01 Apr 2020

Harvard Law Professor Rejects Originalism

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Adrian Vermeule, Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School.

He looks cherubic and harmless, doesn’t he? Well, he rejects the framers’ goal of limited government, preferring the promotion of morality and “the common good.”

He expressed his new vision of illiberal Dworkianism in a recent editorial in the Atlantic, titled “Beyond Originalism.”

Originalism comes in several varieties (baroque debates about key theoretical ideas rage among its proponents), but their common core is the view that constitutional meaning was fixed at the time of the Constitution’s enactment. This approach served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social.

Alternatives to originalism have always existed on the right, loosely defined. One is libertarian (or “classical liberal”) constitutionalism, which emphasizes principles of individual freedom that are often in uneasy tension with the Constitution’s original meaning and the founding generation’s norms. The founding era was hardly libertarian on a number of fronts that loom large today, such as freedom of speech and freedom of religion; consider that in 1811, the New York courts, in an opinion written by the influential early jurist Chancellor James Kent, upheld a conviction for blasphemy against Jesus Christ as an offense against the public peace and morals. Another alternative is Burkean traditionalism, which tries to slow the pace of legal innovation. Here, too, the difference with originalism is clear, because originalism is sometimes revolutionary; consider the Court’s originalist opinion declaring a constitutional right to own guns, a startling break with the Court’s long-standing precedents.

These alternatives still have scattered adherents, but originalism has prevailed, mainly because it has met the political and rhetorical needs of legal conservatives struggling against an overwhelmingly left-liberal legal culture. The theory of originalism, initially developed in the 1970s and ’80s, enjoyed its initial growth because it helped legal conservatives survive and even flourish in a hostile environment, all without fundamentally challenging the premises of the legal liberalism that dominated both the courts and the academy. It enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts, appealing over the heads of the justices to the putative true meaning of the Constitution itself. When, in recent years, legal conservatism has won the upper hand in the Court and then in the judiciary generally, originalism was the natural coordinating point for a creed, something to which potential nominees could pledge fidelity.

But circumstances have now changed. The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.

Assured of this, conservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism. It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.

This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.

To be sure, some have attempted to ground an idea of the common good on an originalist understanding, taking advantage of the natural-rights orientation of the founding era. Yet that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing. I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism. Ronald Dworkin, the legal scholar and philosopher, used to urge “moral readings of the Constitution.” Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.

Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.

Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.

RTWT

The framers were, of course, conscious that the new Republic would be composed of thirteen colonies, founded at different times by different groups of people for different reasons with differing cultures, economies, and dominant religious denominations. They were living in a time in which the disastrous European Wars of Religion loomed large in memory, and they had drawn the rational conclusion that attempts by the State to control the conscience of the individual with regard to opinion and forms of conduct not impacting others were both tyrannical and futile.

Professor Vermuele thinks otherwise. Having ascended to an eminent position in the modern academical meritocratic order, he considers himself wiser than Madison, Jefferson, Washington, Franklin, and the other framers, and he obviously believes his own contemporary apprehension of morality and “the common good” is better than theirs, and superior as well to that of the 330 million other living Americans whom he is prepared to instruct and coerce.

Personally, I am no more interested in being ruled by Platonic Guardians of the Roman Catholic Integralist bent than I am by being ruled by bien pensant left-wing sophisters like the late Ronald Dworkin.

01 Apr 2020

Bat Song

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HT: Vanderleun.

31 Mar 2020

Orichalcum, Lost Ancient Metal May Have Been Found in Shipwreck Off Sicily

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Archaeology World:

Orichalcum, the lost metal of Atlantis, may have been found on a shipwreck off Sicily

A group of naval archeologists has uncovered two hundred ingots spread over the sandy seafloor near a 2,600-year-old shipwreck off the coast of Sicily. The ingots were made from orichalcum, a rare cast metal that ancient Greek philosopher Plato wrote was from the legendary city of Atlantis.

