Remind me again: Why is April the cruelest month?

I am so old that I never got a participation trophy.

On radio or TV, the news host interviews someone, and at the conclusion of the segment, the host says, “Thank you” to the interviewee. That guest invariably replies, “Thank you.” Whatever happened to “You’re welcome”?

Why was it that a certain kind of male was described as a pansy? Why not a daisy? Or even better, sweet william?

People seem so proud of themselves when they know the meaning of “defenestration.” But how many of them know the word for the act of throwing someone off a roof?

The TV listing said volleyball was on. I was disappointed when I found out it was men’s volleyball.

Do you see the irony in the fact that gun sales have slumped since the last election with industry analysts asserting that it is because a Republican is president. If you want fewer guns in society, you apparently should vote against the candidate who favors fewer guns in society.

Sometimes when I watch The History Channel I wonder what I would have to study to become an ancient alien theorist. I am guessing the studies would not include methods for testing my theories.

The only time I have been in one was in Baltimore while on a tour of baseball stadiums as a guest of a minister friend. He insisted he wanted to go to his first “Hooters.”

“After all, she was a Catholic and her whole life was invested in death.” Robert Wilson, Instrument of Darkness.

Does it bother you that Barclays of the bank and center and sporting events fame does not have an apostrophe?

Why is it that some jokes are painful if told by the comedian but make me laugh when told by the ventriloquist’s dummy?

When I complained about how long mine was lasting, the friend said that there was a New England saying: A cold lasts fourteen days unless you are lucky and it lasts only two weeks.

Does it bother you, as it bothers me, when you hear, “She graduated NYU.” I want to scream, “She graduated from NYU.” But isn’t my priggishness misplaced if the correct formulation once was, “NYU graduated her”?

We once had the Secretary and Department of War. Now we have a Secretary and Department of Defense. Which is the more accurate formulation?

The doctor’s assistant taking my health history got to that now routine question about sexuality.  She said, “If you had to have sex, would it be with the opposite sex, the same, or both?” If I had to have sex.  My mind went through my sexual history. The last time someone held a gun to my head and said, “Have sex or else,” my performance must have been so inadequate that I can’t remember it.

I walked by the Ample Hills creamery and remembered back to when I wondered about the name. Not coming up with anything else, I decided that it sounded like a reference to breasts. Later I was reading a poem and saw the phrase and understood why the ice cream was “Ample Hills.” I was somewhat embarrassed for myself.

One of my trips to Venice came because the spouse was attending a conference on the Lido where we stayed.  As always, it was memorable. I would ride the boat to Venice and take long walks through the city while she was at her meetings.  I went to the lesser squares and heard from a church a soloist rehearsing for an evening concert.  I stopped at markets and, being without Italian, pointed to foods to try.  I saw apparent immigrants selling apparent knock-off goods outside fancy stores.  It was late September, and the weather was generally beautiful, but on a few days, I saw some of the rising water which is common in autumn, and it was interesting to see how the Venetians coped.  A movie scene with Heath Ledger was being shot next to San Marco, and it was fun to watch it–a rescue from a hanging for the movie Casanova.

Other times I walked throughout the Lido that was simultaneously part of Venice and separate from it.  Here there were cars and buses, a bit of shock.  I went to the aristocratic, but aging hotel of Death in Venice and tried to picture the beach, empty at that time of year, as it was a century ago when Thomas Mann must have studied it.

Our hotel made good recommendations for restaurants in what were said to be the non-tourist parts of Venice.  I doubted such places existed but since we often appeared to be the only non-Italians in the restaurants, or at least we heard no English or German, we weren’t in the usual places.

But most memorable was a dinner at the end of our stay with other scientists from the conference.  My job had been to scout up a restaurant, and I picked a place on a canal on the Lido.  It definitely was not a tourist place.  The staff did not speak English.  We were outside on a beautiful night and through nods and pointing and much laughter and wine, we selected local fish, which was wonderfully prepared.  This was a night for Venetian memories, but the night became more memorable because of the stories of D and M.

D was a colleague of the spouse and M her husband. M and D were born, raised, and wed in Romania.  Romania was still a communist dictatorship when they tried to leave some twenty years ago, but permission was denied.  They protested; they cited the Helsinki Accords; they spoke on a pirate radio station.  The Romanian response was to imprison M. D, now alone with a new baby, did not know what to do.  She did not know how M was being treated or when or whether she would ever see him again.  Out of desperation, D contacted the American embassy and some official there got word back that D should go to the embassy, but D was afraid to do that.  The embassy was ringed with Romanian security, and she expected to be arrested if seen approaching it.  She called the embassy and told an official, whom she had never met, of her fears.  The disembodied voice on the phone told her, “Meet me under the street lamp at this intersection at this time.  I will be wearing such and such, and I will take you into the embassy.  The Romanian military will not arrest you if you are with an American.”  Not knowing what else to do, D took the leap of faith and did as the voice instructed.  With an American at her side, she walked into the embassy and told her story of how she and her young family just wanted to leave Romania.  Apparently American diplomats worked behind the scenes, and after a few months, M was released.  Permission to leave, however, was not granted; instead, the Romanians “punished’ the couple by expelling them from the country.  No punishment was more gladly received.

It all sounded like cloak and dagger out of a modern Alan Furst novel, but not the way they told it.  They wove it into an amusing story, concentrating on how naive they were and how lucky.  They elicited much laughter under the stars by the Lido canal.  But surely anyone in a Ceausescu jail had to wonder about the possible fate that awaited him.

