Henry Clay: The Essential American (reviewed)

Henry Clay: The Essential American
David S. & Jeanne T. Heidler

David S. & Jeanne T. Heidler (2010). Henry Clay: The Essential American. Random House: New York. 595 pages.

This book covers the entire life of Henry Clay (1777-1852), best known perhaps as the “Great Compromiser” for his role in shaping the Missouri Compromise of 1820 and the later Compromise of 1850 that allowed California and Texas into the union as a free state and slave state, respectively. Both compromises attempted to meet some of the salient issues of the North-South conflicts with measures that partially reconciled thru compromise some of the most salient bones of contention between the slave-holding South and the more industrialized North. The book gives ample attention to Clay’s role as first a U.S. Representative and later a Senator — and his three unsuccessful attempts to become President of these United States (1832, 1840, 1848). His relationships with the Presidents during his career from Madison to Filmore are treated with some care — especially his interactions with John Quincy Adams, Martin Van Buren, and Andrew Jackson. The book is quite naturally focused on trying to understand events as they were experienced by Clay — but the authors attempt to be fair to Clay and his friends and enemies. Andrew Jackson does not come out very well — but that is probably because Jackson’s undying enmity towards Clay [primarily a result of Clay’s role in electing John Quincy Adams in the election of 1824] probably represented Jackson’s greatest personal weaknesses. As portrayed in the book Jackson could not forgive a slight or a wrong real or imagined. Clay’s relationships with the other members of the Great Triumvirate (Daniel Webster and John Calhoun) are also given a good deal of attention. In sum, it is a book which is both a history of Henry Clay of Kentucky and a history of the United States from approximately 1810-1850. In other words, it is a history of the United States in the four decades before the terrible scourge of history brought on a decade a conflict and then our great Civil War.

But there is something else which makes this an unusual history book. For the Heidlers’ book is not merely a political history. Thru out the book the authors attempt to provide some insight into Clay’s personal history. Continual allusions to Clay’s interactions with every one he meets — political contemporaries (rivals & comrades), friends, family, slaves and strangers all get their due. One theme, of course, is his family life. Married for 52 years, he and his wife had 11 children — but they outlived most of the children. Only one of the 5 girls survived until adulthood - and she then died in childbirth. Tho he lived to be 74, Clay’s health was not always very good. Indeed, it appears that he eventually died of tuberculosis — called ‘consumption’ in those days as his last several years were increasingly marked by his coughing and, especially towards the end, his loss of weight. While not written with the flair of a novel — the authors are working from the incomplete record of letters an diaries and do not ‘fill in the details — the book manages to provide a moving portrait of the man as he lived with his successes and failures, joys and pains.

For me, personally, however, probably the most important theme of the book is its portrayal of Clay’s relationship with slavery — more precisely his conflicted and complicated relationships with actual slaves. Clay was a slaveholder. Furthermore, while as a young man he made some strong statements about the slave trade — once he became involved in politics, his criticism of slavery was always tempered. He did believe that slavery was immoral and would not last and he remained adamantly opposed to Southern talk of nullification secession, but he essentially viewed slavery as the bargain the country had made. He also opposed the abolitionists on a number of issues. Indeed, Clay’s views in many ways were similar to Abraham Lincoln’s before the Civil War [Lincoln’s views of the ‘Africans within our midst’ evolved during the Civil War, perhaps especially due to his interactions with Frederick Douglass as well as the exigencies of war]. For several decades Clay was a supporter of returning slaves to Africa — proposing several times that slaveowners might be bought out. He presumably was involved personally in several slave purchases — but it appears that most of the slaves in his household had been inherited or were a consequence of marriages. Some other aspects of Clay’s activities include the following. One, he sometimes bought separated family members so that they were united with slave relatives in the Clay household. Two, he freed several slaves on different occasions and in his will (several times with accompanying financial gifts or wages). And, finally, he was remarkably indifferent to the problems of runaway slaves - he simply was not interested in pursuing them. There is one instance of sending some money to a runaway slave who decided to return, but it appears that once a slave ‘upped the ante’ to the point of running away — Clay did not seem constitutionally disposed to follow the issue much further. In sum, while the evidence presented by the authors make it quite clear that Clay consciously had accepted the country's bargain with the peculiar institution — it is clear that the bargain ate at him in conscious and unconscious ways.

* * * *
Of course, with the benefit of hindsight it is not too difficult for us to see that Clay’s valiant but vain attempts to stich up the discordant forces unleashed by slavery would be unavailing. Still, I found the Heidlers’ treatment illuminating. It is not really useful or intellectually honest to try to read too much into how others ‘should have done’ in a situation which is so very different from the moral environment and climate of a current historian or current reader. The Heidler’s treatment seems to reach a defensible balance between our need to know about the past and our need to remember that even tho relevant, the past was different in significant ways. To me it is quite clear that the legacy of slavery still effects us [seen perhaps most clearly in our prison system], but neither the present nor the past are morally simple.

In ending I switch to a different theme. It would be interesting if we could come back a few decades from now and see how our descendants view the terrible disparities in health care which caracterize these United States of the early 21st Century.

Are Human Beings 'Spiritual' Creatures?

What Does it Mean to Say that Human Beings are ‘Spiritual’ Animals?

Lon Clay Hill, Jr.
Miramar, FL, USA

Preliminaries for a discussion on words, canons, belief, faith, and hypocrisy in both politics and religion. In coming months the author hopes to develop a number of thoughts in postings on this blog. This particular post is more of an attempt to describe his own assumptions than an argument with those who do not share those assumptions.


Are Human Beings ‘Spiritual’ Animals?

The question above is, for many people, a matter for serious debate. I have participated and, occasionally, still do participate in such discussions and or debates about this issue. However, I usually prefer to discuss another issue and I do so here, namely:

What is it about Human Beings that, for me, — inescapably — requires that I employ the term ‘Spiritual’ Animal?


Homo sapiens, a talking and spiritual animal or creature!

Human beings have several important characteristics which differentiate then from most living animals on the earth. To my way of thinking, the following list of chacterisitics seem particularly salient, to wit:

(1) Human beings cover their nakedness
(2) Human beings have opposable thumbs that have apparently made it easier for them to use tools than all or almost all known animals
(3) Human beings have special larynx muscles that have apparently made it easier for them to speak than all or almost all known animals
(4) Human beings have brains that enable them to make creative use of both tools and speech
(5) Human beings bury their dead
(6) Human beings have thoughts, opinions, and beliefs that transcend both their immediate and experienced physical, temporal, cultural, and intellectual environments.

The author makes no claim that these characteristics are the most important characteristics which define our species. Nor does the author claim that any of these characteristics are unique to humans — our knowledge of the internal mental characteristics of other terrestrial creatures is quite limited. We do know that chimpanzees make a few tools, that birds create songs beautiful to our ears, that dolphins and whales use complex audio signals that are analogous to both speech and song, and that elephants often guard their dead for several days. Beyond the earth, of course, we do not know whether intelligent extra-terrestrial life is either frequent or non-existent.

What I do assert is that the above list suggests that members of the species homo sapiens can be usefully described as talking, spiritual animals. In this context the word “spiritual” does not imply any particular religion. What I mean here is that the facts suggest that humans are - at least sometimes - seriously concerned with mental and emotional concerns and commitments that transcend our every day existence. Indeed, my use of the word spiritual here can be better understood by the German word “geistlich”. Spiritual - as I define it here - has to do with human beings’ abilities to construct elaborate artistic, societal, literary, mathematical, political, and other intellectual or mental structures. While it is true that I believe that religious impulses and thoughts can also be usefully described as “spiritual” activities, the word as I use it here can also be used without compromise by pantheists, deists, and some atheists. The principal intellectual opponents of humans as spiritual creatures as defined here would be (1) logical positivists who believe that all thoughts are epiphenomena of material processes, (2) some Darwinian evolutionists who believe that all biological phenomena are products of blind and random events, and -of course - (3) any cynics who would assert that all phenomena and thoughts are void of genuine meaning.

For now, at least, I do not wish to argue these issues in depth. Rather, I wish simply to emphasize that we humans possess some rather complex interior mental and emotional states and commitments and that I shall refer to this deep interior complex as our spiritual life. [Some readers might be more comfortable with terms such as “psychological states”. However, such terminology is too restricted in its implications for me just. Of course, some religious uses of the term spirit are too narrow in their implications for some readers.] With all of these caveats, I may have gotten away from my central corollary — speech is central to much of our spiritual and mental life and words are the most prominent and indispensable constituents of our intellectual traditions which reach back into history. (The interplay between word and images is, of course, undergoing a radical transformation today, but - for now - we can contemplate an indefinite future in which words as words are still absolutely essential for communication.)

With these considerations and stipulations in the background, I hope to address some more contentious political and religious issues in future blogs.

LCHj - 14 October 2010

Spiritual Intersections: Nietzsche’s Aphorisms and Jesus’s Words

Spiritual Intersections: Nietzsche’s Aphorisms, Jesus’s Words, Related Quotations — plus Commentary
{An Annotated Nietzschean Breviary with Afterword, References, and Aphorism List at end}

Lon Clay Hill, Jr.

“For the children of this world are in their generation wiser than the children of light.” (Attributed to Jesus of Nazareth, Luke 16:18)

TWELVE QUERIES

Twelve Queries with Annotated Aphorisms and Sayings by Friedrich Wilhelm Nietzsche and others p. 7
I. What is man and what is he becoming?? p. 7
II. What is the connection between nature and spirit?? p. 10
III. Who is the noble man and what is love?? p. 12
IV. Who is the overman and how is one true to the earth?? p. 13
V. What is truth and what is error (philosophical focus)?? p. 16
VI. What is truth and what is faith (existential focus)?? p. 18
VII. Faith and hypocrisy. p. 21
VIII. The reality and/or unreality of God?? p. 23
IX. Who was Jesus (Ecce Homo-I)?? p. 25
X. What is Christianity (from Paul forward)?? p. 27
XI. When does it end? [Eternity, Salvation] p. 28
XI-Sup. Does it end in Fire? [The Hell fire] p. 31
XII. Who was Nietzsche (Ecce Homo-II)?? p. 35



Twelve Queries with Annotated Aphorisms and Sayings
by Friedrich Wilhelm Nietzsche and others

I, who cannot fly, must reach the distant mountains!!

QUERY I. What is man and what is he becoming??

#1a “I teach you the overman. Man is something that shall be overcome... (Thus Spoke Zarathustra, Prologue, part 3).

#Ib “Man is a rope, tied between the beast and the overman — a rope over an abyss.” (Zarathustra, Prologue, section 4)

In Thus Spoke Zarathustra Nietzsche declared that each individual should strive to become an overman (Übermensch) — a person who continually strives to reach beyond himself. Nietzsche believed that humans are an essentially unfinished product. We cannot be understood and do not live apart from the stars we reach for — nor, for that matter, can we be understood or live apart from the simple ocean life from which we have evolved. As the Psalmist says, God has made man a “little lower than the angels.”1

#Ic “Life must overcome itself again and again.” [Zarathustra, II, On The Tarantulas.]

Nietzsche constantly refers to the human need to continually strive for improvement and self-transcendence. Indeed, Nietzsche seems to see the self as a self which is to be improved just as a mountain climber seeks to climb higher and higher mountains and an astronaut would want us to explore more and more distant planets. Now to be clear, Nietzsche himself would object to the term of ‘improving’ the self because of various moralistic and epistemological overtones. Nietzsche would rather say that ‘one should become who one is’ or speak approvingly of a ‘higher’ or ‘more noble’ man. Still, at some level, Nietzsche presents an existential demand that one should continually strive to become who one really is, i.e. one should improve or perfect oneself. In other words, even as Jesus said, “Be ye therefore perfect, even as your Father which in heaven is perfect”, Nietzsche is saying that human should continually be perfecting themselves.

