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Originalism? Living Constitutionalism? Who Cares?

Conservatives are ecstatic to have Amy Coney Barrett on the Supreme Court, but have you considered what makes a judge “conservative”? Is it the results they reach or the methods they use to make a decision? Conservative judges promise that they are wedded to a process of constitutional and statutory interpretation and follow that process to the outcome no matter what that outcome is. They maintain that they would never, ever, start from wanting a certain result and work backwards from it seeking reasons for that favored result. No, no. They merely use neutral legal interpretive tools in a consistent manner to reach their decisions about the constitution and the laws. They apply originalism, original public meaning, textualism or some other text-based method to tell us what the constitution and laws allow or forbid. (I have written about methods of legal interpretation several times including on August 22, 2018, Originally it was not Originalism – AJ’s Dad (ajsdad.blog), and on March 24, 2017 Originalism to Textualism – AJ’s Dad (ajsdad.blog).)

          I suspect that most of us, however, don’t give a hoot about the analytic methods used by the Court. Few of us could explain the methodologies. We are concerned with the results. I thought of this a few years ago when the Supreme Court held that firing a gay or transgender employee violated a federal statute that prohibits employment discrimination “because of . . . sex.” The opinion was written by Neil Gorsuch, a conservative favorite. Gorsuch’s analysis relied on what is called textualism, a method championed by Antonin Scalia and other conservative jurists. I am simplifying somewhat, but the method basically says that the statutory words should be applied as written. So, Gorsuch reasoned that if a man is fired for having sex with a man when a woman would not be dismissed for having sex with a man, then the firing is discrimination based on sex. If a woman were fired from a job when a man would not be, it is sexual discrimination. Thus, if a man is fired from a job when a woman would not, that is also sexual discrimination. Gorsuch reasoned that the dismissal of a man because he has sex with another man when a woman would not lose her job for having sex with a man violated the statute.

          A conservative outcry ensued. Some conservatives discussed Gorsuch’s methodology and concluded that he had misapplied textualism, but many others merely decried the outcome without discussing the majority’s analytical method. They felt that a result that furthered the so-called “homosexual agenda” had to be wrong no matter how the decision was reached. They cared about the outcome, not the methodology. But I think that liberals were similar. They cheered the outcome but did not care about the method used to reach it.

          I thought of this again when the recent Supreme Court term ended. The Court rendered two decisions on its last day. Almost immediately I received an email from a right-wing group praising one of the decisions: “Today, the U.S. Supreme Court issued an important decision in Americans for Prosperity v. Bonta, a donor disclosure case with direct implications for religious liberty. In its 6-3 ruling, the Court held that a California law requiring the disclosure of donor names is unconstitutional.” The notice from this religious group continued, “Forcing charities to hand over and make their donor information public is unconstitutional—and it’s also very dangerous. Coupled with the toxic ‘cancel culture’ that’s all around us, government having at its fingertips a compiled list of religious people and/or those who support faith-based groups is a recipe for disaster. The ability to associate with others of like mind is indispensable to freedom. We’re very pleased that the Court recognized the disclosure of names and addresses of citizens simply for donating to a cause is chilling to the freedom of association—including the freedom to associate with, join and donate to the faith-based organizations that are near and dear to us.” (This group was clearly wrong when it thanked me “for generously supporting” it and labeled me a “courageous” supporter. I am on their email list only because I requested a free copy of the Constitution from them, which they generously supplied.)

          The point here is not to discuss whether the Supreme Court decision was correct but rather to emphasize that these words of praise are for the outcome of the case, not for the methodology that led to the result. There was no mention of the conservative buzzwords of originalism, original public meaning, or textualism.

          On the same day, the Supreme Court also decided that changes to Arizona voting laws that made it more difficult for some voters to cast a ballot did not violate the Voting Rights Act even though the Arizona measures had a disproportionate effect on minorities. I have read some good commentaries contending that the conservative majority was not properly reading the text of the statute, but was, in effect, rewriting the law which forbids all changes in voting law with a disparate impact on minorities, while the Court decided that the disparate effects were so small that under the Voting Rights Acts they did not matter  Others, however, without addressing the Court’s methodology, simply placed a Jim Crow label on the decision.

          I felt something similar when I watched a documentary about Ruth Bader Ginsburg a few years ago. The movie presented her inspiring life story and claimed that as a lawyer and judge, she helped move the law in directions that many approve of. But the film did not begin to explain her analytic methods or how her methodology may have been the appropriate way to examine constitutional questions. She was a heroine to many not because of her methodology but because of the results that she reached.

          In short, many on both the right and the left have little interest in the analytic methods the Supreme Court uses. They are concerned only with the outcomes.

