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Archive for the ‘Essays’ Category

The Circuitous Path of Papa and Ezra

In Arts & Letters, Essays, History, Humanities, liberal arts, Literary Theory & Criticism, Literature, Modernism, Politics, Western Civilization, Writing on May 24, 2017 at 6:45 am

This review originally appeared here in The American Conservative.

Ernest Hemingway, fresh off his marriage to Hadley Richardson, his first wife, arrived in Paris in 1921. Paris was a playground for writers and artists, offering respite from the radical politics spreading across Europe. Sherwood Anderson supplied Hemingway with a letter of introduction to Ezra Pound. The two litterateurs met at Sylvia Beach’s bookshop and struck up a friendship that would shape the world of letters.

They frolicked the streets of Paris as bohemians, joined by rambunctious and disillusioned painters, aesthetes, druggies, and drinkers. They smoked opium, inhabited salons, and delighted in casual soirées, fine champagnes, expensive caviars, and robust conversations about art, literature, and the avant-garde. Pound was, through 1923, exuberant, having fallen for Olga Rudge, his soon-to-be mistress, a young concert violinist with firm breasts, shapely curves, midnight hair, and long eyebrows and eyelashes. She exuded a kind of mystical sensuality unique among eccentric highbrow musicians; Pound found her irresistible.

Pound was known for his loyalty to friends. Although he had many companions besides Hemingway—among them William Butler Yeats, James Joyce, T.S. Eliot, Marianne Moore, Robert McAlmon, Gertrude Stein, e.e. cummings, Pablo Picasso, Wyndham Lewis, T.E. Hulme, William Carlos Williams, Walter Morse Rummel, Ford Madox Ford, Jean Cocteau, and Malcolm Cowley—Hemingway arguably did more than the others to reciprocate Pound’s favors, at least during the Paris years when he promoted Pound as Pound promoted others.

Pound was aware of Hemingway’s talent for publicity: he and Hemingway had combined their genius to promote Eliot’s The Waste Land. Hemingway introduced Pound to William Bird, an American reporter who arranged to publish an autobiographical piece about Pound’s childhood. Bird was instrumental to the eventual publication of Pound’s A Draft of XVI Cantos. Pound, for his part, secured for Hemingway a position as assistant editor of The Transatlantic Review. Their relationship matured into something symbiotic and mutually beneficial.

Pound edited Hemingway’s work, stripping his prose of excessive adjectives. Hemingway remarked that Pound had taught him “to distrust adjectives as I would later learn to distrust certain people in certain situations.” Unlike, say, Conrad Aiken or Robert Frost, who resisted Pound’s editing, Hemingway acquiesced to Pound’s revisions. In exchange, Hemingway taught Pound how to box. He acknowledged that the scraggly Pound had “developed a terrific wallop” and had “come along to beat the hell wit the gloves.” Hemingway worried that “I will get careless and [Pound] will knock me for a row of latrines.” He even treated Pound to a night at the prizefights to brighten Pound’s spirits as Pound battled various illnesses.

Pound, however, grew disillusioned with Paris, where his friends were gravitating toward socialism and communism. Paris, he decided, was not good for his waning health. Hemingway himself had been in and out of Paris, settling for a short time in Toronto. In 1923, accompanied by their wives, Pound and Hemingway undertook a walking tour of Italy. The fond memories of this rejuvenating getaway inspired Pound to return to Italy with his wife Dorothy Shakespear in 1924. They relocated, in 1925, to a picturesque hotel in Rapallo, a beautiful sea town in the province of Genoa, on the bright blue Tigullio Gulf.

Pound found the weather in Rapallo to be soothing and agreeable. It was Hemingway who had first recommended this scenic spot, having visited Sir Max Beerbohm there years before. Hemingway’s tales of the sunshine, swimming, tennis, and other outdoor activity in Rapallo appealed to Pound, who fancied himself an athlete. The fact that his mistress Olga frequented Italy—where her father owned a house—made Rapallo all the more desirable, as did Dorothy’s seeming willingness to share her husband with his lover.

The friendship remained intact as Pound settled into Rapallo. About to vacate Europe for Key West, Hemingway dashed off a missive to Pound that began “Dear Duce” and then boasted about how Papa, as people had begun to call Hemingway, was “going to know everything about fucking and fighting and eating and drinking and begging and stealing and living and dying.” Gradually, though, the Pound-Papa gulf widened.

The move to Italy also effectively terminated Pound’s glory years in Paris, about which Hemingway wrote affectionately:

So far we have Pound the major poet devoting, say, one fifth of his time to poetry. With the rest of his time he tries to advance the fortunes, both material and artistic, of his friends. He defends them when they are attacked, he gets them into magazines and out of jail. He loans them money. He sells their pictures. He arranges concerts for them. He writes articles about them. He introduces them to wealthy women. He gets publishers to take their books. He sits up all night with them when they claim to be dying and he witnesses their wills. He advances them hospital expenses and persuades them from suicide. And in the end a few of them refrain from knifing him at the first opportunity.

This last line is both teasing and fitting because there was, in fact, at least one assailant in Paris who didn’t refrain: a man who attempted to stab Pound at a dinner party hosted by the surrealists.

Hemingway guessed that Pound might stay in Italy “sometime” even if he took “no interest in Italian politics.” Hemingway was right about Pound’s love for Rapallo but wrong about his political affinities. More than anything else, Italian politics—and the rise of fascism—damaged Hemingway’s regard for Pound, who became a zealous supporter of Mussolini and a reckless trafficker in conspiracy theories.

Hemingway grumbled that if Pound “actually and honest to God … admire[d] and respect[ed] … [Mussolini] and his works [then] all I can say is SHIT.” Hemingway, true to character, remained manfully playful, stating, “I will take practical steps by denouncing you here in Paris as a dangerous anti-fascist and we can amuse one another by counting the hours before you get beaten up in spite of your probity—which in such a fine country as it must be would undoubtedly save you.” Such slight criticisms may have been colored with a lighthearted tone, but the disapproval was plain.

When Hemingway and Guy Hickock visited Pound in northern Italy in 1927, Pound was living in self-imposed exile. Hemingway had recently converted to Catholicism and was enjoying renewed fame after the publication of The Sun Also Rises. He divorced and remarried that year, offering Hadley a portion of the profit from The Sun Also Rises as part of their divorce. Pound, meanwhile, was immersing himself in political theories that likely baffled Hemingway as much as they angered him.

Shortly after the stock-market crash in 1929 and the onset of a worldwide economic crisis, Pound took to writing in Italian. Mussolini’s March on Rome had occurred seven years earlier, and since then he had assumed dictatorial control of Italy, suppressed opposition parties, and built a police state. Pound was enthralled. He met Mussolini in 1933, peddling strange monetary schemes to the fascist leader.

In 1933 Pound and Hemingway exchanged letters that highlighted their diverging attitudes toward Mussolini, fascism, and government. Pound, who’d embraced wild and polemical speculations about the economic theories of the American Founders—Jefferson in particular—began to decry capitalism and taxation while celebrating fiat currency and a convoluted system of state central planning. “Since when are you an economist, pal?” Hemingway mocked. “The last I knew you you were a fuckin’ bassoon player.” Hemingway offered Pound some money, sensing that money was needed, but Pound declined it.

Pound was now enamored with Il Duce; Hemingway was furious. Hemingway hated government, he told Pound, and preferred organized anarchism and masculine sport to statist ideology. Hemingway saw through Pound’s charlatanic flourishes and economic fallacies and accused Pound, quite rightly, of lacking clarity. Yet Pound’s admiration for Hemingway’s work did not diminish, and Pound, ever devoted, included Hemingway in an anthology that he was then editing.

Possibly the last time Pound and Hemingway saw each other, they were having dinner with Joyce on a warm summer night in Paris. Pound allegedly bloviated about economics and the decline of art and European civilization, and Hemingway and Joyce feared that Pound had gone mad. The date and details of the dinner are a matter of debate, as is the veracity of any account of that evening. But one thing is certain: Hemingway was frustrated with Pound’s embrace of Italian fascism. By the time Pound voiced support for Franco in the Spanish Civil War, putting him once again at odds with Hemingway, their once thriving friendship had deteriorated beyond repair.

The falling out was no secret, and other writers took sides. William Carlos Williams wrote to Pound in 1938, saying, “It is you, not Hemingway, in this case who is playing directly into the hands of the International Bankers.” Hemingway conveyed his concerns about Pound to their friend Archibald MacLeish:

Thanks for sending the stats of Ezra’s rantings. He is obviously crazy. I think you might prove he was crazy as far back as the latter Cantos. He deserves punishment and disgrace but what he really deserves most is ridicule. He should not be hanged and he should not be made a martyr of. He has a long history of generosity and unselfish aid to other artists and he is one of the greatest living poets. It is impossible to believe that anyone in his right mind could utter the vile, absolutely idiotic drivel he has broadcast. His friends who knew him and who watched the warpeing [sic] and twisting and decay of his mind and his judgement [sic] should defend him and explain him on that basis. It will be a completely unpopular but an absolutely necessary thing to do. I have had no correspondence with him for ten years and the last time I saw him was in 1933 when Joyce asked me to come to make it easier haveing [sic] Ezra at his house. Ezra was moderately whacky then. The broadcasts are absolutely balmy. I wish we could talk the whole damned thing over. But you can count on me for anything an honest man should do.

Hemingway was referring to Pound’s notoriety as a propagandist for radio and newspaper during the Second World War.  When he received transcripts of Pound’s radio broadcasts, he surmised that Pound was “obviously crazy” for espousing such “vile, absolutely idiotic drivel.” Pound was a “crazy … and harmless traitor,” Hemingway concluded, and an “idiot” with a “distracted mind” who “ought to go to the loony bin.” And that’s precisely where Pound ended up: He was admitted to St. Elizabeth’s Hospital in Washington, DC, in 1945.

Pound’s friends put their reputations at stake to help him. MacLeish, expressing both love and admonition, dashed off these words in a missive to Pound:

… your information is all second-hand and distorted. You saw nothing with your own eyes. And what you did see—Fascism and Nazism—you didn’t understand: you thought Musso belonged in Jefferson’s tradition and God knows where you thought Hitler belonged. I think your views of the history of our time are just about as wrong as views can be. But I won’t sit by and see you held in confinement because of your views. Which is what is really happening now. I am doing what I am doing partly because I revere you as a poet and partly because I love this Republic and can’t be quiet when it violates its own convictions.

MacLeish helped to orchestrate Pound’s release from St. Elizabeth’s, drafting a letter to the government on Pound’s behalf that included Hemingway’s signature, along with those of Robert Frost and T.S. Eliot. A year later Hemingway provided a statement of support for Pound to be used in a court hearing regarding the dismissal of an indictment against Pound.