A total of 39 ingots (metal set into rectangular blocks) were, according to Inquisitr, discovered near a shipwreck. BBC reported that another same metal cache was found. 47 more ingots were found, with a total of 86 metal pieces found to date.

The wreck was discovered in 1988, floating about 300 meters (1,000 ft) off the coast of Gela in Sicily in shallow waters. At the time of the shipwreck Gela was a rich city and had many factories that produced fine objects. Scientists believe that the pieces of orichalcum were destined for those laboratories when the ship sank.

Sebastiano Tusa, Sicily’s superintendent of the Sea Office, told Discovery News that the precious ingots were probably being brought to Sicily from Greece or Asia Minor.

Tusa said that the discovery of orichalcum ingots, long considered a mysterious metal, is significant as “nothing similar has ever been found.” He added, “We knew orichalcum from ancient texts and a few ornamental objects.”

According to a Daily Telegraph report, the ingots have been analyzed and found to be made of about 75-80 percent copper, 14-20 percent zinc and a scattering of nickel, lead, and iron.

The name orichalucum derives from the Greek word oreikhalkos, meaning literally “mountain copper” or “copper mountain”. According to Plato’s 5th century BC Critias dialogue, orichalucum was considered second only to gold in value, and was found and mined in many parts of the legendary Atlantis in ancient times

Plato wrote that the three outer walls of the Temple to Poseidon and Cleito on Atlantis were clad respectively with brass, tin, and the third, which encompassed the whole citadel, “flashed with the red light of orichalcum”.

The interior walls, pillars, and floors of the temple were completely covered in orichalcum, and the roof was variegated with gold, silver, and orichalcum. In the center of the temple stood a pillar of orichalcum, on which the laws of Poseidon and records of the first son princes of Poseidon were inscribed.

For centuries, experts have hotly debated the metal’s composition and origin.

According to the ancient Greeks, orichalcum was invented by Cadmus, a Greek-Phoenician mythological character. Cadmus was the founder and first king of Thebes, the acropolis of which was originally named Cadmeia in his honor.

Orichalcum has variously been held to be a gold-copper alloy, a copper-tin, or copper-zinc brass, or a metal no longer known. However, in Vergil’s Aeneid, it was mentioned that the breastplate of Turnus was “stiff with gold and white orachalc” and it has been theorized that it is an alloy of gold and silver, though it is not known for certain what orichalcum was.

RTWT

HT: Karen L. Myers.

31 Mar 2020

Tom Lehrer: “I Got It From Agnes”

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A song that seems appropriate for the times.

HT: Walter Olson.

29 Mar 2020

Pandemic Mask Shortage

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29 Mar 2020

Used Books

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“Second hand books are wild books, homeless books; they have come together in vast flocks of variegated feather, and have a charm which the domesticated volumes of the library lack.”

— Virginia Woolf

28 Mar 2020

The Crazy Search for Ernest Hemingway’s 1955 Chrysler

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Hemingway’s 1955 Chrysler New Yorker as found.

David Frey, at Narratively, describes the obsessive quest for Hemingway’s Cuban car.

A silver Porsche steered James Dean into legend. A pink Cadillac escorted Elvis to Graceland. On the streets of Havana, a 1955 Chrysler New Yorker carried Ernest Hemingway to the long bar at the Floridita, which he called “the best bar in the world,” for daiquiris mixed strong and sour. A two-door convertible with chrome details across the gunwales and an Art Deco eagle over the hood, wings spread wide, this car ushered the Nobel laureate to the fishing boat that he sailed into the blue current, which he simply called “the stream.” It took him to the hilltop farmhouse where he lived among royal palms and mango trees most of the last twenty-two years of his life.

Then it disappeared.

For decades, Hemingway’s car survived only in legend. Was it still on the island? Had it been secreted away? Or was it lost to history, fallen into scrap metal? It became the automotive version of Hemingway’s missing suitcase, the one full of early manuscripts that his first wife Hadley lost in a Paris train station and never found.

