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A King is Up a Tree

Proverbs 17:12: “Let a man meet a she-bear robbed of her cubs, rather than a fool in his folly.”

I spend much of the summer in a place of 300 homes, often pretentiously called “cottages,” with a golf course, tennis courts, a swimming pool and other sports facilities. The community is surrounded by thousands of acres of woodlands, and as a result residents often see wildlife. Seeing a deer as a kid in rural Wisconsin was a thrill because it was still a rare sight. Nowadays, of course, Bambis and their mothers are common in many communities, including mine.

Twenty years ago, deer were still skittish. A human sound, a voice, a door closing, a car on gravel, usually had the deer bolting into wood cover. Now the deer just raise their heads with brazen looks and seemingly say, “You don’t want me to eat your plants? What are you going to do about it?” I see deer frequently and seldom pay much attention to them, except when I think they might run across the road that I am driving or when fawns are playing near the porch where I am reading or when they run after being startled. A deer in flight leaping over a fallen log is still a beautiful sight. The deer I see, however, are almost always does and fawns. The infrequent sighting of an antlered buck still gets my attention.

I see woodchucks often, usually on the golf course. They bring a smile with their distinctive chubby bodies and waddle. They move slowly but then quickly disappear into a hole.

Wild turkeys also draw attention. Often there are just two or three of them, but on occasion, a flock of a dozen or more are going someplace, but I have no idea where. They never seem in a hurry. Can they fly?

Foxes seem to have increased. I believe I saw only one in my first decade in the community, but now, while sightings are not an everyday occurrence, they are more common.

I don’t pay much attention to birds, except for hawks and eagles, who I will watch soar for as long as possible. Always magnificent.

There is a hierarchy of noteworthiness among this wildlife. Almost never does one mention a deer to a companion except as a warning. And the same is almost always true for woodchucks. Wild turkeys occasionally get a comment. Foxes generally do, but they often disappear before they are spotted by a friend. Hawks and eagles circling in the sky generally draw remarks that often spread beyond the immediate circle. If a person sees a bald eagle while sitting on a restaurant patio, he will often tell not only his tablemates but also those seated at other tables. A hooting barrred owl also gets some attention. But none of these animals triggers a neighborhood network. Only a bear does that.

That is what happened the other night at dinnertime. My cell phone rang. A few moments later the spouse’s rang. And a few moments later, the still-existing landline rang. Picking up, our neighbors told us that a bear was up a tree across the street. Of course, we went to look. There, joined by other neighbors, we see her (we assumed) indistinctly silhouetted against the night sky about twenty-five feet above the ground. She barely moved for minutes but then stretched upwards on the tree trunk looking more than six feet tall. I saw that my garbage can, placed by the road for the next day’s pickup, was on its side. It had not been ripped apart but opened with the kitchen garbage bag gone. We looked, we chatted, we laughed, we told stories, and the bear stayed in the tree. We finally decided that we should all leave so that the bear might come down and go about its business.

A bear sighting is the most exciting one among us cottagers, and when it happens, stories circulate in the community. For me, all my infrequent bear sightings—the one in the distant field, the one on the back porch, the one peering in the front window, the one with two cubs–are memorable, and I can give you details of every time I have seen one. There are many animals around here, but the bear is king.

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Snippets

A well-known fact: Inflation was low while Trump was president. A lesser-known fact: Inflation was lower while Obama was president.

A wise person said: “He uses statistics as a drunken man uses a lamppost—for support rather than illumination.”

We are selling the house we have lived in for forty-seven years. We will pay a capital gains tax because the house has appreciated considerably in monetary value. That has me thinking about yet another tax advantage for those who have always had money. Imagine two people buying the same house for the same price. They improve the house in exactly the same way. They sell the house for the same price. They will both have to pay a capital gains tax on the amount they sold the house for minus the house’s base. That base will primarily consist of the price they paid for the property plus the capital they have put into the house. But one of them only had barely enough money to carry the house while he owned it so he did the work himself for every improvement. The other owner was always well-to-do and hired other people to make the improvements. The first owner’s sweat equity does not count as a capital expenditure for the capital gains tax. The other owner’s payment to construction companies and the like is a capital expenditure. Thus, when selling, the rich guy has a higher base for his house and pays a lower capital gains tax than the other person.

Political ads and stories predominantly on conservative outlets highlight murders and assaults committed by “illegal aliens.” Of course, such crimes happen and can be horrific. However, numerous studies have shown that illegal immigrants commit murder at a lower rate than native-born Americans and that legal immigrants are convicted of murder at much lower rates than the native born or illegals. You want a safer country? Deport those who were born here.

I wrote a few posts ago that I face-planted myself on a golf course and how I responded facetiously when I was asked about the noticeable face discolorations. I said that I needed more replies. Some more possibilities: “I forgot how strong the spouse is.” “Do you want my version or the truth?” “In today’s world, it is never too early to get ready for Halloween.” “I did not know that golf was a blood sport.”

