubles. There to help but not the ones for whom he called.

He felt his hand grasped, though no one was there. The world was fully illuminated and baking and now hands were on his shoulders and forehead and at both his hands and he was crying without tears and asking why he had to do this and no answer came. The sun, smiling serenely, and finally the slightest yet overwhelming sensation of liquid in his mouth, sweet and blissful.

Everything recedes, the intensity of existence retreating even faster than it had come upon him. And he’s dreaming again.

This Bitter Earth

Last night, Christopher Stevens, the U.S. ambassador to Libya, and three embassy staff members were killed in a senseless attack. An idiot in the U.S. made a ridiculous film disparaging all of Islam. And some other idiots in Libya felt the proper response was to attack and murder people who disagree with said idiot but who happen to be Americans.

The human mind is capable of such compassion, such creativity, and perseverance. It can be goofy, selfish, or overly proud. But it need not be filled with hate. We’re here for such a brief time, in the midst of uncertainty over just about everything but our own eventual demise. Whatever life is about, and however certain you are that you think you have the answer, it has to be about more than rage.

My mind, at times like these, invariably goes to the most moving music I know, a mash-up of two wonderful compositions, songs that could hardly be more different but which combine in a way that transcends them both.

This bitter earth,
well, what fruit it bears,
this bitter earth?

And if my life is like the dust
that hides the glow of a rose,
then what good am I?
Heaven only knows.

This bitter earth,
yes, can be so cold.
Today you are young.
Too soon you’re old.

But while a voice within me cries,
I’m sure someone may answer my call.
And this bitter earth,
may not be so bitter after all.

This bitter earth,
Lord, this bitter earth.
What good is love
that no one shares?

And if my life is like the dust
that hides the glow of a rose,
then what good am I?
Heaven only knows.

The Men and Women of ...

Why do we so often refer to members of the military as our “men and women in uniform”? It’s not the “uniform” part that has me thinking about this. We do the same with many other institutions — the “men and women of TransExpress Airlines” or the “talented men and women of Central State University.” For that matter, why do we address a kindergarten class as “boys and girls”? I’m not looking to suggest that each utterance of such phrases reveals the latent gender biases of the speaker. I only want to ask why. In doing so, I’ve been led to consider the descriptive power of terms of sexual identification, beliefs that men and women are essentially different and yet inseparable types of beings, and how attempts to be inclusive can also reinforce the distinction among groups.

But maybe you think it’s ridiculous even to question this turn of phrase. It’s just a colorful way of saying “people,” right? To see how odd gendered phrasing is, in the abstract, try it out on other social groups: “our blacks and whites in uniform,” “the Latinos and non-Latinos of Widget World Industries.” No one talks that way. The phrasing is offensive for what we would think it reveals about the speaker — that he or she found the classification into social groups somehow relevant, so relevant as to be the fundamental way to sort the employees of an entire organization. And yet the audience understands that the distinction drawn is not at all relevant in the context used. The speaker, therefore, must be resorting to faulty stereotypes. Shame on him … or her.

But even where a classification is not offensive, it just seems bizarre when it’s not directly related to a functional categorization within the organization. “The black-haired, blondes, and brown-haired of Central High School” is a patently stupid way to refer to a student body, whereas “the pilots, flight attendants, maintenance, and other professionals of Pacific Airways” is intuitively sensible.

So why is a top-level gender classification of an organization seen as rhetorically acceptable and perhaps even the preferred way to refer to the organization’s members? There are a number of possibilities. First, perhaps this usage reflects the pervasive belief that men and women are essentially different in ways relevant to just about every aspect of life, including jobs both genders share. This is a first step toward arguing that the common rhetorical phrase, “men and women of,” is an invidious one. And there is certainly lots of evidence in our society that many, many people believe the distinction between men and women is almost always relevant. That’s not to say that relevance is thought automatically to imply the acceptability of unequal treatment. It’s a weaker thing to assert that a classification among, say, workers is relevant to appreciating the social dynamics and character of a workforce than to claim that a classification should be the basis of different treatment. But, often enough, people also believe that gender justifies different, but perhaps not what they would recognize as unequal, treatment.