Hemingway, who was now living in Cuba, did little else to help Pound. More for practical reasons than personal conviction, Hemingway, who was himself targeted by the American government, refused to sign a petition of amnesty for Pound. The petition had been Olga’s idea, and Hemingway didn’t believe the American people would rally behind the desperate pleas of an adulterous lover. Hemingway never visited Pound at St. Elizabeth’s, but he did tell Pound, via Dorothy, that he had read and enjoyed The Pisan Cantos. And when he won the Nobel Prize in 1954, Hemingway announced that the year was good for releasing poets, a not-so-slight reference to his old friend.

Hemingway awoke on the morning of July 2, 1961, put a 12-gauge, double-barreled shotgun to his head, and, alone in the foyer of his home, blew his brains out. He was 61. Pound’s friends and family didn’t tell him about Hemingway’s death, but a careless nurse did, and Pound reacted hysterically. The older of the two, Pound, at 72, was free from St. Elizabeth’s, where he’d spent 12 solemn years. He had returned to his beloved Italy to finish out his long and full life. In the autumn of 1972, he died peacefully in his sleep in Venice, the day after his birthday, which he’d spent in the company of friends.

The American Nietzsche? Fate and Power in Oliver Wendell Holmes Jr.’s Pragmatism

In America, American History, American Literature, Arts & Letters, Creativity, Emerson, Essays, History, Humanities, Jurisprudence, Law, Law-and-Literature, liberal arts, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Rhetoric, Scholarship, Western Philosophy on February 15, 2017 at 6:45 am

Allen Mendenhall

Seth Vannatta of Morgan State University recently coauthored a piece with me on Friedrich Nietzsche’s influence on U.S. Supreme Court Justice Oliver Wendell Holmes Jr.  The piece appeared in the fall 2016 issue of UMKC Law Review.

Richard Posner is one of the few legal minds to have noticed the affinity between the philosophies of Holmes and Nietzsche. Dr. Vannatta and I hope to expand the circles of interest in this topic.

Our article demonstrates how Holmes’s pragmatism both comports with and departs from Nietzsche’s existentialism. Holmes’s pragmatism shares with Nietzsche’s existentialism a commitment to skepticism, perspectivalism, experiential knowledge, and aesthetics, as well as an abiding awareness of the problematic nature of truth and the fallibility of the human mind.

We suggest that Holmes was familiar with Nietzsche’s writings and that the two thinkers turned away from Christian ethics and glorified the life struggle in distinctly evolutionary terms. Both men celebrated the individual capacity to exercise the will for purposes of personal autonomy, greatness, and creative or aesthetic achievement. Nietzsche, however, did not share Holmes’s belief in the pragmatic potential of meliorism, which marks the distinction between their notions of fate.

The thinking of Nietzsche and Holmes converges in the person of Ralph Waldo Emerson, who was a manifest influence on both Holmes and Nietzsche and whose thinking on fate and power, inflected as it is by aesthetic pragmatism, shapes our understanding not only of Holmes and Nietzsche in isolation but also of Holmes and Nietzsche as paired, ambitious philosophers concerned about the role of fate and power in human activity.

The article is available for download here in the SSRN database for those who are interested in reading more about this curious relationship between two intellectuals whose ideas shaped society during the 20th century.

The Antiwar Tradition in American Letters

In American History, American Literature, Arts & Letters, Book Reviews, Books, Christianity, Conservatism, Essays, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Politics, Religion, Rhetoric, Writing on October 12, 2016 at 6:45 am

Allen 2

This review originally appeared here at Antiwar.com.

A review of War No More: Three Centuries of American Antiwar and Peace Writing.  Lawrence Rosenwald, editor.  New York: The Library of America, 2016.  838 pgs.

James Carroll, the novelist and Christian man of letters who has won numerous accolades over a long, distinguished career, sets the tone for this fine edition, War No More, in his short foreword.  “Wars,” he says, “have defined the nation’s narrative, especially once the apocalyptic fratricide of the Civil War set the current running in blood – toward the Jim Crow reenslavement of African Americans, further genocidal assaults against native peoples, imperial adventures abroad, a two-phased World War that permanently militarized the American economy and spawned a bifurcated imagination that so requires an evil enemy that the Cold War morphed seamlessly into the War on Terror.”

We’ve seen editions like this before – We Who Dared to Say No to War, edited by Murray Polner and Thomas E. Woods Jr. comes to mind – but the focus here is different and decidedly literary.  Lawrence Rosenwald, the editor, believes the “antiwar impulse” requires a rich “vocabulary” that’s “visionary, sensual, prophetic, outraged, introspective, self-doubting, fantastic, irreverent, witty, obscene, uncertain, heartbroken” – in short, that signals a range of human emotions and experiences.  Rosenwald promises that “[a]ll of those traits are on display here,” and follows through with essays and memoirs by Ralph Waldo Emerson, Henry David Thoreau, Kurt Vonnegut, Edmund Wilson, and, among others, Norman Mailer.

Rosenwald has also achieved a diversity of genre. He includes poems by Henry Wadsworth Longfellow, Stephen Crane, Adrienne Rich, Herman Melville, Robert Bly, Sara Teasdale, Edna St. Vincent Millay, George Starbuck, and Walt Whitman; short stories by Ray Bradbury and Ambrose Bierce; a genre-defying piece by Mark Twain (“The War Prayer”); songs by Country Joe McDonald, Ed McCurdy, and Pete Seeger and Joe Hickerson; a statement before a federal grand jury; letters and an interview; a gospel song (“Down by the River-Side”); a leaflet on the Vietnam War (the conflict with the most permeating presence in the book); excerpts of the prefatory articles of the Constitution of the Iroquois Confederacy; and more.

Women as a class are underrepresented in Rosenwald’s selections.  I count 104 men and 35 women among the contributors.  Are there fewer women involved in the antiwar movement throughout American history?  Or did Rosenwald ignore females because of his preference for particular writers and writings?  We may never know because he does not address the gender disparity.  If antiwar writers are, in fact, disproportionally male, then further study of that curious fact – or at least some speculation about it – seems warranted.

Multiple traditions merge in these pages:  John Woolman, Benjamin Rush, and Reinhold Niebuhr speak as Christians; Eugene V. Debs, Jane Addams, Arturo Giovannitti, and Howard Zinn as proxies for the Left; and Andrew Bacevich as a representative of the Right.  Figures like Randolph Bourne cut across trite political labels.  And writers associated with certain styles and forms demonstrate their versatility with other kinds of writing.  For instance, Robert Lowell, known for his poetry, shows his mastery of the epistolary form in his letter to President Franklin D. Roosevelt.

Rosenwald proves to be far more astute than Jonah Goldberg in his assessment of William James’s “The Moral Equivalent of War.” Whereas Rosenwald submits that this essay is “intended as oppositional” to war, Goldberg, a senior editor at National Review, treats it as fascist and accuses it of presenting “militarism as a social philosophy” that was not only “a pragmatic expedient” but also the basis for “a workable and sensible model for achieving desirable ends.”  Of course, Goldberg has been wrong before.

Given that Rosenwald purports to have featured the writing of “pacifists,” the inclusion of John Kerry and Barack Obama is deplorable.  True, Kerry’s statement against the Vietnam War is notable as a work of peace activism, but Kerry also voted in 2002 to authorize President Bush’s use of force to disarm Saddam Hussein, advocated U.S. military involvement in Syria, and appears at least partially responsible for the US backing of Saudi-led bombings in Yemen.

If opposition to the Vietnam War is now the measure of pacifism, then most Americans today are pacifists, there being, as of the year 2000, just 30% of Americans who believe that that war was not a mistake, according to a Gallup poll. Thus, Kerry is hardly unique in such opposition. Nicholson Baker, in his energetic essay for this volume, seems more attuned than Rosenwald to Kerry’s foreign-policy prescriptions, castigating Kerry for inciting military involvement in Gaddafi’s Libya.

President Obama, for his part, has overseen regular bombings throughout the Middle East, including in Pakistan, Yemen, Iraq, and Somalia; ordered US military intervention in Libya; increased US troop levels in Afghanistan and escalated US military operations there; and urged Americans to support US military involvement in Syria. These positions are ironic in light of his warning, in his piece in this collection, against traveling “blindly” down “that hellish path” to war.

Rosenwald’s brief, personal introductions (he recalls hearing James Baldwin speak in the Cathedral of St. John the Divine in New York, for instance, and mentions a tribute he wrote for Daniel Berrigan) to each chapter engender an autobiographical feel. One senses that this book represents a patchwork of accumulated memories, that Rosenwald has recounted and repurposed old reading experiences for present political needs. Inviting Carroll to pen the foreword, moreover, was entirely appropriate and wise.  As this review opened with Carroll’s eloquent words, so it closes with them.

“Because the human future, for the first time in history, is itself imperiled by the ancient impulse to respond to violence with violence,” Carroll intones, “the cry ‘war no more!’ can be heard coming back at us from time ahead, from the as yet unborn men and women – the ultimate voices of peace – who simply will not come into existence if the essential American soul does not change.”  But all is not lost; Carroll remains optimistic.  “The voices of this book, a replying chorus of hope,” he says, “insist that such change is possible.”

A Brief Conversion Narrative

In American Literature, Arts & Letters, Christianity, Essays, Writing on September 7, 2016 at 6:45 am

Allen 2

The conversion narrative is an important genre in American history, one that played an indispensable role in the formation of our cultural and religious identity during the seventeenth century and the First Great Awakening.  The genre as a practiced form hardly exists today, although its iterations are evident whenever a Christian states his or her “testimony.”

Allow me to share mine.  The conversion narratives of two eighteenth-century American writers in many ways reflect my own Christian experience.

John Woolman, a Quaker, recorded his narrative in a series of journal entries.  As a young boy, Woolman intuited the existence of good and evil and felt the manifest presence of a superintending God in his everyday experience.  He learned of his own propensity for wickedness and felt shame and remorse whenever he sinned.  He came to believe in the teachings of Jesus Christ, through Whom he found love and repentance.  The teenaged Woolman, however, gradually abandoned his pious obedience to God.

“Having attained the age of sixteen years,” Woolman laments in his narrative, “I began to love wanton company, and though I was preserved from profane language or scandalous conduct, still I perceived a plant in me which produced much wild grapes.”  Only through God’s grace was Woolman saved from his backsliding and led back to the path of truth and repentance.

