Thinking about the True History of the Kelly Gang: Billy the Kid, Jesus and Us. 4

So I have been feverishly working away on a Copyright article, but looking up from behind a starbucks table, I read with great interest Andrew’s post on the True History of the Kelly Gang.  How true it is that outlaws capture our imagination and do shape the law.   Eduardo Penalver and Sonia K. Katyal make this point brilliantly in their monograph Property Outlaws:  How Squatters, Pirates and Protestors improve the law of property.

But besides improving the law of ownership (which I agree it does), outlaws have different conceptual points of view for Americans.  Outlaws tell us quite a bit about what our culture thinks about the law. Two particularly telling outlaws are Billy the Kid and Jesus of Nazareth.

In Stephen Tatum’s Inventing Billy the Kid, the author notes that the Kid’s elusive character may render his subject almost indiscernible for historians.  Making the matter more difficult is the role Billy the Kid has played mirroring the American social dynamics of the time.  For instance, Tatum shows that in the earliest representations of Billy the Kid, the American need for order amidst changing industrial upheaval was reflected in a “satanic” kid hunted down and killed by a valiant law man. When America was unhinged by Government scandals and economic collapse  in the 1920’s and 1930’s, Billy the Kid was a defiant, individualist set amidst a tragic backdrop.  And in the 1950’s, Billy the Kid was used to reflect upon the distemper of collective middle class conformity, placing him “at odds with a society not worth redeeming.”  Indeed, Billy the Kid represents for America the perfectly ambiguous character — defiant when he has to be, oppressive when we need him to be, and all the while able to do so without necessarily articulating these traits.   Unfortunately Tatum’s analysis ends in 1981, leaving out the classically 1980’s Bon Joviesque Billy the Kid in Young Guns and Young Guns II. (Bon Jovi did play a part in the sequel, besides penning the movie’s anthem in true hair band style — “Blaze of Glory”).  Though I believe that the Young Guns movies perfectly identify the Kid with American Society — wandering, unsure of its identity, seeking to be known for something — (Just ask  Gen-X or Baby Boom fellows what its like to follow the Greatest Generation…).

In a fascinating way, Stephen Prothero makes the same points about Jesus of Nazareth in his book American Jesus: How the Son of Man became a Cultural Icon. From Thomas Jefferson’s wisdom-loving, parable saying nomadic purveyor of sayings, or its protestant’s desire to humanize Jesus by making him a moralist as opposed to a miracle worker following the Civil War, to the 1960’s free-love hippie LSD Jesus Christ Superstar, we seem to culturally appropriate narratives onto the life of Jesus which may or may not be accurate. But accuracy is not so much the point as identity.  Indeed, as Prothero shows, Jesus has been reimaged by virtually everyone –” protestants, catholics, pentecostals, jews, muslims, Hindus, gays, blacks, feminists, hippies, atheists, rappers; while Christian insiders have had the authority to dictate that others interpret Jesus, they have not had the authority to dictate how these others would do so.”  But more importantly, according to Prothero (and I agree) it probably does not matter that these images are accurate in regards to Jesus — a mystical figure who we will probably never truly know everything about– what’s more important is that they are accurate reflections of us.

In the same way that The True History of the Kelly Gang forces us to ponder the role of historical narrative in our search for cultural meaning, Billy the Kid and Jesus of Nazareth forces us to ask central questions of believability — this time, the question is whether we can believe ourselves and the cultural narratives we are telling rather than whether we believe their stories that we tell.

What other outlaw stories are there in Literature?   And please, enjoy the Bon Jovi Blaze of Glory Video — To have hair like that…. again…

Some Advice (and Demands) of New Law Students 3

I have decided that this year, I am going to include some advice and demands of my law students beyond the normal variety.  I have prepared a letter describing that advice.  What do you think? What would you add?  What would you take out?

As you begin your law study (and law career) things are moving quickly around you.    You are building new relationships, continuing old ones that will have to adapt to your new surroundings, and engaging in a life-altering, rigorous study of the legal discipline.  Some of you chose to be lawyers because of family.  Some of you chose to become lawyers for the money.  Some of you chose to be lawyers because of some meaningful interaction with the law some years ago.  Some of you chose to become lawyers to pursue justice.  Some of you had other reasons.  Whatever was the basis for your decision, I am glad you made it.   It shows that you are willing to take up a challenge.

Let’s be honest for a moment.  Some of you that start will not finish law school.  Some of you will decide that you would rather do something else.  Kudos to you for making that decision!   You came and tried the law and decided that it just wasn’t for you.  Frankly all of you come to law school without significant personal experience being a lawyer.   Its ok to decide that you do not want to be a lawyer.  Some of you will not be able to handle the rigors of law school’s academics.  Don’t get me wrong — we think you are capable.  But some of you will decide that other things are more important than engaging in the type of study that law school requires.  Some of you will face insurmountable obstacles that just don’t allow you to devote yourself to legal study.  Let me say right now: that’s ok too.   Some people are just not meant to be lawyers.   It may be because they have more important work ahead of them.  Or it may be that the timing is just not quite right at this moment.   Seasons of life change slowly, and often we do not obtain the perspective necessary to know whether we should have stayed with something or not until years down the road.  Don’t worry.   Do your best and make the best decisions you can.

Now for some advice and demands, if I may.

First, be diligent in your work. Law school can feel overwhelming.  Trust me, it is overwhelming.  But you can make it and you can succeed.   What you can’t do is just coast by.  Remember that you are sitting next to people every bit as smart and talented as you are.  For every minute that you are not working, someone else is working and gaining.   Maintain a discipline of devotion to your studies – force yourself to work hard and not accept shortcuts.   Treat this like a job.   Designate reading hours for each week and keep to your schedule like you are being paid to do so.

Every year, students ask me what supplements I recommend. And every year, my answer is the same: your textbook is a supplement to our class periods; your notes are a supplement to the textbook; and my lectures are a supplement to your inquiry into both.   Class supplements train your brain to be lazy in the disciplines of the primary things we do as lawyers – thinking.   When you purchase a supplement you are allowing someone else to think for you.   That will short-circuit your brain over time and leave you impaired. If you do choose to engage supplements, do so cautiously and in a very limited form.

