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Thursday, June 12, 2014

A Treatise on Stewardship

A Treatise on Stewardship.

This started out as a talk for a 2009 single adult fireside, then a talk for a 2010 Sacrament meeting, then a letter to my oldest son on his mission in 2011.  It keeps growing so now it's too long to utilize for anything other than as a repository of my thoughts on a few interrelated subjects.   This is a work in progress and some citations need to be added for some of the quotes still, and quotation marks corrected, etc. . . . , until I figure out what to make of it.

Dear Scott:

The Power of Language and Words.

The scriptures teach us that there is a diversity of administration of the spirit and that different people are given different gifts of the spirit.  It is interesting to get to know lots of different people and see how much diversity there really is in what different people are inspired by and how they feel the spirit.

Some people have a special affinity for music, and are very aware of how music can be utilized to uplift and convey and help people feel the Holy Ghost, and that is for many such people a focus in their lives.  Other people find evidence for God in the simple elegance of mathematical equations and scientific truths.  Some people are inspired by physical prowess and athletic ability, and can watch or participate in an athletic contest or a dance and find inspiration and motivation in their lives by watching someone performing at their peak levels of ability in a physical or athletic performance.

Personally, I am a very language-oriented person.  I find inspiration in reading or hearing well-written prose or an effective speech.  I am as inspired by the beautiful language of the scriptures as I am by some of the doctrines and stories contained therein.  Some of my favorite historical figures are people like Abraham Lincoln or Winston Churchill who were able to effectively employ the English language in a manner which changed history.

As a language oriented person, I have found that, for me, there is great power and motivation that can come into my life by taking a gospel word, such as covenant, or repentance, or atonement, and trying to fully understand, as well as I possibly can, the meaning of that word, so that it will begin to resonate with me when I come across it in reading the scriptures or studying the Gospel.  In these thoughts I would like to try to fully understand the word “Stewardship.”


The term stewardship appears frequently in the Doctrine and Covenants, as compared to earlier, more ancient scriptural texts.  Stewardship must therefore be a word that has significant meaning in the restoration and for those of us who live in this, the dispensation of the fullness of times.

For example, in Doctrine and Covenants 104:13 we read that “it is expedient that I, the Lord, should make every man accountable, as a steward over earthly blessings, which I have made and prepared for my creatures.”  And in D&C 70:9 we are taught that we shall be accountable for the uses to which we put our blessings, for this is “what the Lord requires of every man in his stewardship, even as I, the Lord, have appointed or shall hereafter appoint unto any man.”

The first time I came across the word stewardship and began to have some inkling of what it meant was when I was 12 or 13 years old and read what became one of my favorite books, the Lord of the Rings. You may recall that in that story there is a character named Denethor. Denethor is a person who has all of the rights and responsibilities of a king, but he doesn’t get to sit on the throne and he doesn’t get to wear the crown and his title is “Steward” rather than King.  The idea is that many generations ago, the true kings of the kingdom were exiled, as a result of a kind of civic apostasy, and so the kingdom has been ruled by stewards ever since.  So Denethor’s charge, as Steward, his “stewardship” is to maintain and preserve the kingdom until such time as it might be returned to the true king.

Well, it’s not hard, when an author sets up that kind of a plot device, to know what is probably going to happen, and as it turns out, as the story develops, Denethor comes to learn that one who can claim the true kingship is returning to the kingdom.  (It might be noted that the true king has certain characteristics, such as the “hands of a healer” which make him a literary Christ figure, so that this whole episode is very capable of a spiritual symbolic reading).  At that point, Denethor has two choices.  On the one hand, Denethor can be excited about the possibility that he can stand in front of the king and say, “I and my fathers before me have fulfilled our stewardship, we have maintained and preserved the kingdom and we return it now to your hands.”  He can be excited that he is going to get to hear the king say the words “Well done, thou good and faithful steward.”

But instead, Denethor resents the idea that the true king is returning.  He is annoyed.  He likes his calling, thank you very much, and he doesn't want to be released.  You see, Denethor has forgotten.  He has forgotten that he wasn't really the king.  That he was a steward, with a fiduciary duty to serve the needs of his true lord, for his lord, and not for himself.  He has become guilty of a kind of priestcraft.

By contrast, for an example of someone who had a healthier attitude about his Stewardship, we can look to John the Baptist, who, like Denethor, was  responsible for preparing the way of the true king, when John’s disciples complained of Jesus’s growing popularity, John said in John 3:30 “Ye yourselves bear me witness, that I said, I am not the Christ, but that I am sent before him . . . . .   He must increase, but I must decrease.”

Another example of a stewardship is found in the Parable of the Good Samaritan in Luke, as the Innkeeper was asked by the good Samaritan to take care of his injured neighbor, and was given two coins to care for and assist this man.   We are not told the rest of the story.  We do not know if the coins the Samaritan gave the Innkeeper to care for the wounded man were used for that purpose, but we do know that if the Innkeeper did not use them for that purpose, that the Innkeeper would have to answer for any such misuse of a sacred trust that was given to him, not for his benefit, but in stewardship to help another.

As members of this Church, all of us are given a variety of Stewardships.  Many of us, for example, are parents.  In our relationship with our children, do we have an attitude of entitlement and ownership or of Stewardship?  Do we feel that if it is convenient to us to lose our temper and let loose on our children whenever they frustrate us, that we have the right and entitlement to do so?  Or do we recognize that our children are our spiritual brothers and sisters, children of the same Heavenly Father we have, and that our parental relationship with them is a charge given us by our Heavenly Father, which we need to fulfill in a loving and patient manner which will allow our children to grow in confidence, and in a manner which would be pleasing to their true Father and Mother?  Do we see our relationship with our spouse as something we own or something we must nurture?

C.S. Lewis, in the Screwtape Letters, describes how the devil wants us to develop a sense of ownership and entitlement rather than understanding that all we have is a gift from the Lord, given to us as a charge, not a right.  Through his narrator, the Senior devil tempter, Screwtape, he describes Satan’s plans to lead us  toward his path by having an ownership rather than a stewardship mentality in our lives:

“The sense of ownership in general is always to be encouraged.  The humans are always putting up claims to ownership which sound equally funny in Heaven and in Hell and we must keep them doing so.  Much of the modern resistance to chastity [for example] comes from men’s belief that they ‘own’ their bodies – those vast and perilous estates, pulsating with the energy that made the worlds, in which they find themselves without their consent and from which they are ejected at the pleasure of Another!  It is as if a royal child whom his father has placed, for love’s sake, in titular command of some great province, under the real rule of wise counselors, should come to fancy he really owns the cities, the forests, and the corn, in the same way as he owns the bricks on the nursery floor.  We [the devils] produce this sense of ownership not only by pride but by confusion.  We teach them not to notice the different senses of the possessive pronoun– the finely graded differences that run from ‘my boots’ through ‘my dog’ ‘my servant’ 'my wife’ ‘my father’ ‘my master’ and ‘my country’ to ‘my God.”  They can be taught to reduce all these senses to that of ‘my boots’ the ‘my’ of ownership.  Even in the nursery a child can be taught to mean by ‘my teddy bear’ not the old imagined recipient of affection to whom it stands in a special relation . . . but ‘the bear I can pull to pieces if I like.’ . . . .  And all the time the joke is that the word ‘Mine’ in its fully possessive sense cannot be uttered by a human being about anything.  In the long run either Our Father or the Enemy will say ‘Mine’ of each thing that exists, and especially of each man.  They will find out in the end, never fear, to whom their time, their souls, and their bodies really belong- certainly not to them whatever happens.”

The Apostle Paul taught that our body and our spirit both belong to God, having been “bought with a price” 1 Corinthians 6:20.  The price that has been paid, is of course, the Atonement of Jesus Christ, pursuant to which, we no longer belong to ourselves, but to God and our Savior, and everything we have been given has not been given to us as a possession, but as a charge, or a stewardship, to bless the lives of others.  We need to be constantly aware of our stewardships, and constantly on our guard against the opposite attitude: the attitude of ownership, entitlement, and priestcraft.

We have many stewardships in our lives, including our callings and our blessings.  I would like to address three specific Stewardships that we have.  These are taken from a speech President Monson gave in a General Conference shortly after he became our Prophet, in which he spoke of our duty (i) to learn what we need to learn, (ii) to do what we need to do, and (iii) to be what we need to be.  Let’s start with learning:

I. The Stewardship to Know and learn what we must Know.

Our minds and our time are stewardships given to us to develop as best we can.  There are many types of knowledge that we have a duty and a stewardship to develop during our lives.

We have a stewardship to learn and develop our minds in all the general fields of knowledge the world has to offer. Brigham Young taught that “Mormonism embraces all truth that is revealed and that is unrevealed, whether religious, political, scientific, or philosophical.” On another occasion Brigham Young stated: “Not only does the religion of Jesus Christ make the people acquainted with the things of God, and develop within them moral excellence and purity, but it holds out every encouragement and inducement possible, for them to increase in knowledge and intelligence, in every branch of [engineering] or in the arts and sciences, for all wisdom, and all the arts and sciences in the world are from God, and are designed for the good of His people.”  See also, D&C 88.

We also have a duty and stewardship to learn Gospel Knowledge.  I remember going to a marriage fireside that was taught by a BYU Professor.  The title of the fireside was Keys to Successful Marriage.  I was expecting a talk about rules for how to treat your spouse and why to go on regular dates, etc.  But instead the speaker spent the whole evening discussing the Plan of Salvation.  Why?  Because of something that Boyd K. Packer has frequently stated: “True doctrine, understood, changes behavior.  The study of doctrine will do more to change behavior than the study of behavior will do to change behavior.”  The premise of this marriage fireside was that if we understood the plan of salvation, then we would understand how precious our marriage was, and naturally act in accordance with that knowledge.

Most importantly, we have a duty and a stewardship to develop knowledge of our Savior.  According to John 17:3 “And this is life eternal, that they might KNOW thee, the only true God, and Jesus Christ, whom thou has sent.”

The idea that we need to come to know Jesus is also set forth in Matthew 7:21-23.  This is a scripture which, according to John Taylor, is talking about priesthood holders in the Church of Jesus Christ of Latter-day Saints, not members of other churches.  Although not set forth in our footnotes, in the full JST translation this scripture reads: “And then will I say, Ye never knew me, depart from me, Ye that work iniquity” JST Matt 7:33.  (See also, Parable of the 10 virgins; Matthew 25:1-13. Again, the JST translation changes “I know you not” to “ye know me not” JST Matt 25:11.)

Joseph Smith taught “It is the first principle of the Gospel to know for a certainty the Character of God.”  Jesus taught that we get to that point by knowing Christ, for we can not see anything Christ does without knowing of something He says His Father has done before him.