As the father of a young girl and a young boy, I’ve lived under the social pressures to give boys and girls different childhood experiences. From colors (pink and blue), to varieties of play, to dress, children grow up with profoundly different kinds of reinforcement and opportunities depending on their genders. There’s a debate over how much of this is innate and how much kids’ tastes are shaped by marketing, expectation, and peer-group pressure. Other social animals exhibit sexual segregation or at least inhabit different roles within groups. I know almost nothing about research into the social expression of innate human sexual differences. But I would very surprised if evolution has not resulted in at least some different social proclivities among the sexes. After all, the struggle over the eons has been to attract one another.

Whatever payload natural selection has left in my own children, I see no reason to reinforce gendered distinctions that have no obvious relevance to modern society and which are hindrances to affording others opportunity and respect. So my spouse and I never forbade, but did not selectively encourage, princess play or truck play or superhero play or pink markers or blue markers. My son fell in love with Star Wars, true. And my daughter developed a particular kind of interest in animals that is more often associated with girls. She also has been more attracted to sparkly things and, more recently but to some extent for a long while, clothing, hair styles, and nail polish. (She also loves the Lord of the Rings, great white sharks, and videogames more associated with boys.) I have no way of saying how all their tastes have come about. This is a massive topic that to discuss would take a book-length treatment and knowledge I don’t have. You quickly learn as a parent, though, that while you can do your best to impart values and taste, your children will substantially be a product of the culture in which they live, just as you have been. That felt understanding leads to a critical appraisal of what that culture is telling them.

That’s why I’ve balked when a politician acknowledges a debt to our “brave men and women of the armed forces.” Why should my kids believe that one’s gender has anything to do with one’s place in the armed forces? The obvious rejoinder is that the phrase does not mean to imply any difference in status. Kind of like the judicial rationale for upholding the appearance of “in God we trust” on our money and “under God” in our pledge: The Supreme Court has told us that these are only secular acknowledgments of the role of (non-sectarian) civic religion in our history but have no religious expressive value. In other words, they’re ok for the government to say because they do not mean at all what they purport to say (and, ironically, what the zealous advocates of theocracy believe them to say). So too, the justification for “men and women of” might be that it means nothing, only another way of saying “people.”

Perhaps we can take a cue from the religious example, though, and give an even more charitable reading to the phrase. At one time, one could accurately say, without imparting to the word “man” a universal quality, “the men of the armed forces” or “the men of Central College.” Adding “and women,” far from having any discriminatory intent or effect, signaled the importance of the recent inclusion of women in formerly male-only institutions. When I was growing up, people started saying “our forefathers, and foremothers” in speeches, orally set off in commas, inducing a knowing chuckle at the then-common tendency to undervalue the contributions of women in the early days of the Republic. It was a reminder of the undesirable exclusivity of the word “forefathers.”

A CEO who praises the “men and women” of the company does not, under this view, communicate a different appraisal of their roles but respect for their equal contributions. There’s a problem with that, however. Why would the same CEO not open a speech by praising the “blacks and whites” of the company? Surely, African Americans have struggled to overcome systematic exclusion just as women have. And as surely, it’s still important to signal their equal status, the rejection of discrimination, and to welcome the arrival of policies of inclusion. But we don’t do that in this way. Why not?

Highlighting the social groups that compose a company is a double-edged sword. It can signal the presence and importance of those groups within the organization even as it reinforces the relevance of the distinction. Some conservatives have taken the irrelevance of racial and gender distinctions to mean that no policies should ever turn on them, even those policies meant to achieve greater inclusion in areas of life where women or minorities are underrepresented and have been excluded in the past. This is a mistake, in my view. But it’s a bit curious that the zeal accompanying the insistence on the irrelevance of the distinction, to the point of abject hostility to “identity politics” and the Colbert-like insistence that we just not see race at all, does not cause a moment’s hesitation at “the men and women of.” In fact, I wouldn’t be surprised to find empirically that the phrase is more often be used by CEOs who are otherwise allergic to group-based politics.

Just to be clear, I don’t mean this to be personally critical. I don’t think that saying “the men and women of” means the speaker holds essentialist and incorrect views about the capabilities of the sexes. It’s embedded in modern rhetoric, and I’m rambling along thinking about why that might be. So let’s consider another possibility that is yet more charitable to the phrase, one you might consider when trying hard to be fair to such speakers’ intentions. I’d call this aspect of the phrase “vivification.”