I thought, once again, whatever my country’s flaws, how lucky I am to be an American.  And I wondered how harrowing times should best be preserved.  In their memories, was it as humorous as they presented it?

Their story, of course, had a happy ending.  Not only did they get to leave the country as they desired, M made a lifelong friend.  After the conference, he was driving up to Austria to see again the person he first met as his cell mate.

It is always moving when the audience stands before the opera begins and sings the national anthem. My patriotism overflows when the movie is paused at the two-thirds mark to allow us to sing “God Bless America.” And it is thrilling that every outdoor bluegrass concert I have attended starts with an adrenalin-boosting flyover by Air Force jets.

Of course these things don’t happen, but why not when such performances and displays are routine occurrences at sporting events?  Why is it that nationalism is a part of baseball, football, and NASCAR, but not “cultural” performances? Is it thought that operagoers differ in patriotic fervor from a Minnesota Vikings crowd? If the cultural audience cares less about our country, isn’t that all the more reason to have “The Star Spangled Banner” before Lohengrin in hopes of increasing national identity? And if the opera audience is already patriotic, surely they would want to sing the national anthem.

I have never researched the history of the national anthem at sporting events, but a law professor of mine, Harry Kalven, a devoted Chicago Cubs fan even during the decades when you had to be a bit meshugganah to be a Cubs follower, said that it started during World War II. That seems likely, and I guess that once a patriotic ritual starts, it seems unpatriotic for it to end. Thus, we continue to hear the Anthem before the first pitch and now at every sporting event.  (In the trivia question department: How many times did Pat Pieper hear “The Star Spangled Banner”? How many of those days did the Cubbies lose? I don’t know the answer to either question, other than to say, many, many, many times.)

The national anthem may have been played at sporting events since WWII, but its performance style has changed. Once we had only straightforward renditions that zipped right along. For example, for years “The Star Spangled Banner” was performed by Robert Merrill at Yankee Stadium—sometimes live and sometimes on a recording (occasionally nowadays a Merrill recording is still used). It clocked in at under two minutes. Now we regularly have versions that seem to be in a contest to see how slowly and with what added emotion the anthem can be sung. Soulful interpretations of the song have been traced back to a particular moment—Marvin Gaye’s rendition of “The Star Spangled Banner” at the 1983 NBA All-Star Game. Since then we have had many take-your-time idiosyncratic versions of it. (Gaye’s version was over two-and-a-half minutes long.) For me, however, it really started with Jose Feliciano at the fifth game of the 1968 World Series. I thought his version was moving and made me hear the song afresh, but to many it was offensive because this dark-skinned, blind guy had the nerve to sing it with a fresh insight and in a non-standard style.

Feliciano’s version did not inspire copycats, however, because his career was damaged by it. For incomprehensible reasons, his rendition got him labeled unpatriotic and disrespectful, and many radio stations refused to play any of his songs after that. (Question for your history discussion: Is there more division and hate in the country now, or was there more in 1968?) Feliciano’s version, while slower than Merrill’s, was faster than Gaye’s at a little over two minutes. (A joke my father told me which was fresh back then.  A Latino boy new to the United States made his way to the stadium for a game. The only seat he could get was in the distant centerfield bleachers under the American flag. He knew no one and was feeling lonely, but he felt welcomed when everyone before the game began, stood, looked at him, and sang, “Jose, can you see?”) What was shocking, outrageous in 1968 is accepted or at least tolerated today, and now we have all these “modern” arrangements of our patriotic hymn. (What does it mean about the connection between patriotism and sporting events that you can place bets on how long the national anthem will take at the Super Bowl? Perhaps to the surprise of many, the under has won the majority of times in the last ten years.)

And now at baseball games we get “God Bless America.” This started in the aftermath of 9/11. I went with the daughter to a Yankee game not too much after the attacks, and that was the first time I heard it, in the recorded performance by Kate Smith, during the seventh inning. (I wonder how many there recognized her voice. You have to be my age to remembeer her fifteen-minute TV show.) That made perfect sense then, as did the delay of a different ball game that autumn to hear a speech by President Bush. And, as I said, once started, it is hard to stop a patriotic ritual.

I probably object more than most to “God Bless America.” Baseball games drag on long enough without the song, which does hamper the between-inning routines of the game. Of course, they could  get rid of “Take Me Out to the Ball Game,” which comes right after the patriotic song, but since I go to the park for baseball rituals, I want to hear “Root, root, root for the home team.” (Never, never, never get rid of “Cotton-Eyed Joe,” which plays at a different time in the game. Love it.) Perhaps I would object less if I did not find “God Bless America” so insipid. The best I can say is that it is a step up from the Kars for Kids song, but not much. (Have you ever wondered why the Kars for Kids folks don’t tell us what the money is for?) As a kid, well before I understood its left-wing political implications, I thought “This Land Is Your Land” was a much better song (still do), and I would be happier if at least some of the time, it were to be performed in the seventh inning. (Kudos to the Baltimore Orioles.)

This, of course, is nothing compared to what happens at the Super Bowl. I was only paying partial attention to the run-up to that game as I was preparing dinner for the wife and the daughter (I am a modern guy), but I heard portions of what seemed like a five minute narration by Johnny Cash about the flag, and there was a trio singing, I think, “America the Beautiful,” and then a sprightly version of the national anthem, followed by the flyover when military jets fly in close formation low over the stadium just as the national anthem ends.

