Judge For Yourself

(Part two of the discussion on Constitutional changes relating to the Judiciary.)

Republican presidential candidate Mitt Romney says rival Newt Gingrich's idea to send Capitol Police or U.S. marshals to bring judges before lawmakers to explain their decisions is neither practical nor constitutional.

Romney says the answer to out-of-control judges is not to tear up the Constitution and say that Congress is the ultimate power in the country. Instead, he says the Constitution should be followed when it comes to removing judges or reversing judicial decisions.ⁱ

Judicial activism is raising a lot of political hackles. Whether a particular action is justified,ⁱⁱ there is no question that the power of the courts to “interpret” the law also allows them to create it. That is why the ability to appoint Supreme Court Justices (and other Federal Judges) is one of the most important of the President – an idea that is loudly proclaimed in the presidential campaign. It is why judicial policy is such an important part of the debate when politicians frame their platforms. And, to a degree, it's fruitless to argue that the Justices' actions violate the Constitution, since they're the ones who will make such a determination.

A typical example involves privacy. Although it is never mentioned in the Constitution, and despite the Tenth Amendment which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” in Griswold v Connecticutⁱⁱⁱ the Court found that privacy was guaranteed by the Constitution. The First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, said the Court, provided such a guarantee, even if they didn't mention privacy. According to the majority, it existed in the “penumbras” and “emanations” of other protections offered by the Constitution. Thus Connecticut's law against contraception was unconstitutional. This decision was not “reserved to the States” despite the Constitution. And in 1973, in Roe v Wade^iv and Doe v Bolton,^v the same doctrine of privacy was the basis for sanction of abortion – also not mentioned in the Constitution. Because of the opinions of individual Justices about the importance of privacy and the propriety of contraception and abortion, since these matters were not treated in the Constitution, hooks had to be found to justify these personal opinions and judicial decisions. The Court was, in reality, legislating.

It is not at all clear that the Founding Fathers intended that Justices with lifetime appointments should have this power, but that is the way it has turned out, and no one questions it any more. Perhaps, however, that situation should be reviewed. Although “We the People” may have been the originators of the Constitution,^vi “They the Courts” have arrogated to themselves the definition of what “We” meant, and what is right for us. If there is to be any meaningful system of checks and balances, we need to rethink the system under which we live and, possibly, revise it.

Someone has to have the responsibility of determining what our laws mean. That's not arguable.^vii And the judiciary created by the Constitution seems to be the appropriate party. But with the goal of a court system which will consider public opinion – even if it does not accede to it – some alternative measures are worth exploring. After some basic questions are posed.

Should judges be elected? Should they be designated by experts? How can we make them more responsive to public wishes? Should we? How, if we do so, do we protect minorities? Is there any way to review laws passed by Congress, and court decisions? To what degree should public opinion play a part in such reviews?

Before answering these questions, though, it is important to note that “activism” is not solely a feature of the judiciary. The legislative branch – Congress – spends most of its time in activism – framing laws that will govern our actions. We may not agree with these laws but we're bound by them as long as they are on the books. And the executive – the President – will frequently issue “Presidential Orders,” often covering areas of law or procedure that he believes have not been dealt with properly by Congress.^viii In these instances – regarding the legislative and the executive branches – however, at least in theory, the average citizen's opinion will be heard by legislators and the executive (or their staffs) and it could conceivably have some impact. And the various players will be up for election within two to six years. That doesn't mean that they will necessarily follow the wishes of the voters – in fact representative democracy gives them the power to superimpose their own judgments over those of the voters – but it makes responsiveness more likely and provides remedies for dealing with those who wander too far from the wishes of their constituents.

At present, however, those options don't apply to the courts. The executive has the power to make appointments, and the Senate has the responsibility of advising on such appointments and consenting to them, but once the appointment has been confirmed it comes with lifetime tenure. True, a Judge can be impeached, but that is for a violation of the law, not for deciding what the law is. And voters play no part at any point in the process. The Federalists, who largely set the rules now in the Constitution, didn't trust the “people” to make those decisions, only the elite, so the rules reserved the appointment of judges to members of the Federal government – men they believed better able to make such important choices. And they wished the noble individuals so chosen to be insulated from public opinion. They would have the final word and they would never have to justify it. No one could call their decisions into question, and no one could do anything about it.

The time has come to reconsider this system. “We the People” are entitled to have our voices heard in judicial decisions as well as those of the executive and legislative branches. And the only way to do so is by altering the Constitution itself. Because, short of a constitutional convention and a rewriting of the document, major changes must come one at a time, the suggestions I offer are few – if far-reaching.