Among the unwanted consequences of the face-planting is that people tell me about their falls. I only say something about my mishap if I am asked what happened. Otherwise I keep it to myself. Many, however, who have, like me, literally fallen on their faces, figuratively fall on their faces when they hit the five-minute self-involved narration point, having felt, for reasons not apparent to me, compelled to share their face-plant experience with me and anyone else who is listening. 

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If It’s Close, It’s an Out

The baseball season is closing in on its home stretch. (Mixed sports metaphors.) The baseball season is always long with much boredom and some excitement. (Shohei is oh-mazing; Judge is airing them out; and Skenes may be a new pitching phenom.) Perhaps this should get me to reminisce about my baseball career, but that was mediocre (a generous assessment) and ended with high school. (However, I did hit a walk-off home run in my first organized game. I was twelve. I never matched that highlight. Cue Springsteen and “Glory Days.”) Instead, for some reason I am thinking about my professional baseball career, for during summers of my high school years, I umpired games for which I got paid.

My town did not have the official Little League youth baseball, but it had its own version run by the Recreation Department. It had divisions by age—nine and ten, eleven and twelve, up to eighteen.

I got the job by passing a test but not one that measured the ability to call a baseball game with any accuracy. Instead, it was like a school exam, except this one was on the rules of baseball. I went off to Joe Hauser’s, the local sporting goods store. (Hauser, known as Unser Joe, had his own amazing baseball career. You can check it out.) I bought a baseball rules book and read it a few times. I was good at tests and was confident, especially because I had been tipped off to the trick question that appeared every year. It asked what the proper call was if a line drive hit the pitching rubber and bounced back into foul territory between third and home without touching anyone. Of course, the correct answer is “Foul ball!” (Every semi-literate baseball fan knows that the distance from the pitching rubber to home plate is sixty feet six inches, but most do not know whether that is to the front or back of home plate. Even fewer know where the measurement is to the front or back or center of the pitching rubber.) Not everyone who took the exam on a spring evening (all boys, of course; I don’t know what would have happened if a girl had showed up to be an umpire) was a diligent student, but I was, and I easily got one of the open umpire slots.

In every job I have had, I have learned things. With that first job, I may have learned something about discipline and responsibility, and so on. But I certainly learned in detail about baseball rules. I also learned a few tips about umpiring, but I can’t imagine how. We had no mentoring about calling balls and strikes or about baserunners. Maybe I read it somewhere; maybe somebody who had umpired for a while told me that it was easy to determine when a pitched ball was too high: Crouch down until your eyes are level with the top of the strike zone. Of course, any pitch above that was a ball. Balls thrown near knee height were much harder to call.

In those days there were separate crews of umpires for the National and American Leagues. In the days before the American League adopted the designated hitter, the game in both leagues was supposed to be the same. Even so, the umpires did some things differently. They wore different protective gear and also positioned themselves differently. The American Leaguers stood squarely behind the catcher and looked over his head. The National Leaguers looked over the catcher’s shoulder. My favorite team was in the National League so I adopted the shoulder position.

I thought that I knew how to call balls and strikes, but I quickly learned that calling the bases was not as simple as I may have assumed. I was the only umpire in games with nine- and ten-year olds or for eleven- and twelve-year olds. I had to make all the calls at home plate and at other bases as well. When there was going to be a play at first base, I would jog out to a place between the pitcher and the base. Most often the call was obvious, but soon I learned the limits of human eyesight. If the call was close, I could watch when the feet were on the bag or I could watch when the first baseman caught the ball. I could not do both. Then, somehow, I learned that umpiring was not just seeing but also listening. Major league umpires at first base watched the feet but listened to hear the ball being caught. If the sound preceded the sight of the runner’s foot on the bag, he quickly looked up to see whether the ball was secure or being bobbled.

Tag plays presented their own problems. Sometimes it was hard to be in the correct position to make the call. (In the majors, if there is a runner on first, the second base umpire moves from the outfield to the infield to best observe a likely tag play. That infield position leads to the possibility of umpire interference, which seldom happens, but is almost never understood by the fans when it does.) Even if I was in the correct position, it was sometimes difficult to tell whether the fielder swiped the runner with the ball. Even if that was clear, a similar problem could occur at first base. The tag was often on the rump or back or shoulder of the runner, and it could be difficult sometimes to tell whether the foot got to the base before or after the tag. I didn’t need to make a hard call often. For the under twelves, runners could not leave the base until the ball was pitched. There were few attempted steals unless the ball got away from the catcher, and then the call was usually obvious. Outfield throws were often wild or looping leading to an easy call, but the few close plays could be important to the game. I never learned how to deal effectively with making a bad call. Once when I umpired an all-star game, I stuck out my right hand for a strike on a pitch that was way too high. I knew my mistake instantly, but I had no guidance on what I should do and let the call stand. To this day I feel sort of bad about it.