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Snippets

The length of the Arizona “audit” of the 2020 election makes me admire those who stole the election. Their thieving was so effective that evidence of it is very, very, very hard to find.

How often when the clouds open do you start to sing, “You and me and rain on the roof”?

The nine-year-old boy skidded to a stop on his bike. He looked up at the rapidly darkening sky with lightning moving in his direction and shouted to his friend, “We are going to die!” After a few moments, he said more softly to no one in particular, “That was a metaphor.”

          As I passed a group of toddlers on the sidewalk after some rain, I heard the teacher calmly state, “It is your choice whether you walk in any puddles. But first think about whether that is a good choice.”

“If a kid asks where rain comes from, I think a cute thing to tell him is ‘God is crying.’ And if the child asks why God is crying, another cute thing to tell him is, ‘Probably because of something you did.’” Jack Handey.

It was a philosopher (or maybe a comedian) who said, “If you want to prepare your child for real life, give her a Where’s Waldo book without any Waldos.”

Heard on the subway: She said with what I took to be a loving smile, “I never said I was a good mother.” The eleven-year-old boy sitting next to her replied, “And I never said you were a good mother.” “I am only being a mother until I can get you out of the house.” “Fine with me. [Pause, then, somewhat anxiously.] But you are always going to keep my room as it is. You aren’t going to make it into a study!”

While crossing the street at a busy intersection, I heard a young man say to a young woman, “Would you rather have your best friend murdered, or . . . .” And it faded away.

After the building collapsed in Surfside near Miami Beach, an official there said, “This doesn’t happen in America. This is a third world phenomenon.” And this makes Florida what?

The news story said that Florida has some of the strictest building codes in the country for the construction of high-rise buildings, but the codes have had lax enforcement. Building codes are regulations, a word that is uttered by some as an epithet. Politicians tout that they have eliminated regulations without making any distinctions among them. As Florida’s building codes indicate, however, regulations are protections. Some protections may not be useful and can be removed, but we might think more about their elimination if we started calling regulations protections. The call for the blanket removal of regulations would seem different if we saw them as the call for the blanket removal of protections.

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Bill Cosby is Free. So is Oliver North.

The Pennsylvania Supreme Court overturned Bill Cosby’s conviction for sexual assault. After three years in prison, he was released.

A fundamental right, the protection against self-incrimination, was at the heart of the court’s decision. Popular culture has made us aware of this constitutional provision. The Miranda warnings are based on it. From an earlier era, many remember witnesses at congressional hearings droning that they would not answer questions because of the possibility of self-incrimination. Fictional and real trials teach that criminal defendants cannot be forced to take the stand in their criminal trials because of their rights against self-incrimination.

 However, if witnesses are given immunity against prosecution, they can be forced to testify in criminal trials even if their testimony implicates them in crimes. This is because immunity is a governmental promise that the witness will not be prosecuted or that their forced testimony will not be used against them in a criminal prosecution. If this promise is followed, the testimony cannot legally incriminate the witness, and the prosecution can force the witness to testify.

Civil cases are different. They are not prosecutions, and the parties can be forced to testify. The usual practice is for the defendant in a civil case to take the deposition of the plaintiff and often to call the plaintiff to testify at trial. The plaintiff has the same right to have the defendant testify at a deposition or trial. Even though private parties are the litigants, such testimony is forced by the government because it is the court that orders the testimony. The required testimony can be enforced by contempt sanctions carried out by government officials.

Normally a civil proceeding does not raise self-incrimination problems because the civil case raises no criminal issues. However, a problem arises when a civil case potentially intertwines with a criminal prosecution. That was the Bill Cosby situation. He was sued civilly for a sexual assault that could lead to criminal charges. Under accepted self-incrimination law, he could be forced to testify in the civil case, but he had the right to refuse to answer any question that might incriminate him in a criminal prosecution. The state prosecutor who had jurisdiction over the potential criminal matter stated that he would not prosecute Cosby for the sexual assault. With that promise of immunity, Cosby did not have a self-incrimination right to assert in the criminal case, and he testified.

Years later, a new prosecutor, who, if memory serves, campaigned promising a Cosby prosecution, disregarded the former prosecutor’s decision and criminally charged Cosby with the sexual assault Moreover, he used Cosby’s damaging statements from the civil proceeding in the criminal trial. At the time, I and many others thought that this was a due process violation, and now the Pennsylvania Supreme Court has agreed.

Cosby’s release,of course, brought reactions about sexual violence, black lives matter, and unjust convictions (so far I have not seen anyone trying to tie this outcome into defunding the police).  His release for me, however, dredged up memories of Oliver North, a frequent commentator on conservative news outlets. North was a key figure in the Iran-Contra affair of the 1980s. This is not the time to rehash those scandals, but I urge all to read about it. It was a dangerous time for the country as members of the Reagan administration worked to subvert the Constitution by secretly selling arms to Iran, our supposed enemy, and using the proceeds to fund groups fighting in Nicaragua, violating a congressional mandate. In the Iran-Contra aftermath, many high officials were indicted, including North, who was convicted of several felonies. He appealed, and something I have not heard North mention on his many television appearances on Fox and elsewhere, his appeal was supported by the ACLU.