I have no idea when the flyover ritual started. I am always amazed by it. How can the timing be so precise? My most memorable flyover was combined with another patriotic display, the flight of Challenger. This Challenger is a bald eagle, and I have seen him in action a number of times at Yankee Stadium. My memory is that the bird was originally released outside the stadium during the national anthem and would fly to the pitcher’s mound or home plate where he would land on his handler’s wrist. As time went on, Challenger would be released from right in front of the center field fence for his flight to the infield. It is magnificent seeing an eagle fly in the wild, and I always found Challenger’s flight nearly as thrilling. The last time I saw him (I say “him,” but I don’t if the eagle is male or female), however, was different. It was a playoff or World Series game because the rosters of both teams had been announced and were lined up on the first and third baselines. Challenger was flying in from the outfield as the National Anthem was concluding, and then the flyover came. This time the planes flew really low. I was in the fourth row of the upper deck, and my knees buckled a bit from the vibrations. (How do the residents of the Bronx respond to this patriotic display? Many must not know it’s coming, and perhaps think New York City is under attack again.) Challenger was not prepared for this. He had been about to land on his handler’s wrist, but the jets seemed to almost knock him out of the air. It was as if he hit an air pocket, and he dropped like a stone for ten feet. He then seemed disoriented. He flew around the lower deck and returned to the playing field where he had Derek Jeter and other players ducking out of his way. He did not land on his handler. He finally just settled on the infield grass and appeared very sad and discombobulated. His handler had to walk over and collect him.

Is there truly a connection between such patriotic rituals and the sports events that follow? This question brings back a memory of Rocky Graziano, who won and lost the middleweight championship within a year during the heyday of boxing. After retiring he wrote an autobiography, Somebody Up There Likes Me, which appealed to my schoolboy fantasies and was made into a successful movie starring Paul Newman. Later, he did the talk show circuit regularly telling amusing stories in heavy Brooklynese. On one of them he said that he hated “The Star Spangled Banner.” Merv Griffiin or Mike Douglas or whoever looked at him incredulously and said, “Why?” Graziano replied quite logically, “I knew that whenever the national anthem was over, someone was going to try to knock me unconscious.”

Should I worry about my mental health? After the colonoscopy, I was told that everything was normal, and my first reaction was, “I went through all of that for nothing!”

Whenever I see a man walking with a flower bouquet, I wonder what he is apologizing for.

She said, “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!”

What question would you have asked?  The restaurant prominently displayed a sign that said, “Voted the Second Best Chinese Restaurant.”

Questions I did not expect to be asked on the subway.  The young, purple-haired woman wearing a frayed, but clearly “vintage” jacket said, “Excuse me. Do you know geometry?” I looked over and she pointed to a sketch book on her lap.  An octagon was carefully drawn.  (During the ride I learned that it was going to be a frame for a mirror, and she was on her way to buy some reclaimed wood.)  She said, “If the diameter is sixteen inches, can you calculate the circumference?”

He was pontificating as some are wont to do in a bar. He may have had more than the beer that was in front of him when I sat down. It was shortly after the last presidential election, and he was talking politics and history.  He rambled, but what he said about why Trump had won had some sense in it. I joked that he was one of the few people I knew that had voted for him. He quickly said that he had not, and then went on to say that he had taken his seven-year-old daughter to vote with him. He pulled out his phone and started scrolling. He found the picture of her entering his ballot into the scanner, a cute black girl in braids, and showed me a picture of his ballot, which had only Democratic votes.  I asked him how he felt the morning after the election when he found out who won. He said that he had been awake at 3 AM and that is when he found out.  His daughter was awake at 4.  He told me that she had become a devoted Hillary fan. When he told her that Trump had won, she said, “But he’s so mean,” and started to sob. He said that he did the only thing he could do. He picked her up and held her tightly and kept repeating until she fell back asleep, “It’s going to be all right. Daddy won’t let anything bad happen to you.”

“Nature takes good care of her appearance. What makes nature ugly is the behavior of human beings.” Akira Kurosawa, Something Like an Autobiography.

Do you hold the emery board still and move your fingers or move the emery board across a still hand? Or do you use a nail file? Or do you only get professional manicures?

Mario’s Pizza is on DeKalb. Luigi’s Pizza is a half mile down that avenue. Do you, too, want to ask them whether they are brothers?

What is your reaction when you are bored and turn on a sports channel just looking for anything competitive to pass the time and you find that a dog show is on?

Parking increasingly requires us to go to one of those machines and buy a slip with a time printed on it to put on the car’s dashboard. With a parking meter, there was always a chance that time still remained on the meter, and we might need fewer coins than we thought. It was not a huge joy when that happened, but it always made me feel at least a little bit good. But that happy moment is now gone. Or does anyone, when leaving a parking place, give the slip with time remaining on it to someone pulling into a spot?

Will a new generation know what “Rita the Meter Maid” is about?