There was another situation that I felt unsure about: when, if ever, to throw a kid out of the game. Thankfully, this seldom occurred. The ten-and-unders were mostly unformed in the personality department and almost never presented a problem. The eleven- and twelve-year-olds, however, were on their way to being human beings. Many were quick-witted or wiseasses, filled with jokes to throw at me, curious about the world (mostly that meant trying to find out what high school was like and whether it was true you might get attracted to girls). So there came a time when one young player swore at me. I asked him what he had said to give him a chance to back away or apologize for the expletive. He repeated it (whatever it was), and I tossed him from the game. That made me uncomfortable. Was I wrong?

On the other hand, I don’t remember ever getting the indicator wrong. This is a little plastic thingamabob placed in the left hand. Mine had three holes and three wheels. Turning the wheels made different numbers appear in the holes to indicate balls, strikes, and outs. (Fancier ones also had an innings opening.) With my indicator, I at least always had the count right.

I also learned that it paid to get to work early. There were four fields where I umpired, and gear—masks and chest protectors–for four umpires. I needed a mask that could accommodate my glasses, but the other guys, who could see unaided, were good about letting me have the one that worked for me. The chest protectors also were not all the same, and sometimes this mattered. The spectrum of physical development of twelve-year-old boys is broad. Some of them are close to adulthood, and these big guys often were the pitchers. These kids played on a softball diamond, and the ball hurled from forty-six feet arrived at the plate with remarkable rapidity. This was not just the batter’s problem; remember, I umpired standing behind home plate. Often the pitcher’s skill far outshone the catcher’s, and I could not be sure that the pitches would not hit me. If I knew it was going to be one of those days, I got to the park extra early to snatch up the only blowup chest protector, which best absorbed the thump of a thrown ball. Even so, I still could leave with a bruise or two.

I quickly learned that I hated umpiring nine- and ten-year-olds. This was in the old days, so this was not T-ball or a game in which an adult tossed underhanded to a batter. No. There was a pitcher and a batter, and the pitcher invariably could not pitch and the batter invariably could not hit. And if a ball miraculously got into play, the fielders could neither catch nor throw. These young ones could not play the game. Period. This was also the time before the mercy rule, which allowed a game to be called if one team got really far ahead. Thus, the games could be interminable. Every time I umpired one of these games, I felt as though the hourglass sand was endlessly replenished. On these days, I woke up hoping to hear a downpour that meant the game would be cancelled. You can gauge how much I hated this by the fact that I did not get paid if the game was not played. The loss of money was worth not having to umpire these endless games. When I did umpire the ten and unders, though, I did not cheat in my calls. Nevertheless, if the pitched ball could be a ball or strike, it was a strike. If the runner could have been safe or out, he was out. It seemed important to move this endless game towards a conclusion.

At the time I felt that there was a bigger life lesson here: If it’s close, it’s a strike. If it’s close, it’s an out. But now, almost seven decades later, I still don’t know what that lesson is.

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The Planted Face

“Everything is funny as long as it is happening to someone else.” Will Rogers.

My ball was thirty yards from the cup, but it had a steep uphill, sidehill lie. I hit my pitch—not surprisingly for me, not very well. I turned to return to the golf cart five yards away, but my foot caught the uphill grass. I knew instantly that I was about to plant my face on the downhill turf without being able to break the fall.

Tony, my playing partner, came over to assist me, but I got up more easily than I expected. I took stock. My nose was not broken. Blood was not gushing from the nostrils, as I had expected. I apparently had landed on the bottom of my forehead, not the middle of my face. My glasses had slightly gouged the space between my eyebrows and pushed hard into my cheeks right below my eyes. No blood poured off me but seeped from the gouged place and from a cut on my lip, but overall, I did not feel terrible. No major aches and pains. We continued on with our nine holes with me dabbing at the oozing blood with a golf towel that by happenstance had been freshly laundered.

I bailed on my usual lunch with Tony after golf and headed home. The spouse looked up from her reading as I stepped on the porch, and after explanations, she swung into nursing mode. Band-Aids, gauze, and adhesive tape were applied. She went to CVS to get more supplies, and I got additional medical attention. I looked in the mirror and so much had been applied to my face, I looked like Hannibal Lecter. Eventually, the seeping blood stopped.

The next day I carefully removed the dressings and decided not all had to be reapplied. I went to the mirror to assess. No pretty boy looks were in attendance. I had that gouge between the eyebrows. My nose was discolored and even more bulbous than usual, as if I had lifted it from W.C. Fields. I had a cut lip and a black and blue mark bruise on my chin. Most noticeable, however, were two black eyes with a significant mouse below the left one as if I had been hit with a heavyweight hook in the second round. There was no way to hide my racoon face except with a ski mask, which was not seasonally appropriate.