First of all, some consideration should be given to the method of choosing Justices. The current system of choice by the President guarantees that the appointment will be based on doctrinal issues and, since the Justice is likely to outlive the political administration, the Court's complexion may ultimately be out of touch with public opinion. This is not to suggest that public opinion should be the measure of the law, only that it is subject to change, and legal expertise, not political expediency, should be the main criterion for selection. A non-partisan commission of some kind could recommend a short list of highly qualified candidates – and views on particular issues would not be considered, only the qualifications of knowledge, wisdom, and understanding along with a sense of the popular mood. One from the list of candidates would be chosen by a committee consisting of the leaders of both (or all) major political parties. If agreement were not possible within a short fixed period of time, the choice would go to a preselected group selected by the American Bar Association. Some doctrinal litmus tests are likely to be used. They're unavoidable. But the choice will be less a political one than is currently the case.

And once appointed, the Justices would have the benefit^ix of periodic review. How might this be done? In the age of the internet, access is, or should be, available to all. Whether this is at home or in a public facility,^x every citizen might be given the opportunity to vote on each Justice at (for example) ten year intervals following his or her appointment.^xi The voting website could include a listing of “significant”^xii positions on cases decided by the Court since the individual's previous “review,” with a short evaluation by the Bar Association or another independent group. A Justice could be voted out of “office” if two-thirds or three-quarters of voters felt his (her) views were unrepresentative. In a country having a majority of “minorities,” a nation of the “Melting Pot,”^xiii it is unlikely that anyone would be removed for protecting minority rights. Congress would still have the responsibility of impeachment for legal offenses.

A regular review of Supreme Court decisions should also be held on line. A “bottom line” summary of the decision might be accompanied by short analyses of its impact. Those analyses would be offered by those who argued the case or provided friend of the court briefs. Here voters would have the opportunity to render opinions on the wisdom of the decision. While they would not be able to overturn the Court, their views would provide information for legislators or others who might initiate the process of introducing legislation, or of a constitutional amendment that would deal with the effects of the decision. As was the case with the evaluation of the Justices, and for the same reasons, it is unlikely that minority rights will be compromised.

The non-political choice of Justices, and the giving to voters of the chance to express their opinions on Supreme Court Justices, would represent a start in the process of producing opinions that are more in keeping with the law, rather than the politics of the party in power when the individual Justices were appointed. By allowing voters to express their views regarding Court decisions, the Justices would be put on notice of when their personal opinions are not shared by the public at-large. And it would provide information for those who might want to propose legislation to remedy the issue of concern.

It's likely that many will fear that Justices would be under pressure to bend to public opinion. With evaluation only every ten years or so, that's not likely. But even if it is, is that so bad? We the People should have some say regarding the “final” decisions that rule our country.

Next episode: “Chekhov's Gun” – Consider the alternatives.

i       Associated Press report. December 19, 2011.

ii     Though by whose standards would be difficult to say .

iii     Griswold v Connecticut, 381 U.S. 479 (1965)

iv    Roe v Wade, 410, U.S. 113 (1973)

v     Doe v Bolton, 410, U.S. 179 (1973)

vi      It's not really the case, but I'll deal with that some other time.

vii    Even if you believe the law should be explicit and without the need to be interpreted, there will always be unanticipated situations, nuances, and variations that require the judgment of someone, or some people, who understand the law and the political landscape, better than the average citizen. That, of course, is not to say that the electorate shouldn't have input into interpretations of the law.

viii   On January 4, 2012, President Obama issued several “recess appointments” to positions that were open. The President has this right, the pocket veto, and several others which evade the control of Congress. In this particular instance the Senate – which is supposed to advise and consent concerning such appointments – was not in recess, so the act was probably illegal, but the President considered it justified because he didn't expect help from Congress.

ix    It is assumed that the Justices would benefit from this kind of evaluation. But you know what they say about assumptions.

x     Like a public library.

xi    For more on the use of computers for voting, and the encouragement to do so, see One Liners – Part Two, a prior essay on this site, that appeared December 25, 2011.

xii    Whatever that means.

xiii   And especially if, like Glazer and Moynihan, you believe that “the melting pot metaphor [doesn't] hold water” – that ethnic minorities retain their individual characters and separateness.

Because I Said So

(Another in an ongoing – irregular – series on proposed Constitutional changes.

This particular schema will be continued – and I hope concluded – next week.)