In my post last week, I suggested that we be skeptical of those who proclaim a method of interpreting the Constitution that insures judicial neutrality and guarantees that personal values of a judge will not enter into judicial decisions. This cannot be done. The Constitution itself makes it impossible. That document often uses broad or vague words, terms, or phrases, and not all reasonable people will agree on their meaning when applied to a particular circumstance. For example, Congress has the constitutional power “to regulate commerce . . . among the several states . . . (what is often called the Interstate Commerce Clause). Under this provision, can Congress regulate commerce between just two states, or does “among” require the involvement of multiple states? Does the term “commerce” require a commercial transaction? For example, if I take a pleasure trip from Brooklyn through New Jersey to Pennsylvania, has there been “commerce” that Congress can regulate? (Did I really just use “pleasure” and “New Jersey” is the same sentence?) Relying on the Interstate Commerce Clause, Congress prohibits the growing of marijuana, but does the power to “regulate” mean the power to “prohibit”? If I grow wheat and consume it myself, I will no doubt buy less grain from the national market for wheat. Can Congress regulate my personal garden because my wheat cultivation affects interstate commerce? The Supreme Court has addressed questions like these many times, and the answers could not have come from a judicial automaton. They could come only from justices exercising judgments, and those judgments may be influenced by personal values.

The Constitution is filled with terms that are even more open-ended than the Commerce Clause. Article I enumerates congressional powers and then goes on to state that Congress has the power to enact laws that are “necessary and proper” for carrying out the enumerated powers. Article II states that the “executive power” is vested in the President. Not all will agree in a particular circumstances as to what is “necessary and proper” or what is an “executive power.” Today we might ask whether “emolument” is a term so clear that we can’t expect different interpretations of it. And so on; and so on; and so on. The Constitution cannot just be read and applied. Constitutional decisions require contemporary interpretations of the words and phrases, and in spite of what some conservatives say, that will always permit personal values to affect the outcome.

We can hope that a judge will select a reasonable method for interpreting the Constitution, but no method will eliminate the opportunity for personal values to affect the outcome. Moreover, no method is mandated by the Constitution itself. That document is silent on how it should be interpreted. Those who framed it in the constitutional convention and those who adopted it in the states were also silent about the “proper” method, if any, for later generations’ constitutional interpretations.

It is noteworthy, however, that one of the earliest Supreme Court pronouncements about how the charter should be interpreted did not proclaim it as a document with a meaning fixed in the eighteenth century. Having been present at its creation, Chief Justice John Marshall knew as well as anyone how the framers and adopters wanted the Constitution interpreted.  When the Constitution was proposed, he advocated its adoption, and as a delegate to the Virginia convention, he voted in favor of it. When he was on the Supreme Court, Marshall gave his view on how the Constitution should be interpreted. He said it was a document “intended to endure for ages to come, and, consequently, to be adapted to the crises of human affairs.” (Emphasis added.) Constitutional provisions do limit constitutional interpretations, but Marshall recognized that the document has many generalities and interstices that must be refined and filled in by judges. Constitutional meaning was not rigidly fixed in 1787. Rather, that meaning needs to adapt and evolve in light of “the crises of human affairs” if that document is to endure.

The originators did not tell us how to interpret the Constitution. Each generation must decide for itself what method or methods are to be used. This generation of conservatives has concocted a method that supposedly gives our fundamental law a meaning fixed from generations ago and removes a judge’s values from constitutional interpretation. This method is not constitutionally required, and its goals cannot be met. When a judge tells us that he acts merely as an umpire having removed his values from his decisions, he is either delusionally naïve or disingenuous.

“I found the channel changer and watched the end of an episode of Doctor Who.                   The David Tennant configuration, the only Doctor Who for me.”

Patti Smith, M Train.

I often see more young, student-looking people when I go to Shakespeare than at other plays, but there seemed to be even more this night.  I was seeing Richard II, the first play in a cycle by the Royal Shakespeare Company at the Brooklyn Academy of Music.  I went with trepidation, as I do regularly when I go to Shakespeare.  By now, I have seen many productions.  Do I really enjoy Shakespeare? The honest answer is “not always,” or perhaps, “not usually.”  Through the years some productions of Shakespeare have blown me away, including the first one I saw, Peter Brooks’ Midsummers Night’s Dream.  And there have been many outstanding ones since, but the truth is, I have truly enjoyed only the minority of Shakespeare plays that I have seen.  Oh, yes, even in the ones that have not fully appealed to me, there are usually some lines whose brilliance or beauty is noteworthy, but three hours for a few appealing lines can make for a long night.

Then why go, you might ask.  Because every so often, as I have indicated, some Shakespeare production is breathtaking, and I never know which one it is going to be.  I attend four Shakespeare plays because one of them will be magical.  I won’t fault you for wondering if that is really worth it, but that is what I do.

And this Richard II was a heartstopper.  The actor portraying Richard was a wraith with flowing hair over flowing robes, and by intermission he had already moved me.  I had not examined the cast notes before the play began, but as the house lights came up, I quickly went to them, and saw that David Tennant was Richard II.  David Tennant.  That sounded vaguely familiar.  Then I saw that he had been in Broadchurch.  I had just watched the first year of that British series, and I said to myself, “Of course, Tennant—Alec Hardy.”  Having identified Tennant to my satisfaction, I turned my attention back to the stage.

(I found the first year of Broadchurch satisfying.  It was my kind of show.  Over the eight or so episodes, a story was told from beginning to end.  No cliffhanger.  No feeling that as long as the show gets renewed, the producer will find a way to string it out.  Instead a complete narrative arc with good writing and mesmerizing actors.  Thus, I felt cheated at Broadchurch II, when instead of a new story, the story that had seemingly concluded was given a twist so that it could continue, or begin, anew.  I may have thought that that was a cheap trick, but still I found the second year engrossing.  My jury is out on whether I watch the third year.)