Before North’s trial, he was called to testify by a joint congressional committee in a televised hearing. In order to compel his testimony, the Committee gave him immunity. Congress, the legislative branch of government, does not have the authority to prevent prosecutions, which are done by the executive branch. Instead, as Supreme Court cases had made clear, a grant of congressional immunity, while not preventing a prosecution, does prevent a prosecutor from using the compelled testimony or anything derived from that testimony. However, a prosecution that did not rely on the immunized testimony was permissible. Hoping to bring a criminal prosecution against North and to satisfy the self-incrimination clause, the prosecutors in the North case insulated themselves from North’s compelled testimony. They did not watch North’s congressional testimony, did not read a transcript, and refrained from being exposed to the news outlets reporting it. They segregated the evidence they had gathered before the testimony to show that this evidence was not influenced by the congressional hearing.

None of the congressional testimony was used at trial and nothing at the trial revealed that the prosecutors were in any way influenced by it. Even so, the Fourth Circuit Court of Appeals, then known as one of the most conservative federal courts, reversed the conviction. The court concluded that witnesses at the trial may somehow have been affected by the televised public proceedings, even though there was not a scintilla of proof of such influence. This court standard, new at the time and (I don’t think) ever applied again, meant that there was no way for the prosecution to establish that North’s immunity would not be violated in a new trial. All charges against him were dismissed. The other Iran-Contra participants who had also been convicted but did not have their convictions reversed, were later pardoned by President George H.W. Bush.

Oliver North did not spend one day in prison.

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The Inclusive Declaration of Independence and the Founding of America (concluded)

          Of course, slavery existed throughout the country when the Declaration of Independence was signed, and we should not forget how that institution shaped our country. Nevertheless, for their time, the Founders also created an egalitarian and inclusive government in ways we now seldom appreciate. For example, unlike many of the state and foreign governments of the time, the United States had no property qualifications to hold office. In an era when they were common, no religious tests were required for holding office. And we seldom notice that the new country paid its officials. Many governments did not, so only the rich who could afford to be uncompensated could hold office. Unlike in other countries, all whites, or at least all white males, could hold office

The new country also broke from history and the practices of most countries by having no hereditary offices. A formal aristocracy died in the United States. Revolutionary America also moved to a more equal society by repealing primogeniture laws, which dictated that the firstborn male child would inherit his parent’s entire estate. This extraordinarily egalitarian reform, whose importance is seldom noticed today, was led by Thomas Jefferson in Virginia.

A related change in property law was also happening during this time. Under English law, aliens could buy property, but they could not inherit it. Aliens could sell the land they owned, but they could not grant it in a will. Instead, on death, an alien’s property went to the state. Revolutionary America began to repeal such inegalitarian laws helping to make the country more inclusive and prosperous.

The country’s first naturalization law had some of the same characteristics as the Declaration of Independence. It showed simultaneously both racial restriction and inclusiveness. The law limited naturalization to free, white citizens who had lived in the country for two years. We, of course, notice that nonwhites were excluded. (“Free” meant indentured servants could not be naturalized until they completed their periods of indenture.) Blacks could not be naturalized until 1870, and other nonwhites could not be naturalized until well into the twentieth century. (There was no legal definition of whiteness. When areas of Mexico became part of the United States in the early1850s, the former Mexicans of those lands were made citizens, and there was an implicit recognition that they were white. The Supreme Court dealt with whiteness and naturalization several times and concluded that Asians and South Asians were not white but that Syrians and Armenians were. In 1922 the Supreme Court held that a high caste Sikh was neither white nor black and could not be naturalized. He had fought for this country in World War I.)

However, in addition to noting the racial restriction, we should also consider the inclusiveness of this law. It did not impose a property requirement. The rich and the not rich could become citizens. Aristocratic origins did not matter. There was the racial limitation, but no national origin requirement. There was no religious test. At a time when Catholics could not become citizens in England and Jews could not become citizens in many places, they could in the United States.

We should keep both racial restrictions as well as these inclusions in mind when we consider this country’s origins. The founding era accepted an institution whose ramifications have troubled us throughout our history, but it also gave us foundations for much of what is good in this country.

I am sure that some will mostly criticize America on the Fourth, which is their right. And I am sure that some will call such critics unpatriotic, which is their right.

