Several key ideological issues separate my own views from those of Ben Wittes, my employer. The ironic part is that Ben thinks that his own view is pragmatic and essentially non-ideological.
First, Ben harbors a deep-seated fear of judicial power. He senses sinister motives around every dismissal for want of jurisdiction, every constitutional question left unanswered - nearly every ruling on process rather than the merits. At the same time, he scorns any judicial interference on a detailed, policy-making level.
Many would - as Seth Waxman does - contend that this approach is contradictory. Ben wants the courts to do both less and more. Yet there is no necessary contradiction: Ben merely wants the courts to evaluate the adherence to rules, and not to administer those rules themselves. Therefore he gets nervous when courts are less than fully transparent and thus leave open to themselves the possibility of crafting further, and more detailed, rules. In fact, he acknowledges this in his book with a chapter entitled "The Necessity and Impossibility of Judicial Review."
Yet, while I see no contradiction, I still think that Ben's fears may be gratuitous. After all, he trusts the executive with more open-ended authority. The courts have, historically, paused before doing much more than craft very abstract rules, and even these do not depart too much from popular, slowly evolving sentiment. I think the court's ruling in the series of Gitmo cases reflects not an attempt for them to "carve a seat for themselves at the table." I actually think that judges do not hunger for power in the same way that politicians may. They are already influential, and are usually satisfied to simply deliver the final word on cases. While I think the opponents of judicial activism may be right that judges will decide cases based on their preconceived notions about outcomes - thus taking the opportunity that arises to decide an issue as they personally see fit - I'm not so sure that judges are thinking about the bigger picture of power.
But I think Ben may have some valid points. What is it about the structure of the courts that gives Ben pause to delegate authority to them? Since judges are usually appointed not elected, it could be their lack of democratic underpinning. (Yet at the same time Ben opposes many of the political strategies to hamper judicial nominations and appointments.)
He sees the judicial-congressional dialogue as an inefficient one that prevents thoughtful, unified crafting of policies. This can - as in the case of the California Supreme Court ruling on gay marriages - disrupt a historical legislative-popular dialogue and other, more organic processes.
This reason seems persuasive to me.
Yet I believe Ben also thinks that a legal society should be contained and as organic (democratic?) as possible. None of this Platonic guardianship for him. This is an expanded version of the idea that I have articulated above about legislative-popular dialogues. This is also why he dislikes the influence of foreign law in the US. He generally has pretty low regard for international treaties and agreements. (Although his writings suggest a cautious attempt not to trample on too many feet in this controversial arena, and he generally tries to read US law in conformity with international commitments anyway.) This is why he opposes Justice Breyer's advocacy for citing (and perhaps using, though I'm not clear on this point) foreign law precedent in domestic court decisions. It certainly seems coherent to think that, as American law evolves, it should evolve according to the standards of the governed rather than the standards of foreign peoples who are not under its jurisdiction anyway.
However, I am not altogether persuaded by this point. While I admit its coherence, I am just honestly more of a Platonist than Ben, in a narrow sense. I tend to think that, while it is important that a court's decisions favor its people's standards, I am not generally excited about codifying the standards of one group of people - say the majority - in law that forces others to comply. Accordingly, I am willing to cite whatever authority (even if it is abroad) that favors civil liberties over the substantive will of the governed population. (Of course this doesn't extend to the codification of foreign substantive practices.)
Our views diverge even more on the issue of executive power. Especially in the conduct of war, Ben scorns the attempt of the courts to intervene in executive decisions. Certainly the comparative lack of information and expertise of the courts is beyond doubt. Moreover, the threat of internal divisiveness is real: a power struggle between two equal branches during a time of national crisis could be disastrous to efficient and effective action.
