Originalism to Textualism

 

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.

Sneaked or Snuck

 

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?

Snippets . . . . Snippet It Real Good

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 16th-century sect that had a disdain for all human knowledge and maintained that the righteous should not learn to read?

Big Government Makes Killers

“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.

 

Back to the Future? Really?

My parents rained on parades. This was partly because although we had enough money to get by, we did not have more than that. The family would not have the latest model car, a second home, or exotic vacations.  There would be a used Oldsmobile (my father’s invariable choice) and a week on a nearby lake if some friend or boss made a cottage available. There would be adequate clothing, but no one would be a fashion plate. And who needs to go to restaurants? This was not a terrible hardship perhaps because things like smartphones and Air shoes and overly expensive dolls and other toys did not exist. On the other hand, I remain frugal today, perhaps excessively so.

The dampening, however, was not just about material expectations; it was about life in general. Some typical interchanges: It’s a beautiful day today. Yes, but it’s supposed to rain tomorrow. We won the ballgame! Yes, but you play the (powerhouse) next game. The Halloween party is going to be great. Well, it is probably going to be much like the one last year, and I am sure you remember that.

The point, I guess, was to avoid disappointment. If you did not expect much, you would not be dashed, crushed, or frustrated  by what did happen. And if good things did happen, then you could feel good. But, of course, only for a brief time because disappointments were always just around the corner. By spritzing on expectations, my mom and dad no doubt thought they were being good parents by shielding us from disappointment.

The daughter, like many young children, often had great enthusiasm for some coming event. Often I knew that the occasion would not live up to her excitement. My instinct was to act like my parents. I needed to protect that precious little one by referring to my experiences to show her how it was unlikely to meet her high expectations. Then she would not be disappointed. In the beginning I may have done that, but then I realized that such a speech only deprived  her of her pre-event excitement. If the event truly was a bust, then there was no enjoyment whatsoever. My daughter taught me what had been drilled out of me in childhood: enjoy the buildup to something. Get that enjoyment no matter what happens later.

This practice was put to a severe test at Orlando’s Universal Studios when she spotted the Back to the Future ride. She had loved the movie and was eager to go on the attraction. But I knew some things about the daughter, and one of them was that she did not like thrill rides. (Another reason to love her. If she had liked roller coasters, I might have had to endure them with her. But the last time I had been on such a thing, admittedly quite some time ago, I felt sick for hours afterwards.)  I have no idea what she thought this ride was going to be, but I knew it was going to be awful for her.  As we endured the long line, her excitement grew and grew, and I kept debating with myself whether to tell her that we were not going to do it. The more time I internally waffled, the more excited she became.

We did it.  It was not a ride that plunges and twists. It was worse. It was one of those virtual reality things where you do not get sick from real motion, but through the trickery of projections. You know it is a trick, but still it makes you scream. You feel scared and stupid.

We came out, and it was clear she had been terrified and was not a happy person. I am sure that it lasted but a few minutes, and the wait for the ride with her building excitement had been much longer—in other words, the period of enjoyment had been much longer than the period of disappointment (and terror)–but this time in not taking away her expectations I was not sure that I had done right. I feared that the terror, even if brief, outweighed everything that had come before.

What should a good parent have done?

Recently she and I had dinner, and the Back to the Future ride came up.  Although decades ago, she still remembers it vividly.  I asked her if I had been a bad parent not to have warned her.  She shook her head no. But then again she was expecting me to pick up the restaurant bill. (If you meet her, ask her about the Disney ride, It’s a Small World, and you should be convinced that, at least some of the time, I was a good father.)

 

Snippets . . . . Snippet It Real Good

Whenever I go through the TV dial and find music I know and like, it is PBS fundraising. Or TimeLife doing an infomercial.

I received for Christmas a specially-made T shirt I had requested. It reads: “TRUMP. HIS MOTHER DID NOT HAVE HIM TESTED.”

I recently met a couple.  He was six feet ten.  She was shy of five feet even.  What questions would you have liked to ask?

As I walked to the subway, I heard a street person in a doorway say to no one in particular, “Did you see that old couple who just walked by?  They did it.”

Is it true that there will be an exemption from the travel ban for any adult whose hands are smaller than the President’s?

I was surprised to learn how many countries there are in Africa.

The President pronounces something “great.” He pauses and then repeats “great.” He pauses yet again. His mind seems to be searching, but at best “tremendous” or “huge” or “tremendously great” comes out. Should we be concerned that Donald Trump has chronic lethologica?

When I arrived in New York City years ago, I almost never attended a performance of any kind that received a standing ovation. Now they occur routinely. And, thus, our standards decline.