#Id “But it is with Man as it is with the tree. The more he aspires to the height and the light, the more strongly do his roots strive earthward, downward, into the dark, the deep — into evil.” (Zarathustra, part I, On the Tree on the Mountainside)

No facile progressivism here. With every opportunity for progress there is a concomitant temptation. Important and breathtaking inventions and discoveries such as the printing press, the structure of the atom, and the helical structure of DNA are rife with potential mishaps and hubris that humans almost invariably explore until ‘wisdom comes to by the awful grace of God.’ The beginnings of religious freedom with genuine toleration were preceded by two centuries of religious wars. Even today, religious and ideological freedom are still precariously honored in most of the world. We shall see what comes of our still new knowledge about the atom and DNA.

#Ie. “You should love peace as a means to new wars—and the short peace more than the long.” (Zarathustra, I, On War and Warriors.)

One could read this as a simple piece of militaristic rhetoric. And indeed Nietzsche’s comments on war are sometimes rather adolescent and shallow — if not immoral. However, it is usually more fruitful and more accurate to see it and similar passages as expressing an exuberant acknowledgement that humans make more progress in striving towards objectives than by passively accepting a stagnant status quo. Most Christians do not believe that songs such as “Onward Christian Soldiers” or “A Mighty Fortress is Our God” are calls to arms. Of course, Christians have had their ‘fair share’ of militaristic adventures, some of them in the name of God and religion, but they are not unique in this. Currently, a number of Arab terrorists have called their own unholy terrorist deeds expressions of a “Jihad.” However, other Muslims think of a jihad as primarily a spiritual struggle, a struggle which explicitly rejects the murder of innocents for any goal.

To be sure, in the book of Matthew Jesus enjoins his listeners to “Love your enemies and pray for your persecutors” [Matthew 5:44]. However, only a few chapters later we find:

“You must not think I have come to bring peace on earth; I have not come to bring not peace, but a sword. I have come to set a man against his father, a daughter against her mother, a son’s wife against her mother-in-law; and a man will find his enemies under his own roof” [Matthew 10:34-36].
Similar passages are found in Luke, Chapter 12. In the non-canonical Gospel of Thomas we even find the following:

“Jesus said: I have cast fire upon the world, and look, I’m guarding it until it blazes” [Thomas #10 , Five Gospels.]

There is no question that some metaphors are more appropriate than others, but it simply cannot be gainsaid that a universal consensus is that ethical, moral, psychological, personal and/or religious progress invariably contains an admixture of personal struggle. Both Jesus and Nietzsche constantly emphasized this essential component of the spiritual life.

Query II: What is the connection between nature and spirit??

#2a. Spirit is the life that itself cuts into life: with its own agony it increases its own knowledge. [Zarathustra, II, On the Famous Wise Men.]

“Geist ist das leben, das selber ins Leben schneidet; an de eignen Qual mehrt es das eigne Wissen.” (Z, II, Von den berühmten Weisen.)

Any serious contemplation of both human life and life in general must confront the problem of pain — we were born screaming as we came into this world and as we were being born most of our mothers experienced approximately as much pain as humans can endure in a single dosage. Those of us who eat meat continue to live partially because other we wrest life from other forms of painfully reluctant life. Even the vegetarian is here today only because countless ancestral fish, reptiles, and mammals did kill and consume living and conscious prey. Humans, of course, experience additional pain and suffering because other humans often and invariably stray from the milk of human kindness that we sometimes experience. Modern warfare and conflict with atomic bombs, genocide, public execution and secret torture are all too frequent reminders that as Job put it:

“Man is born to trouble as the sparks fly upward.”

It is sometimes true that perpetrators of evil sometimes ‘pay’ for their misdeeds. Yes, it is sometimes true that:

“Those who live by the sword die by the sword.”

But is also true that many of those who suffer, whether from nature or from man, are essentially innocent with respect to the deeds that mark their lives.

Indeed, nature itself is very problematic for those who would look for some dominant gentleness in the essential order of things. There are those, of course, who would justify the ways of God or the cruelty of evolution. However, I believe that—in terms of trying to understand suffering as part of ‘The Big Picture’ — the religious person has no magic words to explain the inexplicable and seemingly arbitrary dispensations of pain in the world we behold. For me, the words from William Blake’s poem The Tyger run true:

“Tyger! Tyger! burning bright
In the forest of the night,
What immortal hand or eye
Could frame thy fearful symmetry
...
What the hammer? what the chain?
In what furnace was thy brain?
What the anvil? what dread grasp?
Dare its deadly terrors clasp?
...
Did he smile his work to see?
Did he who made the Lamb make thee?”
Songs of Experience (1794)

All of us can and do attempt to make personal sense or even to make more general philosophical and/or religious sense of life’s pain, sorrow, and suffering. Be that as it may, none of us can stand outside our biological-and-spiritual station for we are embedded within a process that contains pain and struggle as well as joy at its very Heart.


Query III: Who is the noble man and what is love??

One reason that Nietzsche called himself an ‘immoralist’ is that - as he put it - all creators are called ‘immoral’ by both the many and the leaders. After all, Jesus was crucified as a common criminal. To be sure, sure Nietzsche sometimes takes a perverse pride in being misunderstood, but he still says much that can enlighten us all. Some of his statements about love are Biblical in tone and need little by way of explanation.

#3a Whatever is done from love occurs beyond good and evil. (Beyond Good and Evil, part 4, epigrams and interludes, #153)

#3b Jesus said to his Jews: “The law was for servants—love God as I love him, as his son! What are morals to us sons of God!” (Beyond Good and Evil, part 4, #184)

Paul says that “the written law condemns to death, but the spirit gives life.” (2nd Corinthians 3:6) Jesus, of course, reserved his sharpest criticism not for the ‘sinners’ (those who more or less knew they were miserable), but for the hypocrites — those who insisted upon their own goodness and paraded their ‘virtues’ before others. Today, in my own country of the United State, some of those who call themselves religious are among the strongest defenders of the death penalty and of American imperialism. Among the most prominent of these ‘leaders’ (e.g. the most dangerous) are those who never raise their voices or show any other ‘untoward’ emotion in public .

#3c That which doesn’t destroy or kill me, makes me stronger. (Twilight of the Idols, I, 4)

“Was mich nicht umbringt, macht mich stärker.” (GD, I, 4.)

Nietzsche asserts here and elsewhere that any non-fatal experience presents an opportunity for growth. Similarly, Shakespeare wrote “Out of this thistle, danger, we pluck this flower, safety.” And, of course, religious authors sometimes testify to growth emerging out of the most terrible experiences of both war and/or personal tragedies. Saying that one will profit from any experience, of course, is not the same as actually managing to consistently do it. However, it is a useful pespective to keep in mind as we all experience non-trivial problems.


Query IV: Who is the overman and how is one true to the earth??

“Earth is just a stopping place; Heaven is my home.”
[from a Christian Hymn.]

#4a “Behold, I teach you the overman. The overman is the meaning of the earth. Let your will say: the overman shall be the meaning of the earth! I beseech you, my brothers, remain faithful to the earth, and do not believe those who speak to you of otherworldly hopes.” (Thus Spoke Zarathustra, Prologue, part 3).

According to Nietzsche religion has taken our eyes away from the world we live in and away from our actual lives. In Nietzsche’s view the noble soul or the truly ethical person should consecrate the the earth. Now it is quite true that in the book of Genesis the Lord looks at Creation and says, “This is Good!!” However, it is also true that many ‘believers’ tolerate wars, environmental degradation, and injustice in the name of God. Today [early 21st Century] countless self-described ‘Christians’ and ‘believers’ ignore global warming, beglut themselves on fossil fuels, defend fool’s science, and in countless ways use their ‘faith’ as blinders to ignore the reality of the [created] world.

A text which embodies some Christian themes which Nietzsche criticises is found in 1st John, Chapter 2:

“Do not love the world or the things in this world. The love of God is not to those who love the world: for all that is in the world—the desire of the flesh, the desire of the eye, the pride in riches—comes not from the Father but from the world. And the world and its desire are passing the way, but those who do the will of God despise the world.” [1 John 2: 15-17]

This is sometimes read as a passage which simply despises the world and universe as an inconsequential place to be. In this perspective Christians should ‘wait upon the Lord’ and they will be rewarded in Heaven. Some criticise and ridicule such beliefs as the hope for “Pie in the Sky.’ Before evaluating this critique, let us look at a slitely different translation found in The New English Bible [NEB].

“Do not set your hearts on the godless world or anything in it. Anyone who loves the world is a stranger to the Father’s love: Everything the world affords, all that panders to the appetites, or entices the eye, all the glamour of its life, springs not from the Father but from the godless world. And the world is passing away with all of its allurements, but he who does God’s will stands for evermore.” [1 John 2: 15-17 {NEB}]

With the second translation it is perhaps easier to translate the text as being a relative simple injunction not to overevaluate the ‘things’ of this world as any merely physical or societal pleasure is doomed to be short-lived in any truly long term approach, e.g., when we consider periods significantly longer than a human lifetime. For this reading to be valid, however, we would have to read the phrase ‘love the world’ as meaning, sensu strictu, as ‘loving covetously [e.g., ‘overloving’] our human pleasures with more passion than they merit.’

Cosmically speaking, any lasting validity for our lives, pleasures, and efforts in themselves is nonsense. For me literature is the best point of departure for thoughtful discussion of such themes. In the book of Ecclesiastes it is written:

“Vanity of Vanities... There is no new thing under the sun.”

In Shakespeare’s MacBeth King MacBeth declares:

“Life is a tale, told by an idiot, full of sound and fury, signifying nothing.”

Such passages remind us that our lives and all their fortunes and pleasures are painfully short. One does not need to be able to read and write to recognize this. This briefness is a primary existential datum for human beings true virtually independent of our own metaphysical, religious or philosophical perspectives. The pertinent question is: What do we do and what do we make of this short, but very dear life of ours? So, for myself, I would read the passage from 1st John as exhorting us to aspire to see and live our lives sub species aeternitas. Others are free, of course, to read the text differently. However, I would like to suggest that the spirit with which one reads a text -especially, a religious text- is as important a spiritual matter as the text itself. In any case, there is no necessity for anyone to defame or desecrate the earth. Whether one believes in the finality of death, the transmigration of souls, the resurrection of the dead, or eternal recurrence are separate issues.

To make sure I am not misunderstood let me add the following. If I and other Christians or other believers do not honor our present obligations on this earth, it is clear to me that the secular citizens who do respect the natural world will ‘be more pleasing in God’s eye’ than those believers who prefer to speculate about ‘The Hereafter’ while failing to tend to their Here-and-Now responsibilities.


#5&6. Truth is the lie which serves us best!

The above sentence, as far as I can determine, was never written by Nietszche, but it fairly paraphrases — I believe — a Nietzschean leit motif. There are two related, but distinguishable thoughts contained within this single sentence. One, all human ‘truths’ about the world are necessarily incomplete and in the final analysis false. In less antagonistic terminology, all human truths are approximations and, at the very least, not quite true. Two, all or almost all proclamations about religious and phlosophical ‘truths’ have been and continue to be false— usually demonstrably and/or harmfully and/or hypocritically and/or crudely false. And, furthermore, according to Nietzsche, this is particularly true of Christianity. We shall examine these two themes separately. The first theme is primarily an epistemological or philosophical theme with somewhat indirect religious implications; the second theme is primarily a historical argument with utterly obvious religious implications.