There are times when the children just won't do what you want. The gurus currently in vogue tell us that the proper way to deal with them is to explain what you want, and why that is the best method for dealing with the situation at hand. Speak to them rather than taking any physical action. Treat them like adults.

But they're children.

Expecting them to respond to (adult) logic is unrealistic. However carefully you may have considered whatever you're asking of the child, he has a mind of his own. He knows what he wants and an explanation of why the choice is the wrong one may be very nice in a psychological essay, but it often doesn't work where “the rubber hits the road.” And where the child hits his sibling. “This hurts me more than it does you,” is one of the popular phrases heard at this time, accompanying what may be an appropriate corporal responseⁱ but it would be better to avoid the need for it.

So the answer to the invariable “Why?” when the logic proves fruitless is “Because I said so.” After all, you know better than the whining child. At least I assume you know better. But I'm not sure that's always the case. There are times when we all use that line because we lack a logical reason for what we want, but are sure we know best. Whoever argues with us simply isn't as smart as we are.

Which brings me to “judicial activism.”

There are times when it seems that the courts – especially the Supreme Court – take the same approach to what they view as a problem; when Justices expound on their own views and call them law. Judicial review dates back at least to the seventeenth centuryⁱⁱ and was known in the colonies and the United States to be a valid concept before it became a formal part of law in Marbury v Madison in 1803. That case established the authority of the Supreme Court to decide the constitutionality of laws passed by Congress. As Chief Justice Marshall said, “It is emphatically the province and duty of the judicial department to say what the law is.” It was a statement free of irony. Marshall viewed it as a matter of fact. It was what the Founding Fathers had decreed.

And there was, and is, no appeal. Indeed, unchallenged, lower courts can also make a determination of what is permissible under United States law or, it sometimes is claimed, in line with their own value systems. “Aye, there's the rub.” There are times it seems that the law is the law “because I said so.” And once established, the new concept – whether based on law or the confident extralegal views of the courts' decisions – is precedent and, though challenge may be made, it becomes more difficultⁱⁱⁱ to change.^iv

How does this come about? While the vast majority of legal decisions in no way deal with society's value systems, a few do. Who makes the decisions, and is there any way to change them? Is it justified for any group to have “the final say” over what others meant, or may have meant when framing legislation?

I'll try to deal with alternatives to the current system next week, but for now a statement of that system is in order. While there are variations in the choice of local and state judges, in the Federal system judges, including Supreme Court Justices, are appointed rather than elected. One of the major considerations in a presidential election – and politicians forcefully promote this consideration – is that the complexion of the Court will be governed by executive appointments: interpretation of the law will be in the hands of those who hold views comparable to those of the President. The “separation of powers,” and the system of “checks and balances” notwithstanding, the interpretation of law will be in the hands of those whose views are acceptable to the Chief Executive – for it is he who will appoint the justices.

The Constitution does provide for the Senate to “advise” the President and to “consent” to his appointments, and this power cannot be minimized. Congress, moreover, does have the power to impeach Federal judges.^v But, in respect to the outlook of the Court, there would not be so great an emphasis on the importance of presidential appointments if, in the end, the President did not have a major impact on that outlook. The appointment of an individual, with a lifetime position, allows the promulgation of particular views long after the individual who made that appointment has left office. And, with our Electoral College system,^vi that Chief Executive may not even have the support of the majority, as has happened on several occasions in the past.^vii

Is there any hope? Is change necessary? Is it appropriate? I think the answer is “yes” and I'll make some suggestions next week. And with those changes, our laws will have the meaning we consider right because we say so.

Next episode: “Judge For Yourself” – Conclusion of recommendations for improvement of the Judiciary.

i     I'm sure that I'll be faulted for my belief that there are times when physical punishment should not only be tolerated, but is the best response to a problem.

ii    Thomas Bonham v College of Physicians, 8 Co. Rep. 114, 1610. Citation in Wikipedia.

iii    Though certainly not impossible.

iv    The eleventh amendment to the Constitution, in 1795, was specifically enacted to overturn a Supreme Court decision (Chisholm v. Georgia, 2 U.S [2 Dall.] 419, 1 L.Ed. 440) which had been rendered in 1793. Although this took place before Marbury v Madison, it demonstrated both the acknowledgment of the Court's power to overrule a State court and an approved method for change: for remedying the perceived problem.

v     But Congress can only react to those nominated by the Executive branch. They cannot initiate the process. So however many times they reject a presidential appointment, they will only have another such nomination before them, and they can only impeach based on violations of the law, not on the basis of different interpretations of the law's meaning.

vi    A system that should probably be rethought.

vii    If there are more than two candidates for President, a minority choice is possible even if we follow the popular vote. Although a very significant portion of our citizens don't vote – and this, too, means that whoever is elected will only represent a minority – I have no sympathy for those who opt out of the system.