I had enjoyed Richard II so much that I broke my only-nod-at-a-celebrity rule.  If my eyes catch a celebrity’s eyes, I merely nod and move on.  Nothing more. No smile. No conversation. After seeing Richard II, but before seeing the next play in the cycle, I walked passed a sidewalk café near the theater.  Three men were at a table, and I said to myself that I knew at least one of them, but I could not place him.  As I continued on, it came to me that he was a member of the Royal Shakespeare Company.  I went back, and when they looked up at me, I asked if that was so.  Yes, came the reply, and I told them how much I had enjoyed Richard II and how much I was looking forward to the other productions.  They said something gracious, but I felt awkwardly intrusive and quickly left.

David Tennant was not one of the three.  After seeing Richard II, I read an article that said he was not in the other plays in the cycle and often commuted between the UK and Brooklyn during the run.  I learned that he was a long-time member of the RSC and had done much Shakespeare.  And I finally learned why so many young people had been at the production—Tennant was Doctor Who, or at least one of them.  The article quoted Tennant to the effect that he knew that one of the first lines of his obituary would refer to Doctor Who.

Once again, it was clear to me that fame was not an ingot with universal value but depended upon the experiences of those who gaze on the famous.  For some, Tennant is famous for Shakespearean roles.  For me, he was Alec Hardy.  But for many more he was an incarnation of Doctor Who.  In essence, who Tennant is depends upon who we are and what we have done.  (I have heard many references to Doctor Who.  I know that it has been incredibly successful, but I have never watched it.  Is it worth watching?)

And although I said that for the actors at the sidewalk table I broke my celebrity-nodding rule, in some sense I didn’t because their fame was limited.  Few passersby, I am sure, recognized them or would have recognized their name.  Only because I had seen and remembered one of them from a few nights before did I recognize them.  I wonder if in London can they sit so little molested.

With my awkwardness, however, I blew a chance to ask these actors something I have wondered.  Just as I ponder how often playgoers really enjoy Shakespeare instead of attending as some sort of cultural duty, how often do actors truly enjoy doing Shakespeare versus tackling the plays because serious actors are supposed to hunger after Shakespearean roles?

Thirty or forty years ago conservatives started maintaining that “originalism” was the only way to properly interpret the Constitution. This meant that a constitutional provision should be interpreted today to reflect what the drafters and adopters of the Constitution intended when the charter was adopted. This interpretive method, according to its proponents, gave a fixed meaning to the Constitution, thereby preventing “activist” judges from breathing their changeable, subjective predilections and values into our fundamental law. Only by applying the constitutional meaning that had been unbendingly established in the eighteenth century, the cant went, could judges remain neutral.

Originalism, however, never passed its beta test. Its practitioners quickly realized that uncovering one single intent from the incomplete historical record of the Constitution’s drafting and adoption was impossible. Worse, the ability to ascribe a single intent to the myriad framers and the many more adopters was mere fiction.

With these shortcomings apparent, originalism morphed. Now it was not original intent but the original meaning of the Constitution’s words that should control a constitutional decision’s outcome. This set a jingle of judges jiggling off to ancient dictionaries. They found, however, that the lexicographic business at the end of the eighteenth century was, to say the least, a bit sketchy. Samuel Johnson had published his dictionary in 1755, but his definitions were as much prescriptive as descriptive. That is, in the opinionated Johnson’s opinion, he listed what a word should mean, not necessarily what it did mean to all or even most English speakers of the day. And, of course, what really should matter for the United States Constitution is what words meant in America, not England. This is made more difficult because the first relatively complete American dictionary of English was not published until 1828, some four decades after the Constitution was adopted.

So, another morphing was needed. Conservative judges now would simply pronounce that the constitutional text controls without ever referring to the original meaning of the words. This approach is evident in Supreme Court Justice Samuel Alito’s opening address to the Federalist Society convention last fall. He paid tribute to the Supreme Court’s 2008 decision of District of Columbia v. Heller guaranteeing an individual’s right to own guns. Alito criticized Justice Breyer’s dissent in that case. Breyer had proposed a balancing test that would weigh self-defense against public safety. Alito stated that if a judge uses such a balancing test, the balance will almost always come to rest where the judge wants it to. Instead, Alito told this conservative group, “Heller, I am sure you know, holds that the Second Amendment actually means what it says.”

This is not the place to trace the history of the Second Amendment’s interpretation or what it now does or does not mean. Instead, I am struck by the implications of Alito’s statement. In essence he says that those who would allow some gun control are using Breyer’s balancing test, and that means that they are relying on their own preferences rather than adhering to the Constitution. The conservative majority in Heller, Alito maintains, was not following individual preferences but was simply reading and enforcing the words as written. We in the majority are Constitutionally pure (he implies); the dissent is not. (Thought experiment: For how many of the justices in the majority did the outcome in Heller fail to coincide with their individual preferences?)

But how should we interpret the words as written? The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” I don’t mean to delve into those opening “militia” words about which much has already been written. (Reports state that that first clause is not reproduced in the lobby of the NRA headquarters, only the last part of the provision. Why is that?) Instead, I ask whether there is one, single unambiguous meaning for “the right of the people to keep and bear arms, shall not be infringed”? (I will also ignore the intriguing question of why that last comma exists.)