Query V. What is truth and what is Error?

#5a. “Every word is a preconceived judgment.”
#5b. “What are mankind’s truths. They are the irrefutable errors of man.” [Gay Science, #265]

Nietzsche believed that all ideas and even the very words which we use to describe the world are simplifications which contain inevitable and inextricable errors. This idea is not new. Approximately 2,500 years ago the greek philosopher Heraclitus of Epheseus is recorded as saying “We cannot step twice in the same river.” And, of course, whether we are speaking of inorganic entitities such as rocks, rivers, and stars or living things such as apples and people everything in the universe changes. Indeed, everything is always and inevitably changing eventually into something distinctly different from what it was either moments or eons before. And, it is not merely that things change in time. We can also use a single word to describe different entities in space—apples or stars or individuals, even identical twins. However, these different entities, too, are always different at some level. This is, of course, not in itself a particularly novel or threatening idea. But Nietzsche develops some interesting implications. Of course, he says, our words and ideas may describe similarities which are useful or even necessary for life. If we need to warn another human about a tiger we don’t care whether the tiger is somewhat or even significantly different from all other tigers including its identical twins. The similarities are all that immediately matters. But it is important, thinks Nietzsche, that we be honest with ourselves about the limitations of our terms and our ‘truths.’ Similarities are never identities!
Of course, we don’t just coin words and verbal ejaculations. We combine our words into sentences — complex assertions about the world. Or, in a more Nietzschean mode of description, we continually use and make hypotheses about the world. Occasionally, we are conscious of what we are doing, but most of our working hypotheses are unconscious and hidden. And this is as it should be. It is better to live with ‘error’ than to while away our lives with bootless refinements.

#5c ... and societal, philosophical, and religious myths...!!??”

Furthermore, human beings do not merely live in and describe the natural world. Human beings are social creatures dependent in complex ways upon their families, societies, religions, and nations — and it is in these socializing contexts that all of us acquire language. Both consciously and unconsciously language is used to support our social groupings and our grandest thoughts. Our societal beliefs, including our patriotic and religious, beliefs are inevitably colored by our associations and our standing within those associations, and by conscious and unconscious interests. They are, in one way or another, almost always intrinsically and inevitably both partisan and parochial.


VI. What is truth and what is faith (existential focus)??

#6a. One repays a teacher poorly if one always remains a pupil. [Zarathustra, I, On the Gift-giving Virtue.]

“Man vergilt einem Lehrer schlect, wenn man immer nur der Schüler bleibt.”
(Z, I, Von der schenkenden Tugend, part 3.)

Nietzsche believes that one’s philosophical or spiritual outlook should be — like one’s scientific ideas — continually improved and refined. Furthermore, any truly good idea has additional implications that the first person to articulate the idea would not have realized. This is counter to more common beliefs that the ‘truths’ of a religous sage or prophet are set in stone — and that a ‘faithful’ adherent cleaves to the letter of the words and beliefs of their earliest religous. I think this point is well taken. As a matter of fact religous ideas do evolve. Indeed, according to Mark, Chapter 7, Jesus initially was unwilling to heal a (non-Jewish) Samaritan woman’s child because he thought his mission was for fellow Israelites only.

However, genuine religious teachings are not, strictly speaking, merely about ideas. Indeed, religious or spiritual teachers are revered for the consistency of their character -- consistency viz-a-viz the perennial problems of humanity. The particulars of oppression, ideology, and hypocrisy are in a state of continual flux - the value of the ideas-and-example of a Jesus, Martin Luther King, Karl Marx, Thomas Paine, George Fox, Susan B. Anthony, or Mahatma Gandhi is precisely that they can be adopted to new situations.

#6b. “Faith means not wanting to know the truth!
[AC, #52.]
“Glaube” heißt Nicht-wissen-wollen, was wahr ist.

There is a widespread belief among many Christians that Christians are to be known and judged primarily by their beliefs (e.g., the Apostles Creed or similar credos). Indeed, some Christians even declare that their particular beliefs about God, Jesus, the Bible and/or the Church are necessary both to obtain eternal salvation and to avoid the hell fire of everlasting damnation. Put otherwise these Christians believe that Christians are to be judged by their beliefs - or, as they put it, ‘They will be judged by their faith’. I still remember being told in revival meetings fifty years ago that ‘I would either believe in Jesus Christ and his Word — or burn in hell!’ At my high school’s fiftieth reunion, a fellow classmate once again warned me of the same said ‘peril’ to my soul. Part of this general set of beliefs is the notion that in said ‘matters of faith’ one must frequently (even proudly) ignore reason. These beliefs are in the main contrary to the recorded teachings of Jesus on those subjects. In Matthew [chapters 7 &12] and elsewhere Jesus is recorded as saying that his followers will be known ‘by their fruits’ (e.g., their deeds). A careful reading of Jesus’s sayings suggests that he considered religous hypocrisy to be much more harmful than either doubt or unbelief. We shall consider these issues in more detail below. For now, I remark first that while we can certainly agree that Christians are identified (‘known’) by their beliefs, we can also state that Christians are judged (‘known’) by their deeds. Furthermore, to get at some of the underlying issues, it is helpful — I believe — to distinguish between belief and faith. Beliefs are primarily intellectual notions which are potentially, at least, either true or false or somewhere in between. Faith, on the other hand, is primarily about the existential stance and actions which we must make in a world and life in which we almost never have complete knowledge and information. It is quite true, to be sure, that our ‘Faith’ is mediated by our belief, but the distinction between belief and faith is absolutely critical for spiritual life. Belief is in the conscious mind; faith comes from the only partly conscious heart, our deeper self.

When the prophet Jeremiah complained that “The heart is deceitful above all things, and desperately corrupt” (Jeremiah Ch.17, v. 9) he was not complaining about the beliefs of his contemporary Israelites. From a religious perspective, believers are always at risk of idolatry (or Bibliolatry or Mariolatry...) or otherwise glorying in their own beliefs and practices. From a secular perspective, these ideological misdeeds are usually characterized as superstitious or irrational rather than as idolatrous. It is instructive, however, that even the atheist John Paul Sarte characterizes the inauthentic life as an instance of ‘bad faith’ (mauvais foi).

In sum, what we see in practice is that the identification of Christian faith with Christian beliefs is a cesspool of opportunities for bigotry, prejudice and other reactive defenses for personal weaknesses and societal iniquites. Genuine Faith is accompanied by beliefs, but it is not belief as such which produces honesty charity and unfearing love, the markers of genuine faith. Other humans are not usually fooled by hypocritical believers and it is, by definition, impossible to imagine that a living God would be so easily fooled. I believe that God fully intended that there should be people of many faiths as well as a significant number of doubters and skeptics. Heretics and atheists are here to be an offense to the self-righteous hypocrisy so common in almost all religious groups.


Query VII. Faith and hypocrisy.

Nietzsche believed that religious leaders, whether consciously or unconsciously, almost always fabricated and mislead their followers. In my own opinion, he got carried away with himself at times, but he was often prophetic in his condemnation of conventional hypocrisy and cultural shallowness. Putting it in strictly non-Nietzschean terms:

God has placed atheists, agnostics, and heretics in the world to remind all of us of the weaknesses and hypocrisies of those who think they are the only ‘true servants’ of God or Allah or Jawveh. (LCHj)

As the prophet Amos declared to the chosen people of Israel:

“Are you not like the Ethiopians to me,
O people of Israel?” says the LORD.” (Amos 9:7 {RSV}.)

According to my understanding of the Biblical message, faith is not a priviledge of favoritism—but a call to responsibility. Rewards, if any, will come in their own due time.

More to the point, we will amplify here a short portion of statements attributed to Jesus in the 23rd chapter of the Matthew:

“Alas for you, lawyers and Pharisees, hypocrites! You travel oversea and land to win one convert: and when you have won him you make him twice as fit for hell as you re yourselves” [Matthew 23:15 {NEB}]

“Alas for you, lawyers and Pharisees, hypocrites! You are like tombs covered with whitewash: they look well from outside, but they are full of dead men’s bones and all kinds of filth. So it is with you: outside you look like honest men, but inside you are brim-full of hypocrisy and crime” [Matthew 23:27-28 {NEB}]

To get the full flavor of the prophets’ condemnations of Israel and/or Jesus’s words about hypocrites it is best to consult the relevant Biblical texts. However, it seems clear to me that the prophetic message consistently calls the ‘believers and faithful’ to be faithful to their own faith — any hypocritical condemnation of non-belivers is but ‘a sounding gong or a clanging cymbal.’


#7a Insanity in something individuals is rare - but in groups, nations, and epochs it is the rule. (Beyond Good and Evil, part 4, epigrams and interludes, #156)

Humans are both most blind and most cruel when they do things for their own group — whether it is their own race, their own church, or their own nation. On making real sacrifices for their particular subset of humanity, they seem particularly blind to the outrageously narrow selfishness of their group. Just in the last decade or so, in a few hours Serbian Christians murdered 7,000 Muslim men and boys in Serbenizia, Indian Hindu mobs deliberately burned alive several hundred Muslims, and Al-Kaeda ‘Muslims’ have killed thousands of innocents in the United States, Iraq, Kenya, and elsewhere.

My own conclusion:

God fully intends for Heretics and Atheists to be a thorn in the side of religious hypocrites. [LCHj]


Query VIII. The reality and/or unreality of God??

#8a. “The Death of God”

Nietzsche’s most famous pronouncement was the parable of the the madman found in section #125 of Die Fröhiche Wissenschaft (1882). (translated as Joyful Wisdom [O. Levy] and The Gay Science [W. Kaufmann]).

The madman. Have you not heard of that madman who lit a lantern in the bright morning hours, ran to the market place, and cried incessantly, “I seek God!” As many who did not believe in God were standing around just then, he provoked much laughter. Why, did he get lost? said one. Did he lose his way like a child? said another. Or is he hiing? Is he afraid of us? Has he gone on a voyage? or emigrated? Thus they yelled and laughed. The madman jumped into their midst and perced them with his glances.
“Whither is God” he cried. “I shall tell you. We have killed him—you and I. All of us are his murders. But how have we done this? How were we able to drink up the sea? Who gave us the sponge to wipe away the entire horizon? What did we do when we unchained this earth from its sun? Whither is it moving now? Away from all suns? Are we not plunging continually? Backward, sideward, forward, in all directions? Is there any up or down left? Are we not straying as through an infinite nothing? Do we not feel the cold of empty spacce? Has it not become colder? is not night and more night coming on all the while? Must not lanterns be lit in the morning? Do we not yet hear anything of the noise of the gravediggers who are buring God? Do we not smell anything yet of God’s decomposition? Gods tooo decompose? God is dead. God remains dead. and we have killed him. How shall we, the murders of all murders, comfort ourselves? What was holiest and most powerful of all the world has yet owned has bled to death under our knives....
{The Gay Science, #125}

From my own perspective Nietzsche’s parable expresses two profound realities about contemporary Christendom. First, the beliefs and practices of many Christians are quite shallow, reflecting a religiosity propounded on Sunday which is largely divorced from everday life. Furthermore, those who do ‘apply’ their Christianity to the workplace, politics, and the secular world seem inordinately conscious of their own supposed morality. Secondly, Christianity as a live option simply does not exist for a large part of the Western world (Whether they have a different faith or have more secular beliefs). This is particularly true in many intellectual circles. I belive that the work of Dietrich Bonhoffer is particularly germane here. Bonhoffer believed that that the Christian gospel had been so mangled by Western Christendom that, for many, many souls and during the present era, at least, the question of whether one was a Christian—even for those in so-called ‘Christian’ lands—was not an important spiritual issue.
For Christians who are familiar with spiritual history there is nothing unusally new here. Centuries ago, the medieval Christian Meister Eckhart wrote about the “God beyond God”— Eckhart’s term for his belief that God’s reality was always beyond his or any other believer’s capacity to comprehend and that God’s activity procedes quite apart from and independent the ken of the ‘faithful.’
For non-Christians of any sort, this particular essay is not an attempt to persuade you of the reality of God (e.g., this is not a Chritian ‘apology’). The author is not concerned primarily with what the reader believes to be the most important ethical, philosophical or religious realities of his or her life. To be true to your own self and to be as honest with yourself as possible is, I think, a primary ethical and metaphysical standard independent of religious and metaphysical beliefs and faiths. Where that leads the reader is for the reader to discover.