Patriotism has often been a tenuous concept. Vicksburg, Mississippi, offers an example of its fragility. Exactly four score and seven years ago to the day after the signing of the Declaration of Independence, confederate General John C. Pemberton surrendered Vicksburg to American General Ulysses S. Grant after a forty-seven–day siege. This was certainly one of the most important actions of the war because it gave control of the Mississippi River to the Americans and severed the confederacy.

Thus, July 4, 1863, is another Fourth of July for patriotic Americans to celebrate, but Vicksburg didn’t see it that way. The town did not honor the Fourth of July for the next eight decades. They continued to identify as confederates, not as Americans. Vicksburg simply ignored Independence Day until after World War II when General Dwight Eisenhower visited the town on the Fourth. Even so, Vicksburg did not want to celebrate the United States. It called the celebrations during Eisenhower’s visit a Carnival of the Confederacy, a title I am told that was dropped only when the country and Vicksburg celebrated the Bicentennial in 1976. I’m not sure what to make of their tenacious grasp of a different brand of “patriotism.” I guess I’m just glad that they finally celebrate along with the rest of us.

And I hope all Americans can find something to celebrate this Fourth of July.

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The Inclusive Declaration of Independence and the Founding of America

The Fourth of July celebrates the United States of America and its birth, but with our current mood many only want to point out the country’s present and historical shortcomings. Every Fourth, I urge all to read the Declaration of Independence  (Declaration of Independence: A Transcription | National Archives), and in doing so, it is natural to focus on the multiple ironies of its most famous phrase: “all Men are created equal.” However, as we know, in eighteenth century America, women, Native Americans, and indentured servants were not seen as equal. And, of course, slaves were not equal. Any fair assessment of our history acknowledges, as Thomas E. Ricks states in First Principles: What America’s Founders Learned from the Greeks and Romans and How That Shaped our Country (2020), that slavery was not a stain on this country, it was woven into the original fabric. And that weft and warp made the celebration of liberty painful to many Americans throughout our history, which was perhaps most powerfully stated by Frederic Douglass on July 5, 1852. Just as the Declaration should be regularly read, so too should this speech. (Africans in America/Part 4/Frederick Douglass speech (pbs.org.)

The Fourth of July is our birthday, however. Some might temper a child’s birthday celebration with a discussion of the child’s shortcomings, but I would hope that the major thrust of the party is, in fact, to celebrate the kid. We should be realistic in assessing our country, but there has always been much to celebrate, and the Fourth is a time of celebration. Because it is so easy to mock the Declaration’s equality statement, it is too easy to overlook the many ways that in its founding the country also furthered egalitarianism and inclusiveness.

We know many of the Declaration’s phrases—“When in the Course of human Events”; “they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and Pursuit of Happiness”; and others. But we often miss something about the tenor of the Declaration as a whole. There are no classical allusions or references. By eighteenth century standards, the language is simple. The document was not written for the elite peers of those who signed the document but for a wide swath of what were to become Americans.

Its logic demanded an inclusive appeal. The Declaration asserts that a government derives “their just Powers from the Consent of the Governed” not from the Divine Right of Kings. It summoned on “the Right of the People” to change government. The Declaration with these contentions could not just be addressed to an elite, aristocratic audience. It not was not directed to the enslaved, but it was seeking the approval of almost everyone else—the farmer, the joiner, the tavern owner, the schoolteacher, the sailors, the ship captain, the log splitter, and yes, the slave owner and trader. For an eighteenth-century document, its intended audience was remarkably inclusive

The notion of the consent of the governed was a radical, egalitarian break from America’s English roots, and the emerging country’s conception of “the people” was much broader than almost anywhere else in the world. This is reflected in who could vote. We now note the shortcomings of a franchise limited to propertied white males, but we seldom consider, as Jill Lepore does in These Truths: A History of the United States (2018), that a higher percentage of people could vote in the colonies than in England. The franchise was narrow by modern standards, but it was broad for its time.

Part of the reason for the inclusiveness of the Founding Era’s America was the high rate of literacy among its people, perhaps the highest of any country of its times. The seventeenth-century Pilgrims, Puritans, and others who settled here held beliefs that rejected an authoritarian church. They believed that the eternal truths came from the Bible, not from an authoritarian church, and, therefore, it was important that people could read the Holy Book. Literacy was stressed as well as the ability of each person to reason. Jefferson and the others may have expected that the Declaration would be read out to those assembled in taverns and inns, but they also knew that many people would read it for themselves, and all were expected to think and reason about the document, which led to its inclusive appeal to the people.