What are some steps we can take to really know Jesus Christ?  My Mission President wrote a doctrinal dissertation about the German author Karl Mai.  In the course of writing that dissertation my Mission President, to get his Ph.D., studied every book and short story Karl Mai had ever written, but he also studied his personal private letters and journals.  When he was done with that process, my Mission President could have told you what Karl Mai thought about just about any subject: religion, politics, child-rearing.  He knew Karl Mai because he had studied his words.  Maybe in similar fashion we need to read everything Christ has said to us and his prophets in the scriptures, so we know who he really is.

How seriously should we take the stewardship to come to know Jesus Christ?  Well maybe if we turn that question on its head that might give us some idea: How important was it for Christ to know us?

Alma 7:11 and 12 tells us what Christ was willing to go through so he would know us: He condescended, to use the phrase the Angel taught to Nephi, to cease being God the Son, and to become a mortal man, so he could know and understand us: “And he shall go forth, suffering pains and afflictions and temptations of every kind; and this that the word might be fulfilled which saith he will take upon him the pains and the sicknesses of his people.  And he will take upon him death, that he may loose the bands of death which bind his people; and he will take upon him their infirmities, that his bowels may be filled with mercy, according to the flesh, that he may know according to the flesh how to succor his people according to their infirmities.”

Well if Christ was willing to go through all of that, that he might know us, than shouldn’t we be willing to read the five gospels, Matthew, Mark, Luke, John, and Third Nephi, and Christ’s words to modern prophets, so we might know him.

I have a favorite story about this idea of the condescension of Christ.  It’s a story that was written by Kierkegaard:  

Suppose there was a king who loved a humble maiden. The king was like no other king. Every statesman trembled before his power. No one dared breathe a word against him, for he had the strength to crush all opponents. And yet this mighty king was melted by love for a humble maiden who lived in a poor village in his kingdom. How could he declare his love for her? In an odd sort of way, his kingliness tied his hands. If he brought her to the palace and crowned her head with jewels and clothed her body in royal robes, she would surely not resist-no one dared resist him. But would she love him?
She would say she loved him, of course, but would she truly? Or would she live with him in fear, nursing a private grief for the life she had left behind? Would she be happy at his side? How could he know for sure? If he rode to her forest cottage in his royal carriage, with an armed escort waving bright banners, that too would overwhelm her. He did not want a cringing subject. He wanted a lover, an equal. He wanted her to forget that he was a king and she a humble maiden and to let shared love cross the gulf between them. For it is only in love that the unequal can be made equal.
The king, convinced he could not elevate the maiden without crushing her freedom, resolved to descend to her. Clothed as a beggar, he approached her cottage with a worn cloak fluttering loose about him. This was not just a disguise - the king took on a totally new identity - He had renounced his throne to declare his love and to win hers.
The King and the Maiden, Soren Kierkegaard, as quoted in Epic, by John Eldredge

This story explains why Christ, when he came to earth the first time, did not do so in the full magnitude of his divine glory, offering his people no choice, in accepting or rejecting him.  Rather, as is explained in Phillipians 2: 5-8 “Christ Jesus [though] equal with God . . . made himself of no reputation, and took upon him the form of a servant, and was made in the likeness of men” so he might fully understand what it was to be one of us.  We have a stewardship to try to do something similar in reverse.  To try to live Christlike lives so we can understand and “know” Christ in a personal way as well, so, like the maiden in the story, Christ, having descended to our level, can eventually raise us up (exalt us) to His.

II. The Stewardship to Do what we must Do.

So, we have a stewardship to come to know Christ.  But knowing isn’t enough.  Remember the famous story about Spencer W. Kimball, that he changed a word in the chorus to the hymn “I am a child of God.” It used to say “teach me all that I must know” now it says “teach me all that I must do to live with Him someday.”  So we also have to do certain things.  Or maybe we could word it like this: In order to truly come to “know” Christ, part of our learning must come through doing, through living a Christlike life.

So, let’s address our stewardship to DO certain things.

Just as we could spend hours discussing all of the things we ought to know and learn and gain a testimony of; we could also talk for hours about all the commandments we ought to be performing and doing. But we always need to try to focus on what’s most important.

When Christ was asked what are the greatest commandments he said  they were to Love God and, Like unto it, to Love our neighbor as ourself.  So among the most important commandments apparently is the command to serve others.  I think its significant He didn’t say “love humanity” or “Love mankind” Those concepts can be ethereal, He said love your neighbor, in other words, specific persons who are actually part of your real life.

Here again I think understanding the plan of salvation can help us to  follow this commandment more perfectly.  If we understand who our neighbor is, it becomes easier to follow the commandments that tell us to love and serve him.

I’ll quote C.S. Lewis again: “The load, or weight, or burden of my neighbor’s glory should be laid on my back, a load so heavy that only humility can carry it . . . .  It is a serious thing to live in a society of possible gods and goddesses, to remember that the dullest and most uninteresting person you can talk to may one day be a creature which, if you saw it now, you would be strongly tempted to worship, or else a horror and a corruption such as you now meet, if at all, only in a nightmare.  All day long we are in some degree, helping each other to one or other of these destinations.  It is in the light of these overwhelming possibilities, it is with the awe and the circumspection proper to them, that we should conduct all our dealings with one another, all friendships, all loves, all play, all politics.  There are no ordinary people.  You have never talked to a mere mortal.  Nations, cultures, arts, civilizations – these are mortal, and their life is to ours as the life of a gnat.  But it is immortals whom we joke with, work with, marry, snub, and exploit – immortal horrors or everlasting splendors. This does not mean that we are to be perpetually solemn.  We must play.  But our merriment must be of that kind (and it is, in fact, the merriest kind) which exists between people who have, from the outset, taken each other seriously – no flippancy, no superiority, no presumption. . . .  Next to the blessed sacrament, . . . your neighbor is the holiest object presented to your senses.”  C.S. Lewis, the Weight of Glory.

Well the wonderful thing about the church is the many opportunities it gives us to help one another along the right path.

I read a book recently called Unbroken by Lauren Hillenbrand, about a man named Louis Zamperini who was a POW in Japan during WWII.  One episode in this book that I found quite moving was the story of how, before being captured by the Japanese, he and two of his colleagues survived on life rafts for over 40 days in the Pacific Ocean.  These three airmen found themselves as the only survivors of an airplane crash. They found they had two bars of chocolate as rations for their survival on the rafts.  They decided they would each eat one square of chocolate every morning and every night to make it last as long as they could. Well, while the other two men slept, one of the men, Francis McNamara, panicked, and he ate all the chocolate.  The other two men weren’t too happy when they woke up the next day and found out what had happened, but there wasn’t much they could do except continue to try to survive.  As their journey continued, they discovered a significant thing.  It was going to take all three of them to survive on the raft. Two men or one man on the raft would not have been able to survive.  Frequently, they all 3 had to work together to survive.  For example, on one occasion they were spotted by Japanese fighters who strafed their life rafts.  For the next several hours, lasting into days, one of the men, using crude implements, had to try to patch up and sew up the holes in the raft that survived that strafing, the other man had to continuously pump air into the raft while that was happening to keep it afloat, and the third man had to fend off the sharks.  After forty days, before they were “rescued” by some Japanese and began their time as POWs, Francis McNamara wasn’t going to make it any more, and began to pass away.  His boatmates looked at him and thanked him for his service.  They knew without him they wouldn’t have survived.  They owed him their lives. He had redeemed himself from his error in eating all the chocolate.

Some of us may feel we can’t give proper service to our fellow men.  We may feel there is some sin in our lives that is holding us back.  We feel we ate all the chocolate and so now we’re not worthy of the priesthood or of the Holy Ghost.  But we need to remember that our fellow raft-mates need us.  Our assistance may be essential to their salvation.  We need to remember we can repent.  We can be made whole.  We can seize on the power of the atonement to be redeemed, and we can get on with the business of helping out our fellow-humans.  Don’t let the fact that we’ve made errors, that we’ve eaten all the chocolate, hold us back.  We need to move on from that and serve and save others.

If there’s one thing this Church seems to teach again and again, it is that we are not entitled to be saved as individuals due to our own personal purity and righteousness.  Instead we are taught we have a stewardship towards others.  For example, We cannot be saved without our dead.  We cannot be saved without the hearts of the children being turned to their parents, so we cannot be fully saved without our families.  We cannot be saved if we neglect our callings to serve each other.  We have a stewardship to serve others.  We need to broaden our view of what our stewardship encompasses.  At a worldwide training meeting recently, Elder Bednar told a story of a Bishop who asked the Primary President of his ward, what are you doing to help the Priests get ready to serve a mission.  She was a little perplexed.  That didn’t seem to fall under her charge.  But she realized he was asking her to broaden her view of her stewardship.  She asked the Priests to come talk to the 8 year olds who were getting baptized about the subject of baptism, something they would be teaching as missionaries.  We need to broaden our vision of who is in our life-raft with us and who we need to reach out and have a stewardship to help.

Elder Dallin Oaks, in a General Conference talk, said:

“Each of us should apply that principle to our attitudes in attending church. Some say 'I didn’t learn anything today' or 'No one was friendly to me' or 'I was offended' or 'The Church is not filling my needs.' All those answers are self-centered, and all retard spiritual growth.

In contrast, a wise friend wrote:

'Years ago, I changed my attitude about going to church. No longer do I go to church for my sake, but to think of others. I make a point of saying hello to people who sit alone, to welcome visitors, . . . to volunteer for an assignment. . . .'"

Dallin H. Oaks Unselfish Service, April 2009 General Conference.

This is a person who has developed a stewardship mentality.

III. The Stewardship to Be All that We Can Be.

But even doing everything we are supposed to be doing isn’t enough. After we have done all that we need to do, the next question is, what do we need to be.  For example, Laman & Lemuel did many of the same things that Nephi did: they went back for the plates, they went back for Ishmael's family, they helped build the boat, but they did these things begrudgingly, and they didn’t become what Nephi became.

In Moroni 7: verses 6-10, we can read about the idea that if we do good acts without proper intent, but grudgingly, it is counted as evil and it profiteth us nothing. So our greatest stewardship is to be the type of people that God wants us to be.

In one of my favorite talks, from the October 2000 General Conference, Elder Dallin H. Oaks explained as follows:

"In contrast to the institutions of the world, which teach us to know something, the gospel of Jesus Christ challenges us to become something.  Many Bible and modern scriptures speak of a final judgment at which all persons will be rewarded according to their deeds or works or the desires of their hearts. But other scriptures enlarge upon this by referring to our being judged by the condition we have achieved. The prophet Nephi describes the Final Judgment in terms of what we have become: 'And if their works have been filthiness they must needs be filthy; and if they be filthy it must needs be that they cannot dwell in the kingdom of God' (1 Ne. 15:33; emphasis added). Moroni declares, 'He that is filthy shall be filthy still; and he that is righteous shall be righteous still' (Morm. 9:14; emphasis added; see also Rev. 22:11-12; 2 Ne. 9:16; D&C 88:35).  The same would be true of  'selfish' or 'disobedient' or any other personal attribute inconsistent with the requirements of God. Referring to the 'state' of the wicked in the Final Judgment, Alma explains that if we are condemned by our words, our works, and our thoughts, 'we shall not be found spotless; . . . and in this awful state we shall not dare to look up to our God' (Alma 12:14).