Query IX. Who was Jesus (Ecce Homo-I)?

#9 In truth, there was only one Christian, and he died on the Cross.
(Antichrist, section 39)

“Im grunde gab es nur Einen Christen, und er starb am Kreuz.”


This statement always reminds me of Pascal’s statement:

“Jesus Christ will be in agony until the end of the world.”

Both statements remind us of the stark differences between the life of Jesus and his teachings as compared to the frequent spiritual mediocrity and hypocrisy of so much of Christendom. To be sure, in the statement above Nietzsche himself was not praising Jesus as much as he was damning Paul. Nietzsche thought Jesus was noble, but misguided — and thought Paul’s message was utterly contemptible. However, it is characteristic of Nietzsche's language that his language is suggestive even for those who disagree with him [In this case: me!!.]
For myself, I am content to say that for me Jesus is the primary human exemplar of how a human being should live. I also believe that the disciple’s experienced of a returning (“resurrected’) presence after Jesus’s crucifixion, the Pentecostal experience of the apostles and other early Christians, and Paul’s conversion on the road to Damascus were, in fact, revelatory experiences (i.e., I do not believe these were delusional experiences). However, I do not pretend to know how literally true one should deem the Biblical accounts of these events. The written accounts seem to have been written years and decades later— the extent to which they were either first hand, second hand or third hand accounts is unclear to me. These then are my ‘Christian’ beliefs -- their origin is mediated (1) by childhood in which gospel stories about Jesus were told and expounded in both church and school and (2) by own life experiences. If I were brought up on stories about Buddha or if I were raised on a different planet, I’m sure my beliefs about exemplars and incarnations would be different. However, I have only vague ideas about how such beliefs would be different.
The reader may have impatiently discovered that I have not given a detailed answer to the original question (‘Who was Jesus?’). I am not being particularly reticent. The point is that for the reader to answer such a question the reader needs to make his or her own inquiries. The obvious point is that one can certainly consult the Gospels. For some people this has always been and continues to be a life-changing experience. Others might also be interested in scholarship about the historical Jesus. It appears that the accounts of Jesus were not gathered into a significant corpus for several decades — and it also appears that, strictly speaking, none of these accounts is a (completely) historically literal accounts. It seems reasonable to believe that many words of Jesus’s words are faithful paraphrases - and some perhaps are literally accurate. Some of the miracle stories seem to be later additions. In particular the Gospel of John was not primarily a literal accounts, but a theological account. There, of course, continue to be accounts of ‘personal encounters’ with Christ. Needless to say, absent some personal involvement for most of us our receptivity to such accounts is colored by our own worldview.

Continuing in this vein, the Gospel of John is not a literal account of Jesus’s. While one may believe — and I do— that historical deeds are found therein, the Gospel of John is primarily a philosophical meditation on the meaning of Jesus’s life. The words which John attributes to Jesus reflect John’s own view that Jesus was the definitive incarnation of the divine will revealing knowledge need for salvation. My own view is that many of these ideas are particularly useful for Christians and are consistent with the actual meaning of Jesus’s life. But, many of the teachings attributed to Jesus were not actually spoken by Jesus - they were almost certainly written by ‘John’ or a disciple of John. I certainly do not believe that Jesus went around saying:

“I am the logos. I am the Divine Son. I and the Father are ONE. Now, stop what you are doing. Record and memorize these novel gnostic phrases — and you will live 1,0000,000,000,000,000,000,000,000,000 plus years.”

Rather, I think the authors of Mark, Luke, and Matthew got it right — Jesus was a master of parable, parabola, and cutting clarity.


Query X. What is Christianity (from Paul forward)??

As cited above, Nietzche believed that our ideas about Christianity were fundamentally the product of Paul’s interpretation of Jesus’s life—and represented a mischaracterization of both the life and teachings of Jesus. Of course, fundamental to assessing Paul’s importance is one’s perspective whether Paul’s vision of Christ on the road to Damascus was an actual or delusional event? In my own view neither traditional literal Christian accounts nor Nietzsche’s polemical account of Paul are particularly helpful. In lieu of a complete discussion, for now I would prefer to stipulate that Paul’s message does not consistently reach the standard of Jesus’s work. I personally find that Paul’s paean on the importance of love (Chapter 13 of 1 Corinthinans) one of the most important messages in the Bible and in the whole of western literature. On the other hand, some of his advice about citizenship, sexuality, and obedience are more obviously limited by the particular circumstances of his day than the more penetrating comments of Jesus himself.
The common premise of most Christians has been that the life of Jesus of Nazareth was the embodiment of how a human being should live. Most Christians also believe that after the crucifixion he appeared before his followers, enjoining them to spread the ‘gospel.’ If Christians believe that the purported “Resurrection’ is an essential component of that gospel, then I believe that unless they also incorporate the wisdom and love of Jesus into their own lives — their ‘evangelical’ messages will deserve the scorn of ‘the world.’


Query XI. When does it end? [Eternity, Salvation, Judgment...]

To anticipate the themes of this section, it is important to realize that for both Jesus and Nietzsche, the “end” is always near!! In both Jesus and Nietzsche ‘eternity’ is not so much a very, very, very long time, but an important (and usually overlooked) dimension of our existence. We begin our discussion with “The Kingdom of Heaven” — and then move on to the issues of ‘Salvation and Judgment” as well as some pernicious Christian ideas about ‘Hell.’

Nietzche emphasizes that Jesus’s Kingom of heaven is a spiritual place. Indeed, the two short quotes above cound be read as a gloss on a short passage from Luke:

#11a The Kingdom of God is in you.
(Antichrist,#29)
Das Reiches Gottes ist in euch! (AC, 29)

This is the final sentence of a psychological portrait by Nietzsche of the ‘Redeemer’ [Jesus]. Just above this sentence we find:

“What are the ‘glad tidings’? True life, eternal life, has been found— it is not promised, it is here, it is in you: as a living in love, in love without subtraction and exclusion, without regard for station. Everyone is the child of God...”
(Antichrist,#29)

#11b The Kingdom of Heaven is a condition of the heart.
(The Will to Power, II, 161)

“Das ‘Himmelreich’ is ein zustand des Herzens.” (WM, II, 161.)

Here we have the first sentence of another sketch of Jesus from The Will to Power:

“The Kingdom of Heaven is a condition of the heart (—it is said of children ‘for theirs is the Kingdom of Heaven’): Not something ‘above the earth.’ The Kingdom of God does not ‘come’ chronologically-historically, on a certain day in the calendar, something that might be one day but not the day before: it is an ‘inward change of the individual,’ something that comes at every moment and at every moment has not yet arrived—”
(The Will to Power, II, 161)

Thus Nietzche emphasizes that Jesus’s Kingom of Heaven is a spiritual place. Indeed, the two passages above cound be read as a gloss on a short passage from Luke:

”The kingdom of God cometh not with observation. Neither shall they say, Lo here! or, lo there! For, behold, the Kingdom of God is within you.”
Luke 17:20,21, KJV

If anything, Nietzche’s comments are even closer to Luther’s translation, the translation most familiar to Nietzsche:

”Das Reich Gottes kommt nicht so, dass man’s beobachten kann; man wird auch nicht sagen: Siehe, hier is es! Oder: Da is es!. Denn siehe, das Reiches Gottes ist mitten unter euch.”
Lukas 17:20-21
Suffice it to say here that the above comments by Nietzsche are not outside the bounds of contemporary scholarship.

Beyond the above remarks, there are other intriguing issues about early Christianity which are important for many interested students and observers. It seems quite clear that many of the earliest Christians thought that ‘The End of the Wolrd’ was coming soon—perhaps in their own lifetimes. Albert Schweitzer argued persuasively in his Quest for the Historical Jesus (1911) that this was probably because Jesus himself believed that a final and cataclysmic Judgment was to be expected within a few years or decades. While this opinion is not unanimous among scholars, it appears to me to be the most straightforward interpretation of the texts that we have.
Again, we have tackled some issues which are beyond our powers to resolve. Belief in a “Paradise’, ‘Heaven’ or ‘Nirvana’ is of course common thoughout the world; and doubters in any form of ‘afterlife’ are quite common as well. I was myself personally surprised when I discovered that the great theologian, Paul Tillich, had no firm belief in an afterlife. It is quite true that others besides the early Christians believe that they have had communications with the dead. Most of us, however, have not had such communications. So, I personally cannot hope to resolve such issues to the satisfaction of the averge reader. My only comment is the following:

Love is more real than death. (LCHj)

Following the discussion in Query VII, this is more a statement of ‘faith’ than of ‘belief.’ I might say more, but in truth I cannot adequately articulate the source of my stance. I can only hope that I will be faithful to its intent.


Query XIb. How does it end? [Personal reflections on the supposed Fires of Hell]

“God gave Noah the rainbow sign. No more water—but fire—next time!!"
[words from an African American ‘Spiritual’]

Most Christians believe that with the establishment of God’s Kingdom—whenever that might happen—there will be a ‘Judgment.’ Indeed, some will tell you, there will be a final and definitive judgment. Furthermore, some who call themselves Christians will provide you with detailed particular. Such interpreters of Christian belief often rely particularly upon The Apocalypse of John (or “Revelation”), the last book of the New Testament. A caveat: among those who claim to ‘believe’ in the sacred nature of the entire Christian Canon—there are those who are quite reluctant and sparing in describing, discussing, or predicitng the ‘end of days.’ So some of the beliefs and attitudes I am going to discuss below, criticize, and even condemn below are not necessarily held by Christians who are either literal and/or conservative in their beliefs.

For the purposes of my discussion, it is important to make a distinction. It is quite clear that human beings frequently suffer from the consequences of their own actions, actions which have involved their willing participation. Put somewhat crudely:

“Those who live by the sword, die by the sword.”

I use the term ‘crudely’ because there is almost never a one-to-one correspondence between actions, —good, neutral, or evil— and their consequences. Furthermore, life also presents most of us with a complex tableau of both unearned joy and unearned misery. In some cases, we may feel so terrible and guilty about particular deeds that we might experience some kind of ‘Hell on earth.’ However, in the normal scheme, one can assign only a sketchy mixture of personal, societal, or natural causation to whatever good or evil we experience. It is, I believe, a form of madness to expect anything other than partial success from this kind of (usually) speculative analysis.