The Declaration did mention “the Laws of Nature and of Nature’s God,” and the signers said that they had acted with “a firm Reliance on the Protection of divine Providence,” but it did not beseech God, a god, or Jesus Christ for independence. Just as some only criticize the Declaration for its hypocrisies without recognizing its advances, some focus on the listing of God and divine providence and somehow conclude that the Declaration was an act of religious faith, or, more particularly, the signers’ Christianity. But these references, which include the almost anti-Christian formulation of “Nature’s God,” were not invocations of any particular divinity to grant them a new country. Government depended on the consent of the governed, not on divine will, and the appeal was to the people, not to some version of God. The Declaration’s wording was inclusive; it did not exclude any particular believer or any nonbeliever from its ambit. It rejected the too-often divisiveness of religion and relied on the reason of the people.

This lack of a religious appeal is not surprising. Thomas Ricks shows in First Principles that neither Christianity nor any other religious influence was prominent in the Revolutionary period. This only began to change in 1815. He reports that there was one minister for every 1500 people in 1775 America while there was one for every 500 in 1845. Scott L. Malcomson writes in One Drop of Blood: The American Misadventures of Race that in 1790 only one in ten white Americans was a member of a formal church. Jill Lepore in These Truths agrees that the country was founded in one of its most secular eras.

(concluded July 5)

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Butt It’s Clean (concluded)

When I bought the spouse’s bidet for the Brooklyn house, I got a three-for-one deal. I still had two more of the devices, and I took them to the Pennsylvania house when it was opened for the summer. It has two toilets, and it was clear that one could not be outfitted with a bidet. But one will do, or at least is better than none, I think. This won’t be too bad now that I have successfully installed two of the devices. This time before starting I go to my outstanding local country hardware store and buy both a flexible hose and long toilet seat bolts and set to work. Even with various difficulties in attaching the hoses, it gets done rather promptly, and it works. I am proud, oh so proud. I come back to the bathroom two hours later and find the tiniest amount of water on the floor next to the toilet. I wait and watch. A small–incredibly small–drop comes out of the connection to the toilet tank once every thirteen minutes. Really, it is not much. My first thought is that I can live with that. I will just put a sponge down and wring it out once a day. That should do. But I know that that attitude is wrong, oh so wrong.

I turn off the water and disassemble my work. I do not cry, not even a little. I remember that the directions warned not to overtighten the new connector to the toilet tank. I did not have this problem with my two previous efforts, but that must be what I have done. The kit came with some of the stuff that looks like adhesive tape but is much flimsier to help make good plumbing connections. I don’t know how to really use it and find I am ending up with a balled-up mess like my attempts to use Saran Wrap in the early days. What else to do but go back to the hardware store where I buy a slightly wider version of that white stuff and what might have been called in the old days pipe dope. But I still don’t know how to use either properly. Does the white stuff go clockwise or counterclockwise? Is that looking from above or below? Does the goop go on the male or female threads or both? How much should I use? Then I remember: this modern world has YouTube. I watch videos; all I really learn is that whatever I am doing is wrong. However, I boost my confidence by telling myself, more than once, that I have installed two of these gizmos successfully. A third cannot be far off.

I wrap and slather the connector and put it back on the toilet tank and hope without reasonable expectations that I have not tightened it too much. The flexible hose, however, has seemed to come alive. An animate force seems to be fighting me as I try to thread it on to the connector in the tight place near the wall under the toilet. Although I had done it before, I can’t line it up properly to get it started. There, I have got it, but that was delusional because a slight tug pulls it to the floor. Try again. Try again. And try again. My fingers no longer work well enough. Let me regroup and try again tomorrow.  I have another toilet to use, and I can still flush this one with a bucket of water.

The next day does not bring success. And the day after produces only compounded frustrations. Luckily, I am alone in the house, for I certainly could not show my face to anyone who knew of my failure. Finally, instead of acknowledging my ineptness, I put a positive spin on it and decide that it would be a good deed to help the needy local economy and call Karl the Plumber. It takes a few days for him to come, and I am not at the house when he does (for which I am grateful), but when I return, the thing has been installed—without leaks. I am pleased and grateful. God bless Karl.

The spouse pays the bill. I have not asked how much it cost to have this inexpensive device professionally installed.

Then, however, the NBP, who up until that time had adamantly eschewed one, wanted a bidet, and I still had one from my three-for-one offer. But, besides wanting the bidet, the NBP also reported that his toilet was making strange noises after it was flushed. I looked at it and determined that the mechanism inside the tank was malfunctioning, but I don’t understand this modern form of filling and flushing the tank (and neither would my 80’s edition of the Reader’s Digest Home Repair Encyclopedia). Instead of seizing on this new learning opportunity, I immediately gave the NBP the number of our Brooklyn plumber and said, “When you get him, ask him to install the bidet, too.” I wanted my bidet-installation days to be over.

But I can say that all of us now have very clean butts.