More specifically, Ben and I may differ on how severe the national conflict must be before we defer to the executive. While Ben is content to let the executive rule with many freedoms in any time of "war," I'm only ready to start tipping the balance of power when we approach a genuine "national crisis." We may technically be "at war" in the current counterterrorism initiative, but I think many Americans find the label "war" to be an exaggeration insofar as there seems to be no imperative threat to our national integrity (as opposed to mere security). I am torn, because I know that even the greatest, integrity-threatening al Qaeda plot might only be anticipated as a threat to security. But I generally agree with the civil liberties activists, especially with regard to Guantanamo.
Many of us are willing to concede that the Gitmo detainees may pose a nontrivial threat to national security, individually. Yet Ben also regards the hassle to the executive in providing full civilian trials as a threat to national security, and thus worthy of deference to the executive. Even this is a tricky point, since he wants to provide increased procedural safeguards for the detainees. More than anything, I think he wants the rules settled beforehand, so they are predictable for the executive's use.
Thus the contentious issue is about as simple as the way we weigh national interests versus civil liberties. Many of us value civil liberties for all people so much that we are willing to give up a little security for their sake (Benjamin Franklin notwithstanding). When Ben asks the question, "What if the number of dangerous individuals is 120 rather than 5?" I think this evades the tougher question: "What if the number of dangerous individuals is 60?" That number is probably the more realistic one, anyway.
Ultimately, I think Ben is not substantively far from the views of many of us. The problem is that, in order to combat the extreme rhetoric of human rights groups, he often adopts his own extreme rhetoric. Yet even that rhetoric is underpinned by some genuine convictions about the trustworthiness of our government.
Friday, June 27, 2008
Tuesday, June 3, 2008
Lithwick v. Wittes
Well, it was perhaps more of a conversation than a debate, but it was provocative.
Some important points:
The realization that, in creating a legal system, we do calibrate our laws to the situation. We would not want to have trials in which no one was convicted, and thus we may end up changing our laws in ways to achieve that. Ben points out a useful contrast with the Nuremberg trials and those at Guantanamo: in Nuremberg, any trial was a concession, whereas at Gitmo our baseline is a civilian trial.
Lithwick did not actually have a point of clash with Ben's view (part of this, of course, is because Ben is rather moderate and likes the image of the radical more than the argument of him - unlike many people). However, she staunchly held that, "after waterboarding is in the picture, all bets are off" because you can't salvage anything from the previous legal procedure - essentially, you can't put on trial any of the tortured detainees. I don't quite understand this argument, because she also agrees that we shouldn't have wholly civilian trials state-side.
Ben made a great point that Scalia tends to have as much - or more - empathy with victims as do the liberal justices on the Supreme Court. He simply defines victimhood differently than the rest of us might.
I always admire that Ben is able to catch liberals in their rhetoric, when they have latched onto a side of an issue because of the particulars of the short-term, rather than because it is right in the details, the philosophy, or the long-term. That I truly respect.
Some important points:
The realization that, in creating a legal system, we do calibrate our laws to the situation. We would not want to have trials in which no one was convicted, and thus we may end up changing our laws in ways to achieve that. Ben points out a useful contrast with the Nuremberg trials and those at Guantanamo: in Nuremberg, any trial was a concession, whereas at Gitmo our baseline is a civilian trial.
Lithwick did not actually have a point of clash with Ben's view (part of this, of course, is because Ben is rather moderate and likes the image of the radical more than the argument of him - unlike many people). However, she staunchly held that, "after waterboarding is in the picture, all bets are off" because you can't salvage anything from the previous legal procedure - essentially, you can't put on trial any of the tortured detainees. I don't quite understand this argument, because she also agrees that we shouldn't have wholly civilian trials state-side.
Ben made a great point that Scalia tends to have as much - or more - empathy with victims as do the liberal justices on the Supreme Court. He simply defines victimhood differently than the rest of us might.
I always admire that Ben is able to catch liberals in their rhetoric, when they have latched onto a side of an issue because of the particulars of the short-term, rather than because it is right in the details, the philosophy, or the long-term. That I truly respect.