People were going to ask what happened. When that first happened, I said, “Don’t ask, but you should see her.” Then I tried, “The Pennsylvania barmaids are really fierce.” And then, “Next time I will give Tony the three-and-a-half-foot putt.” (I am convinced that three-and-a-half is funnier than three-foot or four-foot, but I don’t know why.) However, I am on blood thinners, and I will have the discolorations for a long time. I will be needing some more snappy come-backs.

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Snippets

The nurse watched me walk the fifteen steps from my bed to the bathroom. My first few were shaky, but they got better. I was superb getting back to the bed. I said, “So I don’t need you to go to the bathroom.” She responded, “But I would prefer that you call me.” I said, “Do you know how many women have said that to me?”

I have many identities. One of them is as a catless parent.

My Amish amigo Amos at the greenmarket works as part of a construction crew with other people from his church. I asked if there was music while they hammered and sawed. He said, as I knew, they had no radio. The only music came when one of them sang. In reply to my question, he said the songs were always religious, but Amos said that he knew a lot of country songs. He hears them when is driven to the market or the construction site by an “English” driver. The drivers can play the radio and apparently country music predominates. I said that an Amish can’t sing country songs since they are all about how I got drunk last night and my woman left me. Amos smiled. His sister Sadie laughed.

He says that his crowd numbers were huge, larger not only than hers, but larger than those of MLK, Jr. An obsession over size, size, size. Soon I expect him to whip it out of his pants and proclaim, “It is larger than hers.”

“When he lies, he speaks according to his own nature, for he is a liar and the father of lies.” John 8:44.

Was it the Paris Olympic or the Paris Olympics?

Why is it called water polo. It does not have to be played right-handed like polo. It does not use anything like mallets. Unlike polo, it has a goalie. Unlike polo, it has something like a penalty box. Would water soccer or water hockey have been a better name?

My life would not have been unfulfilled if I had never had pimiento cheese. [The spouse disagrees.]

According to Chris van Tulleken in Ultra-Processed People: The Science Behind Food that Isn’t Food, near the end of World War II, “the average U-boat crewman lived for only sixty days from boarding the ship.”

Pennsylvania has a close Senate race. The incumbent has run ads stating that the challenger invested in a Chinese company that makes fentanyl, implying that this has affected the state’s fentanyl problem. As the factcheckers often say, the ad lacks context. The challenger did invest in the company, but that pharmaceutical corporation makes fentanyl legally. Perhaps part of its output gets diverted to the illegal market, but if so, the incumbent’s ad does not present any information to support such a claim. The challenger has responded by saying that he never invested in Chinese pharma making illegal fentanyl. True, but he then goes on to imply that the real cause of the fentanyl problem is the southern border. This, too, lacks context. He presents no information that major amounts of fentanyl get into this country via illegal border crossings instead of legal ones. It also ignores that death from synthetic opioids soared while Trump was president. There were 19,500 such deaths in 2016, the year before he became president. That increased to 28,659 in 2017, 31,525 in 2018, 36,603 in 2019, and 56,894 in 2020.

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First Sentences

“In my defense, it was not my intent to write this book.” Naomi Klein, Doppelganger: A Trip into the Mirror World.

“Before Mazer invented himself as Mazer, he was Samson Mazer, and before he was Samson Mazer, he was Samson Masur—a change of two letters that transformed him from a nice, ostensibly Jewish boy to a Professional Builder of Worlds—and for most of his youth, he was Sam, S.A.M. on the hall of fame of his grandfather’s Donkey Kong machine, but mostly Sam.” Gabrielle Zevin, Tomorrow and Tomorrow and Tomorrow.

“Millions of people have formulated the wish, often unexpressed, that the lessons learnt from the philosophy of Gamesmanship should be extended to include the simple problems of everyday life.” Stephen Potter, Lifemanship: Some Notes on Lifemanship with a Summary of Recent Research in Gamesmanship.

“Some years ago, there was a boomlet of books about how the Greeks or the Jews or the Scots ‘saved’ or ‘invented’ the world.” Fareed Zakaria, Age of Revolutions: Progress and Backlash from 1600 to the Present.

“My name is Serena Frome (rhymes with plume) and almost forty years ago I was sent on a secret mission for the British Security Service.” Ian McEwan, Sweet Tooth.

“It was the start of a very important year—1776—and James Cook had become a very important figure, a celebrity, a champion, a hero.” Hampton Sides, The Wide Wide Sea: Imperial Ambition, First Contact and the Fateful Final Voyage of Captain Cook.

“On our wedding day I was forty-six, she was eighteen.” George Saunders, Lincoln in the Bardo.