“This is where Hemingway lived for twenty-one years and this was where he felt at home,” said Christopher P. Baker, a British writer who had long been on the trail of the vehicle himself. …

Baker heard the first hint about the car back in 1996 from an American who believed he was buying the legendary auto. “Somebody was selling him a joke,” Baker said. But somewhere out there, he thought, the car must exist. In 2009, he talked with the director of Cuba’s automobile museum. He told Baker he’d seen the car, but it was “hidden away.”

The alleyways of Old Havana are still full of vintage Plymouths and Packards, cars with graceful curving hoods and rocket ship fins, relics of the 1950s, when Americans descended on Cuba for its bars, brothels and casinos. More than fifty years after Castro’s socialist revolution ended the party, those old cars linger as postcards of Cuba’s past. Some gleam like they just motored off the showroom floor. Others seem held together by rust and fading paint. Hemingway’s Chrysler was lost among these fossils.

Then one day it reappeared, but before it could find a new life, it would have to endure an adventure of real-life sleuthing, an aging TV detective and Cold War politics thawing in a new millennium. …

[Hemingway] meant only to take a long vacation when he boarded the ferry to Key West on July 25, 1960. But history had other plans. Cuba nationalized private property. The U.S. launched the failed Bay of Pigs invasion the next year. In the meantime, Hemingway’s health failed. His depression deepened, and he underwent electroshock treatment at the Mayo Clinic. It didn’t help. The writer never returned to Cuba, instead settling in Idaho, where on July 2, 1961, he took his own life with a shotgun.

Castro had made clear that he was fond of Hemingway’s house, and his widow Mary donated it to the Cuban government. She gave his fishing boat, the Pilar, to Hemingway’s longtime first mate, Gregorio Fuentes. The Chrysler New Yorker went to José Luis Herrera Sotolongo, Hemingway’s doctor and friend. Nicknamed “El Feo” (the ugly one), he was a Spaniard who served as surgeon on the Republican side during the Spanish Civil War and fled to Cuba to escape the Franco regime.

In the 1970s the doctor passed the Chrysler down to his son. From there, it changed hands again, and again, and again. With each new owner, the car’s connection to Hemingway dimmed. The Chrysler disappeared into Castro’s automotive jungle, where it might have been sold for scrap, chopped for spare parts, or simply pushed, rusting, onto a junk heap. It would have stayed lost forever, had Ada Rosa Alfonso not resumed the search. …

After six years of searching, her quest came to an end just a few miles from where it began. Alfonso showed up at the home of Leopoldo Nuñez Gutiérrez, an elderly man who, like Hemingway, lived in the village of San Francisco de Paula. He led her to his backyard. Chickens and a goat strolled amid a riot of tropical plants. Scattered through the yard were ruined cars and spare parts.

The old man led her to a vehicle. It sat hidden beneath a tarp. That thin piece of fabric was the only thing protecting the car from Cuba’s sun, wind and rain. As he peeled back the tarp, the contours of an aging chassis emerged. Big round headlights like eyes. A long, broad hood. A deep trunk. Alfonso couldn’t believe what she saw.

“The car,” Alfonso said, “was a disaster.”

The New Yorker’s two-tone paint job, Navajo Orange and Desert Sand, was painted over, first in blood red, then in white. The matching leather seats were torn to shreds. The white convertible top had grayed and eroded away. Holes rusted through the floor. Like Havana’s old mansions crumbling into dust along the sea, Hemingway’s car was barely holding on.

Alfonso compared the car’s serial number to Hemingway’s insurance papers. It was a match. After some convincing, Nuñez agreed to donate the car and Alfonso had it hauled back to the Finca and stored on cement blocks, where it was left sitting again. Cuban mechanics have become magicians in the art of resuscitating American classic cars, but the parts, and the funds, they needed were all in the United States, sealed off by decades of bad blood and a U.S. blockade.

Enter David Soul.