Along those lines, don’t wait to begin your fidelity to diligence. Begin now with setting out the plans for how you think you will attack this course of study.  Two things about that.  First, don’t expect those plans to remain the same.  Be flexible and allow them to change as they need to in order to meet your study demands.  Second, don’t think that intelligence or other factors will make up for a lack of discipline.  There is a fable of a boy who owned a corn field.  Everyday he would wake up and say, I’ll hoe the corn tomorrow.   Finally, the corn grew up so tall that rot began to set in.   Still, the boy said, I will hoe my corn tomorrow.  In early September, an early frost came and wiped out the boy’s corn crop.   The moral of the story is start developing your work discipline now.  I can assure you, December will be here before you know it.

In maintaining your discipline, don’t assume that you will be taught anything. This sounds odd doesn’t it?  After all, you entered law school to learn from people, like me, who have had successful careers in the law.  Notice I did not say that you would not learn.  But law school is not a process in which you are given information to digest.  Rather, you must engage actively in the learning process.  Thus, expect that you will do a lot of self-learning, self-reflecting, and gain some understanding from that process.  When you come to class, we will challenge your learning and understanding, and hopefully refine it in a way that forces you to reenter your textbook and re-examine what you thought you learned. Thus, class can be at times a demoralizing and often frustrating time.  Be open to understanding and allow your Professors to challenge your knowledge.  Let me say, I know this is an exhausting process.  However, you will be a better law student, a better lawyer, and a better person by engaging in the type of discipline that assumes that you have created a base level of knowledge to work from.

Second, in your devotion to being diligent about work, communicate with those in your lives about what you are doing. Trust me, they do not want to hear it all.  Trust me, they will tell you to stop very often.  Rather than communicate about what you are learning, communicate about the process.  Be honest with them about what you like, what you hate, what you are scared of, and what you expect to be coming out of this process.  We often assume when we take on life-altering processes that everyone in our lives are on board for the change as well.  That’s not always the case.   Remember: You are the one that is in law school.  You are the one that is changing.  And you are the one with responsibilities and obligations to your professors and classmates.  Your significant other, your partner, or your family may not be on board completely.  You will find out soon enough.   The most important thing you can do is communicate with them about this process and what you expect all along the way.

Finally, don’t assume that law school is only about learning the law. It’s not, though a great deal of our time is spent doing so.  Law school, as part of the liberal education tradition, has a role in shaping you as a human being.  We are also a professional school in that you are being trained to enter a profession.   Part of being an engaged, and learned human, and being a member of the legal profession, is the ability to critically assess your knowledge and experiences against other people’s knowledge and experiences.  On a personal level we call this self-awareness.  When applied to the law, we call it policy.   Let’s be clear about both.  In order to do well at being both a human being and at being a lawyer, you have to both know the subject and be able to assess where it is going and where it should go.  As a human, you have to know yourself to understand how to adapt.  In the law, you have to know the “black letter law” before you can assess where the black letter law will go.  Law school will do its share of teaching you not only the law, but how to critically analyze the law (and hopefully yourself too).  Don’t resist either part, and don’t assume you can do one without the other.

To that end, be engaged!  You will enjoy law school more, do better, and become a better thinker, and therefore a better lawyer.  You will be thrust into classrooms where there are people from many many different backgrounds and experiences.  Embrace those people, particularly the ones who are different than you.  Learn from them.   Allow your own beliefs and thoughts to be challenged, even the sacred ones.  Particularly the sacred ones! Trust me, if they are meant to stand the test of time, not even law school will overcome them.    Remember, law school, like every other hard venture you undertake will help you put miles on your soul – some of those miles include laughter, some include crying, and some, just are hard!

Because law school puts you in contact with so many different people, remember one key piece of advice and a demand if you are in my class – be courteous to everyone. Remember, your faculty, fellow students, and the staff that make this wonderful law school work are entitled to, and deserve your respect.   As trying as law school is, there is no excuse for discourteous behavior.   Little things matter – being on time to class, being prepared, saying thank you to staff members who assist you, speaking in proper tones – these things are very important.  As an NYU business professor has said, these things in and of themselves will not make you successful – but failure to master them will certainly hold you back and prevent you from achieving the great possibilities that no doubt your talent and intellect prepare you for!  As Ralph Waldo Emerson said: “There is always time enough for courtesy.”

And don’t confuse your Professor’s attempt to frustrate you or challenge your thinking as discourteous behavior. The same is true when we may show intolerance for laziness, lack of preparation, or inartful expressions.  All of these things are for your benefit.   Your Professors are interested in your development and success.   That should be the default assumption regarding any actions that your Professors take towards you.   Until there is evidence to the contrary (and I don’t mean your grade in a particular class) you should assume that your Professors (each one of them) are vitally committed to do whatever it takes to develop you as a law student, lawyer, and more importantly a human being.

And along the lines of courteous interactions, be helpful to everyone – including your fellow students. Share outlines and notes with each other.  Be a resource for each other.  Discuss together.  In short, be a community for each other.   I learned the most by helping friends understand.

Finally, a word of advice to those of you who are more successful than your peers.  Be humble about your accomplishments. Don’t brag.  Be measured and restrained in your accomplishments.  Trust me, there will be many opportunities to celebrate your well-deserved accolades.   However, boasting of your own accomplishments creates an atmosphere of distrust and disdain.  As Ralph Waldo Emerson once said, “The louder he spoke of his virtue, the faster we counted our spoons.”  Decide to believe that everyone, yourself included, are smart capable people.  Do not discount anyone.   Instead resolve to do your best and allow your successes, whether measured or great, to speak for themselves.

You are an accomplished group.  Welcome to the next phase of your life.  Embrace it.  Enjoy it, as hard as it may be.  Allow it to put miles on your soul.

Great Blog on Confederacy of Dunce’s Locales Reply

Check out this great blog I stumbled upon describing locations in John Kennedy O’Toole’s Confederacy of Dunces. I will have more to say about O’Toole’s masterpiece later, but I had to pass this on (particularly since I have spent the last twenty minutes immersed in Ignatius’s Ghost.  Enjoy.


On the “Environmentalists’ Dilemma” Reply

I’m grateful to Allen for bringing these thoughts to the table for discussion.