For Alito the Second Amendment words say unambiguously that individuals have the right to own guns. Period. Full stop. The end. First, nowhere does the provision expressly grant rights to individuals as Heller held it did. It states that it is a “right of the people.” Wouldn’t the Amendment more clearly have granted an individual right if it had said, “No one’s right to keep and bear arms, shall be infringed”? (Okay, we’ll keep the mysterious comma.) On its face, then, the provision grants a collective right, not an individual one.

Neither does the text state the right to “own.” Instead it says “keep and bear.” Does “keep” mean the same as “own”? Have you never kept something without owning it? And you can keep an object in many places. I keep my boat at the marina. I keep my tools at work. If a law required me to remove my Winchester or Glock from my home and store it at an armory, wouldn’t I be keeping a gun at the armory?

The Second Amendment right, however, is not just to “keep” guns; it is to keep and bear them. Why the conjunction? The right is not just to keep but to keep and somehow use. “Use,” however, is not the word in the text. Instead, it specifically reads “bear.” That could imply that only those arms are protected when they are borne. And what does it mean to “bear arms”? What did it mean then? What does it mean now? Do we “bear arms” outside the military? When I go deer hunting, do I “bear arms”? (If so, don’t hunting seasons and other hunting restrictions infringe on my right to keep and bear arms?) When I grab the revolver because I think I hear a burglar, do I “bear arms”? Did Aaron Burr and Alexander Hamilton “bear arms” in their famous duel? When I drunkenly point a pistol at my spouse during an argument, am I “bearing arms”? (That last one was a hypothetical; the wife and I never argue.)

Furthermore, the Amendment does not directly refer to guns. It reads “arms.” The Supreme Court shrugged off an originalist notion that “arms” must be limited to eighteenth century weapons. In this instance, Heller allowed the word “arms” something other than an originalist meaning, but then how are we to decide what arms are now included in the protection? Perhaps the 1828 Webster’s dictionary would provide an approximation of what is meant. If so, “arms” are defined there as “Weapons of offense, or armor for defense and protection of the body.” If a rifle (clearly a weapon of offense) is protected, why not a machine gun, a flamethrower, a cannon, a killer drone, a switchblade, and so on? Aren’t they all “weapons of offense”? Does the text really make it simple to decide what kinds of firepower and killing machines are protected?

Finally, the Second Amendment on its face does not create a right. Instead, it indicates that a particular right is not to be violated. This, of course, only raises the question, “What was that right?” It is not spelled out in the Constitution. We have to look outside that document to find it.

I am not suggesting answers to these various questions nor that Heller’s outcome was wrong (well, maybe, but I am warning that interpreting the Constitution is not as simple as Alito would have us believe. Alito seems to say, “Just read the words and you can understand the right.” I am suggesting, instead, that we remain skeptical when a judge or anyone else states that the other guy’s method of constitutional interpretation is really just a disguise for personal preferencs, but his method is pure and neutral and keeps out personal preferences. Heller was not decided, in spite of Alito’s implications, without many, many interpretive choices, and perhaps, just perhaps, those choices allowed for personal preference. And maybe, just maybe, practitioners of originalism and its cousin, textualism, are not as innocently disinterested in the outcomes as they pretend to be.

The TV newsreader said that the burglars snuck into the building after midnight.  I thought how my grade school teacher Miss Dahlberg hated snuck.  It was not as high on her antipathy list as ain’t, but it was close.  Snuck, she preached, was slang.  All who used it betrayed their lack of education.  It was uncouth; inelegant.  Sneaked, sneaked, sneaked, she exhorted.

But in all circles today that I encounter, spoken and written, it is largely snuck. A dictionary’s note says that snuck is now used by people of all educational levels, and while snuck may once have been regarded as “nonstandard,. . . it can no longer be regarded so.”

Language changes.  Even so, I try, perhaps in deference to that teacher to say sneaked.  But why?  I actually find it mildly difficult to enunciate. My tongue has to do a dance between the “k” and “d” that I think makes my pronunciation odd.  Snuck is easier to say, and since both the meaning of snuck and sneaked is clear, how can the use of either be sneered at?

Why stick to the traditional grammatical rules if the meaning is clear?  Does it really matter if we say: “He is different from a pedant” or “He is different than a pedant”?

Language, however, does not always change to remove artificial distinctions.  It adds needed words and definitions. Many of the common words we use when discussing computers, for example, did not exist a century ago. Of course, these are needed words, and the lexicon should increase. But the definitions for existing words also change even when there is no apparent need for the change, and oft times the new meanings do not bring greater clarity. Sometimes they only create redundancies or even contradictions.

So, for example, precipitate means to bring about suddenly. (I think of those high school chemistry experiments where the beaker was filled with a liquid holding something in suspension.  A chemical was added and almost instantly solid particles starting floating to the bottom.  The precipitate appeared precipitately.)  Precipitous referred to a precipice and meant something extremely steep, but over time precipitous got confused with precipitate, and now precipitous not only refers to steepness, it also means precipitate. This new definition for precipitous added nothing useful to the language, but nothing seems lost from the language by it. And my guess is that the context almost always makes clear which definition of precipitous is meant.