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Butt It’s Clean (continued)

With not too much aggravation, I had installed a bidet on the top floor of the Brooklyn house. The spouse liked it and said that she would like one in the ground floor bathroom, three stories below. I ordered another kit, which came promptly. I had learned from my first experience and applied it when I set out to install the bidet downstairs. I first looked at the existing water connection to the tank. It, too, was rigid like the one upstairs and needed to be replaced. Proud of myself for having made that discovery at the beginning of the project, I got another hose from what I tend to think of as the all-too-often-disappointing hardware store.

Let the work begin. I turned off the water to the toilet. The valve was a little tight, but even in my advanced age, I managed it and felt a little burst of not-really-deserved pride. I flushed the toilet to drain the tank. I disconnected the existing water line without too much effort. I installed the new hose to the water supply, put the new connector on the bottom of the tank, and set out to attach the new flexible water hose. This was a bit trickier. I had to get on the floor–always an adventure these days–to do this. Attaching the flexible hose’s coupling onto the connector with my increasingly less agile fingers took a while, but it was accomplished.

Then, as directed, I removed the toilet seat, which took a little effort in manipulating the bolts and nuts. The next step was to line up the new device over the toilet bolt holes, place the toilet seat above the device and those toilet bolt holes, and attach them both with the toilet bolts going through each. A problem. The bolts I had removed were not long enough to go through both the seat and the new device. I went to the all-too-often-disappointing hardware store only to be disappointed yet again. The owner did not have toilet seat bolts, but he fished out from his limited trove of useful objects some long bolts not specifically marketed for toilets. He assured me that they would suffice.

I returned home to find that they do not suffice. The heads and nuts are not big enough for the holes, and they drop straight through. I pause and wonder if I have some washers that could make the bolts work. I descend into the basement, which to many might appear a scary place. Moreover, no one would assess my basement “workshop” as kempt or well organized, but I pride myself in knowing where everything is. On occasion, my pride is misplaced. I search the cobwebby recesses in the dim light for quite a while and finally find some washers that have a chance of working. Up the stairs and back to the toilet. My brainstorm does not produce the desired results. The improvisation fails. My mind does not start spinning about a possible solution; instead, I begin to concentrate on all the times this hardware store, which may not be the worst in the world but is the worst of the many that I have frequented, has failed me, and I become increasingly infuriated, which I know from past experiences is generally not a good state for completing a project.

I decide to walk to a real hardware store a mile away and count it as my daily exercise. They have a selection of toilet seat bolts of different lengths, and I am so, so pleased to find longer ones than the ones I had removed. I trudge back home. I line up the device and the toilet seat, open the purchased package, and find out that, while long enough, the new bolts are too wide for the holes in the spouse’s toilet seat.

I try various remedies for a half hour. None is successful. Then I decide that with an electric drill I can enlarge the holes the bolts have to go through by running the edge of big drill bit around the holes’ edges. The drill is on the top floor, three flights up. I climb the stairs, retrieve the drill, and take it and the @#$&^* toilet seat to the basement a floor below the relevant bathroom. I experiment on enlarging the holes. I must find a way to hold steady the little piece of plastic on the toilet seat for the bolts. After some trials and errors, I find a method. I am making some progress on enlarging a hole when the drill’s battery runs out. I do own another charged battery. It is on the top floor now floor flights up. I retrieve it and go back to the basement. My method works and I enlarge the holes. Ah! Back to the bathroom.

I attach the bidet and seat to the toilet bowl. One more step. With surprisingly little difficulty, I hook up the bidet with the supplied flexible hose from the connector I had installed on the toilet tank to the bidet.

And now the breath-holding part. I turn the water to the toilet back on. NO LEAKS. I could hear celestial music. AND THE BIDET WORKS.

I started at ten in the morning. I finished at four in the afternoon. I thought: What else have you got to do?

It was just another successful day in retirement.

(concluded June 30)

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Butt It’s Clean

We could afford the brownstone house only if we rented out part of it, and then it was still a stretch. The house was liveable, but it was, after all, 100 years old. Something always needed to be fixed or patched or painted or installed. We did not have excess money to pay someone for maintenance and repairs if I could do them, but my fancy Ivy League education had not prepared me to be a handyman.

I did what an Ivy Leaguer ought to do; in those days before YouTube, I bought how-to books, several of which, especially one put out by Reader’s Digest, were quite helpful. I tightened hinges attached to not-totally-reliable door jambs; installed door locks; changed washers in faucets; caulked bathtubs; repaired leaky toilets; hung closet poles; put up bookcases; and even installed windows. Our budget, not surprisingly, did not have a large allotment for furniture, so I finished and refinished wooden tables and chairs. I learned two important lessons from these efforts. First, by the time I finished a project, I knew how it to do, if not correctly, better than I had. The question was whether I would remember when or if I ever did a similar project.