Wednesday, May 28, 2008
The Nth Viewing of a Play
As I told my father a while ago, I think the true value of a play can only be understood upon the third or fourth (or nth) viewing. When you watch a play for the first time, you struggle just to grasp the language, the characters, and the plot. No doubt this is partly why Shakespeare infamously punishes the (even momentarily) wayward concentration - by zipping past its comprehension. Forget grasping the deeper message that first time. It is only after viewing multiple productions that a playgoer can detect the nuances of the director's interpretation.
Yet I think the true masters of literature understood this about their audiences (or readers). (Clearly I would not include T.S. Eliot among these masters.) They attempt to give their audiences a leg up in comprehension by simplifying plots, purging all extraneous details, and using intelligible language.
Although I didn't immediately realize this, I believe that Shakespeare's recycling of commonly known plots was the typification of this genius (though of course the plots are no longer considered a comprehension aid for modern audiences). If one already knows the plot (think the short blurbs in programs at Shakespeare plays) then she can concentrate on the artistic devices like emphasis and tone that clue her into the artist's message. Every simplification is a leg up to profundity. I used to fear that the limited breadth of the Western canon would inevitably lead to either blind adulation or disillusionment. Now I recognize that it is, at least in part, a great aid to our artistic communication. After all, none of us could speak much if our vocabulary comprised millions of words.
As I have often commented to others, I've slowly come to realize that near-objective aesthetic beauty exists. The glaring illustration of this was, for me, the viewing of the Annunciation in the Uffizi Gallery in Florence. Standing in one of many similar galleries, surrounded by dozens of drab-colored Christian scenes painted by mediocre technicians (see the long faces and two-dimensional perspective), I was preparing to rush through to the next room to hasten the end. Then suddenly, in the corner, I saw a painting that gave me faith in not only Renaissance art but universal aesthetics: an arresting image of The Enunciation, Gabriel declaring to Mary that she is pregnant with Jesus. The vivid colors and - most of all - the lifelikeness of the scene are striking, and differentiate the panting from all others in the room. I literally froze as though to hear Gabriel's words. I had finally found a real Renaissance artist, and I called to Lauren Henry from across the room to proclaim this. Lauren got as close to rolling her eyes as she is capable of doing: "That's because it's the only da Vinci in the room." My personal favorite artist was none other than everyone's favorite artist: Leonardo da Vinci.
That moment caused for me a radical shift in my interpretation of art. I realized that art is purely about communication, and that some artists are simply objectively better at getting through to their fellow men. Thus I've begun to articulate the need for a grade-school class in classical art. Each student would be assigned some works of just one artist, to examine independently and write on the meaning of these works to them personally. Certainly it is possible that the answer to that investigation would be: they mean nothing to me, personally. And that would, of course, have to be an acceptable answer, so long as it was thoughtfully articulated. But I doubt that it would ever be the student's thoughtful conclusion - because the classics usually communicate something to everything, if only because of the clarity of their artistic expression.
Yet the modern art movement would beg to differ. It has denounced rhyme, meter, metaphor, and (imo) aesthetics. Certainly they are right to intone that these classical rules hold no intrinsic value. But I think they are wrong to claim that adherence to them is categorically rule worship. Rather, I believe that many of the great artists were well aware of the contingency of the rules - but merely recognized that they were aids to comprehension and communication. If an audience finds poetry pleasantly lyrical, they may be more likely to listen to and appreciate its substance. Essentially, form is not a hindrance to substance.
Unfortunately, the rebellion against form often replaces substance. The message of much modern art seems to be: Fuck the academy! While that's a fine refreshing sentiment, exhibiting a healthy self-awareness, it is not exactly an unspoken - or enlightening - one. You can see a fuzzy red rectangle mounted on a museum wall only so many times before you get the picture. Abandoning traditional form is fine - but only if you take seriously two conditions: First, you should become masterful in one of the old forms, so you can convince others that you speak from experience of the failures of the old, and not from a shallow iconoclastic position. Second, you should propose a new system of communication to replace the old one. I think Pablo Picasso is a fabulous example of a revolutionary painter who met both of these conditions. Perhaps, from what I've encountered of him, e.e.cummings is, too.