Sometimes, however, a definition is added to a word that is inconsistent with an existing definition.  Presently means in the near future, soon. Presently also means now. These definitions are inconsistent.  What is soon is not now, but the two usages are hard to confuse because the tenses that accompany the word make clear presently’s meaning.  “He will be here presently” can’t mean now. “He is presently here” can’t mean soon. (Although presently can and should be dropped from that second sentence because the sentence’s meaning stays the same without it.)

But sometimes a new meaning gets added to a word that can cause confusion.  Verbal means consisting of words.  Verbal also means spoken and not written.  A written statement is thus simultaneously not verbal and verbal.  Most often the intended meaning is no doubt gleaned from the context, but verbal meaning oral adds nothing to the language and sometimes does cause confusion.  Not every added definition is an advance or harmless.

Do you have new definitions that you would like to see disappear?

The place was now called the “Norman Knight Travel Center.” I asked the station attendant who Norman Knight was. He replied that he was a trucker who had used the place as a rest stop many times during his career. Nice tribute.

In the old days, including my career in criminal defense, when a person informed the police about (i.e., ratted on) another, it was said that the informant had “dropped a dime” on the other one. No one calls a cop on a pay phone with a dime any more. So today, what is the informant doing?

The erectile dysfunction TV ads often refer the listener to a publication, most often, it seems, to a golf magazine for further information. Does this indicate something about golfers?

It was the night before the twenty-fifth reunion. A group had assembled at a bar that was a hangout in the years after the high school graduation. Marty went up to the bar. Marty had been a middling student. Marty had been a middling athlete. But Marty had moved high up the executive chain in a local corporation and was a semi-bigwig in the small community. Marty ordered a beer. The bartender turned to get the ordered bottle. Marty put $10 down. But then after the briefest of moments, as the bartender turned to uncap the bottle, Marty looked around to see if anyone was watching, but did not see me. He put his hand over the bill, palmed it, and put it in his pocket. Then somewhat conspicuously he went to his wallet and laid down a $100 bill on the middle of the bar.

What do you do? This might be the one. You are strongly attracted. Great voice. Can cook. Similar views about the number of children and how they should be raised. Political views are not divergent. Solid job, but insists on time away from work. Sex more than good. Everything seems to mesh. Yes, this might be the one. Then you learn that this perfect-seeming mate believes that the best music made ever comes from Mannheim Steamroller. What do you do?

When the reviewer raves that the movie was “minimalist,” does that always mean it has no special effects, some quiet, interesting bits, separated by long stretches of boring stuff?

I read Habakkuk today. I found some beautiful poetry. I should read that Bible book more.

Fooling around as a teenager in cow country, I went to the fence and looked at the herd. I let out “Moo.” Some Jerseys ambled over. This interesting (to me), but useless ability, to call cows lasted for decades, but it no longer exists. Perhaps the timbre in my voice changed or perhaps as a transplanted city slicker, I lost my ability. I moo, but now the cows don’t even look up. Have you lost any interesting, but useless, abilities?

Why do people say and write “off of?” He got “off of” the highway at Elm Street. Sally got “off of” the couch. “Off” without the “of” is enough.

The person denounced someone as a “stupid idiot.” (I admit this person was a professional wrestler, but I have heard this characterization from many people.) Stupid idiot as compared to smart idiot? The average IQ idiot?

The blonde server told us she was from Siberia. She elaborated. From western Siberia, from Siberia near Kazakhstan.  She said, “From the nice part of Siberia.” Who knew?

He seems to eschew learning through traditional sources. Could it be that our President is a member of the Abecedarians, a supposedly lost 16^th-century sect that had a disdain for all human knowledge and maintained that the righteous should not learn to read?

“We have got to get the government off our backs.” “Government is too big.” “Big government destroys our freedoms.” With words of varying civility, this is a common chant. The belief assumes that in earlier days we had a small government; in earlier days we had more liberty. This was not always true.

For example, Jim Crow laws legislated social relationships and mandated increased public and private expenditures by requiring duplicate facilities. Yet those who yearn for the age of small government seldom mention this epitome of big government or how long it endured.

Because of my northern, small-town roots, I was not directly affected by Jim Crow, but I was by another, now defunct, big government program—the military draft. To someone my age, the draft needs no explanation, but I found that many of my students, a generation or two younger than I am, not only did not know that it existed, but could not believe that it ever was the law of the land. But, yes, men (only men, not women) could be required to join the armed services. Put in slightly different terms, the government could force men from their homes and jobs and families for years and place them in a position where there was the possibility that they would have to kill or be killed. Was any government power ever larger?

Even without being drafted, the draft affected men’s behavior, as I learned early. In sixth grade, Glen and I hung out at George’s service station. A couple of high school boys did some work there. One day they discussed what they would do after high school and whether they should get some vocational training. Gary said, “No. I’m just going to get any job I can and wait to get drafted.” In short, he was going to wait until after his forced military service to figure out the course of his life.

The draft led many to enlist. Perhaps part of the motivation for enlisting was public service and patriotism, but part was that an enlistee, unlike a draftee, could choose the branch of the armed services he would go into, and the college-graduate enlistee could be an officer while the draftee was a private. I have many friends of my age, often graduates of the country’s most selective universities, who were officers in the armed services while the draft existed. I wonder if I come of age when the draft was abolished, would I know as many veterans as I do.