When Woolman began to backslide yet again, God visited sickness upon him.  “I was filled,” Woolman writes, “with confusion, and in great affliction both of mind and body I lay and bewailed myself.  I had not confidence to lift up my cries to God, whom I had thus offended, but in a deep sense of my great folly I was humbled before him, and at length that Word which is as a fire and a hammer broke and dissolved my rebellious heart.  And then my cries were put up in contrition, and in the multitude of his mercies I found inward relief, and felt a close engagement that if he was pleased to restore my health, I might walk humbly before him.”

Jonathan Edwards, a New England Calvinist and one of the last prominent American Puritan ministers, wrote what he styled a “Personal Narrative,” which opens with an account of his boyhood inclination for religious matters.  The young Edwards experienced an “awakening” in his father’s congregation.  “I was then very much affected for many months,” he says in his account, “and concerned about the things of religion, and my soul’s salvation; and was abundant in duties. I used to pray five times a day in secret, and to spend much time in religious talk with other boys, and used to meet with them to pray together.”  The power of God energized the exuberant, young Edwards.  “I experienced I know not what kind of delight in religion,” Edwards intones about these early years.

Like Woolman, however, Edwards began to backslide as he grew older.  “But in the process of time,” he says, “my convictions and affections wore off; and I entirely lost all those affections and delights and left off secret prayer, at least as to any constant performance of it; and returned like a dog to his vomit, and went on in the ways of sin.”  Also like Woolman, Edwards was struck with illness, pleurisy, which riled him with inner conflict and compulsive introspection.  Edwards emerged from his illness both healthier and spiritually rejuvenated.  Although still immature in his faith, he “felt a spirit to part with all things in the world, for an interest in Christ.”

My grandmother led me to believe in Jesus Christ as my Lord and Savior when I was in the third grade.  She instilled in me an understanding of God’s grace and an equally important fear of his divine judgment.  As I grew older, I, like Woolman and Edwards, suffered from my own forms of backsliding.  I fell into the company of other boys who were not interested in religious matters.  During my freshman year of high school, my appendix ruptured, and I nearly died after waiting two days to visit the hospital.  At this time, fear for my life and the state of my eternal soul caused me to consult scripture and to pray to God with a renewed sense of urgency.

I was for a few years devout once again, attendant to God’s teachings and careful with my thoughts and actions.  Still I found myself in college—and the immediate years thereafter—drifting from God’s teachings even as I acknowledged their authority and believed that departure from them was sinful.  I delighted in Bacchanalian parties and festivities of a degree I can only imagine to have been comparable to those described by Augustine in reference to his own youth.  My immersion in unholy and rambunctious activity was so complete that I continue to struggle to witness to others, afraid they may discount my message in light of my past sins.

It was not until law school, when I was diagnosed with melanoma and treated with major surgery, including the removal of two lymph nodes, that I truly turned back to God, but even then the process of regeneration involved backsliding and psychological intensity.

Since my marriage and the birth of my two children, I have sought after the Lord with more discipline and seriousness.  I have matured in Christ and seek daily to understand the scriptures and God’s nature.  I have learned that sanctification is a complex process that requires correction and tenacity, and I have found joy in my relationships with other believers and in the awesomeness and enormity of life itself.  Like everyone, I am susceptible to certain sins.  But I believe in the power of God’s saving grace, and, after much study and prayer, attempt to exercise the ability he has provided me to overcome my inherent limitations and innate propensity for sin.

The Sad Career of Justice Stephen Breyer

In Academia, Arts & Letters, Book Reviews, Books, Essays, Humanities, Jurisprudence, Law, Politics on May 4, 2016 at 6:45 am

Allen 2

This essay originally appeared here in The Imaginative Conservative.

It is an unfortunate truism that the longer one remains in the legal profession, the less educated he becomes. The law, as the saying goes, is a jealous mistress: She does not permit solicitors to invest time in rival passions—e.g., philosophy, history, and literature—let alone cultivate the niceties and nuances of expression that distinguish the lettered from the unlettered. It is tough to read Dickens and Henry James when you have got billable hours to meet, and slogging through appellate cases rewards only a rudimentary, distilled understanding of principles that great minds have reworked for centuries. There is simply not enough time for punctual judges and practicing attorneys to master biblical hermeneutics or study Shakespeare, and developing the whole person—learning to live well and wisely—falls far beyond the scope of legal practice and proficiency.

Justice Stephen Breyer was off to a promising start to an educated life when he studied philosophy at Stanford University and then attended Oxford University as a Marshall Scholar. He graduated from Harvard Law School in 1964 and began his legal career as a clerk to Justice Arthur J. Goldberg of the United States Supreme Court. In 1967 Breyer entered the academy—first Harvard Law School and later Harvard’s Kennedy School of Government—where he focused on administrative law. His scholarship was neither groundbreaking nor exceptional, but it was sufficient to secure him a full professorship and to demonstrate a superior understanding of an unpopular subject. Breyer was, at this time, becoming the welcome exception: a literate lawyer.

Then things went wrong, gradually and by slow degrees. Breyer took the bench on the United States Court of Appeals for the First Circuit in 1980 and, thereafter, became less interesting and bookish and more programmatic and expedient. Perhaps he was overworked or overtired, inundated with cases and bogged down by the mostly mundane tasks of judging. Perhaps, as should be expected, he paid more attention to his docket than to the philosophers who had enriched his thinking during his youth. Perhaps he never wanted the life of a scholar and previously had spilled his ink to game the ranks of the professoriate, an arduous scheming no longer necessary once he had achieved a position with life tenure and nearly unparalleled retirement benefits. Perhaps a want of constructive idleness and leisured meditation hardened his contemplative faculties. Whatever the reason, Breyer’s scholarship fell off, his writing suffered, and the lamp of his imagination went out. He poured his soul into cases.

Breyer did manage to exhibit flashes of his former acumen in Active Liberty (Vintage, 2005), but his latest book, The Court and the World (Knopf, 2015), notwithstanding the cheering pother it’s elicited, is a snoozer and not particularly edifying. The introduction consists of the kind of tedious mapping and framing that only the student editors of law reviews would tolerate. Breyer separates the book into four parts. Part I addresses the protection of civil liberties during our age of terrorism and constant security threats; Part II, statutory interpretation; Part III, the interpretation of treaties and the lawmaking powers of the president and Congress; and Part IV, communication between jurists from different jurisdictions across the planet. Two animating themes underlie each part: the meaning and import of the rule of law in a globalized world and the incorporation of foreign trends and norms into the legal system of the United States. The latter theme involves principles of comity, or the idea that one jurisdiction will give weight, deference, and authority to the acts, orders, or rulings of another jurisdiction. Breyer’s thesis is that “the best way to preserve American constitutional values (a major objective that I hold in common with those who fear the influence of foreign law) is to meet the challenges that the world, as reflected in concrete cases on our docket, actually presents. Doing so necessarily requires greater, not less, awareness of what is happening around us.”[1] Standing alone, this declaration seems benign and uncontroversial, hardly worth sustained critique or impassioned defense. Yet something is rotten in the state of Denmark, and arguments that seem nonthreatening are not always as they seem.

This essay will analyze Breyer’s attempts to realize his thesis in The Court and the World and raise questions regarding whether he has, in the way he celebrates the transnational turn in judging, betrayed his own provinciality and proven his own misunderstanding of foreign developments as he puts paternalistic presuppositions on display. Rather than modeling a greater awareness of “what is happening around us”—his stated goal—Breyer demonstrates a profound unawareness of international trends and norms, not to mention a paternalistic view of the role of American courts in relation to the cultures and values of peoples beyond American borders.

I will suggest, as well, that Breyer advocates approaches to judging that, if widely followed and accepted, could fundamentally undermine his notions of comity and international interdependence; thus, his jural prescriptions, such as they are, ought to be approached with extreme caution if not rejected outright, at least until a better case can be made for them.[2] Although Breyer purports that he “does not pretend to offer any ultimate or even provisional solutions”[3] to the challenges presented by globalization, or that he “merely surveys what is for many an unfamiliar and still-changing legal landscape,”[4] he champions certain methods and viewpoints that lead inexorably to predictable and definite outcomes.[5]

My chief criticisms are threefold: (1) Breyer affirms the obvious and, thus, contributes nothing meaningful or constructive to our ongoing conversation about the role of foreign law in domestic courts; (2) he defends a transnational turn in jurisprudence at the expense of the liberal, democratic principles he purports to value; and (3) his lack of historical and philosophical understanding, or his refusal or inability to employ that understanding in the service of rational argument in this book, undermines his reliability and undercuts any lasting merit his arguments for transnational adjudication and jurisprudence might enjoy. These are not my only concerns about Breyer and his latest book, but a commentator nervous about the prestige and grandeur of the High Court must shrink from enumerating every failure of one of its most eminent justices. As I am not motivated by pure animus or set in the way of critique, I do praise Breyer’s work where praise is due, in particular regarding his sensible apprehensions about the scope of presidential power, especially during wartime.

The gravamen of Breyer’s argument is that because of communications technology, ease of travel, and globalization, the influence of foreign law on United States courts is on the rise. That is indisputable and self-evident. No reasonable person doubts that we live in “an ever more interdependent world—a world of instant communications and commerce, and shared problems of (for example) security, the environment, health, and trade, all of which ever more pervasively link individuals without regard to national boundaries.”[6] It does not follow from this obvious given, however, that a knowledge of foreign laws and legal institutions should be accompanied by their binding application in the courts of our nation, or that any hesitance to embrace unprecedented levels of extraterritorial-based experimentation with the domestic legal system constitutes, in Breyer’s words, “stand[ing] on the sidelines” or a “withdraw from the international efforts to resolve the commercial, environmental, and security problems of an increasingly interdependent world.”[7] Such language borders on bad-faith and casts doubt on Breyer’s credibility, integrity, and motivation. After all, Breyer does not attempt to explain or even address the potential arguments of his opponents, who are never named in the text (unless they are his colleagues on the bench), nor does he concede when his opponents’ points are valid. Instead, he militates against straw men and caricatured positions that, in his telling, stand in the way of necessary progress and experimentation. Lest I surrender to the same dishonest tactics here, I turn now to key examples from Breyer’s chapters to substantiate my three presiding criticisms.

It is helpful at the outset to note a structural dichotomy that frames Breyer’s argument. “[T]he important divisions in the world,” Breyer opines, “are not geographical, racial, or religious but between those who believe in a rule of law and those who do not.”[8] With this tidy summation Breyer presses into two sides all the world’s religious varieties and cultural multiplicities, each with their own normative codes and modes of participation in government and politics. The risk of Breyer’s oppositional pairing is plain: inattention to nuanced realities, simplification of complex systems and beliefs, reduction of complicated theories, neglect of rivaling perspectives, and so forth. That is not to say such casual coupling has nothing to recommend it; sometimes easy heuristics and graspable models are helpful. Consider, for instance, Aristotle’s ten predicates or the hypothetical State of Nature popularized by Hobbes and Locke. Yet a justice on the United States Supreme Court who urges American judges “to understand and to appropriately apply international and foreign law”[9] should avoid the type of essentializing that subsumes important, distinguishing characteristics of diverse legal systems under two broad categories, one good and one bad. This simplistic dichotomy does manifest injustice to those cultures and communities—many of them more traditionalist, religious, localist, and conservative than their European and American neighbors—which consider themselves to be governed by the rule of law, however different that version of the rule of law may seem from the standards and structures figured in Breyer’s operative paradigm.