Mom, Pop, And Jack The Killer Giant

I happen to like a lot of fat on my steak. Preferably charred. With salt. And a nice glass of wine.

Perhaps I'm a megalomaniac. After all, that's what was sacrificed to the gods. Meat, fat, salt, wine – and, of course, the sacrificial meat and fat were burnt. No. I don't think I'm a god. It's just that I like a fatty piece of meat.

But where can I get it? Nowadays all the meat that's available is trimmed of all visible fat, as much as they can get. Fat, after all, is bad for you.ⁱ

I have to admit, though, that I'm ambivalent. Not about the fat, but its source. There are very few butchers left – especially if you're looking for kosher meat. Sure, there are some cuts available at kosher supermarkets, but the choice isn't very good and there's no one who will trim it the way I want it, or provide the types of meat in which I'm interested. If it's not what sells the fastest to the most consumers, the giant chains aren't interested. They won't carry it.ⁱⁱ Even the middle-size supermarkets tend to avoid anything but the common cuts cut commonly. Money's the monarch and one size fits all. That, however, allows lower prices, which is something I like. I suppose that if I looked hard enough I'd be able to find a butcher who would give me what I want, the way I want it. But the search would be a great effort, matched only by the prices. So proximity and parsimony win almost every time.

The problem, though, is not limited to food, for it involves virtually all consumer products. The “big box” stores and major chains are rapidly displacing the smaller operations – the “Mom and Pop” stores – in which I shopped when I was young. They were solitary operations without franchises or other evidences of plurality. And the staff – usually the family of the owner – paid attention to your requests. That was a time when the customer, not the purchasing agent, was always right.

That was also the time of the “five and ten.”ⁱⁱⁱ It had whatever you were looking for, rather than what was being remaindered. The focus was on the products, not the profits. Perhaps that's why those stores are out of business now. The current trend's example of a similar kind of operation is the dollar store, but they tend to have different stock each day.^iv Whatever is a bargain for the vendor. Whatever guarantees a profit. Take it or leave it. Don't expect them to order something else for you. Ditto the chains. The small mom and pop operations have been driven out of business by the giants.^v

But there's a lot more to it than that. A small store that sells something will usually stand behind it and provide whatever service is necessary if there is a problem. The person you spoke to when you made the purchase is your neighbor^vi – the same person to whom you will address your questions, and there isn't likely to be finger pointing and blame of the manufacturer or distributor. If a repair or replacement is necessary it won't require a reference to a higher authority – like a service desk or department on a different floor^vii – or the issuance of store credit. The price may be a little higher, but the ulcers will probably be fewer.

And there is also an international aspect to the issue.^viii I'm not suggesting that my steak has to be imported, but that the relentless search for a lower price for everything will probably lead not only to the chain store, but to products manufactured outside of the United States by underpaid or underage workers. Choosing that bargain requires the trading of personal financial interest for a national economic handicap. It's hard to argue with the search for higher quality wherever it may lead, but if the only goal is a lower price, an argument can be made for nationalism. At a time when we are suffering with a high unemployment rate, actions which preferentially encourage importation are certain to increase our problem. However chauvinistic that sounds, it cannot be easily dismissed.

Lest I seem too much the patriot, I'm not. I can't resist a bargain any more than anyone else. When faced with a tempting price I don't know anything about slave labor, and I make no effort to find out. But part of the calculus of a bargain involves what happens after the purchase. If I'm apprehensive about the service I may require, I'm more likely to shop locally than more distantly – especially on line. I don't like sitting on the telephone waiting for someone overseas, who doesn't really understand me or my problem, trying to talk me through a solution. And, I admit, I have trouble on occasion understanding what is being said to me.

So it really boils down to that calculus. It seems to me that it's reasonable to seek a genuine bargain if I can be sure that the low price I get more than compensates for any possible complications – like having to go back to a distant store or repackage what I got from one of the package delivery services. But when local services and products are available for a reasonable price, I prefer to encourage small, local businesses. After all, I like my meat^ix like I like my meat. One size doesn't fit all.

