My brother ‘75 J.D. sent me an essay+ by Lincoln Caplan ‘72 J.D. ‘76 from the Harvard Alumnus magazine. (You know those slick magazines whose sole purpose is to celebrate the tribal connections of alumni in hopes they’ll give scads of money after having paid scads of money to get the right to add those pretentious dates after their names, tidbits that really tell us nothing about the individual. I get one, too, from Penn ‘69. It is a bit disturbing when the only people cited are those with Harvard dates after their names. Cozy club, indeed. For $1,000 I’ll be happy to give you the right to put any initials and a date after your name. Make checks payable to…)
More often than not, however, these magazine have provocative articles related to subjects that fascinate me. Caplan’s essay ruminates on the background of Justice Oliver Wendell Holmes as portrayed in a new biography by Stephen Budiansky, one of my favorite authors. As Caplan notes, the biographies of the current justices are worlds apart from those of everyone else, whereas Holmes, wounded several times and once almost fatally, had a distinctly different life experience. (I might argue that Justices Thomas and Sotomayor come from similarly difficult circumstances, although none had his profound war experience.) It was the war experience that shaped his judicial philosophy. “He had gone off to fight because of his moral beliefs, which he held with singular fervor. The war did more than make him lose those beliefs. It made him lose his belief in beliefs.” Caplan argues “In applying law to facts, he made clear, they were law-makers, unconstrained by law itself—a role society would accept only if these law-makers were not tainted by partisanship.” Whether that’s a good thing or not remains contested. Felix Frankfurter must have been rolling over in his grave. Not being a complete advocate of judicial restraint, myself, the idea of an unelected group of nine remaking themselves as a super-legislature does not enthrall me. The idea the nine could ever be totally removed from partisanship strikes me as wishful thinking. Yet, Caplan upholds Holmes as an icon of judicial restraint. There seems to be a contradiction there. As he notes judicial restraint is in the eye of the politician.
Caplan abjures the court’s striking down of many New Deal laws because they disagreed with the New Deal policies. He argues Holmes would have voted in dissent to uphold those laws even those he disagreed strenuously with them. “The approach he employed to justify his decisions and preserve their legitimacy was judicial restraint: except in rare instances, he believed, courts should uphold laws as long as they had a reasonable basis, because they reflected the will of the community enacted by elected legislators.” To Budiansky, the Civil War made Holmes a skeptic—doubting and fatalistic—but not a cynic: it made him question “the morally superior certainty that often went hand in hand with belief: he grew to distrust, and to detest, zealotry and causes of all kinds.”
The personal experience justices all have shapes decisions in many ways and one of Holmes’s most notorious of decisions, Buck v Bell is a good example. Basically, Holmes with an 8 member majority (Justice Butler was the lone dissenter) wrote that the intellectually disabled could be forcibly sterilized by the state. It legalized the practice of eugenic sterilization. “Three generations of imbeciles are enough,” he infamously wrote. (Buck was not intellectually disabled as it turns out but was being hidden following a rape. She died in 1983. See Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell: Eugenics, the Supreme Court, and Buck V. Bell by Paul Lobardo.) Adam Cohen ’84, J.D. ’87, wrote of Holmes’s experience, ““life was naturally competitive and cruel, and he had little inclination to rein in its harsh injustices.” Holmes had no sympathy for the downtrodden. One could argue Holmes was merely expressing restraint as it simply validated an existing Virginia law. Except, perhaps for that ill-chosen phrase.
The dissent that had justifiably garnered Holmes the most acclaim was Abrams v. United States. By 7-2 in 1919, the Supreme Court upheld the conviction of five Russian Jewish anarchists under the 1918 Sedition Act. Shades of the Alien and Seditions Acts of John Adams. (Caplan’s discussion of the role of the Judiciary Act of 1925 in leading to more dissents is quite interesting. Previously, “The law was “fixed and certain” because 9-0 opinions were routine: 84 percent of that Court’s opinions were unanimous. . . .last term, the justices were in total agreement in only 26 percent of the cases they decided.” That doesn’t mean they were less often unanimous. Note that in the 2017 term 54% were unanimous and only 14% were 5-4. The balance were all over the place policy-wise. *) His dissent laid the groundwork for tolerance of thought becoming a national virtue (well except perhaps during the McCarthy era.) It established the “clear and present danger” standard, i.e. no yelling “fire” in a crowded theater.