Why, after all, did we ever use the phrase “the men of”? When I hear the word “man,” I summon a picture more specific than that when I hear the word “person.” When you hear “men and women,” if you’re like me, you sometimes summon an image of a somewhat generic group but made more flesh and blood by the admittedly weak visual cue the gendered words carry. If I want you to think of the laboring and helpful human beings staffing my organization, perhaps saying “men and women” instead of “people” makes it more likely you will imagine a group of actual human beings than a faceless bureaucracy. Specifying gender is a gentle, subtle cue to physical features — secondary sexual characteristics, to be sure — that distinguish us from the cogs of a machine. We could as well say “the hard-working, tall and short people of Skyways Airlines,” but it would be such a novel way of injecting human characteristics that it would quite obviously not have the desired effect. And so, maybe “men and women of,” born of a purpose to be inclusive in a world of very recent exclusion, is now an available means in rhetoric of humanizing an institution. If this is its purpose, we should recognize that we’re piggybacking on cultural understandings of the stereotypical physical differences of the sexes.

Well, I don’t have any answers. I admit that I don’t particularly like the phrase “the men and women of.” My perception is that it tends to be delivered to achieve a solemnifying effect by politicians and corporate officers. At this point, I think its effect, if not its purpose, has shifted away from laudably signaling inclusion and toward reinforcing distinctions that should not exist. By now, inclusion should be a given. Just as obviously, its binary phrasing is problematic as transgender individuals achieve greater social acceptance.

I’ve found it funny how, in all the wars over gendered products and the sexual politics of the workplace, some uses of sexual differences go unremarked. It just seems like a pretty big deal to me when a leader of a large organization introduces it by asserting, right from the beginning, that it’s a union of sexes. Weird, huh?

Call Me Maybe

I can’t stop thinking about this video (warning, if you have a terrible workplace, this may not be safe for work):

Carly Rae Japsen - Call Me Maybe (Chatroulette Version) from ePlay TV on Vimeo.

Lots of people have linked to it and even written about it. But my mind keeps tracing back to it as the weeks go by. I love the obvious things about the video: the confidence, freedom, and kind heartedness of the dancer, the sheer joy of the viewers, and even the music, which if we’re honest is very hard to dislike even if it doesn’t run toward my usual tastes.

What really has its hooks in me, though, is the way it so crisply reminds us of the fullness of human nature. The guys, many with shirts off, are almost surely online for reasons they’d not discuss with their mothers. And the dancer plays to this prurience, makes a kind of mockery of it. Just as we’re repulsed by the viewers’ intentions, they smile and are won over by the dancer. As that smile crosses the face, we see a kind of openness in them, and we’re won over as we see a fuller picture of them. There’s such optimism in this. People aren’t just creepy, just hateful, just professional, just deviant, just straight-laced, just addicts, just conservative, just liberal, just angelic, just gross, just clean, just thoughtful, just thoughtless. We’re this whole, wonderful bundle of contradictions, and I’ve rarely seen it expressed so succinctly, in a way that makes me feel such unabashed happiness. Kudos internet.

In Defense of Titanic

Titanic is a movie about what it means to save someone and what it means to be saved.  It’s a cartoon, yes, the characters archetypes, if not quite caricatures.  And it’s otherwise easy for some to hate.  In fact, it seems fashionable to show disdain for it.  Doing so misses something important about our openness to art, defined simply as the portrayal, rather than raw transmission, of ideas.  For me a film is a success if it’s authentic and provides a new space, or maybe a new reason, to turn over thoughts.  Is someone actually trying to tell me something, and have they provided space for me — emotionally, intellectually, whatever — to think and feel?  Titanic does.

It wouldn’t be hard to describe the film in an unflattering way:  “A teenaged brat, who all too typically has issues with a controlling mother, gives everything up for a dashing young free spirit who could be a boy-band member and who takes her innocence and saves her life.  The tragedy of the Titanic itself is both eye candy and a mere backdrop for teenagers in love.  There is a ridiculously stereotypical and unredeemable villain and even a chase scene involving a gun.  The dialogue fails to develop instances of complex and real human beings.”

All these things are somewhat true but miss the point.  The cartoon characters that compose the plot are isolations of human tendencies — not false so much as incomplete.  The film is a sketch of emotions and our own conflicting ambitions cast over a transformative event.  The sinking is this one, small funnel through which everything that was before swirls downward to a point, and from which everything emerges as a gift and a matter of pure choice.

It’s not that Titanic makes us actually fret over how to balance comfort and security (Rose’s beginning) against daring, truth, and intentional living (Rose’s end).  No, Cameron never makes us really feel that Rose is throwing away anything important when she leaves wealth and status behind.  Even when she climbs back on board the sinking ship, we surely admire it.  Internal, ethical struggle is not what this movie is about.