To his credit, Breyer is upfront about his assumption that “the United States will remain a preeminent world power, due to its military and economic strength and the prestige of certain features of American life, including our long experience in creating, maintaining, and developing a fairly stable constitutional system of government.”[10] And he is likely right on that score as a matter of factual probability. He also exhibits an endearing pride when he intones that the American legal system has “allowed a large multiracial, multiethnic, and multireligious population to govern itself democratically while protecting basic human rights and resolving disputes under a rule of law.”[11] Yet inherent in his commendation of the American legal system is the unexamined presumption that the legal norms of other, more traditionalist places and cultures are inferior to those of the United States or else poor foundations for the rule of law in practice. “When, therefore, I use the frequently heard term interdependence,” Breyer avers, “it is with these assumptions”—i.e., those assumptions which affirm the superiority and staying power of the American legal system–“firmly in mind.”[12] These assumptions, however valid they may seem at first blush, signal a telling paradox, if that is the right word. To wit, Breyer admires the tolerance and accommodation made possible by liberalism and democratic constitutionalism, but in prioritizing tolerance and accommodation he would open the American legal system to their opposite. Developing in tandem with the proliferation of transnational norms and institutions is the equally rapid spread of radicalism and reaction,[13] exemplified most notably in Islamic terrorism and Sharia Law but evident to a lesser degree in the pseudo-nationalist movements and organizations percolating across Europe. Breyer’s call for the adoption of foreign laws and legal norms could mean the eventual obliteration of the very flexibility and latitude that enable jurists like him to look abroad for instruction and guidance.

Breyer is right in one vital respect: Interdependence has a “particularly worrisome manifestation”[14] as a result of national-security threats, the judicial response to which has been to increase presidential powers at the expense of constitutional fidelity. Breyer’s thesis for Part One, which addresses national security and presidential power, is laudably direct and succinct:

“This Part will show the Court steadily more willing to intervene and review presidential decisions affecting national security, even to the point of finding a related presidential action unconstitutional. What is notable is that this progression toward assertiveness has occurred even as threats to national security have become more international, indefinite with respect to manner, and uncertain with respect to time. Indeed, threats today are less likely to arise out of a declaration of war by another sovereign power and more likely to be posed by stateless international terrorist networks. They are also more likely to last for many years, perhaps indefinitely. The change in the Court’s approach together with the change in circumstances is, I would argue, no mere coincidence.”[15]

What follows this thesis is less direct and succinct as Breyer undertakes to supply an abbreviated history of the political-question doctrine and its implications for the scope of executive authority.

To prove the relevance and significance of the political-question doctrine to current affairs, Breyer briefly discusses Zivotofsky v. Clinton (2012),[16] a recent case in which the United States Supreme Court (hereinafter sometimes referred to as “the Court”) determined that issues pertaining to passport regulation were not purely political questions outside the province of the judiciary. The principal focus of this section, however, is historical, surveying with sweeping strokes everything from Abraham Lincoln’s suspension of habeas corpus to Woodrow Wilson’s prosecution of dissenters during wartime to Harry Truman’s seizure of steel mills, which were private property. Accordingly, Breyer analyzes United States v. Curtiss-Wright Export Corp. (1936) (which held, inter alia, that the President of the United States is constitutionally vested with plenary executive authority over certain foreign or external affairs; that the powers of external sovereignty enjoyed by the United States federal government do not depend on affirmative grants of the United States Constitution; and that the United States Constitution, and the laws passed pursuant thereto, have no force in foreign territory);[17] Korematsu v. United States (1944) (which held that the executive exclusion orders providing for the detainment of Fred Korematsu, an American citizen of Japanese descent, were constitutional);[18] and Ex parte Quirin (1942) (which upheld as constitutional the jurisdiction of U.S. military tribunals—created by executive order—used to prosecute German saboteurs in the United States).[19] Under these cases, the president enjoys wide discretion and privilege in matters of national security and foreign affairs. If Breyer’s summaries of these cases repay rereadings, it is because they are useful guides to landmark cases—but no more useful than any of the student briefs or encyclopedia entries that can be found online.

To his credit, in my view, Breyer rejects the guiding rationale in Curtiss-Wright, Korematsu, and Quirin and finds wisdom in Youngstown Sheet & Tube Co. v. Sawyer (1952), which held that the president did not possess the inherent power, purportedly in the public interest, to order the Secretary of Commerce, during wartime, to seize the private property of steel companies that were wrangling over labor disputes. Youngstown Sheet, whatever else it stands for, represents a stark departure from the mode of absolute deference to executive power adopted and perpetuated by the Court in earlier eras.[20] Why did the Court reverse course in Youngstown Sheet? According to Breyer, “Judges are inevitably creatures of their times, and the Steel Seizure justices had just seen totalitarian regimes destroy individual liberty in Europe. While they did not necessarily fear the rise of an American dictator, knowledge of what happened to other democratic societies must have been sobering.”[21] This explanation would have us believe that a mere awareness of foreign affairs—not fidelity to the terms of the Constitution—motivated the decision in Youngstown Sheet. Although the events of World War One and World War Two and other twentieth-century geopolitical struggles no doubt loomed large in American memory, Justice Black’s opinion in Youngstown Sheet, as well as the concurrences with that opinion, grounded themselves in the text of the Constitution, not in extraconstitutional historical analysis or commentary on current events.

Breyer acknowledges that presidents will, as a matter of course, seek to exercise vast authority to resolve urgent conflicts, but he believes the Court’s institutional duty is to ensure that executive power is prudently circumscribed. “We should,” he says, “expect presidents to make broad assertions of presidential authority, especially during an emergency, when in the rush of immediate events they face immediate problems requiring immediate solutions. The Court, by contrast, playing a different institutional role, can and must take a longer view, looking back to the Founding, across the nation’s history, and sometimes into the unforeseeable future. No matter how limited an opinion the justices try to write, their holdings will be taken as precedent, perhaps for a very long time.”[22] Looking to history and tradition to demarcate executive power is, of course, good, but Breyer appears to disregard the fact that constitutional interpretation—the way in which provisions of the constitution are read and applied by judges and justices—is embedded in historical networks and processes. A judge or justice may not undertake historical inquiry that is divorced from the text of the Constitution, which must provide the framework and serve as the source for judicial decisions no matter the era and no matter the sociopolitical exigencies. If history were to instruct judges and justices that certain provisions of the Constitution were unwise or improper, judges and justices would nevertheless be bound by those provisions and could not remake or ignore them based on their personal interpretations of historical events. Reworking or revising the text of the Constitution falls to the legislature, which is electorally accountable to the citizens, whose cultures and values, which are likewise historically informed, shape and guide the amendment process recognized in the Constitution.

Breyer suggests that the so-called “Guantanamo Bay Cases”—Rasul v. Bush (2004),[23] Hamdi v. Rumsfeld (2004),[24] Hamdan v. Rumsfeld (2006),[25] and Boumediene v. Bush (2008)[26]—represent a new trend, or “the culmination of an evolution that may continue.”[27] Advocates for some Guantanamo Bay detainees had, during the presidency of George W. Bush, begun filing writs of habeas corpus and other, similar actions in the courts of the United States, challenging the detainees’ imprisonment on foreign soil as well as the government’s position that the detainees were not entitled to, and thus not denied, access to the legal system of the United States. Although these cases reaffirmed the longstanding authority of the executive branch in certain areas, they also pushed back against executive powers, vesting in the detainees the right to challenge their detention in the legal system of the United States. These cases collectively established that individuals detained as enemy combatants were entitled to due process of law, notwithstanding their citizenship or executive prerogative, and they effectively curbed the government abuse occasioned by special military commissions and the suspension of habeas corpus. The Court ensured that the rule of law, however strained, obtained in times of war as in times of peace. The days of Curtiss-Wright and Korematsu were, the Court proved, no longer with us. Breyer attributes this development to a growing awareness of other countries and cultures. “The intrusion of the world’s realities into our national life,” he says to this end, “no longer seemed, as it once had, such an anomalous thing, justifying anomalous results.”[28]

Justice Breyer is correct that the “world’s realities” have forced a rethinking of the judicial role and judicial authority, but, again, he closes his eyes to other realities, namely, those demonstrating how constitutionally limited the judicial role and judicial authority are and must be. He characterizes the allegedly new approach as “engagement,” as if, in this particular context, it were not already the prescribed role of the judicial power under the Constitution. “Rather than sit on the sidelines,” Breyer says, “and declare that cases of this kind pose an unreviewable ‘political question,’ or take jurisdiction but ultimately find for the President or Congress as a matter of course, today’s Court will be more engaged when security efforts clash with other constitutional guarantees. It will listen to the government and consider its arguments, but it will not rubber-stamp every decision.”[29] The problem with this characterization is twofold: first, it suggests that the Court is doing something that the Constitution does not require the Court to do and ignores the possibility that the Court in earlier eras might have been acting unfaithfully to the text of the Constitution as the justices shirked their constitutional duties; and second, it could operate as a basis for validating judicial “engagement”—one might say “activism”—in other areas such as the Fourteenth Amendment, under which the Court has forged a grotesque line of precedent, supposedly emanating from the substantive-due-process and equal-protection clauses, that has less textual basis in the Constitution than the sort of judicial engagement manifest in the Guantanamo Bay Cases.

However appropriate Breyer’s concerns about presidential power may be, they are undercut by his reticence to admit that our own Constitution has equipped us with adequate remedies for the problem. He preaches that, in the future, the Court must achieve a “greater willingness to understand and take account of both the world and of the law beyond our borders,” as well as a “readiness to meet the various challenges of doing so,”[30] as though the Guantanamo Bay Cases had nothing to do with the laws within our borders and everything to do with the laws beyond our borders. Leaving aside the problematic jurisdictional and legal status of Guantanamo Bay, a military prison located within the borders of another nation—one that is not an ally of the United States—the fact of the matter is that the Guantanamo Bay Cases involved disputes over provisions in the United States Constitution and the laws of the United States. The Court did not divine its conclusions from, or predicate its rationale on, some greater understanding of the world and extraterritorial law. Thus, Breyer overstates the importance of interdependence in these cases.[31] Although it is true that “[o]ther courts and legislatures have faced and are facing similar threats to their nations’ peace and safety” and that those institutions “have engaged in similar projects to those before our Court of balancing security and liberty,” nothing those courts or legislatures say or do is binding on the courts in the United States,[32] even if their solutions, which Breyer does not specify, “serve as constructive examples that our Court could put to good use.”[33] Nothing in Part I of Breyer’s book supports this conclusion. Instead, that portion of the book reveals how the laws of the United States have, over time and despite setbacks and mistakes, worked better than foreign laws to check power grabs and mediate conflicts as the Court gradually came to adopt rather than disregard certain principles enshrined in the Constitution. If anything, foreign law in this section of the book—as evidenced by the legal architecture of the 20th century totalitarian regimes that loom in the background of Breyer’s narrative—serves as an illustration of what not to mimic and incorporate into the American system.