I suspect the portrait of the “environmentalist’s dilemma” is a bit exaggerated on both sides. It reminds me of the first vociferous “debate” in the environmental movement between so-called “Deep Ecology” and “Social Ecology” Greens (the latter largely the acolytes of Murray Bookchin). This debate was perhaps more imagined than real (insofar as it took place among a handful of writers and intellectuals and was less apparent ‘on the ground’), although it did reflect underlying tensions and questions within the Green movement having to do with the kinds of worldviews that inspired and motivated those engaged in environmentalist/ecological politics in the broadest sense. On one side, the more (loosely) spiritual-oriented folks were busy canvassing if not rummaging through the globe’s various worldviews for philosophical perspectives they believed evidenced a more holistic and harmonious metaphysical and ethical picture of mankind’s relation with the natural world; on the other side (and again, loosely), were those of Left and New Left vintage who understood the new ecological politics to emerge from within a tradition that was more beholden to the likes of Marx and Kropotkin or the Wobblies and the SDS, and thus were prone to carcicaturing their ecological counterparts as New Age whackos with irredeemably bourgeois sensibilities afflicted by historical amnesia utterly lacking in “true” socio-political and economic sophistication when it came to social analysis and understanding the dynamics of social change. There were truths to be learned from both camps, although egos and polemicizing served to obscure that fact (in time, both sides began to dismantle their character armour somewhat and the debate itself virtually vanished).

Robert E. Goodin’s book, Green Political Theory (1992) helps us to understand some of the reasons that animate the above debate as well as a more significant divide within “green political theory” and praxis. Goodin writes of a “green theory of value” that, in short, “provides the unified moral vision running through all the central substantive planks in the green political programme.” Conceptually and politically distinct but thought by many to strictly follow from this green theory of value is a “green theory of agency” that tells us how to go about pursuing the green theory of value(s). Goodin points out that part and parcel among those who concentrate their energies on the “agency” aspect of green politics are a belief in and commitment to the propogation of views revolving around choices of personal life-style, questions of New Age cosmology, and the desire for transformations of consciousness, views that tend to trivialize or crowd out more pragmatic and practical orientations and strategies that rely on conventional politics for the realization of the green theory of value. Those cleaving to such views make the price, so to speak, for subscribing to or endorsing a green politics too high for the vast majority of citizens and thus, in the end, prolong the realization of a green theory of value(s). Some years ago I wrote that while I thought Goodin was a bit hard on some of the “agency” folks, he made a compelling argument. On the other hand, he may not have sufficiently appreciated the very real obstacles presented by conventional politics for the realization of green values (this would be the position, say, of the late Rudolf Bahro or even the late Arne Naess).

The “economists” of the post would therefore be identical with or at least similar to the practical or pragmatic folks (including those willing to ‘dirty’ their hands in conventional politics) Goodin believes better capable of implementing green moral values, in other words, more likely than those “moralists” who, fewer in number, can be a bit too self-righteous or unrealistic in their advocacy of wholesale lifestyle and worldview (‘belief’) changes of the sort that could not, it seems clear, occur anytime soon, a fact with dire consequences if one is convinced of the necessity and urgency of the green political program.

In several respects, I think Goodin’s argument provided a way out of the impasse, in any case, it addressed questions of a more down-to-earth sort than those intrinsic to the theoretical and rarefied debate that took place between the deep ecology and social ecology greens and it made the larger point that “being green” did not strictly entail adopting wholesale the idiosynractic or unfamiliar worldviews of green intellectuals and movement leaders, nor did it mean adopting a radically new lifestyle on the order of the hippies and countercultural devotees of an earlier era.

It often seems to be the case that those who provide the vision and leadership of the green movement are more toward the “moralist” and “agency” end of the spectrum, for what has motivated their own idealism, activism and politics is often a conversion of some sort, to a new worldview (or the radical transformation of an existing one) and or a new lifestyle, the presumption or assumption being that it’s changes of THAT sort that are necessary for others to begin the turn toward ecological and environmental thinking and praxis. But to support and vote for green politics rarely requires such dramatic and wholesale changes among the masses. For us, the changes are more likely of a piecemeal kind (e.g., recycling, buying a more fuel-efficient car, less wasteful consumption decisions generally) and often at the ballot box (voting for a more environmentally sound politics that facilitates the progressive and wider adoption and realization of green values). And with regard to worldviews, this more often that not means people will come to simply modify their existing belief systems in ecological and environmentalist ways (see, for instance: Thus, in effect, we overcome the “environmentalists’ dilemma” on the ground, not unlike, at least in some measure and certain respects, Thoreau himself did.

With a brief nod to a literary dimension, it bears noting that “social ecologists” rightly took to task the ideas and tactics of those in the environmental movement who belonged to groups such as Earth First! (and the early writings of its co-founder, David Foreman), that wing of the movement farthest from a Gandhian-like practice of nonviolence (some would claim their praxis was nonetheless a species of nonviolence). These radical ecologists were avowedly inspired by the writings of Edward Abbey (e.g., The Monkeywrench Gang, 1975) who, while not accountable for their actions, most notoriously “eco-sabotage” (or ‘monkeywrenching’), seems to have endorsed them. Insofar as these actions were ‘underground’ (i.e., intentionally not public), and involved destruction of property or possible harm to living beings, they were understandably anathema to others in the environmental movement. Earth First! philosophy or political theory, such as it was, came dangerously close to if not actually espousing an ecological version of Malthusian Social Darwinism, the fundamental or representative ideas of which are enshrined in Paul Ehrlich’s writings (e.g., The Population Bomb, 1968) as well as Garrett Hardin’s formulation of “Tragedy of the Commons” idea (incisively critiqued by Partha Dasgupta, among others), alongside his later and more disturbing notion of “lifeboat ethics” (for a nice discussion of this variation on Malthusian themes, please see Robert C. Paehlke’s Environmentalism and the Future of Progressive Politics, 1989).

The environmentalist “economists” cited in the post are of course constrained in part by conceptual and value presuppositions and assumptions that heretofore have helped define their discipline (cf. S.M. Amadae’s Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism, 2003, and works by Philip Mirowski), especially insofar as they are trained in and beholden to essential tenets of neo-classical economics. Alas, this kind of economics has become increasingly obtuse when it comes to forthrightly addressing questions of ethics or morality (environmentalist or otherwise). Amartya Sen details some of the historical and conceptual shortcomings of the discipline in his book, On Ethics and Economics (1987). In addition to informing his colleagues of how economics  can benefit from a more intimate relation with ethics, Sen makes a subsidiary point regarding the benefits that follow from ethical thinking being informed by a basic knowledge of economics. Another important work by way of addressing the moral shortcomings of contemporary economics as a social science discipline and thus useful for environmentalists of an economics suasion, is Daniel M. Hausman and Michael S. McPherson’s Economic Analysis, Moral Philosophy, and Public Policy (2nd ed., 2006). A book I believe sets the standard for a morally and ecologically sensitive economics, is Partha Dasgupta’s Human Well-Being and the Natural Environment (2001). Finally, a fine example of the  increasing sophistication of environmentalist reasoning and praxis is Moral and Poltical Reasoning in Environmental Practice (2003), edited by Andrew Light and Avner de-Shalit. The entry on “environmental ethics” in the online Stanford Encyclopedia of Philosophy (SEP) is helpful by way of ascertaining to what extent our “dilemma” may afflict environmentalists as well as thinking though these topics more generally.