One could make a wonderful film that captures the essence of that dilemma, that makes the viewer feel the torment of trading away comfort for freedom.  An easy lesson in the abstract, the singular nature of life and the importance of mustering the courage to throw off our shackles could, in the hands of committed actors, writers, and a director, be felt as horrifically difficult and agonizing.  The obvious abstract lesson, glorified in many lesser films, could be cinematically rendered to show the internal conflict of fear, logic, hope, and desperation that rages in our meat-bound brains.  But Titanic is not a lesser film for not doing this.  

The beauty of the film lies in the passion of its large scale historical depiction and in the very small scale revolution it worked in the lives of Jack and Rose. Rose saved Jack as much as Jack saved Rose.  And against the epic backdrop of the sinking of a massive ship, the event that just makes you wonder what you’d do at the end of all things when all the usual rules die away, we appreciate a life well-lived as consisting both of freedom and of freely chosen but deeply felt obligation.

Freedom and obligation, each seems to be the other’s absence.  That’s true of course. I’m free to choose if I’m not obligated to make a particular choice. And I’m obligated if I’m not entirely free.  But as the opposing forces of the electron and proton draw them together to create the matter of our world, simultaneous obligations and freedoms are essential to the complete human being. 

Our main characters arrive on Titanic as distillations of these pure states.  Jack, seemingly very happy to drift through life beholden to no one, relishes adventure and not knowing even where he will next sleep.  He is the embodiment of the spirit we long for when obligation piles up into a twisted mass of metal, looming large as fully ground and seized gears.  Who wouldn’t want to be absolutely free of obligations?  Happiness, as Hitchcock said, is a “clear horizon.”

Rose arrives with the opportunity to want for nothing.  She is unburdened of choice.  She need have no fear of the panoply of acute and very real dangers that have threatened all the beings from whom she is descended, the poverty, the not knowing, the struggle, the warring tribes, the famine, the battle for survival and violence of the primordial pools.  Her unprecedented security would come at the price of an obligation to accept her place in the complex social structure that makes it possible.  The Jewel of the Sea is everything most people seem to desire all their lives, but it is locked in a box, the manifestation of the quid pro quo. (And the jewel, like the unobtainium in the equally misunderstood Avatar, changes its meaning as the characters change.)

Jack and Rose are incomplete.  Anyone who has experienced the joy of children, of family, of the best of friends, and of honest love can intuitively understand how obligation can enrich a life.  It’s the awesome power of voluntary obligation, to live in part for someone else, that Rose gave Jack.  The special kind of saving that we provide one another in little bits over the course of our lives, it was all channeled into a few hours during which Jack was himself saved by saving Rose.  It probably sounds corny, but I was moved watching Jack find the worth of that something worth dying for.

So too, anyone who has spent weeks in the wilderness, climbing high peaks, crossing deserts, or even lounging on exotic shores understands the kinetic energy of freedom felt in the gut.  As I write this, I’m flying over the Arizona desert, desperately longing to be exploring canyons and climbing mountains, to be in my sleeping bag with hood drawn and looking up at my own breath and the slow stars that are satellites in the pure, dark sky.  One image I always remember from Titanic is the photograph of a young but emancipated Rose in a pilot’s outfit, standing next to a plane.  Also, in that postscript of a scene, ranging over Rose’s memories, there are all around reminders of the family she later made and the implicit constraints and obligations that came with that.  Not least of all these is her own aged body.  Sure, these are symbols, and they are cliché.  But that doesn’t make it false: “This, like many clichés, so lame and unexciting on the surface, actually expresses a great and terrible truth.”

That is my Titanic.  Yes, it’s the backdropped story of hubris, adventure, and terror.  It isn’t Shutter Island. But there at its core is an opportunity for me to think, on a more emotional level, of the integral values that make this precious and all-too-short life worth living.

Dark Sky

About a year and a half ago, I was ready to leave the law school for the day, and so I packed up, glanced outside, and noticed a light drizzle. I ride my bike to and from work, about two miles from my home. I have no real problem being rained on, but if I could wait a few minutes and ride in mist or drizzle, I’d prefer it to riding in what might become a downpour. Glancing at the weather, you get something like this, which gives you a rough probability for rain for the “afternoon” or “evening.” Yes, weather.com does give forecasts in fifteen-minute increments, but I’ve never been a fan — having always been partial to the National Weather Service site and, especially in winter storm season, the forecast discussions.