RTWT

Video link


The hardtop looked like this in those colors.

28 Mar 2020

Salmon Fishing on the Aaroy

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Filmed last June.

You have to love the Internet. We actually get to see the legendary Norwegian river, complete with Ernest Schiebert’s “Platforms of Despair.”

It looks like they are releasing all the fish caught. Current PC fashion or Norwegian law, I wonder? I suspect those are the rules these days. God knows how many thousands of dollars per week and you don’t get to keep one fish! Meanwhile, the Micmac Indian fishery on the Restigouche is probably still taking out on one tide more fish than the sport fishery catches on the entire river in a year, and throwing away the surplus at the Campbelltown dump.

We see a lot of expensive reels. These days, 19th Century Edward Vom Hofes go for a lot of money. One angler is actually using a cane rod and a feather-wing Thunder-and-Lightning. Good for him.

Strangely, the anglers seem to make a point of staying far up on the bank and away from the river’s edge. What’s that all about?

28 Mar 2020

From Today’s Paper of Record

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27 Mar 2020

Herzog Interviewed

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David Marchese interviews 77-year-old Werner Herzog.

[T]o go back again to the need for fresh images: In “A Guide for the Perplexed,” you say that our children will be upset with us for not having thrown hand grenades into television stations. I took that to be a criticism of the poverty of television’s visual imagination. Are Hollywood movies much better?

Hollywood, of course, is undergoing a massive shift. There are new forms of passing your films onto audiences and new expectations and new behavior and patterns of audiences. Everything is in great turmoil, and the dust hasn’t settled yet. But we should not underestimate how we can reach, with our films, to a village in Kenya. It’s phenomenal and strange. You’re sitting in front of a man who is unique. I’m unique in world history. My generation. Not just me. I grew up with pre-industrialized agriculture, with hay being turned around with forks and then hoisted up onto horse-drawn carts. Then I have seen gigantic harvesters, and they have three computer screens inside, and it goes by GPS. And I have seen — may I go wild?

Yes, please.

I have witnessed, as a child, the town crier with a bell coming up the street and shouting: “Announcement! Announcement! If you want to have subsidies for your new septic tank, opening hours will be then and then.” I am coming from a pre-industrialized town crier to today’s world. There’s no one like my generation.

Are you unique in any other ways?

There are no other men like me. I’m quoting from a film of Les Blank.

RTWT

27 Mar 2020

Auden Was Apparently a Slob

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Seamus Perry, in Paris Review:

W. H. Auden had rented variously inadequate apartments since arriving back in New York at the end of the summer of 1945, and had most recently been living with Chester Kallman in a warehouse building on Seventh Avenue, an especially unsatisfactory place that lacked both hot water and a functional front door. So when he and Kallman moved to 77 Saint Mark’s Place on the Lower East Side, in February 1954, it promised to be a significant improvement; and he was certainly very pleased with the place from the start—“my N.Y. nest,” he called it. Auden would stay there until his ill-fated departure for Oxford in 1972, making it his longest single habitation. From 1949 he summered in Europe—in Ischia until 1957, when he bought a small farmhouse in Kirchstetten in Austria, which delighted him: he devoted a sequence, “Thanksgiving for a Habitat,” in his collection About the House (1965), to a celebration of his domestic existence there. It was in these summerhouses that he tended to write poems: New York was largely for his distinct life as a “man of letters,” a label he applied to himself. “It is a sad fact about our culture,” he once wrote, “that a poet can earn much more money writing or talking about his art than he can by practicing it”; but at the same time he prided himself on his professionalism as a reviewer, essayist, anthologist, and commentator, work that in turn often suggested subjects for poems; and that work principally happened on Saint Mark’s.