Caplan writes, “Free-speech campaigns invariably extol individuals whose freedom to express hated speech is in jeopardy. But to Holmes, that freedom is tied to the interests of society, not to an individual right: free speech is a listener’s right as much as a speaker’s. Democracy depends on deliberation and even, as Holmes demonstrated in the Abrams case, on doubting “one’s own first principles.” With that dissent, he helped launch a nation-defining movement. He tackled a decisive challenge for the twentieth century that is again decisive for the twenty-first: how to safeguard speech, for the sake of American democracy.”
Holmes, Black, Frankfurter, Roberts, Scalia, et al all had competing philosophies. Whichever is correct depends less on the intrinsic value of the argument than competing views of what society wants. In a time of legislative dysfunction, it is natural to look to the court as a kind of super-legislature. That’s certainly not what the men at Philadelphia wanted or even conceived of. Not even John Marshall in establishing judicial review could have dreamed of the Court evolving into that role. I, for one, remain skeptical of that role.
+ https://harvardmagazine.com/2019/05/supreme-court-holmes
* https://www.washingtonpost.com/news/posteverything/wp/2018/06/28/those-5-4-decisions-on-the-supreme-court-9-0-is-far-more-common/?utm_term=.552cada990a2
Tuesday, May 21, 2019
Sunday, May 19, 2019
Review: Spirit of Fire: The Life and Vision of Teilhard de Chardin by Ursala King
A fascinating journey. In high school, being a somewhat sanctimonious little shit and having become entranced by the romance of archeology, I naturally stumbled over the career of Teilhard de Chardin, a Jesuit whose works challenged some of the more orthodox views of the Catholic Church. He was particularly interested in the interaction and synergistic relationship of the spiritual with matter. Reviewers of other books about Teilhard have suggested it was his interest in evolution that pissed off the church; I think it was his forays into theology that resulted in his periodic exile. While fascinating, this overly hagiographic biography frequently stumbles into adoration.
The author, founding member of the Teilhard Centre in London, is a woman, perhaps significant, given the importance of several women to Pere Teilhard during his life. With Lucile, for example, he conducted a twenty-year correspondence that reflected his desire to help her spiritually, yet "at another level these most personal, most intimate letters speak of a depth and intensity of love as never before in Teilhard." Hmmmm. Lucile for her part, "longed for a fuller giving, a complete union, not only spiritual love and friendship. .." Teilhard's letters in response to her longing suggest he never succumbed. Well, maybe.
As a child growing up in the Auvergne, he had always sought treasures "that were incorruptible and would last. He remembered years later being devastated when his mother threw some curls she had cut of his hair into the fire, and he saw them consumed. He had learned that he was perishable. He began collecting things he thought would last, rocks replacing metal when he saw how iron would rust away.This epiphany led to a lifelong passion for fossils. It's the more striking then that the war would not affect him more. . . In fact, his war essays contained the seeds of most of his more fully ideas that came later. They did seek a reinterpretation of Christianity, "the need for a new image of God, the quest for a practically engaged spirituality appropriate to the needs of a contemporary world." His vision of mankind as one, "sharing a common origin and destiny in spite of all its diversity and diversions. His vision of mankind as universal and one was a pervasive strain running through his thought and writings. That his writing was continually suppressed and prevented from being published by his Catholic superiors is understandable but troubling to me who sees little need for orthodoxy. More evidence of the hagiographic nature of the book is that the Index (the Catholic list of prohibited books) does not appear in the book's index, despite its mention in several places.
I have often been accused of an optimistic outlook on things, indeed, making candy out of excrement, so to speak, but Teilhard makes me look like a piker. In China, doing fossil research, amidst the Japanese atrocities in China and seeing extraordinary extremes of hunger and poverty, he managed to "maintain such an attitude of hope and deep belief in the future of humanity.