I wanted an app that would quickly tell me what the chances were for rain, at different intensities, over the next half hour or so. An app that would quickly tell me whether to go home right now or wait it out a bit. I had this idea that you could scrape the NWS radar images, use an algorithm to detect the edges of the colored shapes that are the storms, and extrapolate to predict where the colored shapes would be over the next hour (maybe getting a little fancy by pulling in other data). While weather prediction is very, very hard and especially difficult to get right at particular places, perhaps it wouldn’t be so difficult to get reasonably accurate (for my purposes) forecasts for only an hour in the future.

Needless to say, I never made the app. But Adam Grossman and Jack Turner (no relation) had a similar idea and an absolutely terrific concept for implementing it. They raised money on kickstarter and have now shipped Dark Sky. It’s a fantastic application. Far better than the one I’d had in my head and just beautifully designed to do one kind of thing excellently.

On the iPhone, it comprises essentially two views. In one, you see text that tells you what the temperature and state of precipitation is right now and, below it, what will happen in the next hour. This view also shows a very clever graph. On the x-axis is the time, from now to an hour from now. On the y-axis is the level of precipitation, ranging continuously from none to low to medium to heavy. The yellow curve representing this wiggles to show uncertainty. The more it wiggles, the less confident you should be. Of course, this portrayal elides two distinct concerns: confidence that it will rain at all and heaviness of precipitation. But for the purposes for which you’ll use the thing, collapsing that into one nice graph is somehow perfect.

Just today, I was wondering whether it would rain while I was out for a run. I wanted to know whether it was likely to pour so hard that I needed a sandwich bag to encase my iPhone and whether I should encourage my father-in-law to go out for a walk. The app told me it would continue to rain lightly for a few minutes, not rain for about thirty, and then rain moderately to heavily after that for the rest of the hour. So I grabbed the sandwich bag, encouraged my father-in-law to walk into town (with an umbrella and having thought I could pick him up after the run if need be), and headed out. For the first few minutes, it drizzled lightly. It stopped for the next thirty minutes, and I was drenched for the last fifteen minutes. The app nailed it. Smells like the future.

Roles

Let’s suppose that President Obama has long believed that same-sex marriage is a civil right. What should we make, in that case, of his recent announcement that he believes gays should be able to marry? In my view, the President, no matter how longstanding his opinion, was right, or at least justified, to wait until now to announce it. And further, the Supreme Court ought to wait just a bit longer, if it can, before enshrining that understanding in the constitutional pantheon, as much as it belongs to be there.

First, I should emphasize that it may well be that Obama has only recently come to the personal conclusion that the law ought to recognize such marriages. He may even believe now that there is no federal constitutional right that would trump the many state statutes and constitutional provisions to the contrary. I doubt it, but I don’t mean to imply in what follows that his true, personal beliefs are other than how he has described them.

Instead, I want to emphasize the obligations and considerations in taking a position as a representative. There is and should be a difference between an individual’s wants, even concerning the law itself, and his or her wants for the institution he or she represents. In short, any representative must understand the importance of roles.

As a relatively unimportant assistant professor, I can express wants for my law school or university that I would not and should not express were I the president of the university. That’s not at all because a president must act in craven, political ways. Rather, my role as an individual faculty member includes an obligation to voice my opinions, adding to the menu of options offered up by others that will inform but not determine the ultimate decisions. As president, this option-producing function is not what’s most important. The university president is both a decisionmaker and a representative. He or she must indeed exercise independent judgment, but for the president to say, in this role, that something should happen or should not happen is a statement about the institution’s intentions, not simply his or her own.

When the President of the United States announces what he believes the law requires, he states something much more than a personal view. He has an obligation to represent the People and in doing so to announce not his own opinions on the controversies of the day, but his view of the proper role that the United State should play in understanding and resolving them. Balancing the need to be a good agent of the People (and not only those in your political base) while also being a good leader is the most difficult act that any scrupulous and well-meaning president must undertake. One must simultaneously give voice to those you lead and actually lead them.

“Do you believe in gay marriage?” becomes, when posed to the President, “How does the Executive Branch view the question of gay marriage?” These questions are not hermetically isolated, but they are nonetheless different questions.