“The first weekend of my 80 per cent [ultra-processed food] diet was one of those freakish autumn days when summer briefly returns.” Chris v. Tulleken, Ultra-Processed People: The Science Behind Food that Isn’t Food.

“There were children, and then there were the children of Indians, because the merciless savage inhabitants of these American lands did not make children but nits, and nits make lice, or so it was said by the man who meant to make a massacre feel like killing bugs at Sand Creek, when 700 drunken men came at dawn with cannons, and then again four years later almost to the day the same way at the Washita River, where afterward, seven hundred Indian horses were rounded up and shot in the head.” Tommy Orange, Wandering Stars

“The reedy and excitable twenty-six-year-old recent Harvard Graduate, full of anticipation, was motoring out to an open field in Potsdam, Germany, to attend a Nazi youth rally.” Rachel Maddow, Prequel: An American Fight Against Fascism.

“Some years ago there was in the city of York a society of magicians.” Susanna Clarke, Jonathan Strange & Mr Norrell.

“When writing about the deep ocean, the first question that arises is: What is it? At what point does the ocean become the deep ocean?” Susan Casey, The Underworld: Journeys to the Depths of the Ocean.

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It’s No State’s Secret: Lessons for the Federal Government

Comments and decisions are often made about what is essential, valuable, or desirable for the functioning of our national government without reference to important laboratories—our state governments. The states are structured much like the federal government with three branches of government, but there are often significant differences between state and federal operations. Those distinctions can shed light on the merits of federal structures.

For example, in this presidential season we can expect comments about the usefulness of the electoral college with assertions that it is essential to our freedoms. Such discussions should consider the states. None of them has adopted anything like an electoral college. Instead, all choose their governors by the direct vote of the electorate.

Another example: The United States Supreme Court bestowed presidents with immunity from criminal prosecutions. The decision rests on assertions that such immunity is necessary so that presidents can properly carry out their executive functions. The opinions do not mention that many governors throughout our history have been criminally prosecuted. The Court did not discuss how, if at all, such prosecutions influenced the effective functioning of state governments.

But what has most recently triggered my thinking about state governments is President Biden’s proposal to enact term limits for Supreme Court justices. According to news reports, Biden is proposing that each president will be able to appoint a justice to the Supreme Court every two years. After eighteen years of service, a justice would go on “senior” status and hear a case only if one of the nine active justices could not sit on it for some reason.

I can’t imagine that Biden’s proposal has a snowball’s chance of being enacted, but it has still produced an outcry. For example, an e-mail I recently received says, “These so-called court ‘reforms’ include ending life tenure for Supreme Court justices and a binding code of ethics for the justices that would be overseen by Congress. President Biden’s plan is a thinly veiled political scheme to intimidate and control the U.S. Supreme Court justices. This would threaten an independent judiciary and the rule of law.”

We could parse that passage but instead this is a time when we should look at state governments to calculate the dangers to an independent judiciary of an eighteen-year term. States, too, want their high court to be unbiased, but almost all states have rejected the federal model.

Rhode Island is the only state to grant life tenure to its Supreme Court justices. Two other jurisdictions allow service until the justice reaches seventy. In the other states, the justices have limited terms, which often are quite short compared to how long many of our federal justices now serve. New York has the longest term at fourteen years. Eleven states have ten-year terms. The rest have fewer than ten-year terms with fifteen states limiting justices to six years.

At least from what the states overwhelmingly indicate, life tenure for justices is not necessary for a good judiciary. Indeed, the clear rejection of that life term seems to indicate that the states have concluded that life tenure is bad for good government.

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Tommy Orange and Richard Henry Pratt

Tommy Orange places Richard Henry Pratt in the backstory to his novel Wandering Stars, a sequel to his award-winning There There about American Indians in Oakland, California.

The nonfictional Pratt had been a soldier who fought for the North in the Civil War and then served in the West pursuing, fighting, and negotiating with Indians. He was the primary force behind the famous Carlisle Indian school, whose philosophy influenced many other Indian schools established by the federal government. Pratt believed that Indians were deserving of a place in American society and that racial differences were not innate but the product of environmental factors. He believed that Indians could–and should–integrate into mainstream white society, but here was the catch: He thought this was possible only if the Indians abandoned their tribal communities and culture.

Pratt’s theories required a school away from the native lands. The Carlisle Barracks were an old twenty-seven-acre army installation. They had been damaged in the Civil War and then abandoned. Pratt talked the Army into allowing him to set up the school in the sixteen buildings that needed renovations. Almost immediately, Pratt constructed a seven-foot fence around the property as both a screen against sightseers—the townsfolk were curious about the young Indians—and to control the students.

The school separated both boy and girl students from their language. They were to speak only English. Uttering a native language was punished, and students from the same tribes were scattered among separate dormitories to break up tribal culture.