I was walking east. I could see a half-block away a well-dressed, attractive, thirtyish woman standing next to a nice, parked SUV. She was waving a piece of paper. As I got closer, I could see that it was the tell-tale orange of a parking ticket. She was talking to a man. I could tell that he had written the ticket. As I got even closer, I expected to hear her agitated tones saying something like, “I was just a minute late.” Instead, I saw him nod and her smile. She moved to stand beside him. With her right hand, she held the ticket between them. With her left, she took a selfie.

Pleasuring yourself.  Self-abuse.  How can these mean the same thing?

I try to be good because I believe that in hell I will be trapped on a stalled elevator with a banjo player.

“People from downstate have so much money they buy their kids brand-new cars.”  Jim Harrison, The English Major.

My friend Stan told me that he was at a party and introduced himself to Dave.  The conversation followed the usual course, and Stan asked where Dave lived.  Dave replied that he lived on Park Avenue in Manhattan.  Stan started to make appreciative and envious sounds when Dave continued, “But not in one of the best buildings.”

Why do we say something is “affordable?”  Isn’t anything bought, leased, rented, or bartered “affordable” for the one who got it?  And isn’t almost anything, no matter how “affordable,” not affordable for many?

My friend worked for Nokia. She liked the work except for the trips to the headquarters in Finland, even though it amused her that Helsinki was the only place where she saw women with blonde roots.

Finding My Soul

I had loved him on TV, and now he was coming to the RKO Albee, just a few blocks from my apartment. The RKO Albee was one of those grand vaudeville/movie theaters built in the 1920s. It was said to be the second largest such theater in New York City after Radio City Music Hall. The Albee, by the time I made it there, was in serious decline. It was situated in downtown Brooklyn that once had many similar theaters, but downtown Brooklyn and large movie houses no longer remained fashionable. Shades of the grandeur that had once been in the Albee were evident, but seeing them some faith and imagination, except for the bathrooms which were still magnificent.

Going to a movie there, however, was a bit creepy not only because of the auditorium’s deterioration, but also because of the size of the place. It is only a guess, but the theater held three or four thousand, and the first time I went there, for Diary of a Mad Housewife (who remembers Carrie Snodgrass? Richard Benjamin?), no more than a hundred of us were there. These numbers added up to a lot of empty seats, and an eerie feeling. (Diary remains in my mind not because I remember much about the movie, but because it was my first exposure to people talking back to the movie screen. With the size of the audience, it was easy to hear all the words of those who conversed with the on-screen characters.)

Now, however, it was not a movie coming to the RKO Albee, but James Brown. The Hardest Working Man in Show Business.  The Godfather of Soul. Mr. Dynamite.

The wife and I got tickets.  Good seats. Fourteenth row, just a little right of center. This time we did not feel as if we were alone in the Albee. I could not see an empty seat. We had a great view of the stage for the opening act, a comedian (perhaps,  but I am not sure, Clay Tyson). The audience made it clear that it wanted him off the stage and James Brown on. I could only feel sorry for the comedian, and the clamor was made worse when James Brown with an entourage came down the side aisle. (Huh? The Albee did not have a stage door? Didn’t seem likely. Oh, you think that this was another ploy to whip up the crowd?)

Finally, the warmup was over, and there he was! Our good seats started to be less desirable.  Not because anything happened to them, but because it seemed as if everybody who had been behind us left their seat and rushed towards the stage. Still we could see, but then all those seated in front of us stood up. Now to see we, too, had to stand, which we did. But then those in front of us stood on their seats so we had to stand on our seats. And finally, those in front of us stood on the arms of their seats, and soon, feeling precarious, we, too, were standing on the arms. And we saw a great show.

As we were leaving and I saw the crowd heading towards the exits, it hit me then that besides the wife, I was not seeing another white person. I had not been uncomfortable before, but this realization made me a bit uneasy. Would all those thousands of black faces think there was something wrong with whites going to see James Brown? There was no reason to think so. The crowd was noisy and excited, but everybody was as polite as you could be in crowd that size. But still, we seemed to be the only whites. Wasn’t there a good chance something bad might happen to us? At least this white had not confronted this situation before—one that many blacks no doubt had faced—of being the only one of his race in the place.