From such teachings we conclude that the Final Judgment is not just an evaluation of a sum total of good and evil acts--what we have done. It is an acknowledgment of the final effect of our acts and thoughts--what we have become. It is not enough for anyone just to go through the motions. The commandments, ordinances, and covenants of the gospel are not a list of deposits required to be made in some heavenly account. The gospel of Jesus Christ is a plan that shows us how to become what our Heavenly Father desires us to become."  CLOSE QUOTE.  Elder Dallin H. Oaks, The Challenge to Become, October 2000 General Conference.

Our ultimate Stewardship is to hand back to God a clean and pure and fully developed self which has become the type of person God wants us to be, and whose loved ones have also, through our service, become what God wants of them.  And what manner of men ought we to be, the Savior asked, and what was his answer?  Even so as I am.  Matthew 5:48 “Be ye therefore perfect” even as your Father in Heaven is perfect.  This is a tall order, and we will not fully reach it in this life, but it is what we have been commanded, and the grace and atonement of Jesus Christ can help us on the way, so let’s get started.

D. Chris Albright
June 12, 2014

Judges: Appoint Don't Elect.

Going to the polls this week reminded me of one of my most deeply held beliefs: It is stupid to elect judges.

The job of a judge is fundamentally different from the job of a politician. It is a legal role, not a political role. They are there to adjudicate, not to represent the interests of a particular constituency. They ought not, therefore, be chosen in the same manner that politicians are chosen. Here's the deal people. There are exactly two qualities of a good judge: intelligence and impartiality. Stupid and biased judges aren't just scary for the parties in their courtroom, they are a tax on the entire economy, making it more difficult for businesses to plan their affairs in accordance with known and predictable rules which will be fairly and predictably applied.

Judicial elections do not lend themselves to choosing intelligent and impartial people. There is little relationship between a person's intelligence (especially in the specialized area of legal analysis) and a person's ability to get elected to political office. I don't mean that as a cheap shot against politicians. I am just saying that different skill sets are involved. But more importantly, there IS a relationship between impartiality and running for office, and it's an INVERSE relationship.

If you are ever charged with a crime, or if your home is ever the subject of a request for a warrant, how would it make you feel to know that the Judge who hears your case has sought and obtained the endorsement of a law enforcement agency? Would you perhaps feel at least a little bit better if that was NOT the case, and you had reason to believe that an at least ostensibly unbiased judge was involved, who would attempt to rule in accordance with the facts and the law? Or if you were ever in litigation with one of Southern Nevada's major economic players, MGM-Mirage say, would you be comforted knowing that the Judge had obtained a major campaign contribution from that other party to your case? Perhaps the largest single donation of all? Or had had an election party hosted at one of MGM's venues? Since judges are (bizarrely) allowed to ask lawyers for campaign contributions (and do so), would you ever be interested in knowing whether your lawyer or the other side's had contributed more? Of course you would be.

Don't get me wrong, we have some fine judges in Southern Nevada, most of whom dislike the system as much as the attorneys do, and who do their darndest to be impartial notwithstanding the inevitable appearances of impropriety which the system creates. But we've had our fair share of lemons too. My first legal job was as a law clerk to the Nevada Supreme Court. I arrived shortly after a judicial election between Judge X and Judge Y. Both judges had been evaluated by a poll of local attorneys. Judge X had received among the lowest retention ratings in the survey and Judge Y had received the highest. But Judge X won the election because of political factors that made Judge X a better candidate, including factors having nothing to do with ability and competence. I later tried a jury trial in front of Judge Y, and even though he felt I'd done better with the Jury than I should have, I have to admit that he was otherwise intelligent and impartial. Our State would have been better served by his ascension to the high court than that of his opponent, in my humble opinion.

And let us not forget the blessedly short judicial tenure of Judge Halverson, whose election to judicial office, followed shortly thereafter by her removal from the bench for sleeping through trials, inappropriately engaging in ex parte contact with jurors, demanding that her bailiff massage her feet, hiring her own armed bodyguards and allowing them unauthorized access to the courthouse, and the like, should have, once and for all, laid to rest the claim that the Nevada public is capable of selecting judges.

There's a reason that sophisticated parties who have grounds to do so routinely seek to remove their Nevada cases to Federal Court: the Judges are appointed not elected and, on average, are just . . . better, and more predictable. I had this conversation just last week with a national company looking to hire a new Nevada attorney. They have a standard practice here: remove to Federal court, where we can be in front of an appointed judge not an elected politician.

I understand there are dangers and temptations and I complain about the misuse of judicial review in Federal Courts as much as anyone, especially on highly politicized claims and controversies. (See my post on this blog about what Sonia Sotomayor has in common with Lance Armstrong.)  But an independent judiciary is an essential feature of a constitutional republic. It just is.

So why don't we have an appointed judiciary here in Nevada, with a Missouri plan that allows them to be subjected to a no confidence/retention vote once every few years, to prevent against obvious abuses? One big reason is the Las Vegas Review Journal and other news and media outlets, which rail and editorialize against the idea every time it comes up for a vote. But why is that? Could it possibly be due to the RJ's vested interests? Think about it. For newspapers, an elected judiciary is a win, win, win, win situation. Elections mean ad revenue, which is core to a newspaper's very survival. Elections mean controversy and mudslinging and give reporters something to write about, which is essential to a newspaper's reason for existence. And since most voters have no idea who to vote for in judicial elections, judicial elections give newspapers power, as their judicial endorsements become much more important than in partisan political races. That power also translates into another "win" for newspapers: power in litigation. Would you want your defamation lawsuit against the RJ to be determined in front of a judge hoping for that newspaper's endorsement in an upcoming election? But that gets me back to my original point.

Next time there's a ballot measure to move Nevada into an appointed judiciary system, please, please, please ignore the Review Journal, and vote for sanity. We don't want our judges to be politicians, so we should stop electing them.

Saturday, May 31, 2014

Checking my Privileges

Apparently, being told to "check your privilege" is all the rage on college campuses at the moment.

The idea, I suppose, is to get conservative students to shut up, as their viewpoints come from a place of privilege which makes their opinions illegitimate.  The added bonus is the teaching of white guilt, to be expiated by voting Democratic.  Since we all know how constructive and helpful the ideological movements in higher education have been to our nation since at least 1963, and how helpful the white-guilt enabled presidency of Barack Obama has been to the advancement of western civilization, I certainly want to get on board with this movement. Wouldn't want to miss out on whatever is trending in academia these days, or fail to play my part in allowing liberals to now do to the entire nation what they did to Detroit.

So, here's me, confessing my sins and owning up to my privileges.  The more I have thought about them, the more I have realized how manifest they are.  I am privileged, privileged, privileged, and guilty, guilty, guilty, of not being sufficiently aware of my privileges.  I'm so privileged no one should pay attention to any opinion I have ever expressed.  I probably shouldn't even be allowed to vote:

1. I was privileged to have been born before the modern liberal deconstruction of the family, in an era where 90%+ of children were born to their own married parents, such that I got to be raised by both a mom and a dad, who were married before I was born, and who stayed married as they raised me to adulthood.  As numerous studies have now conclusively demonstrated, being born into or adopted at infancy by already-married parents who stay married as you are raised is the best possible way to start one's life.  This family environment fulfilled untold psychological, physical, and financial needs, which no government program or alternative family structure could possibly hope to duplicate.  As Charles Murray put it in Coming Apart (Crown Forum 2012):
No matter what the outcome being examined –the quality of the mother-infant relationship, . . . aggression . . . and hyperactivity, delinquency in adolescence, criminality as adults, illness and injury in childhood, early mortality, sexual decision-making in adolescence, school problems and dropping out, emotional health, or any other measure of how well or poorly children do in life – the family structure that produces the best outcomes for children, on average, are two biological parents who remain married. Divorced parents produce the next-best outcomes. . . . Never-married women produce the worst outcomes. All of these statements apply after controlling for the family’s socioeconomic status. I know of no other set of important findings that are as broadly accepted by social scientists who follow the technical literature, liberal as well as conservative, and yet are so resolutely ignored by network news programs, editorial writers for the major newspapers, and politicians of both major political parties. 
Millions of future children will not have this privilege, but will be born into a world where the television shows, movies, textbooks and even the President of the United States all announce support for a new definition of family which teaches that children do not need both a mother and a father. How terribly sad for them.  How incredibly privileged I was to have been born before the "war on poverty" and its subsidization of illegitimacy, no-fault divorce, irresponsible entertainment, and redefined marriage had accomplished their assault on fatherhood. The result?  I got to be raised by both my mom and also my dad, I was never told that a welfare or child-support check, or a second mom, was an adequate substitute for a dad, and I never came to believe those things.  Thus, I knew enough to seek after the roles of husband and father myself someday, which have given me the greatest joys and blessings of my life.  PRIVILEGED? CHECK.

2.  I was privileged to have parents who thought of themselves first as parents, and not as someone primarily trying to be my friend.  This meant they accomplished their parental responsibilities.  If I got in trouble at school, I never told my parents, because I knew whose side they would take: not mine, the teacher's.  I was privileged to have a mother who read to me, setting me on her lap and requiring me to also read, out-loud, to her, day after day after day, until I knew what I was doing and had mastered the skill. This is one of my earliest memories.  And it worked, something clicked, and I began to read on my own.  I was privileged to have a dad who lectured me constantly about the importance of hard work and honesty, and who was not afraid to discipline me in a corporal fashion when appropriate.  The result?  I was parented, before being befriended, as a child, so that I got to be raised, not enabled.  PRIVILEGED? CHECK.

3.  I was privileged to play outdoors.   I was able to be raised before the onset of iPad tablets, Cable-TV, Netflix, etc.  Videogames?  There was Pong, but it didn't really hold one's interest for very long.  There were only five channels on the television set, and only one of them, Channel 5, ever showed anything interesting (reruns of Batman and Gilligan's Island or Speed Racer and Star Trek).  But the good shows didn't start until late in the afternoon, so Summer days were mostly filled with hours of unsupervised outdoor play.  My friends and I would sneak past the barbed-wire fences to ride our bikes in the Water District, or go in the desert next to it before it was developed with new homes and figure out ways to blow things up, or ride our bikes through the flood channels and tunnels that ran from behind the railway tracks at the Union Plaza beneath Fremont Street, where it could get pitch black in the middle of the day and only the sound of the water on your tires let you know you were staying in the middle of the channel. It's a wonder we didn't die down there.  How stupid were we?  We would play pickle in the space between our houses.  We would make up our own games.  I remember especially something called crazy house, which was a bizarre combination of hide and go seek and the Fugitive, with increasingly complex rules we made up as we went along.  By the end of the summer we had all become so adept at not only formulating these new rules but adjudicating disputes about their implementation that we could have all run for legislative office.  The result? Even though I'm still a huge fan of movies and other visual forms of entertainment, I also learned to enjoy real reality, not solely virtual reality. PRIVILEGED? CHECK.