 

Next episode: “Because I Said So” -- Admit it. You've used that line.

i     I remember walking through an open-air market in Morocco with my wife. All the cuts of meat that were displayed showed the same degree of overtrimming that I see here in the United States. They, too, had accepted the gospel that fat is unhealthy. So the flies and other insects swarmed over well-trimmed meat.

ii    We live in the age of green. Not only environmentalism, but money, dough, jack, greenbacks, scratch, or whatever the common currency of the day is called.

iii    Known by many as the “five and dime,” signifying the cost of the merchandise.

iv    The same is true of many of the big box and chain businesses. The selection is governed by what is available at a good wholesale price, and can give the store a good profit. If only one brand or model of a particular product is being promoted by the manufacturers, that's all you'll find. And it may be different next time.

v     That's also the case with rural operations. The family farm is gone – replaced by agricultural production in the hands of huge corporations.

vi    I know that has a Frank Capra ring to it, but local businesses are usually run by local people – often those you know. Especially in a small town setting.

vii    Somewhere far off and with a long line.

viii   Apart from the fact that most of the stores and farms are owned by multi-national corporations.

ix    And fat.

Hate Speech – The Case For (Against?)

“Suffer you mother-*#&@%<~ son-of-a-!%*&$. I hope you rot in Hell.” Not a nice thing to hear. Especially if you're being kicked at the same time. It's assault, and it's punishable as such.

But what about “I pray that you are forgiven.” Said to a homosexual, as the speaker knocks the wallet from his hand while he is preparing to make a contribution to an LGBTⁱ charity, it's hate speechⁱⁱ and it may also deemed assault,ⁱⁱⁱ but more than that, because of what was said, in this instance it's also a hate crime.

The First Amendment, it seems, has become a framework for various pressure groups to use when promoting their aims. Thus:

“In 1977, the ACLU filed suit against the Village of Skokie, Illinois, seeking an injunction against the enforcement of three town ordinances outlawing Neo-Nazi parades and demonstrations. Skokie, Illinois at the time had a majority population of Jews, totaling 40,000 of 70,000 citizens. A federal district court struck down the ordinances in a decision eventually affirmed by the Supreme Court.”^iv

Free speech had to be protected irrespective of the consequences, but in an age of diversity and multiculturalism

“Islam and Freedom of speech has become a contentious issue in recent times. The limits of what is, and what is not, acceptable speech is becoming a new battleground between Islam and the west. The issue came to a head in September 2005 a few days before Ramadan when the Danish newspaper Jyllands-Posten printed insulting and blasphemous cartoons of our noble Prophet.”

That statement, and its explication of “acceptable speech,” as printed in the blog of Caliphate Online, doesn't come as much of a surprise. The fact that important American publications refused to publish those cartoons, however, is a little more troublesome. Although there are loud protests whenever their own actions are criticised, and accusations that other parties would abridge their First Amendment rights, “Major American newspapers, including The New York Times, The Washington Post, The Los Angeles Times and The Chicago Tribune, did not publish the caricatures. Representatives said the story could be told effectively without publishing images that many would find offensive.”^v They chose, in this instance, to practice self censorship. Free speech was less important than not offending others. Sensitivity was the prime consideration in reporting this piece of news. When it comes to expressing editorial policy, however, the same papers are not at all reticent about stating views that many will find offensive. First amendment rights and free speech^vi are for those who can afford it, and they can exercise it whenever they choose to do so. And, as they have demonstrated, they can eschew it whenever they choose to do so. Notwithstanding any protestations of virtue and concern, their agendas seem to reflect politics rather than sensitivity.

And some publishers had other motives. “John Donatich, the director of Yale University Press, said the press has a long history of defending free expression, but the risk of violence in this case, outweighed the benefit of including the images, which can easily be found on the Internet.”^vii The same fear of violence motivated other publishers to take the same course.

“Congress shall make no law ... abridging the freedom of speech, ... ” That was the take on speech in 1789^viii But that has since been viewed as more a theory than as an appropriate reality. Though the Constitution said nothing about judicial interpretations of that or other mandates, nor about legislative measures that respond to the Court's decisions, it's clear that the First Amendment (as well as the remainder of the Constitution and its amendments) is flexible.^ix It shouldn't be taken too seriously. It's not an absolute. It is more important that we not risk the possibility that emotional harm that might come to anyone who is in a preferred^x group. That, of course, is not everyone, as the ACLU has shown.

And the definitions of “free speech” and one's First Amendment rights are also somewhat fluid. They include both the requirement that one be able to express his views, even if others^xi may find them hateful, and that he be able to prevent those others^xii from expressing theirs. It may not be clear from a simple reading of the Constitution that these “rights” exist, but executive, legislative, and judicial practice reflect the fact that they have a significant presence in the American ethos. Surely they're in the Constitution. How could it be otherwise? If we haven't found them, we haven't looked hard enough.