The Duffield theater was only a few blocks from the RKO Albee, but it had never been a palace, only a neighborhood movie house. It was there we saw The Great White Hope, with James Earl Jones and Jane Alexander. (I have had the privilege of seeing Jones on the stage a number of times, but from years ago the most memorable performances were Fences and Othello, the latter in a production with Christopher Plummer, Dianne Wiest, and, in a much smaller part, Kelsey Grammer.) The Great White Hope is the fictionalized account of the black boxer Jack Johnson. Once again, we seemed to be the only whites in the theater, but this time during the performance we were acutely aware of that. In the James Brown concert, our reactions were not much different from the rest of the audience, but that was not true at this movie. In this story about an extraordinary man’s confrontation with race and racism, there was a scene, I think, with a country preacher encouraging Johnson to prayer. The wife and I were moved, but, to our surprise, the scene brought derisive laughter from around us, the kind of laughter reserved for an Uncle Tom. I was acutely aware that I had not experienced what others in the audience had, and as we left the theater, I did wonder if all those other exiting people were wondering what that white couple was doing there.

Part of the reason that we were in the minority at these theaters is that then, and for most of my years in Brooklyn, we have lived in neighborhoods where whites are in the minority. I regarded this as neither undesirable nor desirable. It was just a fact. Not surprisingly when I played basketball in one of the local schoolyards, which I did frequently before blowing out my knee in my 30s, as a white, I was in the minority.

It was an especially eclectic crowd at the courts nearest to home. The neighborhood had a few whites, but also a sizeable group of Native Americans, who had been in construction in New York City, and were frequently, it seemed, on crutches. Their roots were from near Montreal, and when they found we were going in that direction for a vacation, they were quick to give advice about the places for food and drink on the way to Canada. There was also a group of Puerto Ricans that had been established in the neighborhood for quite some time having come to work at the then-functioning, nearby Ex Lax factory. There were blacks with relatives in the Carolinas and some Argentinians who had migrated to South America from Italy before coming to the United States. As I said, an eclectic mix.

One day playing basketball, an argument broke out. I am not sure what triggered it, but soon I heard one kid yell an epithet at the other, “You’re white.” “No, I am not. You’re white.” Both were high schoolers. I knew one of them, whose mother was Puerto Rican and whose father Native American. I did not know the other one, but he looked to be mixed race white and black. As the argument went on, I looked around and realized that I was the only white there. For a moment, with the “W” word being tossed around, I wondered whether I should be concerned but decided not to be. I was older and a fixture in that schoolyard and had done favors for the families of some of the other players. My guess is that I was not so much the white guy, as the old guy. I am not sure how the argument was settled, but it did not escalate into anything major. (This was not a typical incident. Although I played basketball for countless hours in the neighborhood, I don’t remember another time of something intended as a racial epithet.)

These incidents may have made me aware of my race, something that does not happen often to this white person, and probably not to most other whites either, but none made me feel deeply uncomfortable. Sometimes while jogging, however, I did feel threatened. I would often use my running as a commuting mode and sometimes that took me through parts of New York where my skin color made me stand out, including the South Bronx, then considered to be an especially dangerous neighborhood.  I did feel conspicuous, and I sometimes heard what I only hoped were sarcastic remarks coming in my direction, but I soon learned behaviors that seemed to defuse any potential problems. Almost always there was a mother with a baby in a stroller on the sidewalk. I would look intently into the stroller as I jogged closer, and when nearby I would smile and then look the mother in the eye and smile even more broadly. Almost always the mother smiled back, and her smile seemed to make others on the block relax. I would also look for young kids, usually boys, on the block. The ten year olds often did make veiled racial remarks, but my response was to urge them to race me to the corner. Most took up the challenge, and seeing me with a kid running neck and neck up the block also seemed to make others relax. (The kids invariably won.)

These methods almost always worked when I ran in “bad” neighborhoods, but for some reason, I found they did not work to defuse any tensions in parts of Harlem, and mostly I stopped running there.

My running led to another incident that was not overtly racial but once again led me to think about my whiteness. I was running through a lily-white, affluent suburb north of New York City. I was not running in fancy running clothes, but, as was my wont, in cast-offs with hair that most would have thought needed a cutting. Why affluent communities can’t afford sidewalks I don’t know, but as a result I was jogging on the side of the road. I was coming up to a nice car at a stop sign with a young woman in it. She saw me and the slightest look of panic came over her face. And then I heard the car locks click shut. I was amused. In the thousands of miles I had run, I was not aware of this happening before, but then I thought, I bet a lot of young black males have heard that clicking sound many, many times.

Heavenly Music From Hell

I once saw the renowned Moses Josiah. Renowned, I say, but in very small circles.  Josiah played the musical saw. His repertoire included some classical pieces, John Lennon’s “Imagine,” and a hymn I associate with my Sunday School days.