Second, I learned the importance of a good hardware store. One was a few minutes’ walk from my house. I was there frequently looking for a flathead screw a little shorter than the ones I had or an angle bracket, spackle or a toggle bolt, shellac or an N battery. They always seemed to have it. In addition, the staff was a fount of knowledge. I would explain some house problem, and they would suggest a solution or find some device or equipment I was not familiar with that would be exactly what I needed.

I learned that this was not the only hardware store like that. I went to stores near my place of work at lunchtime or in other places in my travels around New York, and all seemed incredibly helpful. I was concerned when the building housing my local hardware store was sold, and the Germanic-sounding elderly couple (no doubt younger than my present age) sold the business. Happily, it was bought and moved across the complicated intersection (it is called Seven Corners for a reason) where it continued to give excellent service for several more decades. Eventually it closed, though, leaving me bereft but not as bereft as its long-time employees, some of whom were in tears in its last days. This complicated my home-improvement life as I had to seek out more distant establishments, but I managed.

I had gained much handyman experience living in a 100-year-old Brooklyn brownstone, so I felt confident in being able to install a bidet-like thing in the top-floor bathroom of the Brooklyn house. My previous handyman experience had taught me an important rule of thumb. So, I looked the device over, examined the instructions, and calculated that it should take no more than an hour for the job. Then I said to myself, “So it will take you two.”

The basic idea is to disconnect piping that allows water to flow into the toilet tank and then install a T-shaped metal device into the opening to the tank. The water is hooked up to the bottom of this connection, which allows the tank to fill, and the bidet is connected to the other side of the connector with a supplied flexible hose. A knob on the bidet, when opened, allows water to flow on command to the bidet permitting it to do its business.

But the original water connection to the tank on the upstairs toilet was a rigid tube cut exactly the right length. The new supplied connector that I had to thread onto the toilet tank was almost two inches in length. The original rigid tube would no longer fit, and the bidet kit supplied only one flexible hose. Off to the new hardware store which had opened in the neighborhood after the demise of the longlasting one. This was a trip I was reluctant to make because this is the only hardware store I have frequented that regularly disappoints me. It too often does not have what I consider the most basic things that such a business should carry. Even so I went there, and I was surprised that it had the flexible hose I needed. I finished fifteen minutes beyond the 2-hr time limit and considered myself a plumbing whiz.

(continued June 28)

Posted on by rjonakait · 2 Comments

Advice About Critical Race Theory

          From newsfeeds I receive together with my limited TV news watching, I could conclude that the most pressing problem facing the United States is critical race theory. One writer applauds mothers fighting back against the perniciousness of CRT that seeks to brainwash their children “to view the world through the lens of ‘whiteness,’ white racism, and white privilege. [These mothers] don’t agree that America was founded on racist principles. They reject the claim that hard work, self-reliance, objectivity, deferred gratification, family, respect for authority, and respect for the written word are intrinsically racist values exploited by white Americans to relentlessly suppress people of color.”

Such tendentious claims are often met with a rebutting diatribe that says that such a statement shows ignorance not only of critical race theory but of American history and society as well. Where do critical race theorists say that the family and hard work are racist values? And all but the most ignorant (or racist) would see that racist principles were embedded in the founding of the country and have dogged us throughout our history. And it is most certainly true that white people benefit from being white in all sorts of ways, and legal and societal structures frequently produce racialized outcomes.

And so the debate goes round and round.

          The invocation of “critical race theory” is not the opening to a reasonable discussion. Because few people can meaningfully define it, it lacks any specificity and becomes a code term that means different things to different people. It is a term of confrontation, not one that educates. While some of us think it important to assess our history from differing viewpoints (including racial), such a focus does not convince those who are not already convinced that our country has had a difficult racial history. Most people don’t like being called racists, and many feel as though advocates of critical race theory are doing just that. But, when people try to support CRT or rebut some of the outlandish claims made by those “against” it, they are not merely adding noise to the political discourse, they are harming racial progress by digging us into deeper adversarial trenches.

          At the core of critical race theory is the observation that while many of our laws and societal structures appear racially neutral, they in fact affect different segments of our population in different—often harmful–ways. However, rather than battle over whether CRT should be banned from the classroom, advocates of racial equality would do better to focus on current strategies to address racial and financial inequities.

          The Fair Labor Standards Act offers a good example of what I mean. The law was passed in 1938 and gave us the forty-hour work week, a minimum wage, and overtime pay for more than forty hours of work. The Act, however, exempted various categories of workers from its coverage, and historians have said that the exemptions—primarily agricultural workers—were racially motivated: Southern congressmen at the time would not support the law if it wiped out the cheap workforce—primarily Black—from its fields. Hence, the exemption. A critic concerned that the FLSA produced racialized outcomes could speak about the law’s racist origins, but the response from many would be hostile: “So what?” they might ask. “That was generations ago, and I had nothing to do with its passage. Stop dragging race into everything.” This gets us nowhere.