Of course, acknowledging the value of the classics does not mean ascribing to them the final word. But it does mean that subsequent artists must at least acknowledge their role in the conversation - and, perhaps, learn from their technical mastery.
Yet I think the true masters of literature understood this about their audiences (or readers). (Clearly I would not include T.S. Eliot among these masters.) They attempt to give their audiences a leg up in comprehension by simplifying plots, purging all extraneous details, and using intelligible language.
Although I didn't immediately realize this, I believe that Shakespeare's recycling of commonly known plots was the typification of this genius (though of course the plots are no longer considered a comprehension aid for modern audiences). If one already knows the plot (think the short blurbs in programs at Shakespeare plays) then she can concentrate on the artistic devices like emphasis and tone that clue her into the artist's message. Every simplification is a leg up to profundity. I used to fear that the limited breadth of the Western canon would inevitably lead to either blind adulation or disillusionment. Now I recognize that it is, at least in part, a great aid to our artistic communication. After all, none of us could speak much if our vocabulary comprised millions of words.
As I have often commented to others, I've slowly come to realize that near-objective aesthetic beauty exists. The glaring illustration of this was, for me, the viewing of the Annunciation in the Uffizi Gallery in Florence. Standing in one of many similar galleries, surrounded by dozens of drab-colored Christian scenes painted by mediocre technicians (see the long faces and two-dimensional perspective), I was preparing to rush through to the next room to hasten the end. Then suddenly, in the corner, I saw a painting that gave me faith in not only Renaissance art but universal aesthetics: an arresting image of The Enunciation, Gabriel declaring to Mary that she is pregnant with Jesus. The vivid colors and - most of all - the lifelikeness of the scene are striking, and differentiate the panting from all others in the room. I literally froze as though to hear Gabriel's words. I had finally found a real Renaissance artist, and I called to Lauren Henry from across the room to proclaim this. Lauren got as close to rolling her eyes as she is capable of doing: "That's because it's the only da Vinci in the room." My personal favorite artist was none other than everyone's favorite artist: Leonardo da Vinci.
That moment caused for me a radical shift in my interpretation of art. I realized that art is purely about communication, and that some artists are simply objectively better at getting through to their fellow men. Thus I've begun to articulate the need for a grade-school class in classical art. Each student would be assigned some works of just one artist, to examine independently and write on the meaning of these works to them personally. Certainly it is possible that the answer to that investigation would be: they mean nothing to me, personally. And that would, of course, have to be an acceptable answer, so long as it was thoughtfully articulated. But I doubt that it would ever be the student's thoughtful conclusion - because the classics usually communicate something to everything, if only because of the clarity of their artistic expression.
Yet the modern art movement would beg to differ. It has denounced rhyme, meter, metaphor, and (imo) aesthetics. Certainly they are right to intone that these classical rules hold no intrinsic value. But I think they are wrong to claim that adherence to them is categorically rule worship. Rather, I believe that many of the great artists were well aware of the contingency of the rules - but merely recognized that they were aids to comprehension and communication. If an audience finds poetry pleasantly lyrical, they may be more likely to listen to and appreciate its substance. Essentially, form is not a hindrance to substance.
Unfortunately, the rebellion against form often replaces substance. The message of much modern art seems to be: Fuck the academy! While that's a fine refreshing sentiment, exhibiting a healthy self-awareness, it is not exactly an unspoken - or enlightening - one. You can see a fuzzy red rectangle mounted on a museum wall only so many times before you get the picture. Abandoning traditional form is fine - but only if you take seriously two conditions: First, you should become masterful in one of the old forms, so you can convince others that you speak from experience of the failures of the old, and not from a shallow iconoclastic position. Second, you should propose a new system of communication to replace the old one. I think Pablo Picasso is a fabulous example of a revolutionary painter who met both of these conditions. Perhaps, from what I've encountered of him, e.e.cummings is, too.