In this context, many humans with religious beliefs do indeed think that there will eventually be a truly final, fair, just and definitive judgment. Many Christians believe that there is a coming ‘Kingdom of God.’ Given the diversity of human souls upon the planet, it is not surprising that issues of certainty, mercy and forgiveness incorporated into these discussions and speculations vary considerably. Some Jews and almost all atheists do not believe in an ‘afterlife’ — and by definition do not believe in a final judgment in the above sense. To an outsider such as myself, much of Islam seems to be just as judgmental as the most judgmental of Christians. However, we have all heard Muslims state that “Allah is merciful.”

Again, however, in this essay I do not wish to speculate personally about ‘God’s Coming Kingdom.” Rather, I wish to discuss the beliefs and attitudes articulated by some Christians who declare that Christianity reveals the way to obtain eternal salvation and to avoid the hell fire of everlasting damnation. Occasionally,they even declare that it reveals that their particular Christian beliefs are necessary to obtain eternal salvation and to avoid the hell fire of everlasting damnation. I believe that it is clear that several authors of the New Testament shared this belief. This belief is most notoriously present in The Apocalypse of John. This book was apparently written during a period when many early Christians faced torments, tortures, and executions as horrendous as those which faced 20th Century German Jews in Dachau and Buchenwald. These circumstances help us to understand the vindictive tone which permeates John’s message, resulting in a book which is singularly lacking in either Christian charity or non-Christian charity. Furthermore, these vengeful beliefs are in the main countrary to the recorded teachings of Jesus on those subjects and absolutely contrary to the deeper meaning of the gospel of God’s love.

The belief that God will punish sinners with a ‘Hell” of everlasting fire and ceaseless torments for their misdeeds upon this planet is not only a foolish idea unworthy of any human being — believer or no — it is a blasphemous idea rooted in the very vengefulness that genuine prophets, mystics, and teachers have always tried to lift us above and beyond. To give us a specific example: The idea that, say, Nero, Ghengis Khan, or Adolf Hitler should have to suffer a trillion, trillion years for each minute of pain that he gave to each of the victims of their reigns is but a petty and foolish fable of revenge, a fable which only moves human beings backwards and down and does nothing to lead us forward.

Let me be clear. I have no factual knowledge about life after death — if such life exists. My own faith tells me that such life is not impossible, but I know of no tablets of gold in the public market place where such information is available. I do speculate on such matters. Indeed, I sometimes speculate that each of us might experience a spiritually painful and purgative journey of purification if some ‘day’ we were to pass on to the ‘other side’ of this very brief visible life which we live and experience on the planet earth. Speculation aside, however, there is nothing Christian about dreaming up schemes of divine revenge for any other human being.

Having made my own beliefs clear, it may be instructive to look at some of the texts in the New Testament which address such issues. As the notion of ‘Hell’ is found in many places, I will first discuss some passages about love which I find most helpful to my own understanding — and then discuss a small selection of interesting of often cited passage about God’s judgment.

In the “Sermon on the Mount” we hear that Jesus taught:

“Love your enemies and pray for your persecutors; only so can you be chidren of your heavenly Father, who makes his son rise on good and bad alike, and sends the rain on the honest and dishonest.” (Matthew 5:45-46.”

Similarly, we read in Paul’s “Letter to the Romans” that:

“It was through one man [Adam] that sin entered the world, and through sin death...
But God’s act of grace is out of all proportion to Adam’s wrongdoing. For if one man brought death upon so many, its effect is vastly exceeded by the grace of God and the gift that came to so many by the grace of one man, Jesus Christ...
It follows, then , that as the issue of one misdeed was condemnation for all men, so the issue of just one act is acquital and life for all men.” [Boldface mine.] (Romans 5:12,15,18.

The clear implication of these passages is that nothing can separate us from the love of God. I add that this means that nothing that any of us— ‘believer’ or ‘nonbeliever’— do or will can permanently separate us from the love of God. If there is a Divine Judgment, we can trust that any justice or purgatory or excruciatingly painful self-knowledge is under the dominion of God’s Love.
Now to be sure, according to the Biblical texts, Jesus frequently refers to God’s Judgment — explicit references to fiery punishments and a place called ‘Gehenna’ [usually translated as ‘Hell’]. In the book of Matthew these references are particularly prominent. One of the most cited passages is the parable of the the Sheep and the Goats [Matthew 25:31-46]. While there are those who believe that Jesus believed in a literal hell fire, I think — consistent with Jesus’s frequent use of hyperbole — the parable of the Sheep and the Goats is much better understood as a condemnation of hypocrisy than as a literal description of the final judgments of God. In the parable, The righteous ‘sheep’ are surprised that they are to be rewarded while the wicked ‘goats’ are surprised that they are to be punished. The whole point of the parable is that those who were looking to prove to others and to themselves their own righteousness ignored the crucial needs of their fellow humans. Contrawise, those who tended to the crucial needs of their fellow humans were unaware that their righteousness was anything unusual or particularly praiseworthy. I personally think that Jesus was indeed a master of the layout of the human heart. However, I do not think that — while he was yet alive — that he could precisely foresee the geography of a putative postlife realm.

XII. Who was Nietzsche (Ecce Homo-II)??

“Ecce Homo!” John 19:5 [Latin Vulgate]
“Behold the Man!”John 19:5 [KJB]

In 1888 Nietzsche finished writing the polemical Der Antichrist (The Anti-Christian or The Anti-Christian) and, a few months later, the autobiographical Ecce Homo. The title of both books suggest that Nietzsche viewed himself as a worthy antagonist of Jesus of Nazareth — the man heralded as the Messiah by Christians and honored as a prophet by a number of Muslims and Jews. As the reader realizes by now, this author does not hold Nietzsche in quite such high esteem as Nietzsche’s own self-laudatory statements invited his readers to do. When all is said and done, however, Nietzsche’s life and work were infused with some ‘all-too-human’ weakness as well as some marvellous gifts and some very real, if inconsistent, personal triumphs. Walter Kaufmann’s seminal book— seminal for English readers at least — was entitled Nietzsche: Philosopher, Psychologist, Antichrist. Freud was among the first of many who have praised Nietzsche’s psychological and psychoanalytical insight. Both Martin Heidegger were among the first of a growing number who see Nietzsche as the most important philosopher since Plato. His poetry, tho limited in its total output and impossible to fully translate, is frequently recognized as splendid indeed. Knowing the moods of his poetry makes it easier for the reader to overcome some of the unconscious emotional resistance to understanding his ideas. (Knowing where someone is coming from doesn’t make his ideas correct, but it does help to understand their essential drift. Some have viewed his premonitions of the coming twentieth century catastrophic convulsions of European nationalism and militarism as being prophetic. I would say more. I think that Nietzsche is quite properly called a prophet. To be sure, at some fundamental level, Nietzsche rejected his calling — but he remains a prophet nevertheless. The reason that Nietzsche deeply influenced such recognized religious thinkers as Paul Tillich and Martin Buber and such artists as Thomas Mann is that he constantly addressed spiritual questions and issues. He has presented a medley of important ideas about language, art, and philosophy — and his work remains an important and needed challenge to those that believe that the pursuit of truth is a sine qua non for the religious life.

Our discussion may appear to have a somewhat wandering focus. In some cases, we have observed similarities between Nietzsche’s words and various Christian texts while in other cases, we have discussed differences between Nietzsche’s words and various Christian texts and ideas. In a few cases, the author has explored issues prompted by Nietszche’s work — but with minimal reference to Nietzsche’s own ideas or to traditional Christian teachings. It seems appropriate to let Nietzsche have the last word. The following passage may surprise some readers, but — as Nietzsche readers know well — when Nietzsche was not involved in the ‘heat of philosophical battles’ he would make some unexpected ‘concessions’.

#12. “How we too are still pious”

“...But you will have gathered what I am driving at, namely tht it is still a metaphysical faith upon which our faith in science rests—that even we seekers after knowledge today, we godless anti-metaphysicians still take our fire, too, from the flames lit by a faith that is thousands of years old, that Christian faith which was also the faith of Plato, that God is truth, that truth is divine...”
[Gay Science, #344]

Personal Afterword

At home in 1958 after having completed my first year of college, I chanced to find - among the books that once had belonged to my great grandfather - a small Everyman’s Library book entitled Thus Spoke Zarathustra written by one Friedrich Wilhelm Nietzsche in the early 1880’s. I soon became enthralled by Nietzsche’s strange new ideas about the “Death of God” and the atheistic injunctions to “Be true to the Earth!” promulgated by the prophet Zarathustra in a pithy aphoristic, almost Biblical style. A couple of weeks later weeks later I bought a Modern Library book with five works by Nietzsche. Over the next six years, especially, I read as much as I could read by Nietzsche - several books in translations from the early 1900’s by Oscar Levy, plus a few books in new translations by Walter Kaufmann. I even made some beginning efforts to read Nietzsche in German. During this time Walter Kaufmann’s writings about Nietzsche were also quite helpful in helping me to assimilate Nietzsche’s central ideas from the heady mix of language, ideas, and striking (and sometimes reckless) hyperbole which characterize Nietzsche’s writings. During the next four decades of my life I have read a considerable number of books by and about Nietzsche, but not usually with the same intensity and preoccupation.

During that same 1958 summer, however, only a few weeks after discovering Nietzsche I had a very powerful event in which I experienced the overpowering presence of What-or-Whom I could and can only call ‘God.’ As far as I can tell similar experiences have lead others to speak of “Jawveh’, ‘Allah’, ‘Zeus’, ‘I-am-that-I-am’, esse ipsum, and other such terms. This experience ended my own brief couple of years of ‘disbelief’ or ‘atheism.’ While hopefully my experience may have helped me to be a better person than I might otherwise have been, I want to stipulate ab initio that it did not make me a “good person” and especially not a “good person better than others who do not share my beliefs.” Beyond the mostly personal issues, however, my own life experiences and my philosophical, theological, and historical study have also shown me that some of the greatest evils in human history have been committed in the name of ‘God,’ ‘Jawveh,’ and ‘Allah.’ In countless instances these and other such terms referring to an Almighty Deity have been but words used to camouflage crimes and hypocrisy.

Furthermore, during those years and and in subsequent decades it has seemed to me that, some of the most telling and truthful criticisms of religious hypocrisy in Western Civilization — particularly in the last two centuries — has come from skeptics and atheists. One can list many examples of important secular critics of religious practice, but near the top of any list would be Friedrich Wilhelm Nietzsche. So, by the early 1960’s I began to conceive that eventually I might write a book or more addressing the theme of what serious Christian believers could learn from some of Christianity’s most severe critics such as Nietzsche. I would, I thought, personally explore some of the implications of the theologian Karl Barth’s statement to the effect that:

“It was the church and not the ‘world’ which crucified Christ.”

My own life, however, has not unfolded as I had thought it might have done with regard to these early aspirations. During the past four decades plus I have wandered about both geographically and spiritually, spent several years in the Peace and Freedom movements of the sixties, intermittently returned to school to pursue various degrees, and have been a teacher for well over three decades. However, in December 2005 I retired from fulltime work and in May 2007 I handed in my very last grades.

Now freed from vocational pressures I have recently returned to the serious study of Nietzsche with particular attention to his particular importance for Christians. It now seems quite certain that I will never write a full book on Nietzsche and Christianity. Whatever I do, I will certainly never write anything particularly scholarly about Nietzsche — during the past half century the amount of writing about Nietzsche has exploded and my own originally modest foreign language learning skills are fading with age. Still, during the past century there have been only a few efforts to incorporate Nietzsche into the consciousness of thoughtful Christianity - and that which has been done is not always easily obtained [The Bibliography has a few examples.]. In this context, then, it is just possible that these reflections might constitute a modest, but useful contribution.