4.  I was privileged to grow up before the ubiquitous use of Ritalin and the treatment of natural boyhood restlessness as a medical disorder.  Instead, the treatment for a hyperactive boy was to be given a bike, a library card, and an allowance.  This allowed me to fill my life with the kind of printed material that appealed to a young boy and turned him into a life-long reader, while giving me something to channel my attention to so I could learn to focus free of pharmaceuticals.  This matters:

Parents weren't very paranoid at the time, so I could ride my bike, alone or with a friend or two, and without any adult supervision, to the K-Mart on Rancho and Washington to buy Hardy Boys books, to the 7-11 on Rancho and Charleston to buy Mad magazines, the Flash and other DC comic books, to the B. Dalton or Waldenbooks in the Meadows Mall to buy Tarzan novels, or paperbacks full of Ray Bradbury's twilight-zoneesque short stories, or to the library on Charleston Heights, across the alley from where Robert Shaddy cut my hair, where the librarian introduced me to Encyclopedia Brown and the Great Brain.  The result? Printed words became my Ritalin, and I learned to sit still and focus by learning to love reading. PRIVILEGED? CHECK.

5.  I was privileged to be taken to church every Sunday, and often during the week as well.  Sometimes for several hours a week. This meant that, as a child, I came to enjoy the feeling associated with learning about spiritual things, and, as a teenager, I was given adult mentors, scout leaders, youth advisors, and the like, who, I now realize, dedicated loads of their free time to keeping my friends and I entertained.  We were expected to provide service hours to various and sundry local charitable endeavors, to get up in front of the congregation and speak, to go camping, backpacking, and fishing, and, as we got older, to serve as youth staff for the younger boys' scout camps.  What all this meant to my life can never be fully articulated.  Public speaking and leadership training, yes, but, more importantly, the opportunity to essentially grow up in my own small town, as part of a community where families knew one another, which many residents of Las Vegas and other cities would never have fully understood.  I was privileged that the Church in question was incredibly politically incorrect, such that we were taught, contra the media messages which were starting to be generated at the time, that no good thing would come of experimentation with drugs or sex. The result?  I arrived at adulthood without having had any unexpected children who I wasn't ready to be a good father to, without any unexpected STDs, and with values that came from a more legitimate source than public education, peers, or Cable TV.  PRIVILEGED? CHECK.  

6.  I was privileged to come of age, politically, in a culture that refutes my social and political and religious values.  Movies, television, mainstream news media, the universities, publishing: All of these worlds are liberal, and they all portray the world from a liberal default position which need not be defended because it is the way that right-thinking people in these worlds simply know one is supposed to think.  Thus, to be a conservative in this world is to be exposed to a constant challenge to one's beliefs.  This is a good thing.  It means that, to hold onto politically and socially conservative positions a person has to think, reason, read, argue, and articulate.  "I emote therefore I am" won't work for conservatives, which keeps us from becoming intellectually lazy, at least most of the time.  And this is a good thing.  Because rigor in intellectual thought is helpful in all kinds of other areas of life as well.  PRIVILEGED? CHECK.

7.  As I have raised my own children, I have been privileged to raise them in an environment where they have learned that, as middle-class whiteys, they would not be getting any special favors when it was time for them to apply for college scholarships, so they'd better study hard because their future depended on their own academic merit.  I asked one of my sons recently, who excelled academically in school, if he had done this because we had pushed him.  I was a little concerned that his successes (which I have greatly enjoyed celebrating) came at some psychological cost which I might have imposed.  To my relief he said no, but then he went on to say something that made me realize I had enjoyed this privilege: He said, probably somewhat facetiously, that "they" in "society" had pushed him.  I asked him what he meant, and, again perhaps somewhat facetiously, but also probably a little bit honestly, he told me he had heard many times in school that the white males wouldn't be getting any extra points when it came time to apply for college, and so he had worked his hardest.  If the recipients of affirmative action truly understood this principle, they would be first in line with the loudest voices demanding it be dismantled.  Instead, its the white kids and the Asian kids who get the most important actual benefit, the benefit of motivation, from a system supposedly designed to help their other peers. (My children are 1/32 Native American.  I always assumed that would never do any of them any good, and none of them ever provided this information on any applications.  Thank the good Lord they never heard of Elizabeth Warren or else they might have misspent their youth playing video games.)  PRIVILEGED? CHECK.

So there you have it.  On this page, I write my last confession.  (I've also been privileged to see some really good plays.)  Should I now stop opining and stop voting (or start voting leftward) to make up for my privileged status?  Or should I stick with my conservative principles so as to keep fighting for a world where more people enjoy the same privileges I have received?  I think I'll stick with the latter.

Wednesday, April 30, 2014

A Cultural Rosetta Stone: What Some Important Words Used to Mean


"In the beginning was the Word, and the Word was with God, and the Word was God." John 1:1 (King James Translation).

Words Matter.  Language matters.  Phrases matter. Our culture, our politics, our religious beliefs, our decisions, large and small, and our daily lives are all influenced in myriad ways, direct and indirect, which arise from the overt and implied meaning, connotations, implications, nuances, expectations and effects of the words we hear and speak and write and read and sing and listen to every day.  Legally effective and accurate wording, clearly and correctly communicating intended understandings, can save or cost real money in the real world of business and law. The understood meaning of words spoken between friends, spouses, parents and children, siblings, partners, teammates will bond or strengthen or sever their relationships. Even in fields where numbers matter more than words, technically accurate terminology must also be utilized, with the numbers, to allow medicines to be properly administered, bridges to stand, airplanes to fly. Effective employment and deployment of the English language set apart Adams, Jefferson, Paine, Hamilton, Madison, Morris, Henry, Jay, Lincoln, Churchill, Kennedy, Reagan, and allowed them to alter history.

It has been argued that language is what differentiates us from every other beast and animal in the world, and the invention of language marked the beginning of humanity qua humanity, as opposed to humanity qua just one other mammal.  Tom Wolfe: 

A government which wishes to remove threatening concepts from the minds of its citizens would do well to take over their dictionaries.  Orwell:  "It would have been quite impossible to render [the preamble to the Declaration of Independence] into Newspeak [the fictional, government-controlled language of 1984] while keeping to the sense of the original. The nearest one could come to doing so would be to swallow the whole passage up in the single word crimethink. A full translation could only be an ideological translation, whereby Jefferson's words would be changed into a panegyric on absolute government."  

Modern Orwellians in our Universities are busily banning words to fulfill this vision.  The phrase "man up" has recently been forbidden at Duke.  Too sexist.  Another recent target: "bossy" which feminists are campaigning to prohibit, especially when referring to girls and women.  If you find that campaign to be a little, um, I don't know, authoritarian, ironic, lacking in self-awareness, well, that's just fine, as long as you don't call it bossy.  Personally, I want my daughters to be bossy.  I want them to be a boss.  Remember the self-contradicting and self-parodying wisdom of George Lucas: Only a Sith speaks in absolutes.

I'm not too worried about the modern Orwellian word-banners.  Human nature being what it is, our response to their bossy demands will likely lead to more resistance than compliance.

What I worry about is something more insidious.  Taking existing words and phrases and recasting them to mean something they have never meant before, so that, instead of banning concepts by banning the words which express them, you prevent the future human mind from ever understanding those concepts in the first place, as the words which would heretofore have been utilized to express those concepts have been co-opted and turned into symbols for some other concept, entirely different than the intended original.  So our values are changed, not via direct assault, but by co-option and transformation of the words that previously reflected those values. If the major task of civilization is to transmit its values to the incoming horde of barbarians who arrive in our maternity wards each year, and if you want to prevent that transmission from occurring, what do you do?  Change the meaning of the old words, so the old values can't be taught.


The most overt implementation of this strategy has obviously been in regard to the word "marriage" which heretofore meant (i) the legal union (ii) intended to be sexually exclusive (iii) between a male husband and a female wife, (iv) publicly solemnized, usually before one authorized to so officiate (v) and consummated through coitus, the act by which male and female fulfill the biblical injunction and biological imperative to become one flesh (after which, the now completed marriage cannot be annulled, but may only be formally terminated via divorce). Does the word marriage matter?  Do each of its elements?  Sure. Among other things, the concept of marriage, so defined, being centered on procreation and family life, ensures that any child who comes into the marriage will have the benefit of being reared by the child's biological mother and biological father, and where marriage is an expectation before childbirth, our species thereby continues, via the replacement of current humans with a new set who have been given the best possible chance at a successful life.  Are any of the items I have listed as its elements so core to the meaning of marriage that without one or more of these elements you do not have a full and complete marriage?  If not, which parts can you remove, and still have the word retain the essence of its meaning? At what point, having removed this or that element of the definition, does it become impossible to differentiate between a marriage and a friendship? Or a marriage and a business partnership? Or a marriage and two people sitting near each other on a bus?  

Can the term marriage be "expanded" to include new relationships not heretofore covered by that term, without the essential concept of marriage simply being destroyed?  A Gedankenexperiment: Let us "expand" the definition of a triangle so that it now includes both three-sided and four-sided polygons.  Have we enhanced the concept of triangularity? Made it more inclusive?  Or have we simply destroyed its very essence?  Have we rendered numerous mathematical truths false, or simply linguistically un-teachable?  Is there a difference?  If you don't know the answers, you don't know the most important thing about words. A word must mean something, or it does not mean anything, in which event it serves no purpose.  To mean something necessarily excludes meaning something else, including something less or something more or something close but still fundamentally different (excluding homonyms, the recognition and categorization of which proves the rule).  A concept, to be worthy of a word, must have an essence, which will include both core constitutive elements and exclude non-elements, or the word related to the concept will cease to perform its basic function: to mean something which the speaker and the listener can both understand, and not to mean something else.

By teaching that a particular core constitutive element of marriage (the rule of opposite genders) is not, in fact, part of the definition, we also teach, by implication, that the concept of marriage is so inchoate and mutable as to have no essence, so that the concept symbolized by the word "marriage" will eventually simply go away, and with it the institution, and the expectations affiliated with that institution, which have stabilized society for millenniums, by ensuring that each new-born individual has the best possible chance at life: a chance most likely to be afforded if each such individual is able to be raised and cared for by both of her biological parents, with exceptions to be afforded solely where necessary as in the best interests of the child (not merely to gratify the desires of any adult). Many of the fiercest advocates for redefined marriage are increasingly willing to acknowledge that abolishing the entire concept of marriage is the true point and ultimate goal of their movement, which is not designed merely to afford same-sex couples the same legal rights as traditional married couples (which could be accomplished in other ways, with other words), but to lay waste to the very concept of marriage as a normative institution furthering previously accepted societal expectations (including by rejecting not just one, but, eventually, all of the elements of marriage), and rejecting them altogether.