The Phenomenon of Man, perhaps his summative work, was finished after his return to China in 1940 following a sojourn in France and America. In it he attempts to answer the question of the significance "of the human being within the vast cosmic process of evolution." A copy finally made its way to Rome in 1945, and he was disappointed to hear that permission to publish had been withheld. The book "demonstrates how the rise of evolution is an immense movement through time from the development of the atom to the molecule and cell to different forms of life and to human beings with greater diversity. This movement exemplifies how the development of ever greater structural complexity leads in turn to an ever greater "within" of things, and increase in consciousness and reflection." The ultimate result of the development of a more collective human consciousness is the appearance of a "super-consciousness" and "ultra-human," which he calls the "Omega point," i.e., God.
Even Teilhard was not immune to doubt, and he wrote toward the end of his life: "How is it, then, that as I look around me, still dazzled by what I have seen, I find that I am almost the only person of my kind [what did he mean by kind, here? Priest or human?:], the only one to have seen? . . . How, most of all, can it be that" when I come down from the mountain" and in spite of the glorious vision I still retain, I find that I am so little a better man, so little at peace, so incapable of expressing my actions, and thus adequately communicating to others, the wonderful unity that I feel encompassing me? Is there, in fact, a Universal Christ, is there a Divine Milieu? Or am I, after all, simply the dupe of a mirage in my own mind? I often ask myself that question."
To which I might respond, does it really matter? Teilhard was a fascinating man who was clearly dedicated to his beliefs and the Church. Despite the book's adulatory nature, one senses the inner turmoil and struggle faced by Teilhard as he sought to make sense out of the universe.
The author, founding member of the Teilhard Centre in London, is a woman, perhaps significant, given the importance of several women to Pere Teilhard during his life. With Lucile, for example, he conducted a twenty-year correspondence that reflected his desire to help her spiritually, yet "at another level these most personal, most intimate letters speak of a depth and intensity of love as never before in Teilhard." Hmmmm. Lucile for her part, "longed for a fuller giving, a complete union, not only spiritual love and friendship. .." Teilhard's letters in response to her longing suggest he never succumbed. Well, maybe.
As a child growing up in the Auvergne, he had always sought treasures "that were incorruptible and would last. He remembered years later being devastated when his mother threw some curls she had cut of his hair into the fire, and he saw them consumed. He had learned that he was perishable. He began collecting things he thought would last, rocks replacing metal when he saw how iron would rust away.This epiphany led to a lifelong passion for fossils. It's the more striking then that the war would not affect him more. . . In fact, his war essays contained the seeds of most of his more fully ideas that came later. They did seek a reinterpretation of Christianity, "the need for a new image of God, the quest for a practically engaged spirituality appropriate to the needs of a contemporary world." His vision of mankind as one, "sharing a common origin and destiny in spite of all its diversity and diversions. His vision of mankind as universal and one was a pervasive strain running through his thought and writings. That his writing was continually suppressed and prevented from being published by his Catholic superiors is understandable but troubling to me who sees little need for orthodoxy. More evidence of the hagiographic nature of the book is that the Index (the Catholic list of prohibited books) does not appear in the book's index, despite its mention in several places.
I have often been accused of an optimistic outlook on things, indeed, making candy out of excrement, so to speak, but Teilhard makes me look like a piker. In China, doing fossil research, amidst the Japanese atrocities in China and seeing extraordinary extremes of hunger and poverty, he managed to "maintain such an attitude of hope and deep belief in the future of humanity.
The Phenomenon of Man, perhaps his summative work, was finished after his return to China in 1940 following a sojourn in France and America. In it he attempts to answer the question of the significance "of the human being within the vast cosmic process of evolution." A copy finally made its way to Rome in 1945, and he was disappointed to hear that permission to publish had been withheld. The book "demonstrates how the rise of evolution is an immense movement through time from the development of the atom to the molecule and cell to different forms of life and to human beings with greater diversity. This movement exemplifies how the development of ever greater structural complexity leads in turn to an ever greater "within" of things, and increase in consciousness and reflection." The ultimate result of the development of a more collective human consciousness is the appearance of a "super-consciousness" and "ultra-human," which he calls the "Omega point," i.e., God.