Of course, acknowledging the value of the classics does not mean ascribing to them the final word. But it does mean that subsequent artists must at least acknowledge their role in the conversation - and, perhaps, learn from their technical mastery.
Saturday, May 10, 2008
Thinking in Paragraphs
It's hard to let go of the individual words. There are so many endlessly interesting details of spelling, vocabulary, grammar, and syntax. After the words come the sentences, which we want to diversify and complicate, with semicolons and complex clauses. But as Oakeshott says, these are the platforms that eternally distract the philosopher. The true secret of writing is to embrace the idea behind a paragraph and to write it in one thrust, leaving the careful wording for later revisions.
It's about taking a step back from how the idea sounds to make sure the idea is conveyed. I spent years of my education analyzing the way that I communicate, without stopping to consider whether I was communicating anything in the first place. The coherence of the argument through a paragraph and the entire piece is the most important aspect of any writing. This is the writer's opportunity to confront his writing from the reader's perspective. And honestly, the reader cares most about getting the main idea.
I've increasingly realized that this philosophy applies widely outside writing. If marathon runners were to think hard about each step before taking it, they would never run an entire rce - let alone win it. If those jumping over the rocks at the tide pool were to consider each jump, they would end up splashing in the salt water half the time. Walking without individual steps and writing without individual words requires having faith in your subconscious to cover the minutiae.
I know a rare few people who can think in paragraphs, but these are the ones who are truly creative, inhumanly inspirational. They are able to put aside the mechanics and open themselves to profundity. If I am ever to write a good book, I know it must be one that is thought in paragraphs, in which each thought is ordered and complete. You cannot string together thousands of independent sentences and hope for a coherent work - no matter how smooth your transitions.
Essentially, self-consciousness is comforting because it makes us feel like we are being reflective and meticulous and philosophical. But it kills inspiration.
It's about taking a step back from how the idea sounds to make sure the idea is conveyed. I spent years of my education analyzing the way that I communicate, without stopping to consider whether I was communicating anything in the first place. The coherence of the argument through a paragraph and the entire piece is the most important aspect of any writing. This is the writer's opportunity to confront his writing from the reader's perspective. And honestly, the reader cares most about getting the main idea.
I've increasingly realized that this philosophy applies widely outside writing. If marathon runners were to think hard about each step before taking it, they would never run an entire rce - let alone win it. If those jumping over the rocks at the tide pool were to consider each jump, they would end up splashing in the salt water half the time. Walking without individual steps and writing without individual words requires having faith in your subconscious to cover the minutiae.
I know a rare few people who can think in paragraphs, but these are the ones who are truly creative, inhumanly inspirational. They are able to put aside the mechanics and open themselves to profundity. If I am ever to write a good book, I know it must be one that is thought in paragraphs, in which each thought is ordered and complete. You cannot string together thousands of independent sentences and hope for a coherent work - no matter how smooth your transitions.
Essentially, self-consciousness is comforting because it makes us feel like we are being reflective and meticulous and philosophical. But it kills inspiration.
Sunday, April 6, 2008
Utility
Secularly speaking, God is what gives us faith. God is the positive parts of human nature. God is:
Those moments when you hear laughter breaking out beautifully.
Those moments on West Wing when Josh pulls off a perfect witticism.
Those moments when you watch musicians' fingers flitting over their instruments.
Those moments when you look out the plane window and see the majestic mountains.
Those moments when you see the softened eyes of admiration of the usually-stoic.
Those moments when you see the underdog triumph: those 4 Jamaicans with their bobsled.
Those monuments like Republique in Paris.
Those vaguely British wafts of mist across the New England scare-crow trees of winter.
Those revelation's like Oakeshott's on human conduct.
Those books like L'Etranger.
Those speeches like Obama's on race.
Those photos like Han's.
Those masterpiece films like Vertigo.
Those communal acts like Wikipedia.