The students were also separated from their names, partly because the white teachers could not pronounce Indian names, but also to remove another aspect of their Indianness. As Sally Jenkins put it in The Real All Americans: The Team that Changed a Game, a People, a Nation (2007), when they had new, Americanized names, another “piece of their Indian selves had been taken away.”

The males were separated from their hair and that, too, separated them from their heritage. Jenkins reports that braids were a symbol of maturity for Lakotas, who only cut their hair when in deep mourning.

And they were separated from their traditional clothing, often colorful and distinctive. Instead, they all had to dress in drab uniforms, and the students became “an indistinguishable gray mass with no discernible outward differences.”

The very nature of the school itself, however, separated the students from a fundamental aspect of their heritage. Indian tribes had varied cultural differences, Jacqueline Fear-Segal reports in White Man’s Club: Schools, Race, and the Struggle of Indian Acculturation (2007), but in no Indian community was education a discrete endeavor conducted in a separate institution or by “teachers.” Education was woven into everyday patterns of living and took place informally in daily interactions.

The school took an undeniable personal toll on students: it erased their personal histories, sundered families, and obliterated their languages, faiths, and traditions. The goal was not to kill a people, but even so, the goal was to wipe out the Native Americans and replace them with something else.

 The school taught subjects whose successful completion was supposed to be equal to an eighth-grade education, but the students were also taught trades and agriculture. To further this training, the Carlisle school had an “outing” program where students were sent to work and board with local families. Students were thus to be introduced to American society and taught to be wage earners. As with much at the Carlisle Indian school, the outing program had mixed consequences. Many of the white families treated the students well, and lifelong bonds were often formed. Other families, however, merely saw a source of low-wage labor.

The influence of the Carlisle school began to wane in the early twentieth century for two reasons. First, sentiment against off-reservation schools began to build. Moreover, Richard Henry Pratt, who apparently found it difficult to act diplomatically with his superiors in Washington, was removed as head of the school in 1904. He was followed by administrators with little ability. The school was finally shuttered in August 1918 and converted to a hospital for wounded soldiers returning from World War I.

The school’s legacy is mixed. Many who passed through its gates praised it; many condemned it. Although the students were encouraged to remain in the East after leaving the school, the vast majority returned to the reservations, many of whom went back “to the blanket.” Jenkins suggests that as an educational school, Carlisle was not a success. Of the 8500 students who passed through Carlisle, only 741 received degrees. However, many others also went on to graduate from public school, which Pratt counted as successes. From its inception, Pratt thought that the school should only be temporary and wanted Indians integrated into white society and enrolled in public schools. Jenkins, however, also concludes that the Carlisle Indian Industrial School was successful as a training institution: “[T]he federal Indian agencies were full of Carlisle graduates working as teachers, clerks, interpreters, police, lawyers, blacksmiths, farmers, bakers, and tailors.”

Overall, however, the Indian school movement has increasingly been seen as a well-meant mistake. Jenkins says,  “Like so many other federal experiments regarding the Indians, what in 1879 was seen as a creative solution had come to seem wrongheaded. Humanitarians argued that removing children from their homes was cruel and counterproductive. Still others believed that Carlisle created false expectations and that it ill-equipped students for the grim realities of life back home. The school took an undeniable personal toll on students: it razed their personal histories, sundered families, and obliterated their languages, faiths, and traditions.”

The obliteration of language, clothing, hair styles, and other cultural hallmarks may have made sense when the goal was to integrate American Indians into the economy and culture of European-Americans, but the policies went beyond that goal. Not just Pratt, but European descendants more generally, seemed almost personally and morally offended by communal practices of indigenous peoples who believed that land could not be owned by individuals. For them, the land was shared by all. European-Americans, however, believed that freedom and a sound economy depended on private property. Thus, Troy Senik writes in A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland that Cleveland did not seek to eliminate Indians. He believed in assimilation by which he meant education and speaking. But most important, Cleveland felt, the collective ownership of land by Indians must end.

This antipathy to shared or non-ownership of the land was not simply a product of America’s post-Civil War Gilded Age. Peter Stark in Gallop Toward the Sun: Tecumseh and William Henry Harrison’s Struggle for the Destiny of a Nation says that a chief goal of Harrison’s dealings with Indians on what was then the Illinois frontier was to end collective land ownership. When Pratt taught his students that they must give up communal lands, he was only teaching what government officials had been trying to accomplish for a century and were implementing across the continent. Shared lands on western reservations were broken up into parcels of private ownership. Jenkins notes that the U.S. government did not believe in sharing or communalism; it believed in private property. An Indian needed to be taught out West and at Carlisle “so that he will say ‘I’ instead of ‘We’ and ‘This is mine’ instead of ‘This is ours.’”