The brief program notes said that Josiah said that was recognized as a Master Sawyer by the Sawyer Association Worldwide. I did not know that one who played the saw was a sawyer (some not-in-depth research also found the term “sawist” and “sawplayer”), and I had never heard of SAW. (My research revealed other striking factoids, including that a member of The Pogues as well as Marlene Dietrich played the musical saw, sometimes referred to as the “singing saw.” Don’t you wish you had seen Marlene, bent blade clasped between her knees, bow a saw?)

At the performance, Josiah was briefly interviewed and said that he had learned the instrument in his native Guyana, had been a winner on “The Ted Mack Original Amateur Hour”, and had played for England’s Queen Elizabeth. Josiah then went on to thank the Lord, referring to his musical ability as a gift from God.

I thought of Josiah again as I was reading an Elmore Leonard book published a dozen or so years ago. Tishommingo Blues recounts the oft-told and alluded-to story of Robert Johnson, the seminal guitarist and legendary Delta bluesman. Not much is really known about his life, or death (he was only 27 when he died). Apparently, however, when people first became aware of him, Johnson was merely an acceptable musician and was struggling to play better. He dropped out of sight for a while. When he reappeared, he played the guitar in a style not heard before, a style that has influenced a generation of guitarists, including Keith Richards and Eric Clapton. What caused this transformation? If Johnson ever explained it, that explanation has not come down to us, but the story soon circulated that he sold his soul to the devil. The legend maintains that Johnson met the devil in the shape of a large black man at midnight at a crossroads, and after this meeting, Johnson had a mastery of the guitar like no one before him.

The supernatural notwithstanding, human activity surely played a great role for both Josiah and Johnson. Josiah from birth did not play like he later did. His “gift” was no doubt developed through practice, study, and experimentation, and then more practice, study, and experimentation.  And, no doubt, while he was out of sight, Johnson also practiced and experimented until he found his new style, and then he practiced it some more. But some sort of gift was also involved for them and others. I know that no matter how much I practiced, studied, and experimented, I could never have sung like Pavarotti, hit a ball like Roger Federer, or painted like Matisse. They all had something I did not have and will never have no matter what I do.

But why the different ascriptions? Why is Moses Josiah’s ability or Joan Sutherland’s voice a gift from God while Johnson’s playing came from an unholy bargain with the devil? Why does one come from heaven and one from hell?  I suppose an answer is that for many the blues, played in juke joints and roadhouses, is the devil’s music, but do you really believe in a God who favors a musical saw’s rendition of “Imagine” over Johnson’s guitar playing? And is hell really so bad if it has Robert Johnson down there playing?

Snippets . . . . Snippet It Real Good

After he gives a speech with platitudes and without substance, Donald Trump gets wide praise simply because it was not his usual buffoonish performance. Did the president consciously set the bar this low?

Language matters. Instead of talking about eliminating regulations, we should be talking about eliminating protections.

Sean Spicer, the White House press secretary, said it was “absurd” to suggest any connection between President Trump’s rhetoric and a triple shooting. The shooter was reported to have yelled racial epithets before firing at two immigrants from India, thinking they were Iranians, killing one and wounding the other. Last year I heard frequently from conservatives that the rhetoric from the Black Lives Matter movement had helped cause the shooting of police officers. I wonder if Spicer also found that connection “absurd.” Before that I heard that rap music encourages violence. I wonder if Spicer also labels that connection “absurd.”

“To be conscious you are ignorant is a great step to knowledge.” Benjamin Disraeli, Sybil or the Two Nations.

It used to be that the Presidency was the pinnacle of a person’s life. Now it seems as if it is a steppingstone to a bigger business career.

I daily pass a small grocery store. It is owned by people who came from Yemen. Next to it is a similar store owned by people from Korea. We call them the Korean and Arab bodegas. That seems so New York.

As the country song puts it, there are two things money can’t buy: true love and homegrown tomatoes.

The sign in front of the Catholic Church on 42nd Street said, “Confessions.  Saturday.  4 to 4:30.” A half hour a week for confession! Was it a small congregation or one with very few sinners?

I got to the escalator at a local Target. A man carrying more stuff than I offered to let me go first, but I insisted that he proceed.  When I got to the escalator with him in front I realized that the escalator was not working.  I said to him, “But I expected you to get it to work.”  He immediately replied, “That’s just what my wife says.”

As I passed a group of toddlers 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.”

What’s your line after spotting a sign off a Utah highway: RESTAURANT and HORSEBACK RIDING.  Mine: Do you worry about the kind of meat they serve?

A tidbit for your novel, short story, or screenplay.  Coming around a bend on a trail at the North Rim of the Grand Canyon, I hear a 50ish man in clothes without wrinkles say to four young men in well-used hiking gear, “And in any town, you can call the President of the Rotarians, and he will talk to you.” He then hands cards to each of them, commanding, “You should check it out.”  The four take the cards and trudge on.  Write a page or a paragraph.