We are left with a language of sensitivity and euphemisms. We are reluctant to “call a spade a spade.” So we deny the language we learned as children and substitute code words when we suspect precision will cause discomfort (without always asking those we see as “victims” whether they agree). Later, however, we'll have to substitute other code words when we feel that the ones we have been using have taken on the pejorative tone at which we cringe.^xiii We practice self-censorship and the censorship of others with whom we disagree. And if we cannot censor, we punish. Somewhere along the line “hate speech” has become more offensive than any crime it might accompany. And the ACLU seems to take note only of certain “offenses” while ignoring others. It is clearly inappropriate to defend those who would insult Muslims, blacks, homosexuals, or others who might be offended. That would show a lack of sensitivity for their feelings, and the Constitution certainly shouldn't protect that. But if Nazis want to affront Jews or others, stopping them would be in violation of the same Constitution.

I know it's wrong of me to think so, but from my perspective there should be a single standard – either all speech designed to express opinion is permissible^xiv or it isn't. If the latter position is to be adopted, then it should apply to every instance in which an individual takes exception to what is being said or done. It should not be made the rule only for some preferred people of groups. But in any case, I don't think that was the intent of the Founding Fathers. If the media are free to express opinions, so are individuals. And a crime is a crime. It is the crime that should be prosecuted, irrespective of the motive. If the opinion of the perpetrator is the decisor of the significance of the crime, we have lost the freedom to form our own opinions, and the Constitution and Bill of Rights are meaningless. However attractive that may be to many among us, we will all lose by it. “Acceptable speech” is not acceptable.

Next episode: “Mom, Pop, And Jack The Killer Giant” – Burnt fat and me.

i     Lesbian, Gay, Bisexual, Trans-gender.

ii    The previous declaration, since it mentions “mother” and “son,” clearly expresses family values and represents a statement of love, not hate.

iii    And it's probably a few other crimes as well.

iv    Wikipedia article on ACLU.

http://en.wikipedia.org/wiki/American_Civil_Liberties_Union

v     U.S. Says It Also Finds Cartoons of Muhammad Offensive, Joel Brinkley and Ian Fisher, New York Times, February 4, 2006

vi    Ditto propaganda.

vii    Patricia Cohen, The New York Times, August 12, 2009. The view, apparently, was that others should take any risks involved. Yale was playing it safe.

viii    That's when the Bill of Rights was submitted to the new states. It wasn't ratified until 1791.

ix    I'll comment on the Judiciary in a future essay – a continuation of the ongoing series on proposals for changes in the Constitution.

x     Read “minority,” although that is a political, not a mathematical term.

xi    Who are not in one of the favored groups.

xii    See note x. It is permissible, indeed appropriate, to shout down those who would espouse a contrary view.

xiii    I recently heard on the radio about a politician who was taken to task for using the word “disabled.” Some felt that this was too harsh. Presumably they preferred “differently able” or “challenged,” but the individual who had been careful not to specify the disability (lest it be considered insensitive) was berated.

xiv   Holmes's exception for speech intended to cause danger – he mentioned “fire” in a crowded theater – however, makes sense. I'd also make an exception for speech (or publication of material) that threatens pubblic or national security. Some governmental secrecy is necessary if we are to be able to deal with other nations.

My Way Or The Low Way

You're right, too.

It's an old joke, but it contains a lot of truth. In its briefest form it goes:

Two men are arguing. A third, who is walking by with his wife, listens, and says to the first, “You're right.” So that man leaves, happy. The second, offended, restates his case, and the listener tells him, “You're right.” He leaves, happy as well. Then the man's wife asks, “How can they both be right?”

I've already given the punch line, but some explanation is in order. One way of understanding the anecdote is to remember that there's more than one way to skin a cat – if skinning a cat is of any interest to you. Just because there are two (or more) sides to every story doesn't mean that only one is right and any deviation from that one is wrong.