A word of caution: I think some environmentalists who are making their argument within the parameters of economics, try too hard to demonstrate their capitalist bona fides, thereby unnecessarily constricting the imagination of prospects and possibilities for a more ecologically and environmentally sustainable tomorrow. In short, and by way of a conclusion, we might say that the “Environmentalists’ Dilemma” arises in the first instance because the profession of economics is morally impoverished, a conceptually contingent and remediable state of affairs, foreshadowed in fine fashion, as Allen helps us see, in Thoreau’s Walden.

Readers may also be interested in a compilation from several years ago of titles on “environmental and ecological worldviews:”

Thoreau, Environmentalism, Economy 5

Turning to the works of Henry David Thoreau might provide a “third way” and go some length toward resolving debates about the Environmentalists’ Dilemma.  I borrow the words “Environmentalists’ Dilemma” from Bryan G. Norton, who uses the phrase to refer to the competing discourses of two environmentalist camps: the economists and the moralists.  These camps would, Norton submits, provide very different answers to the question, “What is the value of biodiversity?”  Economists would emphasize “the actual and potential uses of living species” whereas the moralists “do not believe our obligations to protect nature can be traded off against other obligations” (Norton 29-30).  Economists would state the value of biodiversity in quantifiable, utilitarian, and anthropocentric terms whereas the moralists “insist that we have an obligation to protect all species, an obligation that transcends economic reasoning and trumps our mere interests in using nature for our own welfare” (Norton 30).  The dilemma for the environmentalist is which of the two realms, economic or moral, to heed.  Norton’s argument is that the two realms are not in fact mutually exclusive and that Henry David Thoreau supplies proof of their mutual reinforcement.  That Thoreau titles the opening chapter of Walden with one simple if unsuspecting word, “Economy,” is no coincidence.  The Environmentalists’ Dilemma, for Thoreau, is no dilemma at all: “most commentators have assumed that we should give one answer or the other,” but an absolute, totalizing separation is neither necessary nor accurate (Norton 31, my italics).  I agree with Norton and would like to extend his reasoning in this brief post, which draws its analysis from Thoreau’s Walden.

If economists first measure value “as contributions to human welfare” and then promise “an aggregation of values”—i.e., if they promise a calculation of “the contribution of nature to human welfare” as “commensurable and interchangeable with other human benefits”—then Thoreau was something of an economist (Norton 30).  As implied by the title of his opening chapter, Thoreau uses nature as an occasion to opine about human affairs, often in purely economic terms; he transforms the humble, small, and common scenes of nature into grand meditations about labor and profit.  “When my hoe tinkled against the stones,” he says of a day in the bean field, “that music echoed to the woods and the sky, and was an accompaniment to my labor which yielded an instant and immeasurable crop” (247).  Here, Thoreau’s profit—his “yield”—is not quantifiable in monetary terms but in vague moral insight:  “It was no longer beans that I hoed, nor I that hoed beans; and I remembered with as much pity as pride, if I remembered at all, my acquaintances who had gone to the city to attend the oratorios” (247).  Thoreau appreciates the value of labor (minimal physical input for cost-effective output—free food) while recognizing that such value goes far beyond the fiscal benefit of planting crops rather than purchasing food at a store: the labor becomes valuable for what it teaches about solitude, individualism, and freedom from materialism, and not just for its potential for monetary savings.  In this respect, Thoreau marries economics and morality.  Or, as Norton, looking elsewhere in Walden, puts it, “Thoreau describes the benefits of the transformation to higher values in terms of human maturation and fulfillment of potential, as improvements within human consciousness, not in terms of obligations to nature and extrinsic to human consciousness” (32).  In other words, in his celebration of nature, Thoreau takes pains to privilege human economy over natural aesthetic, although the former is dependent upon the latter for its “proceeds.”  Nature is a vehicle for arriving at virtue, thrift included.  It is good—and a good—but humanity is essentially of higher importance.

The merger, as it were, of economics and morality finds its most obvious expression in Thoreau’s various price listings: the costs of building a house; the profits turned from harvesting corn, potatoes, turnips, and beans; the expenses of food and clothing; and the overhead in maintaining a self-sufficient lifestyle.  Of these, John Updike writes,

The long opening chapter, “Economy,” joyously details just how to build a house […] down to a list of expenses totaling $28.11 1/2.  Briskly marketing to the world his program of austerity and self-reliance, he itemizes the few foodstuffs he paid for and the profits he obtained from his seven miles of bean rows.  (xiv, my italics)

Updike’s choice of the word “marketing” is important, revealing as it does that Thoreau’s economics did not stop at savings and cutbacks, but actively advertised a lifestyle at once economic and environmentalist.  Thoreau sold his routine and persona to a curious public, a few of whom bought—and bought into—the ultimately published and publicized form (the book). 

On the one hand, Thoreau’s frugality is a lesson about simplicity and prudence; on the other hand, it offers a more environmentally friendly approach to architecture and construction while simultaneously warning about the destructive effects of what today we might call “the tragedy of commons.”  I have neither the time nor space to fully hash out my ideas about the tragedy of commons.  I will, however, quickly supply Steven C. Hackett’s definition for the term and then offer a short justification for my reference to it.  According to Hackett,

The tragedy of the commons is most likely to occur under the conditions of open-access or other poorly designed and enforced property rights regimes.  The tragedy of the commons outcome results from strategic behavior—behavior that an individual takes based on how other people are expected to behave and respond.  At the heart of the tragedy of commons is the belief that if one were to conserve the CPR, others will take what was conserved, and the CPR will degrade (116). 

Thoreau’s worries about the tragedy of commons are evident in a few abrupt asides.  Take, for instance, these lines regarding hunting: 

Almost every New England boy among my contemporaries shouldered a fowling piece between the ages of ten and fourteen; and his hunting and fishing grounds were not limited, like the preserves of an English nobleman, but were more boundless even that those of a savage.  No wonder, then, that he did not oftener stay to play on the common.  But already change is taking place, owing, not to an increased humanity, but to an increased scarcity of game, for perhaps the hunter is the greatest friend of the animals hunted, not excepting the Humane Society (329).