Freshly installed, he excitedly invited round his young friend Charles Miller (“Come! I’ll take you on a tour”):

    The large first (entry) room with high ceiling had a green marbled fireplace flanked by built-in bookshelves, which also incorporated Wystan’s battered turntable with speaker equipment and his much-used collection of records and albums. A big shabby sofa and a swamped antique coffee table centered the cluttered room. I followed Wystan through an arch into a similar room at the front with another green marbled fireplace. This room was hardly furnished, except for built-in bookcases and Wystan’s small work table just touched by sunlight from the generous nineteenth-century windows. To the right of this room, as we faced Saint Mark’s Place, was a small room with its door to the stair hall nailed shut; the room had only a cot bed, on which Wystan slept, he said.

Just touched by sunlight, one imagines: as an undergraduate at Oxford, Auden had preferred to keep his curtains drawn at all times, and he seems to have adopted the same policy in America. When Stephen Spender had visited him in the forties he unwisely attempted to open the curtains and brought them crashing to the ground: “You idiot!” Auden scolded him, “why did you draw them? No one ever draws them. In any case there’s no daylight in New York.” Wystan’s succession of rooms gave his friend Margaret Gardiner “the sensation of brownish caverns, a brown that seemed to pervade everything, even the air itself.”

Auden’s territory was the front of the apartment; Kallman’s, the kitchen and the music room at the back of the flat, where there were also separate bedrooms for Kallman and for a tenant. Auden was especially pleased with the fireplaces, and he liked the porcelain tiles in the kitchen. The area had lots of Italian, Polish, and Ukrainian stores selling good food. And the building even had a history: Trotsky had once published works from its basement, a fact that seemed to please Auden; and, some more recent color, an illegal abortionist had been its previous inhabitant. (The flat was buzzed from time to time by would-be clients.) Auden placed his father’s barometer on the mantelpiece, and hung over it a watercolor by Blake, The Act of Creation, a present from his rich patron Caroline Newton. But his evident pride in the place did not translate into any instincts to be house-proud, as Miller’s retrospective account, despite its touches of fine writing, communicates well enough:

    The coffee table bore its household harvest of books, periodicals, half-emptied coffee cups scummed over with cream, a dash of cigarette ashes for good measure, and a heel of French bread (too tough for Wystan’s new dentures?). An oval platter served as ashtray, heaped with a homey Vesuvius of cigarette butts, ashes, bits of cellophane from discarded packs, a few martini-soaked olive pits, and a final cigarette stub issuing a frail plume of smoke from the top of the heap, signature of a dying volcano. This Auden-scape reeked of stale coffee grounds, tarry nicotine, and toe jam mixed with metro pollution and catshit, Wystanified tenement tang.

And this was his new flat. “The speed with which he could wreck a room was barely credible, certainly dangerous,” observed his friend James Stern. He spoke from experience. On one occasion he had left Auden in his flat for the day, dropping back shortly afterward to pick something up: “If it hadn’t been for the pictures on the walls I wouldn’t have known where I was,” Stern remembered: “Frustrated burglars could not have created greater chaos … God, Wystan, was a mess! ‘My dear, I do love this apartment, but I can’t understand why it doesn’t have more ashtrays!’ ” The Saint Mark’s apartment rapidly came to resemble what Robert Craft, Stravinsky’s right-hand man, had witnessed with some incredulity in Auden’s previous place, a litter of “empty bottles, used martini glasses, books, papers, phonograph records.” Dinner with them would be boozy and delicious (Kallman was an excellent cook); but the cutlery would be greasy and the plates often only imperfectly washed. “He is the dirtiest man I have ever liked,” said Stravinsky of Auden, a touching if qualified mark of regard.

RTWT

27 Mar 2020

“Government Accidentally Shuts Itself Down With Ban On Non-Essential Businesses”

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Babylon Bee (the new paper of record):

WASHINGTON, D.C.—Congress has asked all non-essential businesses to limit their hours or close entirely for an undetermined amount of time.

But this shutdown mistakenly shut down the most non-essential entity of all: the government. For a brief period of time, all government in the United States was illegal, since it is completely non-essential to everything.

RTWT

Floreat Anarchia! Ewige Bumenkraft!

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