Even Teilhard was not immune to doubt, and he wrote toward the end of his life: "How is it, then, that as I look around me, still dazzled by what I have seen, I find that I am almost the only person of my kind [what did he mean by kind, here? Priest or human?:], the only one to have seen? . . . How, most of all, can it be that" when I come down from the mountain" and in spite of the glorious vision I still retain, I find that I am so little a better man, so little at peace, so incapable of expressing my actions, and thus adequately communicating to others, the wonderful unity that I feel encompassing me? Is there, in fact, a Universal Christ, is there a Divine Milieu? Or am I, after all, simply the dupe of a mirage in my own mind? I often ask myself that question."
To which I might respond, does it really matter? Teilhard was a fascinating man who was clearly dedicated to his beliefs and the Church. Despite the book's adulatory nature, one senses the inner turmoil and struggle faced by Teilhard as he sought to make sense out of the universe.
Friday, May 17, 2019
One way to get ransom-ware keys
Hmmm, I wonder what the markup is on ransom-ware payments and are they deductible as a business expense?
"“I would not be surprised if a significant amount of ransomware both funded terrorism and also organized crime,” Storfer said. “So the question is, is every time that we get hit by SamSam, and every time we facilitate a payment — and here’s where it gets really dicey — does that mean we are technically funding terrorism?”
Proven Data promised to help ransomware victims by unlocking their data with the “latest technology,” according to company emails and former clients. Instead, it obtained decryption tools from cyberattackers by paying ransoms, according to Storfer and an FBI affidavit obtained by ProPublica."
https://features.propublica.org/ransomware/ransomware-attack-data-recovery-firms-paying-hackers/#161943
It's unfortunate that the Bolton/Trump response to this kind of cyber attack is to send in the Third Fleet. One could argue that the Stuxnet attack by the U.S. was an act of war. This LeMay-like thinking is so irresponsible, ignoring the realities of alliances that would come back to haunt us. Tracing the origin of cyber attacks is always very difficult and establishing their links to states even more problematic. We have entered an entirely new form of warfare and responding with kinetic threats is completely non-productive, and doesn't solve the problem. It assumes that attacks are geographic when in reality cyber attacks (assuming they are even proven to be state sponsored) have no geographic limitations.
"“I would not be surprised if a significant amount of ransomware both funded terrorism and also organized crime,” Storfer said. “So the question is, is every time that we get hit by SamSam, and every time we facilitate a payment — and here’s where it gets really dicey — does that mean we are technically funding terrorism?”
Proven Data promised to help ransomware victims by unlocking their data with the “latest technology,” according to company emails and former clients. Instead, it obtained decryption tools from cyberattackers by paying ransoms, according to Storfer and an FBI affidavit obtained by ProPublica."
https://features.propublica.org/ransomware/ransomware-attack-data-recovery-firms-paying-hackers/#161943
It's unfortunate that the Bolton/Trump response to this kind of cyber attack is to send in the Third Fleet. One could argue that the Stuxnet attack by the U.S. was an act of war. This LeMay-like thinking is so irresponsible, ignoring the realities of alliances that would come back to haunt us. Tracing the origin of cyber attacks is always very difficult and establishing their links to states even more problematic. We have entered an entirely new form of warfare and responding with kinetic threats is completely non-productive, and doesn't solve the problem. It assumes that attacks are geographic when in reality cyber attacks (assuming they are even proven to be state sponsored) have no geographic limitations.
Wednesday, May 08, 2019
Review: Heart of the Hunter by Deon Meyer
Tiny Mpayipheli wants nothing more than to live out the rest of his life with his wife and stepson. He is a good man. His plan is to save enough to purchase some land and farm. But he has a past and when he gets a message from an old friend to bring him a hard drive, it seems like an easy task. Unfortunately the drive contains information that may or may not be bait in international game of spies. Soon everyone is after him and he is trying to stay loyal to his new life and his friend. That may not be possible.
This is a terrific book. It's a real page turner but with heart and feeling for the people and country of South Africa. It's also an examination of good and evil.