I pretermit examination of Part II of The Court and the World because its thesis—that courts in determining the reach of domestic statutes must consider the effects of doing so on foreign laws and practices[34]—is straightforward and unremarkable. Moreover, its lengthy treatment of the Alien Tort Statute and other such legal texts is unlikely to interest those unfamiliar with or uninterested in that subject. This section of the book, in which the focus shifts from constitutional analysis to statutory construction, bears out what Breyer means by comity. Breyer urges the United States Supreme Court, and presumably other, inferior courts, “not simply to avoid conflict but also to harmonize analogous American and foreign law so that the systems, taken together, could work more effectively to achieve common aims.”[35] This is an expansive interpretation of comity in that it encourages judges not only “to ensure that domestic and foreign laws d[o] not impose contradictory duties upon the same individual,”[36] the traditional view of comity, but also that judges “increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web.”[37] To achieve comity, so understood, judges must familiarize themselves with foreign laws and customs and can do so through academic journals, treatises, and articles.[38] This advice gestures towards Breyer’s proposal that American judges consider themselves, and conduct themselves as, diplomats.

This proposal, which takes shape in Part III and IV, is not as brazen as it may initially seem because Breyer turns his eye on the role that treaties and other international agreements have played in the domestic legal system. A feature of international law with felt ramifications on the everyday lives and economies of domestic citizens, treaties force judges to contemplate international relationships. Presidents have, over several decades, exercised treaty powers more frequently and on subject matters increasingly more domestic. They have created new agencies that promulgate and enforce rules and regulations, thus leading to new and bigger bureaucracies. “How has the Court’s approach to the interpretation of international agreements adapted to these changes?” Breyer asks.[39] His answer, in part, is that “[i]t has become more important to find interpretative solutions that are workable, thereby showing that a rule of law itself can work.”[40] “[I]t has,” he adds, “become more important for the courts to understand the details of foreign and international rules, laws, and practices.”[41] Breyer’s substantiates this claim with discussions of child custody, international arbitration, and the delegation of authority from domestic to international bodies created by treaty or other such mechanisms.

A certain smugness inheres in Breyer’s remark that “judges who would hesitate to consider decisions of foreign courts when interpreting the American Constitution do not hesitate to consult such decisions when treaties are in question.”[42] Surely, though, Breyer knows the difference between incorporating foreign legal principles into opinions when those principles have merely persuasive value (and no binding operation) in a case and deciphering the outcome-determinative rules in treaties that are at issue in the case as well as a valid source of law under the Constitution.[43] There is a palpable difference between judges in a death-penalty case considering data about how many countries recognize capital punishment[44] and judges in a child-abduction case interpreting the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a party. The latter activity has caused the Court to venture “into uncharted legal territories, reckoning with (and at times applying) foreign laws concerning what once were almost exclusively local matters.”[45] It stands to reason that the Court would consider how judges in other countries, bound by the same child-abduction treaty, would interpret the text of that treaty, but why should the Court therefore consider another country’s capital-punishment laws to which the United States never submitted itself, by treaty or otherwise?

Breyer is on better footing in his discussion of the mandatory arbitration provided for in international treaties, which, as they multiply, will increasingly require interpretation by American judges.[46] For obvious reasons, this method of resolving transnational commercial disputes has become more common than court litigation. “[W]hen borders are crossed,” Breyer explains, “arbitration offers the crucially important advantage of forum neutrality—parties can appear before a neutral decision maker without having to be hauled into the other’s courts. The practice is therefore particularly popular among investors in developing countries, who are often skeptical of the local court systems.”[47] It can be vexing to resolve complex disputes between private parties and nation-states for numerous reasons, chief among them being the lack of a widely accepted forum for judicial review;[48] furthermore, the jurisdictional effects of economic globalization are not yet fully known, a fact Breyer acknowledges.[49] Thus, alternative dispute resolution, including and especially arbitration, seems like an area in which Breyer could have done more clarifying and elucidating. With perhaps his strongest points coming in his chapter on arbitration, it’s a shame he spends so little time on the subject, which is rapidly evolving and becoming ever more important to the economic activities not just of governments and large corporations, but of private individuals and small businesses.

It is the matter of socioeconomic, cultural, and political evolution that betrays Breyer’s provincial paternalism. Of course times are changing. Yet when Breyer announces that “[c]hange is upon us,”[50] he seems blissfully unaware of the nature of the change. He is never recklessly explicit about it, but he appears to imply that the United States ought to follow liberal trends that he apparently sees in other countries.[51] If he is correct that “the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad,”[52] then, depending on what he means by “consider,” we may need to prepare ourselves for, to name one possibility, radical Islamic jurisprudence or the spread of intransigent government and messianic statism. Or if Breyer finds unpalatable the form of Islamic law that ISIS, Boko Haram, al-Qaeda, al-Shabaab, or the al-Nusra Front seek to impose on their subjects, perhaps he would prefer China’s two-child policy; India’s abolition of the jury trial; Singapore’s criminalization of littering, chewing bubble-gum, and possessing pornography; or laws prohibiting homosexual activity—some of which carry the death penalty for their violation—in countries from Afghanistan and Saudi Arabia to Dominica and Malawi. I express no opinion here on the value or merit of any such laws outside the United States of America. I raise these examples only to demonstrate the implications and potential ramifications of Breyer’s arguments, which are intended to promote a different vision.

In Breyer’s paradigm “foreign” and “international” appear to mean nothing more than Western European, since he fails or refuses to consider the legal institutions of any Asian, South American, Middle Eastern (Israel excluded), Russian, or African nations. Nevertheless, Breyer seems unaware of the direction the political winds are blowing in the actual flesh-and-blood Europe. Breyer does not strike me as one who would welcome the construction of the chain-link, razor-wire fence—authorized by Hungarian President Viktor Orban—that stretches more than 100 miles along the border of Hungary. Nor do Breyer’s views seem compatible with those of Marine Le Pen and the French National Front, or Laszlo Toroczkai, the youthful Hungarian mayor of Asotthalom, or Geert Wilders, the Dutch founder of the Party for Freedom. Breyer wants Americans to look to Europe to undermine nationalism, yet nationalism is on the rise in Europe.

The French have banned face-covering attire so that Islamic women may not wear a burqa or a niqab. The Swiss People’s Party has become increasingly popular, the Swiss having begun restricting immigration under a quotas law established by a 2014 referendum. The effectiveness and long-term viability of treaties such as the Schengen Agreement among European nations has been called into question. Secessionist movements have sprung up in Scotland, Catalonia, Flanders, and Venetia, and the United Kingdom will soon hold a referendum to determine whether it will remain a member of the European Union, whose future is in jeopardy, as pointedly demonstrated by Jürgen Habermas’s recent plea for European solidarity.[53] The unintended irony underpinning Breyer’s love affair with Western Europe is that, in urging the gradual adoption and enduring “consideration” of foreign laws by American judges, he has laid the groundwork for measures at odds with his liberal, democratic principles.

A vital sense of the interconnectedness of nations has impressed itself deeply in the imagination of certain elites in the United States. It is liable to the type of paternalism exhibited in The Court and the World. In some circles the mere mention of foreign norms or institutions confers upon opinions a prestige too quickly confounded with profundity and intelligence. Even so, the discriminating reader will find little profound in Breyer’s book. Of Breyer’s two chief shortcomings, that of stating the obvious (globalization has caused foreign law to play new roles in domestic controversies) and that of opening domestic courts to the incorporation of foreign law notwithstanding the relevant terms of domestic law or the restraints on such incorporation established by statute or the Constitution, the latter shortcoming is more damaging. Domestic law has mechanisms for dealing with foreign laws. Those mechanisms resolved most of the cases and controversies Breyer discusses in the book. Thus, Breyer hardly replenishes the field of transnational adjudication with fresh insight or makes a compelling case for the embrace of foreign law.

Even regarding the death penalty, Breyer’s advice to look to foreign law for guidance could backfire. According to Amnesty International, executions worldwide were up 28% in 2014.[54] A quick appraisal of Amnesty International’s country profiles on the death penalty reveals that those countries which have abolished the death penalty are experiencing population decline.[55] The death penalty remains popular and prevalent in emerging countries.

Despite his grand vision of judges as diplomats who divine from foreign principles the right and proper course for social action within their jurisdiction,[56] Breyer gently insists on merely humble objectives, muting the vast implications of his argument with careful qualifications such as this one:

“This book is based upon my experience as a judge. It does not survey the whole of international law or even of foreign law as it affects Americans. Nor does it comprehensively describe the instances in which courts must deal with questions involving that law. It illustrates and explains what I have seen and why I believe there is an ever-growing need for American courts to develop an understanding of, and working relationships with, foreign courts and legal institutions.”[57]

Breyer’s description here of what his book does not do is also an adumbration of what his book cannot do: no single book could survey the whole of international law or foreign law as it affects Americans; no single book could comprehensively describe the interaction of international or foreign law with American courts. Nor could Breyer speak from the perspective of someone not himself. Few people, I suspect, object to gaining a greater understanding of foreign courts and legal institutions. Yet the phrase “working relationship with foreign courts and legal institutions” remains problematic. What does it mean? Breyer’s book provides no shortage of possible answers, but the inquisitive reader will come away dissatisfied at the want of clarity.

Breyer’s arguments, finally, are as nothing without the sonorous prose of a Justice Holmes or Justice Cardozo. Anyone could have written this book, which should have been set apart by the fact that its author is a sitting justice. Breyer tells us nothing any close observer of the Court or the legal system could not have said and likely would have said with superior skill and rhetoric. He teases us with passing mention to interactions that are “typically invisible to the general public,”[58] but those interactions remain equally invisible in the book; there are no details about backroom deliberations, about how or why judges and justices compromise their hermeneutics or jurisprudence in the face of international pressure or as a result of some “global” perspective. We’re not told about our Supreme Court justices’ private discussions, research methodologies, philosophical influences, reading habits, or reliance (or non-reliance, as the case may be) on law clerks, amicus briefs, historical documents, or foreign scholarship.