A POSTPONED INTRODUCTION

A ‘breviary’ is usually an epitome, a selection of quotations, Biblical verses, or brief writings which contain distilled highlites from some book, author, or topic deemed important by the collection’s editor. In contemporary usage a breviary usually refers to a religiously motivated selection useful for prayer or meditation. The role of the editor is usually limited and unobtrusive; he or she has selected the best fruit for those times when the reader does not have time to view the whole tree. Thus the collection is usually thematically bound by a mutual perspective and purpose shared by editor and reader.

In this case, however, I do not presuppose that the reader believes that there is a deep and genuine connection between the writings of Friedrich Wilhelm Nietzsche and the reported words of Jesus of Nazareth and other religious quotations cited below. As is well known Nietzsche was a passionately atheistic philosopher who rejected most religious beliefs and who especially rejected most Christian beliefs. In his Thus Spoke Zarathustra he proclaimed the “Death of God” and exhorted his listeners to be ‘true to the earth.’ His book Der Antichrist contains one of the most impassioned polemics against Christianity ever written. The ambiguous title is usually translated as The Antichrist, but is perhaps more aptly translated as The Anitichristian. In Der Antichrist Nietzsche disagreed with most of Jesus’s ideas and values as he understood them (altho he clearly admired Jesus’s life). More pointedly, however, in this book he utterly rejected the messages of Paul and the other authors of the Christian New Testament. Furthermore, in this and other works he frequently and pointedly criticized other famous Christians such as Tertullian, Luther, and Pascal.

Still, in spite of the striking and obvious dissonances in the lives and words of Jesus and Nietzsche, I have also found that underneath these dissonances there are some deep and instructive similarities and connections in both the words and spiritual interests of these two men. For one, both men frequently used hyperbole and very striking metaphors to express their most important thoughts. Both of them appeared to have thought that genuinely important or spiritual matters could not be expressed in strictly literal terms. Secondly, both men had a hatred for hypocrisy. To be sure, as I read the gospels, Jesus was also marked by a humility that was usually sorely absent in Nietzsche’s work. Furthermore, in the records that we have Jesus’s penchant for metaphor and parable was often limited by the context in which he was speaking. On the other hand some of Nietzsche’s more immoderate and even reckless use of hyperbole almost invites misinterpretation. This strikes me as being particularly true in those works written just before his January 1889 collapse and descent into madness.

In sum, this editor will examine some striking or interesting phrases by Nietzsche and relate them to some well known words attributed to Jesus and to various Christians. Some interspersed commentary will be needed as the spiritual similarities of interest are are neither obvious nor complete.

A final caveat. In this work I am not trying to defend, correct, or refute Nietzsche’s ideas. Furthermore, when I cite Nietzsche’s words I am not even trying to interpret his words as he understood them. Nietzsche frequently wrote in a style which suggested multiple or even contradictory interpretations. What I am saying is that his words readily lend themselves to certain concerns and thoughts that I can only deem as spiritual concerns. Furthermore, I believe that these concerns should be important to those who believe that Jesus of Nazareth was one of the best — if not the best — exemplar of human life on record. And, whether the reader agrees with me on either of these issues, I hope this effort makes it clear that Nietzsche’s thought was not antipodal to some very important religious and spiritual concerns which have been expressed thru the ages.

A Further Note for the more scholarly inclined.

In the work I do not give serious attention to Nietzsche’s disdain for liberal democratic theory, his occasional praise of cruelty, or his sometimes rigid notions of sexual ‘roles.’ His ideas on these subjects are frequently neither substantial nor helpful in furthering philosophical and ethical inquiry. Why Nietzsche held or expressed these views is psychologically quite interesting, but cannot be done justice in such a short piece as this.


Aphorisms List

0a. “...; for the children of this world are in their generation wiser than the children of light.” Luke 16:18, King James Bible (KJB)
“...; for the worldly are more astute than the other-worldly in dealing with their own kind.” Luke 16:18, New English Bible (NEB).
0b. It was the church and not the ‘world’ which crucified Christ. (Karl Barth, paraphrased from his Epistle to the Romans.)
#1-0. I, who cannot fly, must reach the distant mountains!! [LCHj]
#1a “Man is a rope, tied between the beast and the overman — a rope over an abyss.” (FWN)
#1b “Life must overcome itself again and again.” (FWN)
#1c “But it is with Man as it is with the tree. The more he aspires to the height and the light, the more strongly do his roots strive earthward, downward, into the dark, the deep — into evil.” (FWN)
#1d You should love peace as a means to new wars—and the short peace more than the long.” (FWN)
#1e You must not think I have come to bring peace on earth; I have not come to bring not peace, but a sword. (Jesus)
#1f. “Jesus said: I have cast fire upon the world, and look, I’m guarding it until it blazes”
#5 That which doesn’t destroy or kill me, makes me stronger. (FWN)
#6 Spirit is the life that itself cuts into life. (FWN)
#7a Whatever is done from love occurs beyond good and evil. (FWN)
#7b Jesus said to his Jews: “The law was for servants—love God as I love him, as his son! What are morals to us sons of God! (FWN)
#7c The written law condemns to death, but the spirit gives life. (Paul)
#8—10 Truth is the lie which serves us best! (Nietzschean)
#8a Alas for you lawyers and Pharisees, hypocrites! You are like tombs covered with whitewash; they look well from the outside, but inside they are full of dead men’s bones and all kinds of filth. (Jesus)
#8b Either make the tree good and its fruit good, or make the tree bad and its fruit bad; you can tell a tree by its fruit. (Jesus)
#9a Every word is a preconceived judgment. (FWN)
#10a What are mankind’s truths. They are the irrefutable errors of man. (FWN)
#10b Insanity in something individuals is rare - but in groups, nations, and epochs it is the rule. (FWN)
#4. One repays a teacher poorly if one always remains a pupil. (FWN)
#11a “Faith” means not wanting to know the truth! (FWN)
#11b God fully intends for Heretics and Atheists to be a thorn in the side of religious hypocrites. (LCHj)
#12a The Kingdom of God is in you. (FWN)
#12b The Kingdom of Heaven is a condition of the heart. (FWN)
#12c ”The kingdom of God cometh not with observation. Neither shall they say, Lo here! or, lo there! For, behold, the Kingdom of God is within you.” (Jesus)
#13a In truth, there was only one Christian, and he died on the Cross. (FWN)
#13b “Jesus Christ will be in agony until the end of the world.” (Pascal)



“Alas for you lawyers and Pharisees, hypocrites! You are like tombs covered with whitewash; they look well from the outside, but inside they are full of dead men’s bones and all kinds of filth.” (Jesus)

“...; for the children of this world are in their generation wiser than the children of light.” Luke 16:18, King James Bible (KJB)
“...; for the worldly are more astute than the other-worldly in dealing with their own kind.” Luke 16:18, New English Bible (NEB).
I. Nietzsche's Wörter

I. Aphorisms by Nietzsche and others
#1a “Man is a rope, tied between the beast and the overman —
a rope over an abyss.” (Zarathustra, Prologue, section 4)

“Der Mensch is ein Seil, geknüpft zwischen Tier und Ubermensch — ein Seil über einem Abgrunde.” (Z, forword, 4.)

“For thou hast made him a little lower than the angels.” Psalm #8: 5, King James Version.

#1b “Life must overcome itself again and again.” [Zarathustra, II, On The Tarantulas.]

#2 “But it is with Man as it is with the tree. The more he aspires to the height and the light, the more strongly do his roots strive earthward, downward, into the dark, the deep — into evil.” (Zarathustra, part I, On the Tree on the Mountainside)

“Aber es ist mit dem Mensch wie mit dem Baum. Je mehr er hinauf in die Höhe und hell will, um so stärker streben sein Wurzeln erdwärts, abwärts, in Dunkle, Tiefe — ins Böse.” (Z, section I, Vom Baum am Berge.)

#3 “You should love peace as a means to new wars—and the short peace more than the long.” (Zarathustra, I, On War and Warriors.)

“Ihr sollt den Frieden lieben als Mittel zu neuen Kriegen. Und den Kurzen mehr als den langen” (Z, I, Von Krieg und Kriesvolke.)

“Love your enemies and pray for your persecuters.” Matthew 5:44
“You must not think I have come to bring peace on earth; I have not come to bring not peace, but a sword. I have come to set a man against his father, a daughter against her mother, a son’s wife against her mother-in-law; and a man will find his enemies under his own roof” [Matthew 10:34-36].
“Jesus said: I have cast fire upon the world, and look, I’m guarding it until it blazes” [Thomas #10 in the Five Gospels].

#4 One repays a teacher poorly if one always remains a pupil. [Z, I, On the Gift-giving Virtue.]

“Man vergilt einem Lehrer schlect, wenn man immer nur der Schüler bleibt. Und waru wollt ihr nicht an meinem Kranze rupfen.” (Z, I, Von der schenkenden Tugend, part 3.)

“...das Leben sich immer wieder selber überwenden muss!” (Z, II, Von den Taranteln.)


“...das der Mensch eine Brücke sei un kein Zweck” (Z, III, Von alten und neuen Tafeln, section 3.)


“Was aus Liebe getan wird, gechieht immer jenseits von Gut und Böse” (JGB, IV, #153.)

“Was mich nicht umbring, macht mich stärker.” (GD, I, 4.)

“Das ‘Himmelreich’ is ein zustand des Herzens.” (WM, I, 4.)



Nietzsche’s Actual Words

#4
One repays a teacher poorly if one always remains a pupil. [Z, I, On the Gift-giving Virtue.]

“Man vergilt einem Lehrer schlect, wenn man immer nur der Schüler bleibt.” (Z, I, Von der schenkenden Tugend, part 3.)

#5
Spirit is the life that itself cuts into life: with its own agony it increases its own knowledge. [Z, II, On the Famous Wise Men.]

“Geist ist das leben, das selber ins Leben schneidet; an de eignen Qual mehrt es das eigne Wissen.” (Z, II, Von den berühmten Weisen.)
#6
Whatever is done from love occurs beyond good and evil. (Beyond Good and Evil, part 4, epigrams and interludes, #153)

“Was aus Liebe getan wird, geschieht immer jenseits von Gut und Böse.” (JGB, IV, #153.)

#7
Insanity in individuals is something rare - but in groups, parties, nations, and epochs it is the rule.
Madness is rare in individuals—but in groups, parties, nations, and ages it is the rule. (BYGE, part 4, epigrams and interludes, #156 [WK])
“Was aus Liebe getan wird, geschieht immer jenseits von Gut und Böse.” (JGB, IV, #153.)

Bibliographical Conventions and Bibliography

I have cited Walter Kaufmann’s translations of Nietzsche whenever available. Most of the translations are found in the Viking Portable Nietzsche (VPN) and Basic Writings of Friedrich Nietzsche (BWFN ). I have also provided the actual German words in those instances when I have been able to locate them. See both the Aphorism and Sayings List [above] and Bibliography [below] for more details.

The translations chosen for Jesus’s words are less consistent. Translations such as The New English Bible [1961] and the even more recent The Five Gospels [1993] correspond much more directly to the modern manner of speech than the four century old King James Bible [KJB]. On the other hand the King James Bible has a literary resonance that I still find irresistible at times. I hope the reader will not take it too much amiss that I will sometimes use the older translation and sometimes use newer translations.