Why did the European-Americans have such antipathy to communalism? I don’t know, but I believe it is a thread that runs through much of American history and is not limited to relationships to American Indians. Perhaps someone can point me to good studies on the subject. But I do wonder if our world might not be better if we thought more about this earth in terms of “we” and “ours” instead of “I” and “mine.”

Posted on by rjonakait

Avoiding Jury Service

The college friend, having just gotten a jury questionnaire, asked whether a person over seventy can take an exemption from New York jury duty. He has a medical condition that keeps him close to a bathroom in the morning. The 45-minute subway ride would be scary. Otherwise, he would be happy to serve.

He had found previous jury service fascinating. He confesses that his Columbia University neighborhood is insular. At past jury duty he observed a much wider range of people than he usually encounters. This is not surprising since the Manhattan jury pool is deep. It is drawn from the entire borough—about 1.7 million people–which includes people other than academics, lawyers, investment bankers, and rich housewives. The friend told me in one jury selection the prospective jurors were told that the case would depend heavily on police testimony. The New Yorkers were asked about their ability to evaluate such testimony. The friend said that a Yorkville bartender said that he would never believe that a police officer would not tell the truth. Right after him a man who lived in Washington Heights, an area heavily populated by people with roots in the Dominican Republic—Manny Ramirez played high school baseball there and Alex Rodrguez was born there—said that he distrusted the police stemming from the murder of his closest friend.

Despite his past jury experience, my friend was pleased that he could take an exemption for being over seventy.

When I first started trying cases oh so many years ago, there were many other exemptions from jury service in New York. Most were occupation-based. The relevant statute said “a clergyman officiating as such; a practicing physician, surgeon, or surgeon dentist having patients requiring his regular daily professional attention; a licensed pharmacist, a person belonging to the army, navy, or marine corps; a captain, engineer, or other officer actually employed upon a vessel; an attorney regularly engaged in the practice of law; a duly licensed embalmer, a woman” could all claim an exemption from jury service.

Yes, being a woman was sufficient to get a jury service exemption. As the title suggests, no women were on the jury in Twelve Angry Men. It was set in New York at a time when women could be automatically exempted. When the spouse got a jury service notice back then, I was working as a public defender. I could not imagine that she would get selected for a jury. She took the exemption.

A few years later, however, the United States Supreme Court held that the systematic exclusion of women from jury pools violates the Constitution. New York revised its criteria for juries. Women were no longer exempt, and the job-based exemptions also disappeared. (The spouse has never served on a trial jury, but she was a grand juror for a month.)

My exemption as an attorney also ended, and I have been called for jury service several times. This process begins in a large room with a hundred or more people who have been called as potential jurors. The first time I was in a central jury room we were addressed by a clerk about jury duty, but that was later replaced by a slickly produced film about the importance of juries. I did not know whether to be amused or shocked by it. The film told us about the seminal trial of John Peter Zenger in 1735.

German-born Zenger, in a time when this land valued immigrants, published a New York City newspaper, at a time when this land valued newspapers. The Weekly Standard viciously, sometimes amusingly, attacked William Cosby, the greedy and arrogant British colonial governor of New York. Cosby, who appreciated neither the viciousness nor the humor, had Zenger charged with criminal libel, a crime not known today. Cosby handpicked the judges and had Zenger’s first attorneys disbarred. Andrew Hamilton, no relation to Alexander Hamilton, the Founding Father and later a rapper, came up from Philadelphia. The judges would not allow Hamilton to prove the truth of the supposedly libelous statements. Truth, they held, was not a defense. The only issue was whether Zenger had published the statements, which was admitted. Instead, Hamilton turned to the jury and appealed to them directly. Jurors, he argued, you are of this locality, and you know the facts. You know what Zenger said was true. He should not be punished for speaking the truth. The jury, after a few minutes of deliberation, acquitted John Peter.

In our history’s lore, the Zenger trial shows that juries can provide a bulwark against an executive’s dangerous use of criminal charges and also as a bulwark against dangerously compliant judges. The jurors formed that wall in Zenger’s case by ignoring the judicial interpretation of the law, what some call jury nullification.

The film shown to us potential jurors praised the Zenger jurors. The film then went on to the duties of today’s jury service. Buried in this information was the statement that jurors find “facts” but must apply the law the judge instructs them to follow. So much for jury nullification. The film’s producers had either forgotten about the ramifications of the Zenger trial or had never understood them, for no explanation was given as to why the law should be different today from those days of yore.

One of the times I was voir dired (voir dire, in legal lingo, is the process for the selection of trial jurors), I was specifically asked about whether I could accept the law as the judge gave it to me. I was not alone. I and thirty or forty others were called from the jury room and told to report to a specified courtroom. I was shocked when I entered. There was Kevin. I had played tennis with him several times at a nearby club. I knew his name and that he was a better tennis player than I. Although occasionally I might take a set, I generally lost by 6-3 and 6-4. He was not in tennis whites now. Instead, he was in a robe sitting up high. He was the judge for the trial.