JESUS LOVES APPLE PIE, BUT LOOKS LIKE . . .

I went to church recently. This may not be noteworthy for you, but it is for me. It came about because of a visit to Al and Lynn, both of whom are smart, funny, gracious, and charming. This long-time friendship began before Al made a career switch and became a minister, but it has continued on. He is now Pastor of a Congregational Church in Florida.

The sermon on the Sunday of my attendance was on Jesus’ words, as recorded by Matthew, about lust in the heart and plucking out your eye. These are troublesome verses (go ask Jimmy Carter), but Al’s sermon was informative and thought-provoking. This got me thinking about religion and some books on religion that have stuck with me through the years.

In God: A Biography Jack Miles reads the Hebrew Bible as a literary text and examines the character of God. In spite of the religious piety that God is immutable, Miles shows how God developed over the course of the narrative, especially as a result of His interactions with humanity.  God the Creator at the beginning of Genesis changed as He interacted with Adam and Eve. The God who eventually talked to Job is different still. And so on.

At least for me, however, the Jesus of the New Testament does not really develop or evolve over the course of the scriptures.  Instead, different writers have related, but different, conceptions of Jesus.  Matthew’s Jesus is not precisely the same as John’s.  Paul’s versions of Jesus are not all consistent (I know: scholars say that the same person did not write all of the Pauline stuff), and Paul’s depictions differ from those of Matthew, Mark, Luke, and John.  Each writer has either tended to find different characteristics in Jesus, or the writers have created a Jesus to fit their own agendas.

The possible variations of Jesus’ character were not immutably fixed in biblical times.  They have certainly continued in America as Stephen Prothero’s American Jesus: How the Son of God Became a National Icon discusses.  The American Jesus has supported slavery and desegregation; capitalism and socialism; bombing Iraq and pacifism.  He has been a go-getter who would be comfortable at a Rotarian meeting.  The muscular Christianity of Theodore Roosevelt had its Jesus, who perhaps had six-pack abs.   But Jesus has also sweetly taken His place at love-ins.  He espouses Reverend Ike’s or the Osteenian gospel of prosperity but also a Rauschenbuschian social gospel.

But in all these incarnations, He was somehow always an American Jesus.  He had to be. We Americans and our beloved land are blessed; we live in an America that is exceptional, and surely that must mean that Jesus has a special affinity for America. Jesus could be right there with us on the Fourth of July enjoying a hot dog (not necessarily kosher) and apple pie.  If He had wanted to, he would have played a great shortstop. Many American Christians have absorbed without reflection that Jesus looks out especially for America. Americans, it seems, are lucky in another way. We don’t really have to seek to be like Jesus because our Jesus is like us.

He is like us also in his physical manifestation, as indicated by our pictures of Him.  He seems to be of above average height, but not so tall as to be disconcerting. His skin, while not a sickly pale, is a version of white. He is not blond, but his hair is not too dark—a pleasant brown, often with highlights. His face looks like one who has immigrated to the U.S. of A. from some Northern European locale. His eyes might even be blue.  Except for his clothing and that his hair might be a bit long, he would not be out of place in many American living rooms or corporate offices. (It is not surprising that different cultures have created different portraits of Jesus. The Ethiopian or Russian Christian has a Jesus who looks different from the American one, but one that seems more than a little Ethiopian or Russian.  A Renaissance Jesus tends to look, how shall we say, “renaissancey,” and even a Korean or Chinese Jesus tends to reflect a Chinese or Korean culture.)

The historical Jesus, of course, was a Jew from the Middle East—a Semite.  Recently forensic anthropologists have tried to figure out what Jesus really looked like.  If you look at these depictions, you see something much different from the American Jesus. The odds are overwhelming that Jesus was not very tall with dark eyes, almost black hair, and a swarthy skin. He was much more likely to have short hair rather than flowing, shoulder-length locks. And, of course, he likely had what might be described as a Jewish nose. The looks of the real Jesus were unlikely to be of the kind that would fit easily into a Kiwanis meeting, or more to the point, most Sunday services in America. He didn’t look so much like our imagined portraits. He looked like a Mideast terrorist.

So my thought experiment: Imagine that every existing picture of Jesus in America was replaced with a more historically correct one. We hang up pictures that look like, shall we say, Yasser Arafat’s nephew.  How would this change American Christianity?  Might this even change American’s views of the world or America’s foreign policy? Would our faith in Christianity be changed? How?