Perhaps a more important issue is the question of determining Jesus’s actual words. My own approach is to utilize only those Biblical texts which strike me as a faithful paraphrase (if not the actual words) of Jesus’s teachings, teachings worthy of serious consideration. I do not speak here as a scholar, but as a moderately informed amateur who trys to write from the heart.


Deutsche Bibliographie

Friedrich Wilhelm Nietzsche (1882;1887). Die Fröhliche Wissenschaft. Anaconda Verlag: Köln.
Friedrich Wilhelm Nietzsche (1883). Also Sprach Zarathustra: Ein Buch für alle und keinen in Friedrich Nietzsche: Also Sprach Zarathustra. Goldmann Klassiker: München. 269 pages.
Friedrich Wilhelm Nietzsche (1885). Jenseits von Gut und Böse.
Friedrich Wilhelm Nietzsche (1888). Götzendämmerung.
Friedrich Wilhelm Nietzsche (1895; 2003). Der Antichrist in “Friedrich Nietzsche: Der Antichrist, Ecce Homo, Dionysus-Dithyramben”. Goldmann Klassiker: München. 213 pages. (Written in1888, but first published in 1895).
Friedrich Wilhelm Nietzsche [Post-Humous; 1901, 1904, 1911]. Der Will zur Macht. [Published post-humously from Nietzsche's notes.]
Friedrich Nietzsche (1987). Brevier. [Wolfgang Kraus, Editor]. Diogenes Verlag: München. 151 pages.

English Bibliography

Walter Kaufmann, Editor &Translator (1954). The Portable Nietzsche. The Viking Press: New York. 687 pages.

Walter Kaufmann (1974). Nietzsche: Philosopher, Psychologist, Antichrist (4/e). Princeton University Press: Princeton. 532 pages.

Friedrich Wilhelm Nietzsche (1969). Basic Writings of Friedrich Nietzsche. Walter Kaufmann, Editor &Translator. The Modern Library: New York. 845 pages.

Christians (1966). Good News for Modern Men: The New Testament in Today’s English [Robert G. Bracher, Translator]. American Bible Society: New York. 601 pages.

_____ (1961). The New English Bible. Oxford University Press: New York. 447 pages. [NEB]

Table of Contents:The Unjust Judge (Antonin Scalia)

TABLE OF CONTENTS: IMMORAL MAXIMS OF AN UNJUST JUDGE
SUBSTANTIVE ARGUMENT WITH RHETORICAL COLOR ADDRESSING SOME OVERPRAISED REMARKS OF JUSTICE ANTONIN SCALIA
[1st Postings (June 27, 2010)]

PRELUDE
1. THE COVENANT SHORN (Divorcing the Constitution from the Declaration of Independence)
2. THE OATH AND THE MAN: DUTY DEPRECATED
3. THE TEXT OF THE CHARTER: HONOR OR MUMMIFICATION
4. THE FOUNDER'S CONSTITUTION AND OUR CONSTITUTION (A less polemical Interlude)
5. 5th & 14th AMENDMENT: DUE PROCESS (Formal Procedures versus Duty, Substance, and Reality)
6. 1st AMENDMENT: THE ESTABLISHMENT CLAUSE (Religious Freedom versus the Coveting of Preferential Treatment)
7. 1st AMENDMENT: FREE SPEECH & $POWER (Freedom of Speech, Corporate Rights, Obscenity, and the Power of Money)
8. 8th AMENDMENT: CRUELl & UNUSUAL PUNISHMENT (Rigor Mortis in Scalia’s Constitutional Prospecti)
9. 9th AMENDMENT: UNENUMERATED RIGHTS (Homosexual Sodomy and Gay Rights)
10. 5th, 8th & 14th AMENDMENTS: THE DEATH PENALTY
11. THE 14th AMENDMENT MISUSED (Bush v. Gore)
12. THE FOUNDER'S VISION & THE SCOUNDREL'S REFUGE (A decent respect for the Opinions of all Mankind...)
13. GETTYSBURG ADDRESS & CIVIL WAR AMENDMENTS (Some deeper streams of Democratic Justice.)
14. LIBERTY & THE CONSTITUTION (A Constitution whose Principles Live in the Heart of Men and Women)

FOOTNOTES
CASES CITED
BIBLIOGRAPHY: BOOKS AND ARTICLES

APPENDIX A - COMMENDATIONS FROM A JUDICIAL OPPONENT
APPENDIX B - MULTIPLE IMPLICATIONS OF WORDS IN NORMAL AND CONSTITUTIONAL DISCOURSE: A PRIMER
APPENDIX C - RATIONAL PUNISHMENT: REASON v. REVENGE (Rationales of Rehabilitation, Restitution, Retribution, Revenge...)
APPENDIX D - DEAD SPOTS IN SCALIA’S CONSTITUTION
APPENDIX E - CASUISTRY IN SCALIA’S REASONING
APPENDIX F - OPAQUE TENSIONS & STRUCTURAL CONTRADICTIONS IN SCALIA’S THOUGHT
APPENDIX G - ECCE HOMO: Behold the Man!!

For later Development:
APPENDIX R - SPECIAL FOOTNOTES (i.e. RELIGIOUS ARGUMENT [sub silentio])
APPENDIX S - SILLY SCALIAISMS
APPENDIX W - MORE GENERAL CONSIDERATIONS: BUSH v. GORE
APPENDIX X - CORPORATE $PEECH or SPEECH, MONEY, AND GREED
APPENDIX Z - FUNDAMENTAL TENSIONS AND/OR CONTRADICTIONS IN THE CONSTITUTION OF THE UNITED STATES

APPENDICES: Immoral Maxims of an Unjust Judge

IMMORAL MAXIMS OF AN UNJUST JUDGE: THE FIRST BATCH OF APPENDICES (A, B, C, D, E, F)

CONTENTS:
APPENDICES A — F
APPENDIX A: Commendations from a Judicial Opponent (3 pages)
APPENDIX B: A Linguistic Primer: Multiple Meanings of Important Words in Normal Discourse with Implications for Understanding Constitutional Discourse (10 pages)
APPENDIX C: Reason and the 4 R’s of Criminology — Rehabilitation, Restitution, Retribution, Revenge & Other Rationales of Punishment (6 pages)
APPENDIX D: Dead Spots in Antonin Scalia’s Constitution
(2 pages)
APPENDIX E: Casuistry (5 pages)
APPENDIX F: Tensions and Contradictions in Antonin Scalia’s Constitutional Views (6 pages)

FOOTNOTES (for Appendices)
CASES (for Appendices)
BIBLIOGRAPHY (for Appendices)



APPENDIX A: Commendations from a Judicial Opponent.

Giving the Devil his due...

From my own perspective, I think the opinions expressed by Justice Antonin Scalia in a number of cases are weighty and commendable and/or substantially correct or meritorious. [A-1] There are a couple of factors which make Scalia’s views in these cases particularly useful. For one, starting with the Constitutional Text and its historical, political, legal, and moral context opens up a broader field of inquiry than adhering strictly to stare decisis. Secondly, the “rights” articulated in the Constitution, particularly those in the Bill of Rights and in the Civil War Amendments, were articulated — in the main — in broad general terms which still resonate with us today. When Scalia recognizes the pertinence of these core rights in a pending case he becomes a passionate advocate for that right.

I include the following cases:

Habeas Corpus case:

In Hamdi v. Rumsfeld (2004) Scalia dissented from a contentious Court ruling which gave less than full protection to an American citizen who had been held without being charged in the Norfolk and Charleston Naval Brigs for over 2 years. Scalia noted that his opinion applied “only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court.” While Scalia — as a general rule — is very deferential to executive power in foreign policy and in (frequently) related) military actions, this was a welcome exception.

First Amendment case:

In Texas v. Johnson (1989), Scalia joined the Court in defending the right of a protester to burn the flag as an example of protected Free Speech. The Court quite properly held that the flag-burning was primarily a communicative and expressive act - rather than an act of vandalism or an immediate incitement to violence [Directed, to be sure, at a patriotic sacred cow].

Second Amendment case:

In District of Columbia v. Heller (2008), Scalia spoke for the Court in holding that the 2nd Amendment protects an individual’s right to possess a firearm in the District of Columbia. While the eloquent dissenting opinion by Stevens presented the contrary historical and precedential arguments, Scalia’s opinion is probably more in keeping with the Nation’s rough consensus that “rights” are not genuine rights if they do not have a significant individual component. Whether the Court in its ‘rightward swing” eventually ends up as a partisan arm of the National Rifle Association, however, is yet to be determined.

Fourth Amendment cases:

In Minnesota v. Carter (1998), Scalia, speaking with the Court, held that IR detector constituted an illegal search. Here, one might say, Scalia recognized the crucial and dispositive right of privacy within the home.
Likewise in Riverside v. Mclaughlin (1991) Scalia argued that leaving the presumptively innocent McLaughlin in jail for 48 hours — thus substituting ‘practical compromise’ for the clear words of the Fourth Amendment — is not ‘constitutional’. Having once spent 36 hours in a New Orleans jail on trumped up charges of “suspicious behavior” [A caucasian in the Black community], I very much appreciate Scalia’s dissent.

Sixth Amendment case:

In Maryland v Craig (1990), a case involving charges of sexual misconduct towards a minor entangled within a bitter divorce, Scalia argued that the 6th Amendment’s ‘accused shall enjoy the right... to be confronted with witnesses against him’ means exactly what it says. In his dissent Scalia argued that defendant preserve the to confront witnesses even in the admittedly difficult child molestation cases. In the atmosphere of moral panic and hysteria which frequently accompanies these cases — which have resulted in a number of innocent people receiving long sentences — a hard-nosed reality check can be crucial. Society’s predisposition to believe the worst in sexual allegations involving the weaker sex or the young is not a peculiarity of the White South of yesteryear.

Death Penalty (Amendment case):

In Ring v. Arizona (2002) Scalia concurred with a Ginsburg Court opinion which prevented a judge from applying the Death Penalty in face of a jury recommendation of mercy. Jurors are perhaps more likely to temper justice with mercy than a hardened judge who has seen too many hardened criminals to remember those who did not return to his Court because they got the message…


APPENDIX B: A LINGUISTIC PRIMER: MULTIPLE MEANINGS OF IMPORTANT WORDS IN NORMAL DISCOURSE WITH IMPLICATIONS FOR UNDERSTANDING CONSTITUTIONAL DISCOURSE.

“A word is not a crystal, transparent and unchanging, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used.” Oliver Wendell Holmes, Jr.

“The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.” Joseph Story, Martin v. Hunter's Lessee (1816).