Don't believe me?  Do some reading:

Is this crusade to abolish the concept of marriage succeeding?  Words having the power that they have, and altering their meaning having the effect which that will have, of course it is. How could it not?  In the ten years since marriage as the union of any two persons was introduced into America by the Massachussets Supreme Court, the number of new marriages has dropped to its lowest per capita level in American history, and over 50% of newborn children whose mothers are under 30 are now born to an unmarried mom.  Also a first in our history.  Take away the word, and you take away the concept.  Take away the concept, and you take away the expectation.  Take away the expectation and you take away the behavior.  Change the behavior, and destroy the culture.  Aren't we all proud for having created a more just and compassionate society?  Except of course, if you're one of the newborn children of our brave new world, deprived of your inherent right to know both your mom and also your dad.   


Because the attempt to redefine marriage out of existence has happened in the courts and at the ballot box, it's been easy to take a stand, one way or the other, on the question of whether one agrees or disagrees with that movement.  But for most words and phrases, the redefining has been much more subtle. A political party or an academic school of thought starts using a phrase in a certain way, their allies in the news and entertainment media pick it up, or their enemies resist, and soon, the culture having shifted, you can't be understood if you are using the same term or phrase in the old way. The movies, song lyrics, textbooks, and other leading cultural indicators reframe our use of cultural terminology, and pretty soon it becomes difficult to explain to your children what your values are, because the words you are using to do so don't mean the same thing to you as they mean to them.  A person whose values primarily come from scripture speaks to a person whose values primarily come from cable-tv and they find they are speaking past each other, even though they seem to be using the same words. 

Let us take for example the word "authentic" or the related phrase, "being true to who you really are/ being true to your true self." As we are all children of God, I would use this phrase to mean trying to be true to my best self and highest nature, by seeking to act in accordance with God's will.  (I fail.  Completely and totally and pretty much every hour of every day.  Nevertheless, that's what I think we ought to attempt, if we want to live lives which are true and authentic to who we really are.)  Under this definition, being authentic, or true to our true natures, involves putting off our base desires, and seeking to become more like Him in whose image we are created.  Too religious for you? Then how about this: Let us (in Aristotle's terminology) instantiate more perfectly the rationally discernible form and purpose of a human.  Not religious enough? Then let's try this: Let us fulfill, as best we can, the measure of our creation.  This sense of authenticity is described in Mosiah 3:19: "For the natural man is an enemy to God and has been from the fall of Adam, and will be, forever and ever, unless he yields to the enticings of the Holy Spirit, and putteth off the natural man and becometh a saint through the atonement of Christ the Lord, and becometh as a child, submissive, meek, humble, patient, full of love, willing to submit to all things which the Lord seeth fit to inflict upon him, even as a child doth submit to his father."  So, to be true to your Father's purpose and character, you must put off the merely physical and natural elements of your being.  An example of this type of authenticity may be found at the end of Beauty and the Beast, in which the Beast overcomes the curse and becomes a prince.  

However, in our post-modern world, many people now use the term authentic to mean just the opposite of fulfilling the true measure of our creation.  To many moderns, who deny man's inherent divinity and dignity, to be authentic means to embrace the physical, non-spiritual, aspects of your nature, which are after all the only "true" aspects of that nature if you're just a primate. To be authentic, in this point of view, means giving in to your physical desires, even defining yourself in accordance therewith, whether or not those desires will help or hinder you in fulfilling the measure of your creation or instantiating more perfectly your rationally discernible form and purpose.  See, for example, someone who leaves their spouse to pursue a love affair because to do so is "being true to my true feelings" and staying in a relationship in which I am not, at least at the moment, this week, feeling "fulfilled" in order to honor my marital vows, and give my spouse and children the benefits of a loving stable marriage and home would be "inauthentic" and would not be "true to who I really am."  An example of this meaning of authenticity may be found at the end of Shrek, in which the princess is celebrated for deciding to be true to her inner ogre.  

Robert P. George's incredible book, Conscience and Its Enemies, described these competing views on the meaning of "authenticity" with a story about George Washington.  Some students at Princeton were taken aback by a lecture from two Washington biographers, who explained that, in his youth, Washington had "formed a picture of the kind of person he would like to be and then tried to become that person by acting the way that person would act. . . .  He sought to make himself virtuous by ridding himself of wayward desires or passions that would have no place in the character and life of the noble individual he sought to emulate and, by emulating, to become."  As George explained: "For someone who understands and believes in" certain "classical" ideals, including that "of self-mastery, there is nothing in the least inauthentic about Washington's approach.  On the contrary . . . Washington sought to be master of himself rather than a slave to his desires.  But to some of the students, Washington's conduct seemed radically inauthentic.  He was play acting, they protested; he wasn't really being himself.  He was trying to live a life that wasn't his own, because he wasn't affirming and following his desires; rather, he was trying to reshape his desires in line with standards drawn from, as one of them put it, 'outside himself.'"  Robert P. George, Conscience and Its Enemies, (ISI Books, 2013) at pp. 33-34.  What a sad understanding of what it means to be authentic, but how typical of our Shrekified world.  George goes on: "Not all the students saw things this way, but we can explain why some of them did.  They had drunk deeply of the Kool-Aid of . . . a conception rooted in a profoundly misguided notion of what a person is: a soulless self, governed by desires, whose liberation consists in freeing himself, or being freed, from constraints on those desires . . . .  They had not so much as considered the alternative view of man . . . namely, the human being as a rational creature, capable of understanding reasons in light of which he can become the practitioner of virtues that enable him to master his desires." Id.

A Rosetta Stone

Herewith therefore, as though preserved in amber, some important words, and what they mean to me (which, because I'm an arrogant person, I will describe as the "correct original meaning"), versus what they increasingly seem to mean to those around me, especially those who are younger than me (which I will label the "postmodern meaning" because I don't understand what "postmodern" means, in the same way that I don't understand why these words have had their definitions changed, but I'm pretty sure that post-modernism, whatever that is, had something to do with it.)  So, consider the following as a sort of generational, or at least cultural / attitudinal, Rosetta Stone, which can be used so that people who have been raised on screens can understand how people like me, raised in an earlier era, when there were fewer screens and more books, understand life, the universe, and everything:

Accountability (correct original meaning): Accepting responsibility for the reasonably foreseeable and likely consequences of one's actions.
Accountability (postmodern meaning): An archaic belief utilized to allow people in power to oppress the powerless by claiming that the powerless have free will and should therefore be punished for wrongdoing, despite the overwhelming consensus among evolutionary psychologists (whose hypotheses are inherently un-testable and which can therefore never be questioned) that free will is an illusion.

Amoral (correct original meaning): Worse than immoral, as being psychotically unaware of the very possibility of morality.
Amoral (postmodern meaning): 1. Moral. 2. A meaningless term, given the equal meaninglessness of the terms morality and immorality.

Bullying (correct original meaning):  Meanly and needlessly harassing or demeaning or teasing or hazing a victim who may be unable or unwilling to confront the bully due to being physically smaller or less socially popular than the bully.  "That kid's a big bully, without a brain in his head or a heart in his chest.  Someone needs to confront him and knock that smirk off his face and protect and befriend his victim."
Bullying (postmodern meaning):  Being opposed to same-sex marriage.  "And now students, an anti-bullying advocate from GLAAD, Dan Savage, will be addressing our assembly, and will be cussing  at, screaming at, mocking and attacking students who believe in Christianity and pre-marital chastity, so those students will stop being such bullies."

Diversity (correct original meaning): An environment in which one is exposed to many different ideas.
Diversity (postmodern meaning): An environment in which one is exposed to many different people, with different skin colors and ethnic backgrounds, but who all exhibit ideological conformity, and think exactly the same, especially about the importance of (non-ideological) diversity.  "In order to promote diversity, the tenure and faculty committee granted tenure to a Puerto Rican Marxist, a Lesbian Marxist, and a White Male Marxist, but of course rejected the application of the African-American Conservative, as being insufficiently diverse, since we already have two African-Americans on the faculty, and we certainly don't want our students being exposed to such a professor's beliefs."  "Remember, we are all diverse, but some of us are more diverse than others."

Education (correct original meaning): The acquisition of knowledge, intellectual and vocational skills, and learning how to think.
Education (postmodern meaning):  The acquisition of politically correct beliefs and attitudes, and learning what to think.

Equality (correct original meaning): The treatment to which we are entitled before the law and in the eyes of the government, regardless of our age, sex, race, etc.  "Everyone's vote should count equally."
Equality (post-modern meaning): Redistribution of outcomes.

Imperialism (correct original meaning):  The takeover of another people's land, and exploitation of its resources, by foreigners, for the benefit of the foreigners' native country.
Imperialism (post-modern meaning): The United States' policy of containment and hostility to Communism during the Cold War and its current policies opposing radical Islamist terrorism.

Justice (correct original meaning): Justice.  Arriving at a fair and equitable result in a civil controversy between two litigants, or in a criminal controversy between the state and a criminal defendant, based on previously established laws and procedures, which were created in an objective and impartial prior setting.
"[Justice may be obtained only] so we are taught, by recourse to law.  By recourse to and devotion to those laws made impartially, without respect to individuals, and applied impartially."  David Mamet, The Secret Knowledge  (Sentinel 2011) p. 148.
Justice (post-modern meaning): Social Justice.  The quest for cosmic universal fairness or "Social Justice" which is based on the refusal to accept that the universe is inherently unfair, especially in a free society, and the desire to remedy all inequality of outcomes and results, which will necessarily require providing the government with totalitarian powers. Forced redistribution of income and wealth.  "What is 'social justice'?  It is not merely an oxymoron.  It is, inherently, the notion that there is a supergovernmental, superlegal responsibility upon the right-thinking to implement their visions.  . . . .  [True justice which attempts to find justice through equality of opportunity] is antithetical to that equality of result [or 'social justice'] beloved of the Left; one might have one or the other, but they each are the other's negation, and one must choose."  David Mamet, The Secret Knowledge (Sentinel 2011) p. 153.  

Liberated (correct original meaning) Freed from slavery, subjugation, or addiction.  "With my church's help, I was able to be liberated from my addiction to alcohol." "The allied forces successfully liberated France from Germany."
Liberated (post-modern meaning) Freed from restrictive and outmoded values based in superstition and bigotry. "With Oprah's help, I was able to be liberated from the restrictive values of my parents, so I could quit my boring job as an accountant, leave my wife and children who were bringing me down, join the commune and smoke pot and write poetry."

Libertarianism (correct original meaning):  The false but comforting belief that a debauched and permissive society, full of fatherless homes and drug-infested neighborhoods, can maintain a small and non-intrusive government.
Libertarianism (postmodern meaning):  The beliefs held by a Republican who is only 1/2 evil.