There's a Talmudic dictum which states: “ … these and these [both] are the words of the living G-d … ”ⁱ It refers to a dispute between two sets of scholars and seems to place a greater emphasis on their intent than on their interpretations. Both groups were interested in observing religious law, though they had different understandings of what it was. So, despite a ruling from a heavenly voice that the law went in a particular direction, there was approval of the positions of both groups, because their ultimate aims were the same and were intended to be for the proper worship of G-d. And in Avotⁱⁱ we read, “Every dispute that is engaged in for the sake of Heaven will endure.”ⁱⁱⁱ Disagreements are encouraged if their end is worthy. And because the disputants have the same goal, they remain friends and treat each other with respect. It is our hope that we can distill the arguments down to basic rules and choose the proper ones, but we are confident that if what we do is “for the sake of Heaven,” if our intent is worthy, we are entitled to the reward for virtue.

Unfortunately, such an approach is not universal. In Beit Shemesh, Israel, there have been many incidents recently in which some “dagger men”^iv interpret laws of “modesty” in a way that casts those who hold other views in a very negative light. And they subject those “violators” to verbal and, at times, physical abuse. Their views of modesty – views that discourage interaction between men and women and which mandate particular dress restrictions – are certainly admirable and valid for them, but their philosophy does not recognize that those who hold other views may be just as focused as they on following religious law. They are unable to see that another point of view equally contains “the words of the living G-d.” They do not view the others as friends – and they certainly do not respect them. They will not tolerate disagreement, because, according to their outlook, any deviation from the law as they interpret it is wrong. There cannot be valid contrary opinions. There can only be violations of the law by those who would sin.

Fundamentalism^v of that sort is not unique to any one religion. Whether observant of Islam, Christian, Jewish, Hindu, or any other religion, there are those who believe that they know the true way and anyone with a different perspective must be dealt with. They cannot agree to disagree. They can only correct the errors of others – even if that “correction” involves violence. They are the “extremists” we all condemn.

And their extremism may not be religious but may originate in political theory or economics, or some other field. Some of the greatest intolerance facing mankind arises from disagreements over political systems. And within individual countries the greatest name-calling is often reserved for political campaigns.

I can understand and even appreciate the views of those who interpret ideas differently from the way I do – unless they are intolerant of my ideas or those of others who may disagree with them. I applaud their confidence and their convictions, and certainly in our society they are entitled to them. But it is incumbent on those believers to recognize that they aren't the only ones. Whatever control they may have over their “faithful,” they are obliged to live and let live – to give others the benefit of the doubt.^vi Our Constitution guarantees us the right to believe and say whatever we view as the truth.^vii,viii But that makes it difficult for some cultures to relate to us. Similar guarantees do not exist in all countries. Some nations prefer one religion or one political system over another, and their governing legislation enforces those preferences. But even they do not permit small groups of hoodlums to make the rules for everyone else and, using vigilantes and other terrorists, to enforce their own laws.^ix

With or without sanction, however, extremists carry out their agendas. They may be small minorities, but they exercise intense power over others, and their actions have tragic consequences – both for those whom they oppose and over bystanders. And the media give them even greater influence, while often asking for increased tolerance by others of the larger groups from which the few come.^x While stirring up the waters, they claim to smooth them. It is up to those “larger groups” to disclaim the actions of their own extremists and to provide the necessary sanctions that will discourage similar future activity. All the rest of us can do is submit, wring our hands, or flee.

i     Eruvin, 13b.

ii     A Talmudic tractate.

iii    Avot, 5:20.

iv   That's not my designation but their own. They seem to take pride in “protecting” others from views contrary to their own.

v     There is no fun in fundamentalism. It's very serious business.

vi    Of course doubt is the one thing they don't have. They have truth.

vii    Indeed, the Constitution does not require truth or belief as justifications for our expressions.

viii   There are some restrictions on free speech, but they are primarily limited to speech that may result in harm to others.

ix     At least they deny the legitimacy of such groups even though they may ignore, or even support, their actions.

x     Such calls for tolerance are often disingenuous. The media know just what they have done but find it convenient to seek shelter under whatever protective cover they can manufacture.

Baby Face

According to Art Linkletter,ⁱ “Kids say the darndest things.” I guess they don't know any better. They say whatever comes into their heads, and they're unguarded – they don't filter it.

Not so, adults. They're more “sensitive.” More guarded. And far more conventional. They've been taught what to say in various circumstances and, for the most part, will say the “right” thing even if it isn't true and they don't believe it. For example, it's become fashionable, whenever an inquiry is made about almost anything personal,ⁱⁱ (such as “How have you been” or “How is _____,” although you know the questioner doesn't really care what your response is, and you'd prefer not to talk about the subject anyway) to reply, “Thank you for asking.” Of course you don't mean it, but it's the right thing to say. Then you make up an answer – usually as short as possible – so you can move on to other subjects which also interests neither of you. (Conversation like this is typical of what you're likely to hear at a cocktail party – small talk that is banal until after you've had a few drinks. Then, of course, it is brilliant.)