It seems abundantly clear that Thoreau refers here to the phenomenon—now known as the tragedy of commons—whereby people acting in their own self-interest use up a limited shared resource, in this case animal prey, despite their knowledge that doing so will be bad for everyone.  [Consider this point in light of another sentence by Thoreau: “By avarice and selfishness, and a groveling habit, from which none of us is free, of regarding the soil as property, or the means of acquiring property chiefly, the landscape is deformed, husbandry is degraded with us, and the farmer leads the meanest of lives” (257-58).]  Perhaps the tragedy of commons motivates Thoreau’s declaration that “if all men were to live as simply as I then did, thieving and robbery would be unknown” (269-70).  After all, thieving and robbery “take place only in communities where some have got more than is sufficient while others have not enough” (270).    

Economics and morality also apply—albeit more tenuously—to what Michael Berger calls Thoreau’s “study of ecological dynamics in forests,” a “vigorous program of research” about seed dispersal and its spontaneous generation (381-82).  Although Berger does not explicitly say so, he implies that Thoreau’s scientific forays lend authority to his literary works.  This authority allows Thoreau to promote himself and his philosophical vision.  Berger analyzes Thoreau’s The Dispersion of Seeds, which was not published until 1993.  Nevertheless, Berger’s observations apply almost as aptly to various passages in Walden.  Setting out to show that Thoreau’s somewhat Darwinian ideas were not only sophisticated but also pioneering, Berger posits, “Thoreau’s seed dispersal ecology was […] rich in significance regarding the various kinds of complicated mechanisms, principles, and patterns by which species of plants succeed one another in local ecosystems” (382).  To substantiate this point, Berger quotes the following from The Dispersion of Seeds:

In this haphazard manner Nature surely creates you a forest at last, though as if it were the last thing she were thinking of.  By seemingly feeble and stealthy steps—by a geologic pace—she gets over the greatest distances and accomplishes her greatest results.  It is a vulgar prejudice that such forests are ‘spontaneously generated,’ but science knows that there has not been a sudden new creation in their case but a steady progress according to existing laws, that they came from seeds—that is, are the result of causes still in operation, though we may not be aware that they are operating. (383)

This passage recalls Thoreau’s claim in Walden that “where a forest was cut down last winter another is springing up by its shore as lustily as ever” (302).  Thoreau’s point, at any rate, is, in both cases, that forests (in all their various manifestations—trees, plants, etc.) will spring up as if on their own: independent of the botany or vegetation that preceded them.  In the “big picture,” the economics and morality at issue have to do with Thoreau’s ability to market himself and his ideas.  If he could pit himself as both scientist and writer, his writings would gain both cultural and actual currency as well as popular credibility.  This coupling of scientific sophistication with moral sensitivity produces, in Updike’s words, Thoreau’s thinginess: “the thinginess of Thoreau’s prose […] still excites us, the athleticism with which he springs from detail to detail, image to image, while still toting something of Transcendentalism’s metaphysical burden” (xxii).  Without science, Thoreau is little more than a gushing nature enthusiast; without science or the metaphysical burden, he “comes close to being merely an attentive and eloquent travel writer” (Updike xxii).  Fortunately, Thoreau recognizes the need to economize while moralizing, and to do the former well required a certain scientific literacy.  Norton is more generous than I because he casts Thoreau’s scientific observations about the forest as having nothing to do with self-promotion and everything to do with the Environmentalists’ Dilemma.  Thoreau’s self-promotion notwithstanding, Norton’s praise does tend to demonstrate the manner in which Thoreau yoked science to economics and morality:

Thoreau quite explicitly recognized that the forest, a dynamic system, had a ‘language of its own, and that the transition form the immature state was both literary and scientific. […]  He saw that one learns more important things by relating an organism to its environment than by dissecting an organism into parts.  This indicates that Thoreau was on the right track, seeking the secret of life and its organization in the larger systems in which species live.  Especially, he thought we learn more important things about human behavior, and the evaluation of it, by observing organisms in environments.  He believed that if he could unlock the code of nature’s language, it would provide the key to a new, dynamic and scientific understanding of nature.  The key prerequisite for this change to a more contemplative consciousness was development of a new ‘language’ of human values based on analogies from the ‘language’ of nature. (40)

If Norton is right, as I believe he is, then the Environmentalists’ Dilemma is not so paralyzing as some would suggest.  Indeed, Thoreau’s Walden shows how economy and morality can participate with each other in unique and even scientific ways. 

–Allen Mendenhall

For further reading, see the following:

Berger, Michael.  “Henry David Thoreau’s Science in the Dispersion of Seeds.”  Annals of Science.  Vol. 53 (1996:  381-397).

Hackett, Steven C.  Environmental and Natural Resources Economics:  Theory, Policy, and the Sustainable Society.  M.E. Sharpe, 2001.

Norton, Bryan G.  Searching for Sustainability:  Interdisciplinary Essays in Philosophy and Biology.  Cambridge University Press, 2003.

Thoreau, Henry David.  Walden.  Houghton Mifflin Company, 1893.

Updike, John.  “Introduction.”  Walden.  Princeton University Press, 2004.

Dear Diary.. Memoirs and Law and Literature — Part I 2

In this series of posts, I will begin to explore the role of memoirs in the law and literature class.
I have always assigned memoirs in Law and Literature. This year, in my Law and Literature class, I am assigning four sets of memoirs and several autobiographical essays — more than ever before. In fact the course is bookended by reading memoirs of two independent women, at vastly different points in time — Abigail Abbott Bailey, a Congregationalist woman suffering abuse at the hands of her husband and Patricia Williams, the Columbia Law Professor.

When I took law and literature as a student, the first work we read was The Words by Jean Paul Sartre. Memoirs, I think, are fairly standard fares in law and literature. Memoirs, in a powerful way, force us to ask a central question of literary criticism: “Do you believe the author?” Believability and the law force us to consider several viewpoints of the works: did the author openly lie? did the author stretch the truth? and was the author deceived by his own artistry and construct a different world view than their reality suggests? Examining the author’s credibility impacts the way we perceive the role of legislatures and judges in assigning reasons for their decisions — “Do we really believe their rationale?” Like the Church Theology class that requires Augustine’s Confessions , law and literature should include personal tales, both from those powerfully impacted by the law, and those that are instrumental in shaping the law.

Memoirs also exist in historical settings that are not immediately clear to the reader. The writer, as it were, enveloped by historical circumstance writes from a perspective that can be judged as to its sincerity to the historical setting. Slave narratives fall into a category of providing distinctive personal experience enveloped by the historical circumstances of time and place. (For example Twelve Years a Slave: The Tale of Solomon Northup uniquely considers slavery from the perspective of one wrongfully deported under the Fugitive Slave Act.)