Marriage (correct original meaning):  From the 1991 6th Edition Black's Law Dictionary: "Legal union of one man and one woman as husband and wife. [Citation omitted.]  Marriage . . . as distinguished from the act of becoming married, is the legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.  A contract, according to the form prescribed by law, by which a man and woman capable of entering into such contract, mutually engage with each other to live their whole lives (or until divorced) together in that state of union which ought to exist between a husband and wife." (Copyright 1990 by West Publishing Company.)
Marriage (postmodern meaning): A term which will hopefully soon be obsolete (see, but which, in the meantime, may be utilized to mean whatever you and any other person or persons with whom you form a relationship, regardless of the precise nature of that relationship, and regardless of the gender or number of persons involved, want it to mean, and with respect to which your personal definition must be recognized and celebrated by all members of the community at large, under threat of social sanction, penalties issued by the New Mexico Human Rights Commission, and castigation for bigotry as against any non-complying members of the community, even though that community has no other legitimate interest in your marriage, however defined.

Patriotism (correct original meaning): Love of one's Country and desire to see one's country be prosperous and strong.
Patriotism (postmodern meaning):  Parochial small-minded xenophobia exhibited by those who pay insufficient attention to becoming a citizen of the world.

Politics (correct original meaning): The methods by which human beings order their governmental affairs. "He is interested in politics, and wants to be a consultant to his favored candidate in the upcoming election."
Politics (postmodern meaning): Everything.  "Everything is political. Thus, no work of music, literature, or art, may be studied for its aesthetic value or craftsmanship or intrinsic beauty or inherent value, but all works of art must instead be deconstructed for invidious political meanings, and critiqued for the ways in which they promulgate and support oppressive class structures."

Purpose (correct original meaning):  The reason why something exists, ascertainable from its form and function, in a universe which is clearly teeming with undeniable etiology.  "The purpose of a man is to love a woman and the purpose of a woman is to love a man.  So come on baby let's start today.  Come on baby let's play.  The game of love." Wayne Fontana and the Mindbenders.
Purpose (postmodern meaning): A false social construct designed to prevent people from pursuing what Justice Kennedy's notorious new-age magical mystery passage described as the heart of liberty: "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Privileges (correct original meaning):  Something which is provided or granted to you at the discretion of the government.  To be differentiated from rights.  "You have the right to appeal your conviction, but appearing before the State Board of Pardons to seek clemency or a commuted sentence due to extenuating personal circumstances is a privilege not a right."  "You have a right to obtain a business license upon the same reasonable terms which apply equally to anyone else who is similarly situated.  You do not have a right to a concession to operate a business at the Airport; there being a limited number of spaces for rent, the granting of these concessions are under the sole discretion of the County Commission, and can be revoked upon your lease's expiration, at will, with or without cause."
Privileges (postmodern meaning):  Rights.  I have a right to let my cows graze on public land, whether the government provides me with another permit or not.

Racism (correct original meaning): The false belief that another person's race or ethnicity makes that person inherently inferior, morally, physically, or intellectually, to others of a different race or ethnicity.  The belief that the law should treat people differently and unequally based on the color of their skin.
Racism (postmodern meaning): Believing in the "equal protection" clause of the U.S. Constitution; opposing affirmative action in University admissions or minority bidding preferences for public works contracts.  A white male's insufficient feelings of guilt for his privileges and resultant unintended micro-aggressions towards those around him.  The belief that the law should not treat people differently or unequally based on the color of their skin.

Responsibilities (correct original meaning):  Tasks which are expected of an adult who wishes to be treated as a relevant human being and to act as a productive and contributing member of a free society. "You are an adult now, and you have a responsibility to provide for yourself, and for your family, to pay your taxes and to become educated about the issues facing our country so you can participate meaningfully in our society."  See also, Duties.
Responsibilities (postmodern meaning):  Obsolete terminology.  No definition available.

Rights (correct original meaning): Restrictions on the government's powers in its interactions with me as one of its citizens.  "I have a right to due process, before the government can restrict my liberty or take away my property, meaning sufficient prior notice, a fairly conducted transparent hearing, and the right to confront and cross-examine my accusers."  "I have a right to freely exercise my religion without government interference."
Rights (postmodern meaning): Wants. "I have a right to a job, even if that takes away an employer's rights to make her own hiring and firing decisions."  "I have a right to free health care, even if that takes away a physician's right to earn fair compensation after many long years of expensive higher education." "I have a right to let my cows graze on government land without signing a permit or paying fees, and regardless of whether the government wants to allow that use on its land or not."  "I have a right to not be offended by hearing views in my classroom with which I disagree."

Sin (correct original meaning):  Intentionally disobeying the commandments of God (something which, according to scripture and personal experience, we all do).
Sin (postmodern meaning): Being judgmental (which can, in fact, be a sin, but in the postmodern meaning is considered the only one).

Spiritual (correct original meaning): Religious.  "As Truman Madsen once noted, religion is to spirituality what language is to communication."
Spiritual (postmodern meaning): Non-religious.  "I'm spiritual but not religious."

Suppress (correct original meaning): Suppress. Exhibiting emotional maturity by not constantly giving in to the temptation to lose your temper. "I suppressed my urge to scream at the person who cut me off in traffic, as I didn't want to give in to road rage and set a bad example for my child in the back seat."
Suppress (postmodern meaning): Repress. Exhibiting a psychologically damaging mode of living.  "You should treat people as rudely as you want to and not try to suppress your emotions to be polite or civil when you are feeling angry. Otherwise, you'll just be a ticking time bomb full of repressed anger."

Truth (correct original meaning): Things as they really are.  That which is not false. "There is such a thing as objective truth."
Truth (postmodern meaning):  A false social construct.  "Nothing is good or bad, but thinking makes it so."

Sunday, April 27, 2014

What Lance Armstrong and Cliven Bundy and Sonia Sotomayor all have in common.


There are legitimate and illegitimate ways to win a football game.  The legitimate way to win goes like this: There are rules, objectively and equally applicable to all participants, and you win by playing in accordance with those rules.

There are even rules for the rules.  They are established in accordance with the bylaws of the league, as established by those who founded the league, or as revised from time to time by the current owners (in accordance with previously agreed upon procedures).  If the bylaws of the league make sense, then proposed rule changes will be discussed and voted on during the off-season, when no one is sure who they will benefit.  The rules are not changed during the middle of a game.  During the game, the rules are enforced by the referees.  Sometimes the refs make bad calls.  But the teams readjust themselves, and determine who is currently in possession of the ball, in accordance with even the obviously bad calls.  They do so because that’s one of the rules, and because to do otherwise would prevent the game from being completed.  If one side, being told they had lost possession of the ball, were to line up in an offensive formation and keep the ball anyway, then the other team would soon disregard the calls they didn’t like.  And the game would devolve into a brawl.

The illegitimate ways to win a game all involve one form or another of refusing to play by or recognize the rules:  Paying off the refs; taking out another team’s star player with a bit of unnecessary roughness; wiretapping the other team’s communications lines so you can hear their play calls; using performance enhancing drugs; or just plain refusing to abide by the rules. The people who engage in these behaviors have decided that winning is the only thing that matters.  But they are wrong.  You can make a living playing professional sports, or get a scholarship to play collegiate sports, because people will pay to watch.  But if the spectators don’t believe what they are watching is real, they’ll eventually stop watching.  And soon the teams playing the game will realize there was something more important than winning after all, namely, not becoming the WWF.  That’s why principled athletes and athletic organizations play according to the rules of the game, understanding that there’s something more important at stake than just winning.  But it’s easy to lose sight of that and become Lance Armstrong.

It’s like that in politics too.  We Americans have strong feelings about our disagreements.  Our Founders provided us with a set of rules which would allow us a system for resolving our political differences peacefully.  That system is important because it keeps us from going to war with each other every couple of years.  People at war end up dead, a condition in which one's politics cease to matter very much.  And even when they don’t end up dead, they end up hungry, unable to peacefully and securely harvest their crops, educate their children, coach soccer, or enjoy a night out at the movies.  Principled people understand that our unified need to maintain civic peace and avoid civil strife are more important than almost any political question which might otherwise occupy our minds.  Therefore, they play politics in accordance with the rules, realizing that they will sometimes lose, their personal policy preferences will sometimes not be implemented, and they will have to live with it, even if they believe, deep within their hearts, that this means the world will become a worse place, or even if the loss affects them personally.  Unprincipled political players have come to believe so much in the infinite wisdom of their own personal policy preferences, that they are willing to cheat in order to see those preferences win the day, no matter what, the ends justifying the means. Principled people know better. They are willing to accept political outcomes with which they deeply disagree (at least until the next election) as preferable than playing outside of the rules: because they understand that if one side starts cheating, the other side will start cheating too, and soon, instead of an orderly process for resolving our legal and political differences, we’ll get a civil war, anarchy, and what civil war and anarchy almost always lead to: tyranny.  Principled people play out political and legal disputes in accordance with the rules, so their country doesn’t become Somalia, just like principled athletic organizations do what it takes to keep their league from becoming the WWF.

Here's a test to determine which camp you, or someone you know, may fall into. How do you feel about 
some recent, or some famous, U.S. Supreme Court decisions?  A non-principled partisan's opinions will always be results based.  If you favor abortion, or gay marriage, or Obamacare, or law X, you will support any judicial decision which upholds or creates (or pretends to find in the Constitution) a right to these things. If you disfavor these things, you will disfavor the rulings which uphold these things, every single time and without exception.  By contrast, if you are a principled person you will, at least once in a while, be able to say something like this: “Personally, I think that law is stupid, but I don’t see how it’s unconstitutional. Elections have consequences.  The congress did something stupid, but the Court has no power to fix it.”  Or: “Personally, I believe we should/should not change the definition of marriage. But I don’t see anything in the Constitution as currently written that requires that.  It’s a political question for the electorate.”  None of us are perfectly capable of intellectual honesty on all political questions.  So this is not a test that will be passed often.  But if you, or someone you know, have never made any such statement, because you believe that each and every one of your personal political opinions are a matter of “Constitutional rights” or "fundamental human rights" and not merely a matter of your own personal policy preferences and political opinions, allow me to suggest that it is such thinking that is part of the problem. Why?  Because it is people who believe such things who end up arguing that the ends justify the means, and that we should resolve all of our differences via assertions of power, unhinged from principle, to get our own way, in a might-makes-right world.  And where there are lots of such people in a nation, they endanger ordered liberty and self-government.

As Dallin H. Oaks has stated: "[I] urge that we be more careful in the way we throw around the idea that something is unconstitutional. A constitution should not be used as a weapon to end debate. A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional. A constitution gives the people and their elected leaders the opportunity to make many decisions that are unwise or even reckless. When that happens — when the government or one of its officials engages in some kind of action that we consider to be wrong — we should engage in vigorous public debate about it. But we should not use up a constitution by attempting to strike down every ill-conceived act of government or to discredit every unwise official. A constitution is the ultimate weapon, and we preserve that weapon best by using it sparingly and carefully. If we call some action unconstitutional, we should be prepared to explain what provision or principle of a constitution it violates."  Likewise, Justice Scalia has called for the issuance of an "SBC" stamp to new judges, which would stand for "Stupid But Constitutional."