          Instead, let’s talk about what would happen if those exemptions were eliminated. One could argue that not only individuals but society as a whole would benefit; A forty-hour week would reduce injuries that often lead to emergency room visits that drive up healthcare costs for us all; a higher minimum wage would reduce reliance on government food assistance, help to keep more families intact, infuse more money into the economy, etc. etc. So, let’s not talk about how a higher minimum wage would produce more racial justice (even if it would). Let’s talk about how having more workers get the minimum wage and increasing that minimum wage would help America as a whole.

          A vast array of data indicate that our healthcare system produces racialized outcomes, but instead of dwelling on that, let’s talk about possible changes in that system that would not harm people who think our healthcare is fine and would simultaneously produce a better system for a wide swath of Americans of all colors.

Rising income inequality may disproportionately affect people of color, but let’s talk about what we might do to change the causes of this phenomenon and how these changes could benefit all Americans (except maybe those in the top 0.1 percent).

The absence of social mobility for all in this country (something not known by a vast number of us) may be worse for Black and brown people, but let’s talk about what can be done about it that would help everybody, including minorities.

          Defenders of critical race theory seek to decrease racialized outcomes. Good. However, instead of defending a theory, let’s talk about substantive policy changes that would benefit a wide range of Americans. This will provide a better chance of success.

          If you happen to be one of those “intellectuals” who is called upon to respond to critics of critical race theory, say you don’t want to do that. You want to talk instead about changes we can make that will benefit America generally. Merely responding to CRT criticisms is not only not useful, it is harmful. I am reminded of a historian who once said that to discuss Millard Fillmore was to overrate him. To discuss the criticisms of CRT is to overrate them and give them a deeper purchase with many. Instead of responding in a way that will only further divide us, let’s change the topic to address areas where we can make progress for all America. Insist on debating possible reforms. That should be part of the definition of progressivism.

Posted on by rjonakait

Snippets

In Lupin, the mystery drama currently on Netflix, one nefarious character said to another the notable cliché of financial crime dramas: “The money will be transferred to an offshore account in the Cayman Islands.” Are there onshore accounts in the Caymans?

I watched the delightful first season of Kim’s Convenience, also on Netflix. I learned that in spite of logic and experience, it is always delightful, summery weather in Toronto.

It seems years ago, but it was actually only a few seasons back, that conservative politicians and commentators were railing against “sanctuary cities.” These were localities that did not always obey federal requests to detain a person whom feds claimed was an undocumented migrant. In what was a common situation, a person driving to work was stopped by local police for a traffic offense. The detainee, call him Sean, would have his fingerprints sent off to the FBI. Someone at the FBI would conclude that Sean was not in the country legally and would send a request to the local police to detain him until the feds could get a legal detention warrant. The FBI detention request was just that—a request. It is not a legal order to keep someone behind bars. Sanctuary cities, acting within the law, did not honor such requests. Indeed, detention because of an FBI request beyond what was authorized by the local law might have proven illegal. Whether the locality’s policy was wise or not, it caused something akin to apoplexy among conservative politicians and commentators who claimed that the rule of law was ending and everyone in a sanctuary city was in mortal danger from a horde of undocumented aliens. Following the lead of at least eight other states, Missouri has recently enacted a law that threatens a penalty of $50,000 against any local policing agency that enforces certain federal gun laws and regulations. This is, of course, analogous to the policies of sanctuary cities, but don’t expect to hear a similar outcry about “sanctuary states” from conservative politicians and commentators.

Old saying: It’s not fair to have a battle of wits with an unarmed man.

If you are a non-conservative, shouldn’t you reconsider leftist politics and actions when you learn what has happened in Portland, Oregon?

I wonder how many people who have opinions about the 1619 Project have read at least a quarter of it.

In one of my first post-Covid trips onto the subway, I was greeted by a usual sight. A young man, speaking so that the entire car could hear him, said that he was staying out of trouble by selling M&M’s and other sugary snacks for a buck a pop. As the train approached the next station, he got ready to exit and move to another car. He then enjoined, “Don’t buy a Lotto ticket. Don’t go to the liquor store. My candy is guaranteed.” And I wondered what that guarantee was and how I would ever collect on it.

Two Miami men sat at the next table after a round of golf. After introductions, my companion asked them if they were concerned about the rising water levels in Florida. They said that Dade County was taking some steps to alleviate high water, but nothing as drastic as a sea wall. One of them continued, “I’m not really that concerned; I’ll be dead.” I wondered if I would adopt that attitude if I lived in Miami.