The people of the United States have radically changed their mix of views on the sources of, morality of, and acceptability of homosexuality. However one dates this change, from early activism to the AIDS crisis (Philadelphia) is under-appreciated in this regard) to hum-drum, contemporary sit-coms, the normality of homosexuality and the humanity of gays have now been fully revealed to all who participate in popular culture. This has had the effect of encouraging more people to come out of the closet, which has led to more people having friends and family they know are gay, which only reinforces personal perceptions that gays are, in fact, ordinary people like the rest of us.

It’s a virtuous cycle and the engine of the inalterable trajectory of this issue: People who change their minds are changing it in favor of gay marriage. The population most hostile to homosexuality is dying off. The result of these fundamentals has made the ultimate outcome of this “debate” clear for a long time now, and the trend will only accelerate as people rush to get on the right side of history.

And so, the question has been at what point should the President announce his support for gay marriage. Last year, the White House decided not to defend the section of the creepily-titled Defense of Marriage Act that prohibits federal recognition of same-sex marriages performed in states that permit it. That was a statement that the federal government, if the Executive has its way, will bow to the determinations of states on either side of the issue in determining federal benefits. It did not state that the Executive had taken a position on how a state should resolve that question.

With his recent personal “affirm[ation],” the President has expressed that he, in his role, would like to see gay marriage approved, while explicitly suggesting that the question should, for now, be left to the states. This affirmation is, effectively, suggesting that the states should determine not whether but how quickly gay marriage is legalized throughout the nation. And, incidentally, he suggests they should kind of hurry the hell up, lest your state be one of the stragglers that is ultimately cleaned up by federal fiat - Loving v. Virginia style.

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The same is true of Supreme Court justices as is true of the President. The questions they resolve are not identical to the ultimate ones: what does the Constitution require? Rather, a justice must decide what the Supreme Court should do when hit with the question of a law’s legality. Because the Constitution rarely provides clear answers to such questions, it is all the more crucial that a justice understand what role the Court should play and how the Constitution is addressed to that role.

Viewing the Court in this way makes it much clearer why the Court most typically ratifies rather than forges social movements. The “under God” part of the pledge — a red scare-era addition meant to distinguish us from godless communists — seems quite obviously an unconstitutional act of Congress. But that does not mean that the Court had an obligation in the Newdow case to decide as such. While it might have been illegitimate to decide, substantively, that Congress had no sectarian purpose in adding the reference to the Abrahamic deity, punting on standing grounds was probably the better way to permit our society to work out the meaning of the Establishment Clause, that is, the proper role of religious reference and motivations in the public sector.

The choice the Court faces in the gay marriage cases may be more difficult. It would be better if marriage equality won out democratically — if we all owned the decision to be more inclusive. The Court would still be needed to pick up the pieces in a few years, compelling the handful of recalcitrant states as it did in Loving v. Virginia. But its hand may be forced by litigation, such as that in the Ninth Circuit pursued by Ted Olson and David Boies (and countless others, like the rather awesome San Francisco city attorneys).

Perhaps the Court will find a way to let these victories stand while giving the states another couple of years. Honestly, I think that’s all it’s going to take.

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When Obama suggests that the marriage question should be left to the states but that he believes gay marriage should be legal, he has made a profound move. The statement more or less consolidates some of the administration’s existing positions and provides signals concerning the future. It tells us that he believes the role of the federal government should be to remove any federal barriers to marriage equality and that it should encourage states to do the same. It also tells us that the day is coming when the federal government, through the Court, will ratify the changes in public acceptance of gay marriage that are not only ongoing but accelerating. Making such a statement is a weighty responsibility, and the President did nothing wrong if he delayed, even if for a long while, before doing so.

Forward.

Back in the fall of 2007, Wired held a contest to create a new slogan for NASA in lieu of NASA’s internal favorite: “NASA explores for answers that power our future.” Yeah, not so good, but the hive mind of the internet doesn’t always produce spectacular results either. In this case, the top three entries were:

1. Exploring Other Worlds, Understanding Our Own
2. NASA: Explorers Wanted
3. NASA: Bringing the Universe to Your Doorstep

So… not great. My own not-so-great entry was one word with a period that I thought captured the idea that would sell NASA to a budget-minded public. With appropriate typeface and logo-ization, the word would appeal to that innate sense that we’re part of something bigger, part of a progression, that the burden is now entirely on us to take the next giant leap. Simple and yet leaden with the weight of childhood dreams.

Forward.