In much of the world, no system exists for the peaceful resolution of political and legal differences. People in Somalia don’t get to debate the relative efficacy and fairness of a flat versus a progressive tax structure, affirmative action, same-sex marriage, appropriate grazing fees on land owned by the central government. Instead, people in Somalia have to figure out how to survive and eke out a living in a country where there’s no economic infrastructure or political stability, and whether to join up with or hide from the local warlord and his private army.  If you study the history of places like Somalia, you will find that one of two things is true: they have either failed to ever establish a coherent system for resolving political questions which the citizens generally agreed upon, or, they once had such a system in place, but they have lost it, perhaps due to foreign conquest, or, more often, due to internal strife.  Internal strife is what happens when some political partisans decide to become political Lance Armstrongs, seeking to win at all costs, believing that the ends justify the means, and all that really matters is the acquisition and exercise of raw political power for oneself and one’s tribe, through extrapolitical means if necessary, and the rules be damned.


A couple of political Lance Armstrongs have been in the news of late: Cliven Bundy, and Sonia Sotomayor. Their behavior, if it came to be widely emulated or admired, would do to America what Lance Armstrong did to the Tour de France, taking a widely respected sport and turning it into the WWF, or taking a widely respected country and turning it into Somalia.  At first glance, Cliven and Sonia may not seem to have much in common. They are on opposite sides of both the horizontal political spectrum and the vertical political power structure in America. One is a right-wing white male cattle rancher who holds no political office but has (unfortunately) become (to some) a Conservative folk hero, whose cause was initially championed by one of the more prominent talking heads on Fox News. The other is a Latin-American female who sits as a Justice on the highest Court in the land, enjoying an appointment to that Court made by the most liberal President our nation has ever had.

What could these two possibly have in common?  Quite a lot as it turns out.  Yes. They've both made ill-considered statements which their critics construed as racist, Mr. Bundy having pondered whether “the Negro” was better off under the horrors of slavery than under welfare subsidies, and Ms. Sotomayor having suggested that her ethnicity and gender will make her a better jurist than those who do not share those characteristics with her.  But that's ultimately a cheap-shot comparison (based on the "gotcha" political correctness faux outrage politics that currently so cheapens our national discourse), which doesn't really get us to the issue at hand.  More relevant, they both have a fascinating talent for the subjective use of language, misconstruing words to mean, not what those words have traditionally and objectively been understood to mean, but to mean whatever the speaker wants them to mean. Hence, Mr. Bundy, in discussing the merits of his cause, recasts traditional legal concepts in startling new ways, including concepts such as “mine” (what I believe should be mine) "ownership” (a squatter’s trespassing and holdover possession), and “rights” (what I want).  For her part, Sotomayor can use her linguistic legerdemain to spin, in 50 pages of convoluted prose, an Alice-in-Wonderland fable rewriting MLK’s dream of an America where our children are judged by the content of their character and not the color of their skin, into a nightmare where we are all of us, now and forever, to be judged by nothing else but the color of our skins in perpetual perpetuity.

It is the second of these two similarities that is closest to the relevant point, but that point goes deeper still. 
The deepest similarity between Sonia and Cliven is that they are both perfect examples of unprincipled political Lance Armstrongs.  They both want to win more than they want to win in a legitimate way.  In pursuit of their own favored causes, neither is capable of an intellectually honest response to any counterarguments.  They both believe that the ends justify the means, might makes right, and that their own personal policy preferences are not just correct, as a matter of their own personal opinion, but create legal rights, just because they say so. The level of support they both enjoy should be deeply unsettling to anyone who believes in Constitutional government, because it suggests the prevalence of a deeply and widely held belief in America that the Constitution can be treated as an etch-a-sketch, and any parts of it that we don’t like can be magically wished away.  

I happen to be sympathetic to Cliven Bundy’s plight.  I believe that he, and other ranchers, have seen their ability to acquire permits for grazing on Federal land unfairly restricted by policies which I think are stupid and onerous.  But lots of people have livelihoods that are dependent to some extent on what the Federal Government is doing (vendors to U.S. Military bases facing closure, businesses renting property from the government or near National Parks), and when the risks of that arrangement don’t work out, they don’t get to go to war over these unfortunate outcomes.  It is a wholly unremarkable proposition that your landowner can, upon your lease's expiration, offer you a new lease on less favorable terms, or no lease at all.  A tenant who refuses to sign a new lease on terms which are not good enough for that tenant cannot reasonably suppose that he may thereafter, and without consequence, pretend that nothing has happened, refuse to sign that new lease, but stay in possession anyway, cease paying rent, claim to have "fired" his landlord, cease recognizing his landlord's existence, ignore court orders for his removal, vow in sworn testimony to do whatever it takes to physically obstruct his removal, and then feign outrage and surprise if, eventually, armed men come to stop his trespass. This is true even if your landlord happens to be the Federal Government which so many so deeply despise.  The ability to graze your cattle on public land is, ultimately, a privilege, and not a right, similar to a concession the county might alot to a favored few to open retail stores in the limited space available for such in a county airport.  There is no "right" to a renewal of such a concession, especially if you choose not to sign the terms of a new lease that is offered.


Cliven Bundy has been photographed with a copy of the Constitution in his shirt pocket.  His followers erected a large banner quoting the opening lines of the Constitution: “We the people” and many of them wear U.S. flags on their t-shirts.  These are strange props for the supporters of a man who has repeatedly violated orders of U.S. District Courts established by Article III of the Constitution, stood down executive branch agents acting under authority of Article II of the Constitution, and declined to believe that any laws passed by the Congress under Article I of the Constitution with which he disagrees are applicable to him.  This is a man who says he does not recognize the U.S. Government as even existing, and has acted on that belief now for 20 years.  If you don’t believe in Article I, or Article II, or Article III of the U.S. Constitution, or even in the existence of the U.S. Government created by that Constitution, what part of the Constitution do you actually believe in?  Just “We the people” and then skip to the First and Second Amendments?   Cliven Bundy wants one thing: to win. And if he can’t win under the rules, then he’ll win by ignoring the rules and by armed resistance instead.  He and his supporters are dangerous because they do not understand the price that will be paid by such a victory.  What happens when someone else starts grazing their cattle on Cliven Bundy’s converted allotments and he wants to kick them off?  What happens if two of Cliven’s militia men get into a brawl with each other?  Having refuted the authority of the Courts and the recognized agents of the law to resolve disputes of this nature, and having flouted the rule of law, where will Cliven and his friends turn?  To the rule of Cliven?  Cliven Bundy's arguments are based in the fringe and extremist views of the "sovereign citizens" movement, the ideology of which has been repudiated by one of the highest-ranking leaders in Mr. Bundy's church, and should not be countenanced by anyone who wants America to avoid becoming Somalia.

(Let me digress to field briefly a commonly heard refrain: But, the founders broke the law too!  And where would we be without them?  And what about MLK and Rosa Parks?!?  Here's the deal: the founders broke the law because they discovered they had no political rights to change the law.  They realized they were not Englishmen, but Americans living under subjugation to a foreign power.  Taxation without representation. The lack of representation was what gave them the moral right to object with arms to the taxation, since they had no ability to object in the voting booth.  Cliven Bundy may not like Nevada's Senators, but he has as much of a right to vote for them as anyone.  As soon as our founders established representative self-government, they were quick to suppress, militarily, those who believed they could foment secession and rebellion against that government through extra-political means, away from the voting booth, no matter how sympathetic the rebels' grievances may have been.  (See, Washington and Hamilton's response to Shay's Rebellion and the Whiskey Rebellion.)  And a good thing too. Washington's support for the military suppression of Shay's Rebellion, and his personal involvement, as commander in chief, on the field leading the troops which put down the Whiskey Rebellion, is what kept this Country's revolution from turning into what the French Revolution turned into: "a pile of headless corpses with a dictator on top" (Margaret Thatcher).  Cliven Bundy is no Washington.  Indeed, Washington would have known exactly what to do with Cliven Bundy and his little band of so-called militia, and he would have led the charge.  As for MLK and Rosa Parks, the laws they opposed were immoral by any objective standard, including on the basis of Thomistic natural law theory relied upon by MLK, and they were willing to call attention to that fact by paying the price for their civil disobedience, and being arrested to draw attention to unjust laws, in peaceful and expressly nonviolent resistance. Cliven Bundy's supporters point their guns at federal agents and use fringe and historically inaccurate non-Constitutional and non-Thomistic "sovereignty" ideology to support their cause.  MLK and Rosa Parks would not be amused by the comparison.)

One of my first cases as a lawyer involved representing the owner of a bulldozer which had been damaged while in the possession of the lessee.  The damage happened like this: there were two rock and sand and gravel mining companies occupying adjacent properties.  One of the two had in its possession a piece of mining equipment leased to it by a third party. When they stopped paying the lease payments, the owner transferred the lease to their neighbor, but didn’t bother to transfer the actual piece of equipment.  He left the recovery and repossession to the new lessee, which went to its neighbor’s property to seize the object and, pretty soon, people were climbing into bulldozers and using them as armored tanks, going to battle with each other, ramming into one another and tipping over pieces of heavy equipment (my client’s bulldozer was one of the many damaged in the melee).  The battle finally ended when someone got shot.  That’s what happens when people forget we have a court system to resolve these issues peacefully.


But in order for the citizenry to trust the courts, the courts need to remember the limits of their own authority and power.  Their decisions have to be based on logic and reason and an at least arguably proper application of the facts to the law.  If our judges act instead like referees who have been paid off before the game, repeatedly making decisions which are obviously designed to reach a pre-desired political end, even if doing so requires leaps of logic that a 5th grader could see through, they will find themselves so disrespected as an arbiter of our legal disputes that no one will want to utilize them for that function.  They will find that we have all become Cliven Bundy, refusing to recognize the authority of tribunals that are interested only in power, not in principle.  Judges who are guilty of this misuse of their power deserve to have us question their authority.  "The judge who forgot the admonition in Proverbs, 'Do not favor the rich, neither favor the poor, but do Justice,' who set aside the laws, or who 'interpreted' them in a way he considered 'more fair' was, for all his good intentions, robbing the populace of an actual possession (the predictability of the legal codes). He was graciously giving away something which was not his."  David Mamet, The Secret Knowledge, On the Dismantling of American Culture (Sentinel 2011) at p. 151.

That’s what makes Sonia Sotomayor’s dissenting opinion in the recent Schuette case so discouraging, and the support she has garnered in certain pockets of the left so similar to the support Cliven Bundy has received among certain people on the right.