This semester I am assigning a new memoir that I believe captures perspective in historical setting quite well: Religion and Domestic Violence in Early New England: The Memoirs of Abigail Abbott Bailey, edited by Ann Taves. (We are actually kicking off the course with the work). Bailey’s memoir is a stunning treatment of law, religion and social norms. Bailey, an 18th Century Congregationalist (translation: puritan descendent) woman suffers at the hands of her controlling husband. The devout woman suffers her husband’s infidelity (occasioned by rape), incest with their daughter, and power plays. Abigail resolves to divorce her husband and settle their property. At one point, Bailey’s husband (Asa Bailey) convinces Abigail to go with him to settle their property affairs by selling their home to an unknown person some miles away. On the journey, Asa Bailey tells Abigail in effect that they were not going to settle their affairs, but rather, had just crossed over the boundary between New Hampshire and New York and that New York was a “better jurisdiction for dealing with women like you.” New York at the time did not allow divorce and so Asa Bailey transported his wife to a jurisdiction where negotiating a property settlement worked better for him.

The memoirs present an opportunity to discuss a number of themes such as: law as power; access to law and law as morality.

I hope that my students can critically examine Abigail’s memoir and that it can begin to shape the course. (We are also reading that week Young Goodman Brown by Nathaniel Hawthorne and several other perspective pieces).

What memoirs do you assign in Law and Literature? What other Memoirs should law and literature classes consider?

Other Memoirs that assign (and which I will talk about at a future date):
Patricia Williams’ Open House: Of Family, Friends, Food, Piano Lessons, and the Search for a Room of My Own
Jack Henry Abbott, In The Belly of the Beast: Letters from Prison
Henry David Thoreau, On Walden
Barbara Kingsolver, Various Essays

Texas is the New Empire of Evil Reply

I’m going to deviate from our normal fare here and offer some from the sports world. If you are only interested in reading about Faulkner and his obsession with Southern landscapes (I happen to share your interests by the way) look away now.

So apparently, the Historians at the University of Texas have been busy, or maybe not.  It appears over the weekend that the Treaty of Versailles Agreement to keep the Big 12 Athletic Conference was reached between the remaining 10 schools.  Texas was rumored to be off to the Pac 10, along with the already defecting Colorado, and Texas Tech, Oklahoma and Oklahoma State.  Texas A & M was reportedly headed to the uncontested strong-man of college football the SEC, while Kansas, Kansas State, Iowa State, Missouri and Baylor were left to try and find friendships elsewhere — maybe the Mountain West Conference.  Lets be clear — this was all about money!

In what appears to be a D*^k move effective negotiating, Texas, Texas A&M and Oklahoma agreed to return to the Big 12 in exchange for a larger piece of the financial pie than all the others.  Specifically, the three schools will receive $20 Million a piece annually in the projected new television deal, while the rest of the schools will receive only $15 Million a piece.  Moreover, Texas, Texas A&M and Oklahoma coerced got the rest of the schools to agree to forfeit their shares of the penalty money that Nebraska and Colorado would have to pay for leaving the Big 12.  In another stunner, the Universities agreed that the coaches wives at Missouri, Kansas, Kansas State, Iowa State, and Baylor all would officially slap their husbands while singing the Eyes of Texas are Upon You, every year when the school played Texas.

Two observations.  First, Is this good bargaining or just a bad idea for business relations?  It strikes me that history tells us that it is never a good idea to gloat in victory at the expense of others.  See e.g., France and Germany, circa 1918, George W. Bush “Mission Accomplished;” Ivan Drago defeating Apollo Creed in the Ring and then believing that he could as easily beat the Italian Stallion Rocky Balboa, etc…It seems that this marriage is destined to end, and if Karma has anything to say about it, watch out Texas, Texas A&M and Oklahoma — your day is a coming.

Second, how diminished must Oklahoma State and Texas Tech feel.  Its one thing to be the ones that were always on the outside looking in.  But to now be forever linked to Texas, Texas A&M and Oklahoma, without any more benefits than the others must be humiliating.  Nice show fellows.

Simkin’s Dormitory Part II Reply

Over at the Lounge we are having a good discussion on the role of history and remedial acts.   Tom Russell, the author of the article that revealed the Klan affiliation of the Simkins Dormitory namesake, has chimed in with some thoughtful comments.  (Tom may stop by the Table as well to offer his thoughts more fully).  For now, allow me to provide Tom’s comments to Al Brophy’s latest post here, as well as my response.

Tom said:

Let me say briefly, though, if UT stops honoring Prof. Simkins by taking his name off the dormitory, plenty of opportunities to discuss race, history, and law will remain on UT’s campus. For starters, a portrait of Simkins hangs in the law library; I’m fine with that. There is Painter Hall and the Sweatt Campus. There’s a statues of Gen. Robert E. Lee and Pres. Jefferson Davis; buildings named after confederate soldiers; the Darrell Royal stadium, and a host of other monuments, none of which I think should be removed or renamed.

On the flip side, there’s also no reason to believe that The University of Texas would in fact turn Simkins Hall into the history lesson that it might be. The history of the university’s administration suggests the opposite.

Finally, I do not believe that those who are harmed or insulted by Simkins’s undeserved honor in having his name on the building should have to continue to experience insult or injury in order to provide a possible history lesson to whomever is subjected to a plaque, lecture, or website post. I’m looking for the right metaphor to describe this–something along the lines of “We won’t set your broken arm because it’s a good teaching opportunity.”

I have posted the following response to Tom’s very good points:

Allow me to offer a brief interjection. First, let me say that your logic is thoughtful and I don’t want to sound like my disagreement is in anyway critical of the importance of the work you are doing in this area. I also agree with you that we have to be very careful not to cause further insult to those populations that are offended (and should be offended) by this vile representation of an awful past.

With that said, however, let me push back on a couple of points. I think it matters greatly to distinguish between opportunities to talk about race and the methods that we use to talk about race. In my mind, this is not just an opportunity to talk about race relations. I agree that there are many opportunities to do so in a variety of contexts. Rather, this is whether we are going to faithfully represent our past as we have those discussions. Let me key in in on two comments.