Well, it got no traction and disappeared among the thousands of other suggestions that people felt strongly about. Today, I’ve been vindicated! There’s no way I could waste such a rare moment. Looks like someone else has seized on the power of that word (and on my preferred strategy of a “getting shit done” message).

While it appears to be just the name of this video, the Obama campaign could do far worse, in my not so valuable opinion, than use this word as an organizing principle. Behind it would be the primary, emotional messages: under control, getting things done, and doing what he says. The action equivalents of confidence, work ethic, and trust, respectively.

I’m not pushing any politics here, just interested in the way sets of positions and compromises can be emotionally bundled.

My favorite tweets

The four tweets I have designated as favorites on Twitter, the first because I teach property law and the others because they are sublime:

@ShitMyDadSays: “‘The dog don’t like you planting stuff there. It’s his backyard. If you’re the only one who shits in something, you own it.  Remember that.’”

@DalaiLama: “Noticing a single shortcoming in ourselves is far more useful than seeing a thousand in someone else. When it is our own: we can correct it.”

@DalaiLama: “The nature of our motivation determines the character of our work.”

@TychoBrahe: “I overheard my son in his room:  ‘I know you’re just fabric and stuffing and plastic,’ he said. ‘But you’ve been a wonderful friend to me.’”

I submit these four tweets alone justify all the social capital invested, sometimes wasted, and diverted into the production of Twitter.

Obamacare

The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never—because it never means anything precise.

Justice Scalia, Stop the Beach Renourishment v. Florida Dep’t of Envt’s Prot., 130 S. Ct. 2592, 2608 (2011).

The Supreme Court has begun its epic consideration of the “most important case ever” — the one reviewing the constitutionality of Obama’s health care reform.  Under established law, the case is neither difficult nor very interesting.  The challenge is to Congress’s power to impose a (modest and essentially compensatory) penalty on those who do not purchase health insurance as a necessary step to its objective of guaranteeing health insurance coverage for more Americans.  As many, many people have written, this is surely a necessary and proper means for regulating the interstate, commercial markets in health insurance and healthcare in order to ameliorate the severe problems suffered by and imposed on others by the uninsured.  (Whether it is a wise or good means is not a question that the Court has the power to consider.)

I see the case as a kind of constitutional oddity, where we’re just left with jaws gaping, wondering how we got to this point.  The point where the specter of government forcing you to buy broccoli is bandied about as a serious reason to dismantle the post-Great Depression understanding that Congress has power to attempt real solutions to national problems.

The vehemence of the debate is made both possible and inevitable by the uncertainties embedded in the Constitution. The words of the Constitution do not provide absolute constraints on their application.  Congress has the power to regulate interstate commerce and to do all things necessary and proper to regulate interstate commerce.  What’s commerce?  What’s necessary?  What’s proper?

When words have such open texture, there is room to locate within them many different outcomes in concrete cases. If you hate Obamacare, you’re drawn to thinking of it as illegitimate, surely representative of government excess.  And here’s the clause of the Constitution that defines that power, doesn’t grant unlimited power, and so must contain a limit — of some kind, right?

When constitutional or statutory language is unrestrictive, disagreements about how to apply it is played out in a predictable fashion.  Not being able to settle the dispute definitively using language, text, and intention, the debate shifts.  Legitimacy, not correctness, is the criterion for victory.  Tactics in such debates include pointing out the personal inconsistencies of the debaters, breaks with tradition, or slippery slopes.  We saw all this on display in the Obamacare litigation.

While the opinions may well sharply differ from the views their questions implied, the conservative members of the Court insisted: that there just must be some judicially enforceable limit to the commerce power, that personal liberty to refrain from commerce is implicit from an unwritten, vague penumbra of constitutional provisions, including the commerce clause itself and the Tenth Amendment’s reservation of unspecified rights to the states and people, and assertions concerning the unprecedented nature of the individual mandate.

The liberals pointed to the routine nature of commercial regulation, the particularities of this market (impliedly noting that most regulations are particularized for certain markets and that health care is an especially odd market), the history of judicial restraint in reviewing economic legislation, etc.  And many of us have marveled at the suggestion  of unwritten, penumbral individual rights on display in Scalia’s questions, a glaring, personal inconsistency if embraced as doctrine.