The observance of such conventions is commonplace, and completely without meaning. After all, what can we possibly have in mind when we write “Dear” ______ to someone we don't know, or “Sincerely” or “Love” after almost anything we've put in a letter to a stranger? And should we assume that someone who doesn't write “Sincerely” is insincere?

There are times when the comment is clearly insincere. “Call me sometime. We'll have lunch.” The significance of a remark like that might be ambiguous if the party speaking were to disclose his telephone number, but too often he's careful not to do so. However that's all right since you can't remember his name. So when he asks you to extend regards to the family you won't be able to do so, though you'll certainly agree to do so. Not that it matters to him. He's already forgotten both the request and you, if he ever really took note of you in the first place. And if the request was more than a formula for disengaging from the meeting.

There are times when we don't know the origin of what we are saying, for, if we did, we'd say something else. “Goodbye,” with which, as a matter of course, we end all conversations, is a contraction of "God be wyⁱⁱⁱ you." I suspect that many an angry telephone call, which ends with one party slamming down the receiver, would be terminated with a different valediction if that origin were considered.

Nonetheless, we seem to be stuck with a group of things we always say. I realized this when someone commented on the appearance of a new grandchild of mine. “Oh, what a beautiful baby.” It was a comment I had heard innumerable times.^iv I'm not so discerning. All babies^v look the same to me. They all look like Winston Churchill. (All of them look kind of nondescript except for newborns, who are all ugly.) But I'd never say that to a proud new father showing off the video he took in the delivery room. Nor to the mother who is just recovering from the ordeal. But mine is not a unique perspective. Indeed, Churchill himself said “All babies look like me. But then, I look like all babies.” What you hear from all the friends and relatives, though, is that this one is unique - and uniquely beautiful. Have you ever heard anyone tell the truth to a parent? “That's as ugly a baby as I've ever seen.” Truth is not the issue. Stroking is. So we all say what the parents want to hear. We may see them at another time and want that meeting to be as pleasant as possible.

I don't mean to suggest that all children are nondescript or ugly, though this may be the case just after they're hatched. Johnny Mercer hypothesized that a pretty girl “must have been a beautiful baby”^vi but I doubt that such was the case. Later in the song he wrote “when you were only startin' to go to kindergarten,^vii I bet you drove the little boys wild.” That makes more sense. At birth they're all the same but once a baby starts to develop a personality, individuality and beauty are more likely to be apparent. Not that someone would insult a child who has grown up ugly. He won't. Silence or a compliment would be the response no matter what if a comment on such a child's appearance were solicited – either outright or by implication – because an insult is not an appropriate description from an adult. A child might not hesitate to tell the truth, but adults don't do that.

An example of this phenomenon occurs immediately after the stroker has seen the baby or a picture of him. “What's his name?” To which you dutifully reply, and then you hear: “What an ugly name. That's a joke, isn't it? How can the parents saddle a poor baby with such a horrible name?”

No. That's not what you said. Only a child would say what he really believes. An adult would pronounce the name – however silly it might be – “beautiful.” I've always wondered about that, even more than I've wondered why people ask the name when they don't care, and probably won't remember it anyway. And of course they ask about the weight, with some kind of inane comment following.

So we're left with the problem. Should we tell the truth or not? The simple solution is to keep a kid handy at all times. He'll do the dirty work for you.

Next episode: “Hate Speech” – Don't you just love it?

i      Try Google^TM or another search engine if you've never heard of him.

ii     Though it's usually about something the questioner knows is distressing.

iii    No. That's not a misprint. It must be the way they talked at the time in Shakespeare's neighborhood. That's what he wrote in “As You Like It.” There were many variations of the sentiment which derives from “God be with you,” and Shakespeare's was only one of them.

iv    Actually, I'm sure it's numerable. I just don't know the number.

v     Well, almost all babies.

vi   “You Must Have Been A Beautiful Baby” was published by Harry Warren (music) and Johnny Mercer (lyrics) in 1938 and first appeared in “Hard To Get.”

vii    The lyric suggests that kindergarten was likely to be the baby's introduction to social interactions. That was then. Now with play groups, nursery school, day care, and pre-K (all carefully chosen with the goal of preparing the baby for an Ivy League school), kindergarten is the last of a series of social experiences prior to elementary-level education, and will probably be capped (and gowned) by a commencement ceremony. Then they can start getting some kind of education.