The “equal protection” clause of the U.S. Constitution means what it says: the government can’t discriminate against you (or prefer you) because of the color of your skin, or due to some other immutable characteristic, or on the basis of characteristics (your religion) that are protected elsewhere in the Constitution. Nevertheless, public institutions have done just that, passing laws giving preferential treatment to minority owned businesses bidding for public works contracts, and allowing discriminatory preferences to minority applicants for public universities.  These laws have been upheld by the U.S. Supreme Court under various theories limiting the application of or creating exceptions to the equal protection clause.  I happen to disagree with affirmative action,  (i) on principle, such that I disagree with the cases which have upheld it as Constitutional, (ii) based on its lack of efficacy (read Chapter 3 of Malcolm Gladwell’s book, David and Goliath, if you want to understand why we would have far more minority doctors and lawyers and scientists in America today if it weren’t for affirmative action admissions policies at our universities) and (iii) due to the fraud it encourages (let me know how many “MBE’s” and “WBE’s” you've worked closely with that you haven't eventually learned to be a front diverting money to some white guy).  Nevertheless, I understand that both the constitutionality and the efficacy of affirmative action is an issue on which reasonable minds can disagree, so long as the argument is being played out under the correct rules.

The subject of this blog post isn’t whether I agree or disagree with the underlying political policy preferences of Mr. Bundy and Ms. Sotomayor, but, rather, how I feel about both of their equally disreputable methods. While I disagree with a lot of past U.S. Supreme Court jurisprudence on the affirmative action question, I have to credit most of those decisions as having at least been honest about the question before them: “May a government violate the equal protection clause of the U.S. Constitution in order to remedy the effects of past discrimination, or in order to advance some other governmental interest –diversity or some such excuse– which warrants granting the government an exception to the equal protection clause, and if so, under what circumstances?” Whatever you think about how the Court has ruled on cases raising that issue, those rulings can't be seen as activist in nature.  They have generally upheld what the government had previously decided it wanted to do. They did not judicially impose a requirement of racial discrimination, but upheld such a policy that some governmental entity had adopted.

The question in the Schuette case was different, and much more simple.  Faced with a voter referendum in which the citizens of the State of Michigan decided that the time had come to end race-based admissions standards to public universities, the question became: “May the government of a State, or its people, uphold the equal protection clause and decide not to seek an exception to the Constitutional rule?”  Well, duh.  Any idiot can answer that question.  Of course the government doesn't HAVE TO engage in racial preferences and discrimination.  But Sonia Sotomayor is not just any idiot.  And her response to this question has been to say “No.”  You, Mr. Governmental entity or public institution, may NOT abide by the Constitution.  You are REQUIRED to violate it.  You are REQUIRED to read it the way I read it, as saying just the opposite of what it actually says.  Affirmative action policies (I am not making this up, her dissent indicated that she really wanted the court to rule this way) are not just acceptable despite the plain language of the equal protection clause, they are mandated by that language!   (No, really, I’m not kidding, she thinks we would buy this, that we’re just that stupid.  She really, really, and for truly does.) Sonia Sotomayor believes so much in affirmative action that she will not just allow you to have such policies, she will require you to do so.  It's like some one announcing that marijuana use won't just be legal in your State, it will be mandatory. What is more, if your State has the unmitigated gall and temerity to disagree with her, she believes she has the right to impose her personal policy preference upon you.  The Supreme Court has done this before of course, and gotten away with it far too often by declaring Constitutional rights to exist in the Constitution’s so-called "penumbras" and "emanations" which appear no where in its text.  But Sonia Sotomayor takes this judicial arrogance further than has ever heretofore been seen.  She is not simply finding rights in the Constitution which don’t actually appear therein, she is taking rights which are there, in black and white, in the text, namely, the right to be treated equally under the law, and transforming them into their opposites, in order to protect her own chosen policies and preferred politics, and advance the cause of her own fellow liberal tribesmen, all in violation of the principles of democracy, and the principles of common sense, and the principle of reading plain English to mean what it says, and what it was intended to say.  If she was a cow grazing on the land Cliven Bundy claims to own, she could not be having less coherent thoughts.

Nevertheless, all of the usual government-by-judicial-oligarchy suspects lined up to praise the "courage" of Sotomayor's dissent, each of them playing the usual power politics and each of them, with willful blindness, intentionally ignoring the true nature of her argument.  The constitutionality of affirmative action is not what was at issue in Schuette, the constitutionality of democracy is what was at issue in Schuette.  May the people of Michigan democratically amend their Constitution to require what the U.S. Constitution already requires: equal treatment by the government of the governed regardless of race? Or may the U.S. Supreme Court impose upon them a requirement to do otherwise?  Anyone who calls Sotomayor's dissent courageous is an unprincipled political Lance Armstrong, a person who believes it is more important for his or her personal policy preferences to "win" than it is for our system of self-government to "win" by being recognized.

The role of a judge in our society is similar to the role of a referee during a football game.  They are not to be partisan players, but to ensure our legal and political disputes are fought in accordance with the pre-established rules.  For Supreme Court Justices applying the U.S. Constitution, that means they are to apply the Constitution, not amend it from the bench.  A system for democratic amendment already exists, thank you very much.  Just as we should have nothing but scorn and contempt for a referee who we learn has money on the game and has been making biased play calls, Sonia Sotomayor likewise deserves our scorn and contempt for having assumed that her role is not to adjudicate, but to play for one of the teams.  I may be wrong about the merits of affirmative action, and Sonia Sotomayor may be right.  But in that case, she should have gotten out her SBC Stamp and called the voter referendum to which she objected "stupid but constitutional."  Instead, she lends credence to the Cliven Bundys of the world, and others like them, who can't distinguish between a political preference and a constitutional right.  If Sonia Sotomayor, sitting on the bench, can't draw this distinction, why should an Nevada rancher with no legal education, training or experience be able to do so?

The biggest issue any constitutionally governed society faces is how to ensure that the constitution is complied with.  Judicial review is the system which we have developed in America to deal with this problem. But that system comes with a huge risk: the temptation of the judiciary to falsely equate and conflate their own personal policy preferences and their own political views with what the Constitution actually says, and thereby to unmoor us from Constitutional governance and tether us instead to governance by unrestrained judicial oligarchy. Those members of the judiciary who give in to this temptation have corrupted our system and violated their oaths of office.   Again, they have "robb[ed] the populace of an actual possession (the predictability of the [Constitution]" thereby "giving away something" which was not theirs to give.  David Mamet, The Secret Knowledge, On the Dismantling of American Culture (Sentinel 2011) at p. 151.


Cliven Bundy and Sonia Sotomayor are both dangerous for the same reason: because they are both anti-Constitution.  Cliven feels he can ignore the existence of the government established by the Constitution, as well as its Courts, and executive branch officers and legislative branch legislation.  Sonia feels she can ignore the plain text of that Constitution and personally rewrite it to say the opposite of what it clearly says.  Both are unprincipled win-at-all costs partisans who believe that political questions can only have one proper answer: the answer that allows them to win, and recognizes their own power to get their own way no matter what, and if they don’t, to throw a spoiled child's temper tantrum. Sotomayor’s dissent in the Schuette case is the mirror image of Cliven Bundy’s stand in choosing not to recognize the existence of the government: both positions ignore the plain text and meaning of the Constitution.  Sonia's dissent does some other things that resemble Cliven too.  Just as Cliven refuses to believe that the State of Nevada is not the ultimate arbiter of his rights on Federal land, Sonia ignores the principles of Federalism where they do actually apply, pursuant to which the U.S. Government is a government of limited and delegated and enumerated powers and the States are political entities of general jurisdiction.  She turns a State question of a State’s admissions policies at State Universities into a question of Federal concern, which it is not.  And her dissent answers that question by borrowing Cliven Bundy’s Etch-A-Sketch version of the Constitution, so Sotomayor, like Bundy, can be provided with a Constitution which she can pretend says what she wants it to say, instead of what it actually does say.

One of the best defenses of the rule of law ever written may be found in this exchange from Robert Bolt's play about Sir Thomas More:

"Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."
Robert Bolt, A Man for all Seasons

Substitute "the Federal Government" or "Republicans who want to democratically end affirmative action" or your own personal bogeyman in place of "the Devil" and hopefully you'll get the point.

It's a point which eludes both Sonia and Cliven.  And it is not the only thing they don't understand.  Their extrapolitical power plays create a vicious cycle, each feeding on the other and strengthening those who they most oppose.  Sonia's insistence that the Constitution can be read as mandating that which it expressly forbids is so utterly preposterous that, the more frequently it is accepted by the majority of her fellow Justices, the more it deprives the Court of any moral right or claim to be treated with legitimacy.  It would make the vast majority of Americans want to become Cliven Bundy, each of us refusing to recognize the authority of a tribunal which would require us to live under the rules handed down by such absurd and ridiculous jurists.  I won't discuss here the pros and cons of judicial review, but given the judicial veto power over democracy inherent in that doctrine, and its obvious potential threat to self-government, that kind of public sentiment against an overly arrogant Supreme Court is the kind of thing that can lead to war, if the people feel their right to live in a democracy has been unreasonably withheld from them. Has led to war in fact. Abraham Lincoln became a little bit of a Cliven Bundy in his disregard for the Dred Scott decision, which strengthened Northern resolve to carry out the Civil War.  (Sometimes the backlash is less violent. Roe v. Wade arguably led to the election of Ronald Reagan, and won the Cold War. But I doubt Sonia would see those events positively, in the way I do, and so she might want to take them as a cautionary tale.)   Similarly, Sotomayor's inability to differentiate between her own personal political preferences and the mandates of the Constitution further fractures a system which requires its citizens to make distinctions between rights and privileges, politically desirable policies and human or constitutional rights. If someone in her position can't do it, how should the rest of us be able to do so?

Cliven Bundy's actions, similarly, strengthen the very Federal Government which he opposes. In promising to do whatever it takes to prevent the federal government from carrying out federal court orders on land owned by the federal government, Cliven only encouraged the heavily armed response which his supporters felt was so overwrought.  But the more his non-supporters learned about the facts of the case, the more they supported the militarized federal response. Go read the comment sections to some of the liberal anti-Bundy stories on the internet. There are people calling for the U.S. Government to use drone strikes against Bundy. Whose to blame for those kinds of sentiments?  In large part, Bundy himself is.

If this is the way politics are going to be played in the future (and the support which Cliven and Sonia have garnered from many who ought to know better suggests this may be so), on the basis of unprincipled assertions of raw political power, which ignore the rule of law and discard the text and plain meaning of the Constitution, then America’s experiment in ordered liberty and self-government will soon be doomed. Fortunately, not all conservatives sided with Cliven, and fortunately a majority of the Court rejected Sonia’s “reasoning” including even one of the liberal justices.  But the support both of these unprincipled political  might-makes-right power players received at their respective ends of the political spectrum does not bode well for America's future.

Welcome to Somalia?