Indeed, if the questions reveal his thinking (a big “if” and so I use his name for discussion purposes not to criticize views he has not yet claimed as his own), Scalia has neither precedent nor personal consistency on his side.  But that doesn’t mean he’s wrong here.  He’s using a document that provides few constraints to infer concerns about the extent of federal power that trump concerns about the ability to solve national problems.  

We liberals typically see in the Constitution’s structure and historical development a concern for federally protected individual rights and a gradual realignment in favor of broad federal prerogatives to the detriment of state sovereignty — and the counter-majoritarian uses, rather than elite-protecting ones, of federal courts.  These broad principles lead us to find, in the uncertain language of due process and perhaps other clauses, a right to privacy and more robust protections for criminal defendants and others who are not likely to be able to protect themselves in the political process.

Scalia doesn’t think much of doctrines like substantive due process and the right of privacy that he perceives as unmoored from the constitutional text.  These doctrines, he maintains, provide no limits on judges and permit them to make essentially political judgments on a case by case basis.

But here in the Obamacare cases, as in cases striking down congressional acts in the name of “Our Federalism” rather than specific provisions, Scalia might find his own roving, super-textual mandate for expunging legislation that interferes with economic rights and property.  Indeed, the last couple of decades have seen a wave of conservative attacks on the post-Depression legal order: attempts to restore judicial protections of states rights and individual, economic and property rights.  From Citizens United, to the conservative reaction to Kelo v. City of New London, to efforts to expand the reach of the takings clause, to the effort in Lopez to reinstate commerce clause limits, to the sovereign immunity and anti-commandeering cases, to the subtle shift from suspect classes to suspect classifications in Equal Protection law.  These threads come together in the health care cases.  But only because conservatives have chosen to bring them together.

If Obamacare feels, deeply and intuitively, excessive, as I assume it does for some libertarian-minded conservatives, it’s natural to find it inconsistent with a constitutional scheme aimed to cabin excess.  First, you just assume there must be a “limit” to what Congress can do under the commerce clause, a limit beyond the existing ones (the Lopez limit to commercial activities when aggregating individual activities to find a substantial economic effect) and the protections against rights violations.  But the direction and magnitude of this limit a not specified, a principle beyond “The Federal Government Must Be Limited” is not made clear.  Under such conditions, any use of federal power lies on some vector from the origin, along which we can argue at some point lies “too far.” If we have no principle to tell us what purposes the limit serves and what it demarcates, then for any law we can scan around us, 360 degrees, to find the direction in which their is a downward slope, and we can call it slippery.

So what’s the alternative? Originalism or textualism? No.  Scalia’s right to look at the power-conferring and rights-protecting language of the Constitution and wonder what structure it implies.  It sets out ideas, ideas that reflected and gave birth to practices, and ideas that set the terms of debate.  But absolutely nothing in the clauses themselves provides a definitive answer, even in these very easy cases.  (I don’t mean here to imply I’m providing any kind of rebuke to recent academic writing concerning the various sorts of originalist interpretive theories.  It’s true that I don’t think they work, but this isn’t an argument to that effect.)

What’s odd is not that Scalia does this but that he worries about such odd things.  There’s a reason, for example, to worry that textualist elimination of the right of privacy would unleash governmental power inconsistent with the Constitution’s own structure.  Not only is it a possibility that government could do all kinds of bad things without the protection of judicially enforced privacy rights, it has actually happened.  There are reasons to believe that majority-controlled legislatures filled with culturally and religiously homogeneous legislators might not respect the integrity of the private lives of political minorities.

But what reason do we have to fear that government might force us to engage in unwanted economic transactions that similarly threaten to undermine the anti-authoritarian aims of the Constitution?  Is any actually worried that this law is indeed a stepping stone to one forcing us all to buy broccoli or to exercise?  In a nutshell, what reason is there to think that the political processes, elections and such, aren’t good enough to protect us from such things?  And, most importantly, can you think of any areas where the political processes would indeed fail but where the rights to autonomy contained within and among the Bill of Rights and Civil War amendments would be inadequate to the task?

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Politically, I see Obamacare as an attempt at compromise, an attempt to do something about the millions of uninsured while leaving as much to private markets as possible.  I’m left to scratch my head and wonder what opponents wish to do actually to solve this problem.  Do they understand the extent of problems many Americans have in this market?  Consider this:

[Young people without health insurance] aren’t stupid.  They’re going to buy insurance later. They’re young and need the money now. ….  When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance like the rest of us.

Justice Scalia, at oral argument (emphasis added).  And there it is.