Those paintings like Leonardo da Vinci's The Enunciation.
Those perfect questions like Shelly Kagan's "What's new?"
The realization that objectivity is possible.
Is this utility? Or Kant's sublime? Or just chills up the spine? Is this what drove Augustine's homilies? It sure as hell is a better motivator than hell.
Those moments when you hear laughter breaking out beautifully.
Those moments on West Wing when Josh pulls off a perfect witticism.
Those moments when you watch musicians' fingers flitting over their instruments.
Those moments when you look out the plane window and see the majestic mountains.
Those moments when you see the softened eyes of admiration of the usually-stoic.
Those moments when you see the underdog triumph: those 4 Jamaicans with their bobsled.
Those monuments like Republique in Paris.
Those vaguely British wafts of mist across the New England scare-crow trees of winter.
Those revelation's like Oakeshott's on human conduct.
Those books like L'Etranger.
Those speeches like Obama's on race.
Those photos like Han's.
Those masterpiece films like Vertigo.
Those communal acts like Wikipedia.
Those paintings like Leonardo da Vinci's The Enunciation.
Those perfect questions like Shelly Kagan's "What's new?"
The realization that objectivity is possible.
Is this utility? Or Kant's sublime? Or just chills up the spine? Is this what drove Augustine's homilies? It sure as hell is a better motivator than hell.
Sunday, February 24, 2008
Trail to Guantanamo
When I look at the results of the Gitmo detainee database, I feel a strange pride. There's something about feeling every fiber of your being over a long time span interwoven into a factual process, into every numerical component of a statistic. You have in some way achieved numerical representation. You didn't fabricate the data yourself, but derived it from empirical reality, so you have not contrived a fantasy. Therefore you are not looking at a monolith of your imagination, but your related thought processes intertwined with reality.
Such are the only profound thoughts of a researcher.
Such are the only profound thoughts of a researcher.
Monday, February 18, 2008
Why didn't they tell us?
It's a cold feeling when you realize that they didn't tell us because they can't. But surely there's something objective about it, there's something that you can detect in it, some systematic process that all engaged, Hegelian beings understand and follow? They seem to understand one another well enough. Surely they could at least try to impart that. But if they tried to tell us, we would'nt understand. You realize that though the objective good might be out there, it's inaccessible to us except through experience - through the same repetition of experiences. It's so sad to recognize that the reason the literature is still out there is not because the world itself hasn't changed, but because the world itself can't change - that's a task for the individual, and new individuals always appear. It's even more sad to recognize that you can't fully appreciate and recognize what a book has to say until you've experienced it.
Here is where Tommy comes in. The Buddhists similarly have a procedure of particular objective practices that they've passed down over centuries, but that still achieve the same individual results. But the ritualists, who like their intrinsically worthless but traditional practices, try to hide the objectivity as mere opinion. Perhaps in a more conspiratorial, Nietzschean way, they are engaged in an attempt to make us like them
Why couldn't someone tell me how to solve by perceptual problems? Because I couldn't articulate them into a question myself. By the time one can, they don't need the answer any more. There is no advisor, because they know nothing more than the details of their particular program, all the objective things that you can get online. You can't go to people for general counseling, you must go in with a question, put people on their guard for an attack, for a responsive action that responds to you, rather than a mere performance.
Here is where Tommy comes in. The Buddhists similarly have a procedure of particular objective practices that they've passed down over centuries, but that still achieve the same individual results. But the ritualists, who like their intrinsically worthless but traditional practices, try to hide the objectivity as mere opinion. Perhaps in a more conspiratorial, Nietzschean way, they are engaged in an attempt to make us like them
Why couldn't someone tell me how to solve by perceptual problems? Because I couldn't articulate them into a question myself. By the time one can, they don't need the answer any more. There is no advisor, because they know nothing more than the details of their particular program, all the objective things that you can get online. You can't go to people for general counseling, you must go in with a question, put people on their guard for an attack, for a responsive action that responds to you, rather than a mere performance.
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