First, I don’t think the metaphor of a setting a broken leg is not quite correct in this case. Legs can be fixed and show virtually no signs that there was ever a problem. I also worry that the analogy suggests that we may try to fix something. If we are trying to fix the past, then I have real reservations for all of the reasons described in the first post. I think the better metaphor is the environment. Like so many of our actions in the environment, we do things that cause harmful effects, that cannot be undone. However, what we can do is begin to live more responsibly with what we have. This can have a powerful effect. In some ways, it can rehabilitate the environment. In the same way, we cannot undo the Simkin’s name on a building. It has been done. But we can begin to live more responsibly with it by having frank discussions about its impact, and adding to its vile nature something that better represents our normative view of the world.

Second, if the University of Texas is not inclined to deal responsibly with its past as suggested, isn’t it just as important to maintain the building’s name as a reminder that we have not come as far as we think we have? It seems to me that we often remove uncomfortable things from sight, when they remain just as powerfully present as they did before we covered them up. Changing the landscape rarely changes the actual environment. Perhaps the building’s name serves a purpose of reminding us of how far we still have to go, rather than allowing the name’s removal to fool us in believing that we have actually come pretty far.

This is a very thoughtful discussion in which the relevance of the historical narrative has meaning for our everyday interactions.  Your comments are welcome.  Come join the discussion, either here or at the Lounge.

Edgar Allan Poe and Mesmeric Possibility 4

Sidney E. Lind, writing in the 1940s, said of the “mesmeric lexica” of nineteenth-century America:  “It is safe to say that the terminology of mesmerism was bandied about in much the same manner as the language of psychoanalysis was to be eighty years later, and with, in all probability, as little real comprehension on the part of the public.”

Lind’s reference to psychoanalysis—signified, at that moment, by Austrian physicist Sigmund Freud—is particularly telling for 21st century audiences, who have witnessed an avalanche of criticism of psychoanalysis, a pseudoscience, according to the naysayers, the results of which are un-testable at best and bogus at worst.  Lind’s aim is not to destabilize the practices of psychoanalysis but to interrogate three short works by Edgar Allan Poe in which mesmerism features prominently:  “A Tale of the Ragged Mountains,” “Mesmeric Revelation,” and “The Facts in the Case of M. Valdemar.”  “These three stories,” Lind submits, “constitute a series within which the mesmeric experiment becomes more profound, irrespective of plausibility or implausibility, or of whether or not Poe in at least two of the three was hoaxing his readers.”

Lind’s point is well-taken.  In Poe’s day, the subject of mesmerism was “in the air” and therefore “it was logical that Poe, as a journalist sensitive to popular interest, should have exploited it.”  True, these three stories exhibit, often wryly, a profound familiarity with mesmeric techniques and influences.  But more is going on in them than Lind lets on.  Indeed, Lind goes to great lengths to contextualize these stories within scientific (or other) discourses on mesmerism in Poe’s era, but he overemphasizes their “unity,” “theme,” and “intention” (always mimetic) instead of their singular dialogic contribution.  That is to say, Lind treats the stories as “echoes” or “reiterations” of other thinkers rather than as unique theses in their own right.  For Lind, the stories are indebted to other sources because they derive their vocabularies and methods from these sources.  I would suggest that Poe’s stories are in conversation with various dissertations on mesmerism rather than mere signs of cherry-picking or copying.  Although Poe’s modus operandi or preferred genre is fiction, his supposedly plagiarized passages lend substance to the notion that he might actually have been dissertating on mesmerism, animal magnetism, or hypnosis.  The luxury of storytelling is that the storyteller can dismiss unverifiable data as hoaxes or products of imagination; nevertheless, the storyteller can at least hope to hit on something real, novel, or scientific.  Two examples, Jules Verne and H.G. Wells, writing well after Poe, conceived of technological advances—most notably space travel—long before such advances were practical.

Lind’s work, at any rate, is impressively researched, laying the foundation for future analyses of Poe and his infatuations with mesmerism.  But why does Lind downplay Poe’s role in developing pioneering work?  All arguments are indebted to previous arguments; indebtedness does not take away from the originality or force of their articulation or genre.

Unlike Lind, Matthew A. Taylor calls attention to the distinctiveness of Poe’s contributions to “mesmeric theory” (for want of a better phrase) and its progeny.  He locates Poe in contradistinction to Herbert Mayo:  “Unlike Mayo, […] Poe radically deviated from the utopian utilitarian, or benign notions of mesmerism at play in most contemporary discourses on the topic, picturing instead the unsettling implications for human ontology consequent upon the idea that persons are less sovereign entities than manipulatable effects of external powers.”  In short, Poe considered mesmerism a bad thing, or at least a dangerous thing that did not lead down a road to human improvement.  “Poe concluded,” Taylor opines, “that an all-encompassing cosmic energy inevitably troubles human-being by suspending the autonomy and interiority of individual humans; the disorientation of normal, corporeal functioning and the literal loss of self-possession attending mesmeric practice illustrated for Poe the fact that people are little more than occasions for the demonstration of an impersonal power.”  If Taylor is right, then Poe’s take on mesmerism is not only unique but also quite sophisticated; it demonstrates a full understanding of mesmeric theory while simultaneously rejecting that theory.  More to the point, if Taylor is right, then Poe’s take on mesmerism stands on its own and demands critical attention.  Unlike Lind, Taylor seems to acknowledge Poe’s special role in shaping mesmeric theory—or, more precisely, mesmeric counter-theory.  In fact, Taylor seems to think Poe’s ideas about mesmerism reflect an entire cosmology about human nature and the imperfectability of humankind.  This is a tall claim.  For present purposes, it shows that Poe might have been worried about more than entertaining readers with fanciful mind-candy.  He might have been positing a worldview that flew in the face of prevailing physics (that “perverse yet consistent calculus that unites everything in existence under a single, universal law that, by definition, eliminates all difference—including, of course, the human difference”).  Poe, the relativistic Renaissance man, might have been demonstrating his facility as both scientist and philosopher.  To further establish Poe’s uniqueness, I might add to Taylor’s observations the theological dimension of “Mesmeric Revelation,” which accounts for evangelical objections to mesmerism without plainly endorsing or rejecting them.