Some passages:
But disillusionment followed, not suddenly or dramatically—the small realities slowly took over uninvited. The realization that people are an unreliable, dishonest, self-centered, self-absorbed, backstabbing, violent, sly species that lie, cheat, murder, rape, and steal, regardless of their status, nationality, or color. It was a gradual but often traumatic process for someone who wished only to see good and beauty.
“That is my problem with the media, Miss Healy. You want to press people into packages, that is all there is time and space for. Labels. But you can’t label people. We are not all good or bad. There is a bit of both in all of us. No. There is a lot of both in all of us.”
And he had said: “You know, whitey, it sounds like the new excuse to me. All the great troubles of the world have been done in the name of one or other excuse. Christianization, colonialism, herrenvolk, communism, apartheid, democracy, and now evolution. Or is it genetics? Excuses, just another reason to do as we wish. I am tired of it all. Finished with that. I am tired of my own excuses and the excuses of other people. I am taking responsibility for what I do now. Without excuse. I have choices; you have choices. About how we will live. That’s all. That’s all we can choose. Fuck excuses.
This is a terrific book. It's a real page turner but with heart and feeling for the people and country of South Africa. It's also an examination of good and evil.
Some passages:
But disillusionment followed, not suddenly or dramatically—the small realities slowly took over uninvited. The realization that people are an unreliable, dishonest, self-centered, self-absorbed, backstabbing, violent, sly species that lie, cheat, murder, rape, and steal, regardless of their status, nationality, or color. It was a gradual but often traumatic process for someone who wished only to see good and beauty.
“That is my problem with the media, Miss Healy. You want to press people into packages, that is all there is time and space for. Labels. But you can’t label people. We are not all good or bad. There is a bit of both in all of us. No. There is a lot of both in all of us.”
And he had said: “You know, whitey, it sounds like the new excuse to me. All the great troubles of the world have been done in the name of one or other excuse. Christianization, colonialism, herrenvolk, communism, apartheid, democracy, and now evolution. Or is it genetics? Excuses, just another reason to do as we wish. I am tired of it all. Finished with that. I am tired of my own excuses and the excuses of other people. I am taking responsibility for what I do now. Without excuse. I have choices; you have choices. About how we will live. That’s all. That’s all we can choose. Fuck excuses.
Sunday, May 05, 2019
Review: Berlin Spies by Alex Gerlis
Alex Gerlis has become a favorite writer of mine for spy novels, one who ranks right there with LeCarre. I won't attempt to reprise the plot, which, as in all good spy novels is convoluted and opaque. It has MI6, MI5, the BfV, Stasi, KGB, the Baader-Meinhof gang, Nazis, East Berlin, and assorted embassies, all nicely intertwined into a story with a very satisfactory ending.
There are also some delectable quotes. For example, "He became a Marxist, which is not an uncommon occurrence with the English middle class – one of our English agents told me it’s what happens to them in between losing their virginity and getting a mortgage." and in a satisfying snippet of cynicism, "‘You – we – are most fortunate,’ said the Assistant Director, ‘these days the press and indeed the public attribute any act of apparently political violence in West Germany to the Red Army Faction or the Baader-Meinhof Group, whatever one calls them. The West German press and their counterparts over here have already decided that what happened in Cologne and Bonn yesterday were acts of terrorism carried out by the Red Army Faction."
You may think the book gets off to a slow start, but rest assured everything will be nicely tied together.
There are also some delectable quotes. For example, "He became a Marxist, which is not an uncommon occurrence with the English middle class – one of our English agents told me it’s what happens to them in between losing their virginity and getting a mortgage." and in a satisfying snippet of cynicism, "‘You – we – are most fortunate,’ said the Assistant Director, ‘these days the press and indeed the public attribute any act of apparently political violence in West Germany to the Red Army Faction or the Baader-Meinhof Group, whatever one calls them. The West German press and their counterparts over here have already decided that what happened in Cologne and Bonn yesterday were acts of terrorism carried out by the Red Army Faction."
You may think the book gets off to a slow start, but rest assured everything will be nicely tied together.
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