When it was my turn to be questioned, he flattered me by saying that he knew that I was an author of a standard New York evidence book, but would I be able to accept his rulings? I assured him that I could. He asked if there was anything I would like to add. Earlier Kevin had introduced the attorneys who would try the case. Although I did not recognize him by sight, I was familiar with the name of one of the lawyers from my days as a public defender. I told the judge that I had no specific memory of working with him in those days, but Mr. Peck and I must have encountered each other. Peck who had had his head down taking notes, looked up, and squinted in my direction without a look of recognition. He asked for my name again, and when given, he gave the slightest nod to me. I was excused from that jury.

I was also excused from a federal criminal jury after I told the judge and attorneys that I had been a public defender and taught criminal law and criminal procedure., In a civil trial, the plaintiff was suing the landlord about a window that had fallen shut on her. In the voir dire we potential jurors were asked whether we had knowledge of personal injury law, had connections with medical personnel, or had been a landlord. I told him that I taught torts, the basis of personal injury law; that although the spouse was not a medical doctor, she had received her Ph.D. from a medical school; and that I had rented out two floors of my four-story house, so I had been a landlord. In a somewhat amazed tone the lawyer averred that often someone had something to say about one of the three areas, and once in a great while about two of them, but this was his first “trifecta.” I was excused from that jury.

I was never selected and was never upset by that. A subset of my fellow potential jurors would take it personally when they were not chosen. (Most, however, sighed with relief when they were excused.) I had never expected to be selected. I had picked juries as an attorney. I had written a book about the jury system. And I knew how important juries were to the Founders and to our present justice system. It would not have been right to avoid jury service, I thought, and I didn’t avoid it on purpose.

For me, however, confident that I would not be picked for a trial jury, it was a stress-free time. Instead, I could reflect on the astonishing diversity of Brooklyn’s potential jurors. These were people with many shades of color and many kinds of jobs and differing education levels and wealth. As the juries were assembled, it was easy to see what I already knew: Juries are our most representative institutions. They better mirror who we are as a community and a country than our legislatures, governors, presidents, or judges. The Founders knew the strength of juries, and it has made me a proud American to see the jury system in operation.

Posted on by rjonakait

Snippets

I mourned the death of Bob Newhart. I had enjoyed him in his eponymous sit-coms, his appearances on The Big Bang Theory, and his banter with Johnny Carson, but I most admired his innovative telephone calls where he presented a new kind of comedy. The routines were funny but, in an indefinable way, subversive. Perhaps as a result, I am the only person that I know of to have cited Bob Newhart in a law review article.

The Supreme Court was in the midst of a series of cases interpreting the right of confrontation in the Constitution’s Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The meaning is not clear from this text and almost nothing in the constitutional debates illuminates them.

Courts and legal academics, including me, weighed in with many people saying that the right could be traced back to the 1603 trial of the cloak-spreader, Sir Walter Raleigh. Raleigh was convicted of treason after the prosecution used affidavits in his trial instead of witnesses who Raleigh could cross-examine. Without going through the legal disputes, I had doubts about the overly confident assertions of judges and academics, such as this one by Justice Scalia: “Raleigh’s infamous 17th-century treason trial remains the canonical example of a Confrontation Clause violation.” And thus, my Newhart reference. After criticizing the views of others, I wrote, “At this point, however, the vision becomes obscured, perhaps by the smoke from the tobacco that the sometime-historian Bob Newhart suggests Raleigh brought back to Europe.” (You can, and should, look up Newhart’s version of the Raleigh telephone call. When you are through with that, look up the Abe Lincoln call.)

R.I.P. Bob Newhart

My Newhart citation was in an article titled, Confrontation Clause Curiosities: When Logic and Proportion Have Fallen Sloppy Dead. Extra points if you get that reference.

Few may know about the constitutional right of confrontation, but almost everyone has heard about the Second Amendment, although discussion of it has been largely absent in the wake of Trump’s shooting. When he carried the gun to the rooftop in the attempted assassination of Trump, wasn’t the young man just exercising his Second Amendment rights? In the shooting’s aftermath, I have not heard the NRA mantra: “The only thing that stops a bad guy with a gun, is a good guy with a gun.” However, I believe that to go to Trump’s rally, you had to surrender your firearms. Don’t the Second Amendment fanatics believe that they should be able to carry guns to a political event? Don’t they believe that they are good people who would have stopped the bad guy? Why should there be a Second Amendment right to carry a gun in Times Square but not to a presidential rally?

“The only freedom which deserves the name is that of pursuing our own good, in our own way, so as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.” John Stuart Mill.