No working judge or lawyer should read this book because most of its subject matter is already recognizable in everyday legal practice to anyone with a basic awareness of professional trends. Those without a legal background will find nothing here that is not already presented more skillfully and comprehensively in casebooks or textbooks. Breyer’s simplistic method (“look abroad, friend”) would have unintended consequences incompatible with his liberal and democratic sensibilities. The Court and the World is a profound waste of effort because it belies its own thesis. This is destined to become “just another book” written by a judge. One might object that a book so unimportant warrants but a short review. On the contrary, a longer review has the benefit of laying bare the many reasons why buying and reading this book is unnecessary. One wonders whether the young, more philosophical Breyer would have developed a more striking argument for his views on transnationalism, or whether he would have inhabited these views at all.

 

Notes:

[1] Stephen Breyer, The Court and the World: American Law and the New Global Realities (New York: Alfred A. Knopf, 2015), 8.

[2] I do not mean this as an insult. Breyer himself encourages others “to find better and specific responses” than he can offer from his limited vantage point as a justice on the United States Supreme Court. Ibid., 6.

[3] Ibid., 281.

[4] Ibid.

[5] Breyer can be impressively subtle with his advocacy. For example, when he asserts that “our federal courts may eventually have to take account of their relationships with foreign institutions just as they now take account of their relationships with state courts and other American federal and state legal institutions,” he appears, in context and in light of his arguments throughout the book, to mean that federal courts ought to take account of their relationships with foreign institutions. Ibid., 7. The vague verbal construction “take account of” begs the question: What does Breyer have in mind? To “take account of” something seems innocuous and not quite the same as “utilizing,” “following,” or “employing.” The argument that courts ought to “pay attention to” foreign law is not remarkable. It becomes clear, however, as Breyer lays out his argument, that “take account of” means something more like the deliberate implementation and incorporation of foreign laws and norms in the American legal system, a far more controversial notion than simply to notice or observe foreign law with objective distance.

[6] Ibid., 4.

[7] Ibid., 235.

[8] Ibid., 284.

[9] Ibid., 7.

[10] Ibid., 4.

[11] Ibid.

[12] Ibid.

[13] I use the term “reaction” or “reactionary” differently from the way in which that term is employed by, say, Paul Elmer More or, more recently, Mel Bradford and John Lukacs. A full explanation of the manner in which I use the term here would exceed the scope of the piece, even if it would yield valuable returns.

[14] Breyer, The Court and the World, 81.

[15] Ibid., 13.

[16] 132 S. Ct. 1421, 566 U.S. ___, 182 L. Ed. 2d 423 (2012).

[17] 299 U.S. 304, 318-19 (1936).

[18] 323 U.S. 214, 221-22 (1944). Of this holding, Breyer states, “So what happened to civil liberties? How could the Court have reached such a decision? The question is a fair one, particularly since the majority included Justices Black, Douglas, Frankfurter, and Reed, all of whom later joined the unanimous Brown v. Board of Education decision, striking down racial segregation as unconstitutional. The most convincing, or perhaps charitable, explanation that I can find is that the majority, while thinking the government wrong in Korematsu itself, feared that saying so would only lead to other such cases in which the government was right, and that the Court would have no way of telling one kind from the other. Someone has to run a war. In this case, it would either be FDR or the Court. Seeing the folly of the latter choice, the Court elected not to question the President’s actions. This is an argument, baldly put, for broad, virtually uncheckable war powers. But as we have seen, it resembles what many presidents may actually have thought in time of war.” Breyer, The Court and The World, 36.

[19] 317 U.S. 1, 63 S. Ct. 1 (1942) (ruling in advance of a full opinion); 317 U.S. 1, 24-29, 63 S. Ct. 2 (1942) (ruling with full opinion).

[20] In Breyer’s words, “the Steel Seizure case, even if read narrowly, represents a major change in the Court’s approach to the President’s emergency powers. Occasionally a prior case … had pointed to court-enforced limits. But in the Steel Seizure case, the Court both held that limits existed and analyzed the matter in detail. Its conclusion: better the indeterminacy of Pharaoh’s dreams than a judicial ratification of presidential emergency power without limits.” Breyer, The Court and The World, 63.

[21]Ibid., 61.

[22] Ibid., 61.

[23] 542 U.S. 466 (2004).

[24] 542 U.S. 507 (2004).

[25] 548 U.S. 557 (2006).

[26] 553 U.S. 723 (2008).

[27] Breyer, The Court and The World, 80.

[28] Ibid., 81.

[29] Ibid., 80.

[30] Ibid., 13.

[31] Breyer concludes Part I by stating: “Interdependence means that, when facing subsequent cases like those discussed so far, the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad. As to the former, the Court will have to understand in some detail foreign circumstances—that is, the evolving nature of threats to our nation’s security, and how the United States and its partners are confronting them—in order to make careful distinctions and draw difficult lines. This need for expanded awareness will require the Court to engage with new sources of information about foreign circumstances, in greater depth than in the past. Indeed, by agreeing to decide, rather than avoiding or rubber-stamping, cases involving national security, the Court has implicitly acknowledged a willingness to engage with the hard facts about our national security risks.” Ibid., 81.

[32] Ibid., 81.

[33] Ibid., 82.

[34] Ibid., 91-92, 96-97.

[35] Ibid., 132.

[36] Ibid., 92.

[37] Ibid., 91.

[38] Ibid., 96-97.

[39] Ibid., 168.

[40] Ibid.

[41] Ibid.

[42] Ibid., 169.

[43] That Breyer devotes considerable space to his concerns about treaty powers in relation to other constitutional provisions, such as the Supremacy Clause, shows he is alive to this distinction; his concerns also suggest that, under the Constitution, with regard to treaties, there remain open questions among reasonable thinkers about the limits and proper application of the separation-of-powers doctrine. See generally Ibid., 228-235. See also Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellín v. Texas, 552 U.S. 491 (2008); Bond v. United States, 572 U.S. ___ (2014).

[44] See Breyer, The Court and the World, 237-39.

[45] Ibid., 170. See, e.g., Abbott v. Abbott, 130 S. Ct. 1983, 560 U.S. 1 (2010); Lozano v. Alvarez, 133 S. Ct. 2851 (2013).

[46] Breyer, The Court and the World, 195-97.

[47] Ibid., 180-81.

[48] See BG Group PLC v. Republic of Argentina, 572 U.S. ___, 134 S. Ct. 1198 (2014) (discussed in Breyer, The Court in the World, 185, 187-92, 195).

[49] Breyer, The Court and the World, 195.

[50] Ibid., 81.

[51] In his responsibly mixed review of The Court and the World, Akhil Reed Amar states, “Left largely unstated is Breyer’s apparent premise that as American judges become more familiar with non-American legal sources …, these very same American jurists will just naturally begin to think globally and to ponder foreign legal materials even in plain-vanilla cases of American constitutional law that do not directly involve foreign events or foreign persons.” Akhil Reed Amar, “Law and Diplomacy,” Los Angeles Review of Books (November 24, 2015) [available online at https://lareviewofbooks.org/review/law-and-diplomacy%5D (last accessed January 3, 2016).

[52] Breyer, The Court and the World, 81.

[53] Jürgen Habermas, The Lure of Technocracy, trans. Ciaran Cronin (Cambridge, United Kindgom: Polity Press, 2010), 3-28.

[54]Death Penalty,” Amnesty International Website, “What We Do” (last accessed January 3, 2016).

[55]Countries,” Amnesty International Website, “A-Z Countries and Regions” (last accessed January 3, 2016).

[56] Breyer submits the following: “When judges from different countries discuss different substantive approaches to legal problems, compare procedures, and evaluate the efficacy of judicial practices, they are not only exchanging ideas about specific tools of the trade. There is more. The underlying, but often unspoken, theme of any such meeting is the sustained struggle against arbitrariness. If the objective is ambitious, it has been so since the time of Hammurabi. The enterprise is not without setbacks. Often, like Penelope’s weaving, what we create during the day is undone at night. But the effort is worthwhile. Civilization has always depended upon it. It still does. And now, to an ever greater extent, jurists from many different countries engage in that effort together.” Breyer, The Court and the World, 280.

[57] Ibid., 7.

[58] Ibid., 5.

Paul H. Fry on “Who Doesn’t Hate Theory Now?”

In Academia, American Literature, Arts & Letters, Books, British Literature, Essays, Fiction, Historicism, History, Humanities, Literary Theory & Criticism, Literature, Novels, Pedagogy, Philosophy, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on April 13, 2016 at 6:45 am

Below is the next installment in the lecture series on literary theory and criticism by Paul H. Fry. The previous lectures are here, here, here, here, here, here, here, here, here, here,here, here, here, here, here, here, here, here, here, here, here, here, and here.

 

Bond and Bonding in Shakespeare’s Merchant of Venice

In Arts & Letters, Austrian Economics, Books, British Literature, Economics, Essays, Fiction, History, Humane Economy, Humanities, Law, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Scholarship, Shakespeare, Western Civilization, Western Philosophy on April 6, 2016 at 6:45 am

Allen 2

A bond is an agreement, the unification of individuals or groups under mutual terms. Parents may bond affectionately with their children just as friends may bond affectionately with one another. Marital bonds join spouses in a sacred contract that confers conjugal rights and duties.

A bond is also a security for a debt. Banks may issue and underwrite bonds with fixed interest rates or correlative maturity dates in exchange for the promise of repayment. Bonds may be defeasible, high-yield, low-yield, covered, subordinated, or perpetual. They may be backed by liens or mortgages. There are government bonds, municipal bonds, fiduciary bonds, war bonds. A bond may be an instrument or the name for a type of covenant between persons. Love is not just a bond but something within a bond, if we believe the Countess in Shakespeare’s All’s Well That Ends Well.

In light of this rich multiplicity of meaning, the referent for the isolated term bond is not immediately clear but, instead, contextual. Serviceable explanations for bond depend upon the situation in which it is employed and the circumstances with which it is surrounded. The diverse meanings for bond have in common a reciprocal obligation or indebtedness that is voluntarily undertaken: a bond, whatever else it does, secures a promise or duty.

Sometimes that promise or duty is implicit, as with romantic bonds between monogamous lovers. The term bond is thus pregnant with possibility, yielding manifold associations. “The word itself,” submits Frederick Turner, “contains a fascinating amalgam of positive and negative connotations.”