The draft affected education and job choices. College males got deferments; that is, they would not be drafted while in school. And for a long time, deferments were also given for graduate school. In my generation, only those from 18 to 26 were drafted. Back then, I never heard of a “gap year” before college or graduate school. We knew that such a time off from school might find us not backpacking in Europe, but backpacking in Vietnam. One of the reasons so many of my generation may have gone to law or business school is the draft deferment it offered. (Not so for medical school. Doctors got drafted at 26 and beyond because not enough doctors enlisted. (Go watch M*A*S*H).

If, however, you finished all this education by 24 or 25 you still had to make it until 26. Ah, but for some jobs, you also got a deferment. Public school teacher was one such job. Teach until 26, and then start your real career. Many of my generation had a brief stint as an eighth grade teacher.

The draft was not only big government because it could intrude into every corner of a life, it was also big because it produced a huge bureaucracy. Nearly every county in the country had a selective service (the official name for the draft) office with one or more paid workers as well as volunteer (I think) boards. (Does anyone know who came up with “selective service”?) And, of course, regional and national offices. Paperwork galore.

Both aspects of the big government came together for me in my second year of law school. For reasons I supported, as I began my legal studies during the height (or shall we say, depth) of the Vietnam War, deferments for graduate school ended. And thus, one day during a break in my classes, I found the missive that had what was then the famous salutation, “Greetings.” I was being drafted pending a physical, for which I had to return to my home county.

It wasn’t like I hadn’t thought about being in the army before, but the draft notice certainly, how shall we say, focused my attention on an impending military life. It was more than a little hard to concentrate on the law of corporations with the army looming. Part of the obsessive thoughts that followed the draft notice were about the war that the U.S. was then bogged down in, but more of my thoughts just went to basic training, which I dreaded for good reason.

I had partially dislocated my shoulder years before, and I had done it many times since—putting on a coat, turning over in my sleep, placing a pizza in a car’s back seat, playing volleyball, basketball, softball. I knew it would partially dislocate any time I really threw a ball hard overhand. It hurt like hell, but when it happened, I could grab the right elbow with my left hand, pull the arm, and seat the ball of the arm back in its socket. This was a condition I knew toowell, but it was not one that had been certified by a doctor. I had gone to the college infirmary the day after it first happened, but by then the joint appeared to be back together properly. Nothing looked wrong to that general practitioner.

But now I started to fixate on the images of army training where recruits had to climb ropes and scale walls and throw decoy hand grenades. I knew that the shoulder would come apart, and all I could picture was the drill sergeant yelling at what he thought was the Ivy League malingerer writhing on the ground. I could not imagine how I was going to get through those first six army weeks. I decided I should see another doctor. I went to a local orthopedist and told him that if I threw a ball hard I would dislocate the shoulder. He said, “Make the motion.” I told him what I already knew. With simulated throwing, I instinctively held back, and it would not happen. He said, “Try anyway.” Nothing happened, and I was sent on my way, with the doctor’s glance saying, “Hippie draft dodger.” (Yes, I did have both long hair and mutton chops.)

I reported for my army physical. I told the doctor my situation. He, too, told me to simulate throwing. Nothing happened. I was certified physically fit to be trained to kill.

A few months later, I was ordered to another physical in Chicago. After spending twelve hours in an atmosphere that only the finest novelist could capture (one potential draftee had inked antiwar slogans all over his body), I saw the doctor. I told him my situation. He looked at a form and said, “You already a physical in Milwaukee.” He asked, “What are you doing here?” I replied, “I was ordered here.” He said, “I am not going to waste my time giving another physical to someone who has already had one.”

I had gotten the induction date changed from its original fall date until after the school year ended. Friends urged me to go to Canada. Friends urged me to go to jail. I felt too much an American to leave the country, and I never considered those escape routes.

Somehow, however, through the protest grapevine I was told about a doctor in Chicago who had antiwar views. About a week before I was to go into the army, I had an appointment with him. I told him the situation. He said, “If there really is that problem, I will get you reclassified, but I will not lie.” I told him simulated throwing would not do it. But I came prepared with my baseball. With the doctor agreeing, I walked the three blocks to Grant Park and found a wall to throw the ball against.  I had to screw up my courage with a few easy tosses and then I finally threw as hard as I could. Pain in the shoulder; white flashes before my eyes; arm immobile, but for the first time I did not do what had become instinctive. I did not pull the arm back in place. Feeling the pain every step of the way, I went back to the doctor, up an elevator, and to an x-ray room with my hand stuck skyward. Blissfully, they quickly took the pictures, and I could pull the arm back together before the vomiting started.

When the doctor looked at the x-rays, he said, “You’re right. You have a problem. I’ll contact the army.” Then with a smile, he uttered words that only someone of my generation can truly appreciate, “You can have that fixed.” He waited a beat: “But there is no reason to until you are 26.”

The draft gave men of my generation contact with big government’s bureaucracy and its control of lives. It certainly affected me. While obsessing over what the army had in store for me, I had more and more difficulty paying attention to my coursework. I dropped from near the top of my class. A job after the second year of law school was considered an important step for most of us starting a legal career, but I never sought such a job since I was supposed to be inducted on July 1. But, of course, compared to many this was nothing. I did not spend two years in the army. I did not die in combat. I did not have to kill Vietnamese.

When you want to complain that our government is so big today that it destroys the freedoms of Americans, go to the Vietnam War Memorial Wall in Washington. Look at the names on Maya Lin’s creation and ask yourself, “How many of these were draftees? How many enlisted because they expected to be drafted anyway?” And then reflect on the big government of today and yesterday.