Besides the three stories that Lind interrogates, there are, Martin Willis claims, “many other tales that exemplify [Poe’s] abiding interest in the contestation between the science and the human, as well as his fascination with the borderlands of scientific achievement, both in terms of their advancement to new states of knowledge and their place within the scientific pantheon.”  Poe’s interest in scientific trends was not a passing one.  Willis points out that Poe spent years studying science in general before turning to mesmerism in particular.  Whether Poe “believed” in mesmerism is unclear.  It seems plausible that his stories about mesmerism were meant, in Willis’s words,  to “consider mesmeric debates in the realm of fiction rather than that of science.”  I would argue that Poe collapses any distinction between science and fiction by teasing out various theses—which, for all he knew, might one day be proven—through the medium of imaginary characters.  In doing so, Poe forges a distance between theories and their authors: if the theories turn out to be “true,” future generations will consider Poe a genius; if they turn out to be bogus, future generations will claim Poe was merely hoaxing.  Thus the dual-advantage of employing fiction to hash out scientific hypotheses.  Regardless of whether Poe is ultimately “right” about any of his dissertations, which he dresses up as fiction, he demonstrates an impressive breadth of knowledge that should not be ignored.

Not all scholars have ignored it.  Antoine Faivre takes pains to explain how Poe appropriated scientific knowledge and then inserted it into fictional narratives.  He suggests that many readers have mistaken or misread Poe’s tales as “factual, non-fictional case studies,” which in turn has led to a “flurry of reactions and debates.”  My point is not to argue that Poe treats his stories as factual case-studies but to suggest that he left open the case-study possibility.  In other words, Poe might have wanted readers to misread his tales as factual, or else to have some later scientist come along and verify the “truth” of his hypotheses, notwithstanding whether they were in fact his, or whether they were intended as reasoned argument at all.

Lind allows that Poe might not have been hoaxing readers in writing about mesmerism.  “Mesmerism as a theme for fiction,” he explains, “was, like metempsychosis and the exploration of the realm of the conscience, so well suited to Poe’s principles of literary composition that it was natural for him to work this new field, to attempt to achieve the sensational without deliberately attempting to mislead.”  More than simply avoiding misleading commentary, Poe might have been dissertating with the hopes that, one day, scientists would look on his fiction as a catalyst for new and innovative practices.  While not aspiring to complete verisimilitude, Poe’s stories about mesmerism are highly sophisticated tracts, informed by trendy scientific theories (and their counter-discourses), and very probably marked with the faint expectation that their subjects, though fictional, might somehow contribute to future systems of knowledge.

See the following for further reading:

Faivre, Antoine.  “Borrowings and Misreading:  Edgar Allan Poe’s ‘Mesmeric’ Tales and the Strange Case of their Reception.”  Aries, Vol. 7, No. 1 (2007: 21-62).

Lind, Sidney E.  “Poe and Mesmerism.”  PMLA, Vol. 62, No. 4 (1947:  1077-1094).

Torrey, E. Fuller.  Freudian Fraud:  The Malignant Effect of Freud’s Theory on American Thought and Culture. Lucas Publishers, 1999.

Taylor, Matthew A.  “Edgar Allan Poe’s (Meta)physics:  A Pre-History of the Post Human.”  Nineteenth-Century Literature, Vol. 62, No. 2 (2007: 193-221).

Willis, Martin.  Mesmerists, Monsters, and Machines:  Science Fiction and the Cultures of Science in the Nineteenth Century. Kent State University Press, 2006.

Losing their Religion, or The Ironic Reader of Judicial Religious Temperment 1


How should our Supreme Court justices embrace their religious preferences? In another stunning blog post on CNN Stephen Prothero confronts the tendency to think that justices of the Supreme Court lose all personal touch with the world in which they have lived — a world that largely includes religious temperaments and experiences. (We have blogged about Stephen’s other posts here). Stephen writes:

If Supreme Court justices were impersonal computers, taking in laws and facts and spitting out impartial decisions, then we would not need religious diversity on the court. We wouldn’t need racial or gender or regional diversity either. Nine old white Catholic men would work just fine. Or for that matter nine young African-American Muslim women. But the world is what it is. And it is in the real world, not the world of should and supposed to, that the flawed and imperfect human beings we call justices operate.
So here is the question I would put to my critics: Are human beings creatures of objective thought, able to click their fingers and magically set aside their biases, passions and “self-love”? Or are we creatures of subjective passions whose interests should be subject to the sorts of checks and balances that Madison so vigorously defended and a diversity of experience offers?
Judges do make decisions based on experience. Holmes’s haiku laden phrase “The Life of the law has not been logic; it has been experience,” begs the question of whose experience (did not know that this quote maintained a 5-7-5 structure did ye?) If the experience of the law is the collected experience of us all, then perhaps the law should be agnostic towards the individual faith. But as we know, the law’s experience has excluded as much as its included, whether by race, wealth, gender, property or sexual orientation, the law’s experience has not been all of our experiences. Why then should we expect the experiences of the whole, to be excluded because we perceive that the whole has been adequately represented. After-all, should we treat our judges as potted plants? See i.e. Richard Posner, What am I? A Potted Plant?, The New Republic (1987).

These tendencies to down play the individual experience in favor of the collected experience is revealed perhaps most acutely in one’s religion. We can see that in the exchanges during oral arguments with Antonin Scalia and Anthony Kennedy, during the Salazar v. Buono hearing. (Salazar v Buono involved the maintenance of a cross in the Mojave National Preserve erected by the Veterans of Foreign Wars after World War I). Both of Scalia and Kennedy are devoutly catholic. At one point, when it was suggested that a Jewish star would more appropriately honor the Jewish soldiers that died in World War I, Scalia responded
It’s [the cross is] erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the—the cross is the—is the most common symbol of—of—of the resting place of the dead, and it doesn’t seem to me—what would you have them erect? A cross—some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?”

Later in the same oral argument, Justice Kennedy said:

Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message . . . Time also has played its role. The cross had stood on Sunrise rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness . . . Congress ultimately designated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that constitute our national heritage . . . a symbol that . . . has complex meaning beyond the expression of religious views . . . one Latin cross in the desert evokes far more than religion.

I want to point out that both Scalia and Kennedy seem to neutralize their religious sentiments in favor of a secularized view of the cross. Let me say, they are right. The cross serves a secular function in our country, depicting our shared national myth of a Western Christian world. But here is the ultimate question. Who actually believes the justices when they down play their religion. Scalia, more so than Kennedy created substantial commentary largely because it was so shocking to hear him, of all justices, secularize a symbol of his own religion. These justices cause us to consider whether their words are to be read through the lens of an ironic reader. Just as we might question the double meaning of Billy Budd’s “farewell to the Rights of Man” upon being conscripted aboard an English vessel, we might also question the ironic tone of Scalia and Kennedy’s remarks. Scalia and Kennedy want us to believe that they can take off their religion like a coat and commence judging, saying “farewell ye vestments of faith.” Like Prothero, I seriously doubt that they can. Like Billy Budd, I am not sure we should read them literally even if they think that they have succeeded.