My essay “A Time for Bonding: Commerce, Love, and Law in The Merchant of Venice,” which may be downloaded at this link, considers the role of bonds and bonding in William Shakespeare’s The Merchant of Venice to undermine the notion that Shakespeare was, to employ a term by Ian Ward, “anti-market” in the play. The Merchant of Venice is instead as multifaceted and polysemous as the term bond and open to an array of interpretations favorable to commerce and business. This essay is part of this collection of essays edited by Edward W. Younkins titled Capitalism and Commerce in Imaginative Literature (2016).

Santa Rosa Beach, 1999

In Arts & Letters, Creative Writing, Essays, Writing on March 23, 2016 at 6:45 am

Mel Mendenhall was born and raised in Columbus, Georgia.  He lives in Atlanta and is the CEO CLVL Solutions, LLC

Mel Mendenhall

In my mind we’re all together at Santa Rosa Beach in the Florida panhandle: my wife, my children, and me. It’s the summer of 1999.

“Mel, as soon as you unpack the car” – which is actually a behemoth of a vehicle called a Suburban – “why don’t you run down to the beach with the kids? You know how they enjoy the beach.”

I don’t know how many times my wife, Julie, has said something like this to me over the course of our children’s vacations. It’s been a lot, though, I know. Too often my mind is wandering to work items: things I need to get done, conversations that need to take place. Always busy, always.

My kids are growing up, Allen the oldest, now 16, Brett nearly 14, and my precious angel girl, Ansley, soon to turn 10. I can’t believe it. Ten. It’s good to have them with me here at the beach.

Finally, I’ve started to appreciate the time we spend together on these family vacations. Somewhere it’s registered with me that time is starting to run short, that the kids are getting older and it won’t be long before Allen goes to college. Then what?

With the car emptied and our groceries and supplies for the week put away, I ask the kids if they want to head down to the beach. Ansley shouts “yay” and boasts to no one in particular, “we are going to the beach!”

Brett says, “Let’s go.”

“Allen?…Allen?” I say. “Hey, what’s with the long face?”

“Dad, I’m bored.”

“Allen, we just got here.”

“I know, dad, but my friends are all staying at a hotel at Sandestin.”

“So,” I try to reason with him, “we are staying here like we always do and it’ll be fun.”

“No, dad,” he says, “I want to see my friends.”

“Oh, c’mon, Allen, let’s go to the beach.”

With that, out bounds Ansley, already in her bathing suit. Brett too. We hurry down the stairs and out the sliding glass doors to the beach. Off we go. Except “we” is just me, mom, Ansley, and Brett. Allen is inside sulking.

We play around on the beach for the better part of an hour. We walk the surf and watch the sand crabs run their endless shuttles back and forth from surf to sand. Whatever those little shells are that seem to burrow their way into the wet sand as the waves rush back only to be swallowed again by the ocean, they’re still here, as they’ve always been. But Allen is not here. He is still inside, pouting I guess.

After some time we all go back inside, shower, and ready ourselves for dinner. Then we’re in the car, driving and pointing at shops and people, a morose Allen in tow. We arrive at one of our family’s favorite restaurants, Bayou Bills. Still, Allen isn’t happy. Gee whiz, I think, kids these days.

The next morning after breakfast I walk down to the beach and, surprisingly, Allen follows. He is in his bathing suit and wearing one of his cross country t-shirts. I’m thinking this is good, that he’s warming up to our trip.

Once on the beach, Allen looks pensive. He’s unsettled. I suggest that we walk left, which is east, down the beach to see whether Beakster is here this year at the inlet about half a mile away. Beakster was a tall sea-faring crane that just a few years ago Allen befriended on one of our trips. It was really cute seeing how the bird and Allen really did seem to be playmates. That summer, when we left for home, Allen was sad to leave Beakster. He assumed, as we all did, that Beakster would miss him too.

But here we are now and Allen is gazing longingly and deliberately up the beach to the right, the west, rather than to my suggested course, east to where Beakster may be.

Suddenly, Allen, who’s the captain of his high-school cross country team, looks at me and says, “I’m going running. I’m going to see if I can make it to the hotel where my friends are.”

And with that, he begins to jog away from me, headed west. His first couple of strides kick up sand, some of which ends up on my hairy feet. The sonorous surf seems to speak at me, echoing Julie’s words, warning me that time is precious and our children are growing up.

I stand here for a long time, watching my boy – or is that a young man – growing smaller and smaller as my throat grows larger and larger. In this moment, I know childhood for him is gone and that I’ll miss it for the rest of my life.

I turn east, walking to find Beakster. If I can only find Beakster, maybe I can bring my little boy back.

El negocio sucio de la recogida pública de basuras

In Austrian Economics, Emerson, Essays, Libertarianism, Philosophy, Property on January 13, 2016 at 8:45 am

Allen 2

Translated by and available here at Mises Mispano. Publicado originalmente el 14 de octubre de 2015. Traducido del inglés por Mariano Bas Uribe. El artículo original se encuentra aquí.

Han pasado casi diez años desde que el Wall Street Journal mostrara el Instituto Mises y afirmara que Auburn era un lugar ideal para estudiar las ideas libertarias y la tradición austriaca. No sé cuánto ha cambiado desde entonces, pero llegué a Auburn esperando un santuario del libre mercado, un verdadero refugio donde las ideas de Menger y Mises y Hayek estuvieran en el ambiente y estuvieran embebidas en la mayoría de la gente que no fuera miembro de la facultad de Auburn e incluso a algunos que lo fueran.

Una vez establecido en Auburn, me di cuenta de que había sido idealista e ingenuo. Incluso antes de que los medios nacionales publicaran la historia del policía que habló contra las cuotas de multas y arrestos de su departamento, incluso antes de que la ciudad de Auburn expulsara a Uber con duras regulaciones para su autorización, incluso antes de que Mark Thornton señalara la maldición del rascacielos en el pueblo, estaba el tema de mi cubo de basura.

Compre mi casa a una empresa de mudanzas, habiendo sido asignado el anterior propietario a un nuevo cargo en otra ciudad. Este propietario tenía prisa por mudarse. Antes de dejar el pueblo, llevó junto con su familia el cubo de basura al lado de la casa, lejos de la calle, donde el recogedor rechazaba tomarlo. Habían llenado el cubo con basura: comida, papel, cajas de cartón, pañales sucios y otros desperdicios. Había tanta basura en el cubo que la tapa no se cerraba del todo. Parecía una boca bostezando. La casa estuvo en el mercado durante unos ocho meses antes de que la comprara y supongo que el cubo se quedó ahí, junto a la casa, todo el tiempo. Naturalmente, había llovido durante los últimos ocho meses, así que, con su tapa medio abierta, estaba lleno de basura mojada y parásitos sin cuento. Y apestaba.

La ciudad disfruta de un virtual monopolio sobre la recogida de basuras: cobra sus tarifas con la factura del agua y alcantarillado de la ciudad. Las pocas empresas recogedoras de basuras en el pueblo atienden sobre todo a restaurantes y negocios: entidades que simplemente no pueden esperar una semana a la recogida y necesitan un proveedor de servicios capaz de vaciar contenedores enteros llenos de basura. La ciudad sí permite a los residentes renunciar a sus servicios de recogida, pero esto solo oculta su suave coacción con una ilusión de opción del consumidor.

Las cláusulas de salida son maliciosas precisamente debido a la impresión de que son inocuas, si no generosas. El derecho contractual se basa en los principios de asentimiento mutuo y acuerdo voluntario. Sin embargo, las cláusulas públicas de salida privan a los consumidores de volición y poder negociador. Distorsionan la relación contractual natural de una parte inversora, el gobierno, con un poder que la otra parte no puede disfrutar. No contratar los servicios no es una opción y el gobierno es el proveedor por defecto que establece las reglas de negociación: la baraja forma un mazo que va contra el consumidor antes de que la negociación pueda empezar.

La responsabilidad, además, recae en el consumidor para deshacer un contrato al que se ha visto obligado, en lugar de en el gobierno para proporcionar servicios de alta calidad a tipos competitivos para mantener el negocio del consumidor. Las cláusulas de salida hacen difícil al consumidor acabar su relación con el proveedor público y obligan a los competidores potenciales a operar en una situación de manifiesta desventaja.

Mi mujer y yo llamamos al ayuntamiento tratando de conseguir un cubo nuevo. Ninguna limpieza y esterilización podrían quitar su olor al cubo actual. No podíamos mantener el cubo dentro del garaje por ese olor opresivo. Dejamos mensajes de voz a diferentes personas en diferentes departamentos del ayuntamiento, pidiendo un nuevo cubo y explicando nuestra situación, pero nadie nos devolvió las llamadas. No había ninguna atención a clientes similar al que tendría una empresa privada. Después de todo había poco peligro de perdernos como clientes: el ayuntamiento era al proveedor del servicio para prácticamente todos los barrios de la ciudad, debido a la dificultad que tenían las empresas privadas para abrirse paso en un mercado controlado por el gobierno. Estábamos en ese momento atrapados por las ineficiencias y la falta de respuesta del ayuntamiento. Con mucha persistencia, mi mujer acabó consiguiendo hablar con un empleado del ayuntamiento. Sin embargo, se le informó que no podíamos conseguir un cubo nuevo si el nuestro no se rompía o robaba. Eso apestaba.

Con el tiempo descubrí otros inconvenientes de nuestro servicio público de basuras. Durante las vacaciones, cambiaban los calendarios de recogida. Cuando mi mujer y yo vivíamos en Atlanta y usábamos una empresa privada de recogida de basura, sus calendarios no cambiaban nunca. Nuestras recogidas eran siempre puntuales. Nuestros basureros eran amables y fiables porque, si no lo eran, podía contratar otros nuevos que aparecerían en mi calle a la mañana siguiente con sonrisas brillantes en sus caras.

Es bastante sencillo seguir un calendario alterado por vacaciones, así que eso hicimos en Auburn, pero los basureros rechazaron seguir dicho calendario. Después de Acción de Gracias, cuando la basura tiende a cumularse, pusimos nuestro cubo en la calle según el calendario. Lo mismo hicieron nuestros vecinos. Pero nadie recogió nuestra basura. Toda nuestra calle lo intentó la semana siguiente, el día indicado, y nadie se llevó la basura. Un vecino preocupado llamó al ayuntamiento y pudimos arreglar la embrollada situación, pero no sin dedicar tiempo y energías que podrían haberse dirigido a cosas mejores.

Cuando era niño, a mi hermano y a mí se nos encarga todos los años podar los árboles y arbustos y eliminar las malas hierbas que crecían junto al estanque de nuestro jardín. Podíamos  apilar ramas y troncos aserrados de árboles y otros desperdicios en el bordillo de nuestra calle, junto con bolsas de hierba cortada y nuestros basureros, que trabajaban para una empresa privada, siempre recogían estas cosas sin preguntas ni quejas. Se lo agradecíamos tanto que a veces les dejábamos sobres con dinero extra para expresar nuestro agradecimiento.

Sin embargo en Auburn una vez fui incapaz de añadir una bolsa de basura adicional en nuestro cubo, que estaba lleno, así que llevé el cubo a la calle y puse junto a él la bolsa adicional. Luego entré a hacerme el café matutino cuando de repente un camión de recogida aparcó junto a mi cubo. Miré por la ventana mientras el basurero descendía del camión, sacudía la cabeza, se subía de nuevo al camión, tomaba papel y bolígrafo y empezaba a escribir. Lo siguiente que supe es que estaba redactando una denuncia por una posible infracción. Resultó ser una mera advertencia, en  letras mayúsculas, de que la próxima vez que hiciera algo tan indignante como poner nuestra basura para la recogida sin usar el cubo, tendría ciertas repercusiones (he olvidado cuáles).

Cuando pienso en las cosas que los basureros recogían de nuestra calle en Atlanta (una puerta vieja, un lavabo roto, una segadora que no funcionaba) me maravillo de que el ayuntamiento te obligue a comprar etiquetas en la Oficina de Hacienda si quieres que recojan en la calle cosas como secadores, calentadores, neveras o microondas. Pero sigo siendo optimista y no solo porque Joseph Salerno venga al pueblo para ocupar la recién dotada cátedra John V. Denson en el Departamento de Economía de la Universidad de Auburn.

Soy optimista porque veo algún cambio positivo. Recientemente organizamos una venta de garaje y descubrimos, dos días antes del gran día, que el ayuntamiento obligaba a un permiso para esos eventos. Esta vez, cuando llamamos al ayuntamiento para solicitar el prmiso obligatorio para ventas de garaje, recibimos buenas noticias: esos permisos ya no eran necesarios siempre que realizáramos la venta en nuestro propio espacio de calle. Aunque sea pequeño, es un progreso. Tal vez se extienda a otros sectores de nuestra pequeña comunidad local. Hasta entonces, ¡al ataque!

“Magic, Illusion, and Other Realities,” by Simon Perchik

In Arts & Letters, Creativity, Essays, Humanities, Literary Theory & Criticism, Literature, Poetry, Writing on December 30, 2015 at 8:45 am

Simon Perchik

Simon Perchik is an American poet with published work dating from the 1960s. Perchik worked as an attorney before his retirement in 1980. Educated at New York University, Perchik now resides in East Hampton, New York. Library Journal has referred to Perchik as “the most widely published unknown poet in America.” Best known for his highly personal, non-narrative style of poetry, Perchik’s work has appeared in numerous books, websites, and print magazines, including The New Yorker, Partisan Review, Poetry, The Nation, North American Review, Weave Magazine, Beloit, and CLUTCH.

Where do writers get their ideas? Well, if they are writing prose, their ideas evolve one way. If, on the other hand, they are writing poetry, their ideas evolve another way. Perhaps some distinctions are in order. Distinguishing the difference between prose and poetry may not be all that simple. There are many definitions, all of which may be correct. For the purpose of this essay allow me to set forth one of the many.

It seems to me that there is available to writers a spectrum along which to proceed. At one end is prose, appropriate for essays, news, weather reports and the like. At the other end is poetry. Writers move back and forth along this spectrum when writing fiction.

Thus, prose is defined by its precise meaning that excludes ambiguity, surmise and misunderstanding. It never troubles the reader. To define it another way, prose is faulty if it lacks a coherent thrust guided by rules of logic, grammar and syntax. It will not tolerate contradiction. Poetry, on the other hand, is defined by its resistance to such rules. Poetry is ignited, brought to life by haunting, evasive, ambiguous, contradictory propositions.

This is not to say poetry is more or less useful than prose. Rather, they are two separate and distinct tools, much the same as a hammer and a saw. They are different tools designed for different jobs. If an essay is called for, the reader wants certainty; exactly what the words you are now reading are intended to give. If, on the other hand, consolation for some great loss is called for, the reader needs more: a text that lights up fields of reference nowhere alluded to on the page. This calls for magic, for illusion, not lecture. Thus, one of the many definitions of poetry might be: Poetry: words that inform the reader of that which cannot be articulated. To be made whole, to heal, the reader needs to undergo an improved change in mood, a change made more effective if the reader doesn’t know why he or she feels better. Exactly like music. That’s where poetry gets its power to repair; an invisible touch, ghost-like but as real as anything on earth. A reading of the masters, Neruda, Aleixandre, Celan…confirms that a text need not always have a meaning the reader can explicate. To that extent, it informs, as does music, without what we call meaning. It’s just that it takes prose to tell you this.

This is because prose is a telling of what the writers already know. They have a preconceived idea of what to write about. With poetry it’s the opposite. The writers have no preconceived idea with which to begin a poem. They need to first force the idea out of the brain, to bring the idea to the surface, to consciousness. With poetry the writer needs a method to find that hidden idea. If the originating idea wasn’t hidden and unknown it isn’t likely to be an important one. Let’s face it: any idea that is easily accessible has already been picked over. It’s all but certain to be a cliché.

To uncover this hidden idea for a poem the writers each have their own unique method. As for me, the idea for the poem evolves when an idea from a photograph is confronted with an obviously unrelated, disparate idea from a text (mythology or science) till the two conflicting ideas are reconciled as a totally new, surprising and workable one. This method was easy for me to come by. As an attorney I was trained to reconcile disparate views, to do exactly what a metaphor does for a living. It’s not a mystery that so many practicing lawyers write poetry. (See Lawyer Poets And That World We Call Law, edited by James R. Elkins, Editor [Pleasure Boat Studio Press]; see also Off the Record, An Anthology of Poetry by Lawyers, edited by James R. Elkins [The Legal Studies Forum].)

The efficacy of this method for getting ideas is documented at length by Wayne Barker, M.D., who, in Brain Storms: A Study of Human Spontaneity, writes:

If we can endure confrontation with the unthinkable, we may be able to fit together new patterns of awareness and action. We might, that is, have a fit of insight, inspiration, invention, or creation. The propensity for finding the answer, the lure of creating or discovering the new, no doubt has much to do with some people’s ability to endure tension until something new emerges from the contradictory and ambiguous situation.

Likewise, Douglas R. Hofstadter, in Godel, Escher, Bach: An Eternal Golden Braid, writes:

One of the major purposes of this book is to urge each reader to confront the apparent contradiction head on, to savor it, to turn it over, to take it apart, to wallow in it, so that in the end the reader might emerge with new insights into the seemingly unbreachable gulf between the formal and the informal, the animate and the inanimate, the flexible and the inflexible.

Moreover, the self-induced fit is standard operating procedure in the laboratory. Allow me to quote Lewis Thomas, who, in The Lives of a Cell, describes the difference between applied science and basic research. After pointing out how applied science deals only with the precise application of known facts, he writes:

In basic research, everything is just the opposite. What you need at the outset is a high degree of uncertainty; otherwise it isn’t likely to be an important problem. You start with an incomplete roster of facts, characterized by their ambiguity; often the problem consists of discovering the connections between unrelated pieces of information. You must plan experiments on the basis of probability, even bare possibility, rather than certainty. If an experiment turns out precisely as predicted, this can be very nice, but it is only a great event if at the same time it is a surprise. You can measure the quality of the work by the intensity of astonishment. The surprise can be because it did turn out as predicted (in some lines of research, 1 per cent is accepted as a high yield), or it can be a confoundment because the prediction was wrong and something totally unexpected turned up, changing the look of the problem and requiring a new kind of protocol. Either way, you win…

Isn’t it reasonable to conclude that the defining distinction between applied science and basic research is the same as that between prose and poetry? Isn’t it likewise reasonable to conclude that the making of basic science is very much the same as the making of poetry?

In a real way I, too, work in a laboratory. Every day at 9 a.m. I arrive at a table in the local coffee shop, open a dog-eared book of photographs, open a text, and begin mixing all my materials together to find something new.

For the famous Walker Evans photograph depicting a migrant’s wife, I began:

Walker Evans     Farmer’s wife

Tough life, mouth closed, no teeth? Sorrow?

Not too bad looking. Plain dress

This description went on and on until I felt I had drained the photograph of all its ideas. I then read the chapter entitled “On Various Words” from The Lives of a Cell. Photograph still in view, I then wrote down ideas from Dr. Thomas’s text. I began:

Words — bricks and mortar

Writing is an art, compulsively adding to,

building the ant hill,

not sure if each ant knows what it will look like when finished

it’s too big. Like can’t tell what Earth looks like if you’re on it.

This too goes on and on with whatever comes to mind while I’m reading. But all the time, inside my brain, I’m trying to reconcile what a migrant’s wife has to do with the obviously unrelated ideas on biology suggested by Dr. Thomas. I try to solve the very problem I created. Of course my brain is stymied and jams, creating a self-induced fit similar to the epilepsy studied by the aforementioned Dr. Barker, M.D. But that was my intention from the beginning.

Sooner or later an idea from the photograph and an idea from the text will be resolved into a new idea and the poem takes hold.

No one is more surprised than I. Or exhausted. The conditions under which I write are brutal. My brain is deliberately jammed by conflicting impulses. Its neurons are overloaded, on the verge of shutting down. I can barely think. My eyes blur. The only thing that keeps me working is that sooner or later will come the rapture of discovery; that the differences once thought impossible to reconcile, become resolved; so and so, once thought impossible of having anything to do with so and so, suddenly and surprisingly, has everything in the world to do with it. Or has nothing to do with it but can be reconciled with something else it triggered: one flash fire after another in the lightening storm taking place in my brain.

Getting the idea is one thing but the finished poem is a long way off. And to get there I abstract. Abstraction and music are soulmates and poetry is nothing if not music. For each poem its opening phrase is stolen shamelessly from Beethoven. He’s the master at breaking open bones and I might as well use him early on in the poem. Then I steal from Mahler whose music does its work where I want my poetry to do its work: the marrow.

Perhaps marrow is what it’s all about. Abstraction, since it contradicts the real world, is a striking form of confrontation which jams the brain until it shuts down confused. It befits the marrow to then do the work the reader’s brain cells would ordinarily do. And though what the marrow cells put together is nothing more than a “gut feeling,” with no rational footing, it is enough to refresh the human condition, to make marriages, restore great loses, rally careers.

Of course abstraction is just one of the ways writers arrive at the poem with their idea. But however they come they all leave for the reader poetry’s trademark: illusion. It is that illusion that builds for the over-burdened reader a way out.

Perhaps, as you may have already suspected, a poem, unlike a newspaper, is not a tool for everyday use by everyone; it’s just for those who need it, when they need it.

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