Syllabus: We begin with the simplest words - concrete words with apparently obvious, well-defined meanings, and limited scope. We gradually proceed to address frequently significant complexities that are frequently attendant to our actual use of words (e.g., ambiguities, multivalency, indefinite range...). We will end our discussion with some attention to value-laden language — language which by its very nature is used and interpreted differently by different individuals and groups. To the extent possible, we will discuss these linguistic principles from a relatively ‘neutral’ perspective. Of course, in discussing value-laden language it is virtually impossible — if not actually — impossible to remain neutral. Here our standard is different. We will attempt to be fair — and, if not fair, at least rational. [F B-1]
As we proceed, we will refer to applications of these linguistic principles to Constitutional Discourse — discourse and argument about the United States Constitution and its meaning. We are not trying to offer a complete linguistic ‘guide’ to Constitutional Discourse. [B-2] What we are trying to do is make some common sense observations that may help us to focus on the actual issues that sometimes divide us. [B-3]

“Come, let us reason together.” [B-4]

We begin with the ‘simplest’ case — words or phrases whose meanings are clear and simple, unambiguous, and commonly understood with a single meaning, a univalent term with a specified range of application. [B-5] However, to get to several important linguistic issues which are entangled in some of the controversies involving the interpretation of the United States Constitution, it may be useful to proceed step-by-step to disentangle some of the complexities inherent in the general linguistic process before tackling the task of interpreting the Constitution itself. Before we address the complexities of Constitutional interpretation, we will first look at some of the inherent complexities of words in a more generalized, but less controversial context. This more neutral approach may make it easier to confront honestly and with less hypocrisy the genuine Constitutional conflicts that have arisen and will continue to arise under our Constitution. Anticipating our argument, then, we will slowly move from the realm of the relative unambiguity of pure and applied mathematics, to the complexities of the physical and biological sciences, and then further on to the sociological sciences and humanities. We will gradually move from words as used they are used in mathematics and the physical science — where there is almost always a consensus about the terms in use — to such disciplines as history, psychology, and sociology where the implied meaning of value-laden terms may become just one more feature of a controversy. Only after this, will we then turn to the issue of how we utilize such linguistic insight knowledge in interpreting the words of the Constitution. To be sure, the premise of this particular essay is not that the Constitution is replete with serious ambiguities at ever turn. Rather, our desire is to provide some guidance for interpreting those Constitutional phrases that have been most entangled in our most contentious political quarrels over the meaning of the Constitution.

In mathematical discourse and other settings involving only formally logical argument, it is often possible to proceed to reason using words and phrases whose previously stipulated definitions and meanings can be utilized without controversy by all parties in the discussion. To be sure, it is true that mathematicians and logicians usually subscribe to Gödel’s uncertainty principle, the logical-mathematical theorem that it is impossible to prove that the assumptions used in such formal arguments are internally consistent. [B-6] Still, as a practical matter, whether our discussion occurs in a children’s classroom or at an international conference, mathematical discourse involves the use of seemingly unambiguous terminology. [B-7] Words which are adopted by all parties to a conversation as having a single clear, straightforward, and unambiguous meaning I will refer to as “univocal” terms. [I need to adopt this technical word because I will shortly describe other terms with significantly different forms of “simple” meaning.]

Outside of Pure Mathematics with its corpus of acknowledgly ideal forms, [B-8] there are other contexts with a more immediate real world impact where we can quite frequently proceed to argument using agreed upon terms which — in the context of the conversation or ‘universe of discourse’ — are received as straightforward and unambiguous carriers of “univalent” meaning. Two important fields where one frequently may proceed to argument using univalent terminology are those of computer science and the physical sciences. Physicists, science teachers, and electrical engineers utilize common definitions for terms such as electron or photons. Indeed, in quantum mechanics we even hear that all electrons are “identical” in their fundamental properties. Likewise, there is virtually no argument among computer scientists about the meaning of the term “binary bit” as applied to computer memory. There are indeed a multitude of situations which we may speak of loosely as applied mathematics. In these contexts people utilize mathematical methods and accompanying univalent terminology to cope with the world. [B-9]
Outside of the physical sciences and a few smaller disciplines of formal or logical discourse, however, it quickly becomes much more difficult to have words mean exactly what we want them to mean. Even biology, with its agreed upon definitions of genus and species comes upon unanticipated situations where our seemingly straightforward linguistic categories break down. I will use a single “simple” example to illustrate my next point. If you had used the term “black swan” with European biologists several centuries ago, you would probably been laughed at. A “black swan” would have been a contradiction in terms, an oxymoron. Swans simply aren’t black — or, excuse me, they weren’t known to be black... A species of waterfowl was discovered in Australia which squawked like a swan, looked like a swan, felt like a swan, and otherwise resembled a swan, but for the fact that it had black feathers. It took a while, but eventually biologist decided to call it “Cygnus aratus” which is but the biologist’s way for calling this black bird a swan. The linguistic point I wish to make is that we can agree on what we think a word should mean, but nature can provide us with an example that may force us to change the range of application for a very carefully crafted definition which may work perfectly fine for years, decades or centuries. [B-10] There are, of course, many informal examples of biological terms commonly utilized with a variable range of applications. Thus, we usually use the word “cat” to refer to the ordinary domestic cat (genus Felis), but when we speak of “large jungle cats” we are almost certainly referring to animals such as tigers, panthers and jaguars (family Felidae). At this point, however, in spite of the fact that we may have words or phrases with variable meanings and sometimes indefinite range, we are still dealing with uses of words which are rarely sources of genuine controversy.

Constitutional Application I. Examples of practically “univalent terminology” under the Constitution (uncontested meaning).

There has never been a period in American history where there were serious legal and constitutional conflicts about the requirements that the President be at least 35 years of age, that senators be at least 30 years of age, and that members of the House be at least 25 years of age when they take office. Likewise, while there was and has been some discussion and debate about the wisdom and reach of the 26th Amendment [giving 18 years olds the right to vote], there has never been a debate about the meaning of the words “eighteen years or older.” (There are discussions and debates about whether the youngest ‘voters’ should have the right to purchase alcoholic beverages.)
* * *

At this point, [B-11] we need to once again refer to another commonplace of linguistic lore. All words have a history and it is quite clear that virtually all words have originated as metaphors. [B-12] To say that words are almost always metaphors is simply to say that words are invariably used to suggest similarities between various objects which are almost never, strictly speaking, identical. Even those words with the most commonplace and pedestrian meaning or those with a very specialized meaning within a restricted context were once metaphors. When words are later used in contexts that are remote in temporal, physical or psychological space from their origination, their usage may become quite restricted in range and/or practically unambiguous. In this case, we may prefer to think of them as frozen metaphors. [B-13] Whether a word takes on new and extended meanings or contracts into a more restricted semantic niche depends upon the history of the particular word.

Constitutional Application II. Example of a legal term given an extended or metaphorical application in a Supreme Court case.

In Minnesota v. Carter (1998) the Supreme Court ruled that police use of an infrared detector to monitor marijuana cultivation within a home violated the fourth amendment’s prohibition against unreasonable searches. In his concurring opinion, Justice Scalia wrote that inhabitants were protected against this intrusive activity — using a technology undreamed of by the authors of the 4th Amendment — because it was in effect a “search” trespassing against the protected “ right of people to be protected in their persons, houses, papers, and effects.”
* * *

However, once we move out of the narrow linguistic confines of mathematics, the traditional sciences, and a few other narrowly defined regions of inquiry, [B-14] — and move into fields with an explicitly human focus with a psychological and/or societal component, new complexities arise. The first complexity is simply that human minds are extremely complex. The fact of complexity alone increases the opportunity for words which are used to describe human activity to take on new and varied meanings — meanings which may contain connotations or even denotations which are contrary to the original thrust of a word or phrase. [B-15]

Thus it is relatively easily easy to determine that “four added to three equals seven” or that we can usually translate the English word “eight” with the German word “acht” or the Samoan word ‘valu.” However, in almost all human discourse about other topics, particularly issues that involve human actions, most assertions of ‘identity’ or ‘equality’ are really focused on a particular context or ‘universe of discourse.’ Sometimes the context is rather obvious to the participating speakers and listeners, but at other times the proper contextual referents are difficult to identify with any precision. What does it really mean, for example, to say that “All men are created equal” ?? And, if you and I both say we believe that “all men are created equal” do we really have the same belief?

But, I would argue, the complexities of human actions do not in themselves present the most difficulties in the discussions of human activity. Human beings have limited knowledge about everything in the universe. More important from my perspective, is the fact that human discourse about human affairs is almost always interested discourse — more precisely, self-interested discourse. We are invariably participants as well as observers when we discuss human events. Thus, when we discuss the “soft sciences” such as psychology and sociology or humanities such as history and linguistics value-laden terminology becomes an inextricable component of discourse. And to make matters worse, it is very difficult to admit to our own self-interest in such discussion — so difficult, in fact, that we find words like ‘hypocrisy’ and “self-deception” almost unavoidable in trying to asses such situations. In this particular instance, of course, we will need to keep this in mind when we analyze the meaning of Constitutional discourse in terms of its historical, legal, and political context.

At this point, I need to refer to another commonplace of linguistic lore. Many words posses recognizably multiple meanings. This is particularly true of our most useful words precisely because they allow us to see similarities in a multitude of contexts. [B-16]

However, in almost all human discourse about other topics, particularly issues that involve human actions, most assertions of ‘identity’ or ‘equality’ are really focused on a particular context or ‘universe of discourse.’ Sometimes the context is rather obvious to the participating speakers and listeners, but at other times the proper contextual referents are difficult to identify with any precision. What does it really mean, for example, to say that “All men are created equal” ?? And, if you and I both say we believe that “all men are created equal” do we really have the same belief?
Which leads us to my second point. Really useful words and phrases are applied to a multitude of situations — their meanings are extended. And the more they are extended, the more prone they are to embed implications that are not fully consistent with each other. This is particularly true for words used in religious, ideological, political or societal contexts. When words represent ideas and commitments which genuinely move us, they strike the core of our being and evoke images which invariably reflect the idiosyncratic features of our individual minds. This — to my mind — is not an inherently bad thing, but it does create ambiguities in the meaning of those grand and sweeping phrases that are used by large political and religious groups. In the present instance, the immediate application of this principle is to recognize is — as most scholars, lawyers, and judges do — that the Broad Terms of our Constitution as, both as originally ratified and as subsequently amended, have always contained controverted and controversial implications. Temporary general agreement and effective political coalitions have and will continue to rise, but these epistemological respites are but temporary calms in the turbulent waters of an active democracy. The illusion that our grandest Constitutional principles represent “bright line” rules with simple, direct, and unarguable implications is at best a shimmering illusion and is much more akin to fool’s gold than to a fountainhead of republican democracy. And, IF — as to frequently happens — a person or a group believes that a fusion of their simplistic or fundamentalist religious and political ideas provides an unequivocal “proper” framework from which they can force their own interpretation of democracy and justice upon the entire populace, we may have a real recipe for disaster.
Finally, the fact that different people and different parties have and continue to draw different conclusions about the meaning of the Constitution does not limit the problem of how we are to use and interpret the Terms of that Constitution. We do have both political and legal ways of addressing many of our political controversies. If we are both diligent and fortunate, under our constitution we could conceivably avoid riots, rebellions, and civil wars. I do not consider that a given. We have, after all, had a Great Civil War. However, as a general rule, if we can address our controversies without riots, bloodshed, and rebellion that would be a good thing. But the ideological conservatives have raised another storm.

Constitutional Application III. Example of a linguistically “frozen” legal term which preserves an ancient mode of expression, but continually appears in modern Constitutional Controversies.

The meaning of the odd term “cruel and unusual punishments” used in the 8th Amendment is clearly related to its appearance in the much earlier British Bill of Rights (1689) — and its meaning was not particularly controversial when the U. S. Bill of Rights was adopted in 1791. However, in the Twentieth Century the ‘proper’ meaning of the term has become part of our most contentious continuing Constitutional controversies, particularly those involving harsh criminal punishments such as the death penalty.

* * *

When it comes to fundamental religious and political ideas, it is not merely an issue of whether different people and parties have differing ideas about the Constitution’s meaning. Each of us have a multitude of complex conscious and unconscious ideas and inclinations about the various loyalties of our heart. As we live and sometimes grow, we sometimes realize that our own ideas about various matters are incomplete or even contradictory — and we change, modify or even reverse some of our previous thoughts and conclusions. This is true not only for individuals, but for societies and countries as well. To say that the Civil War Amendments and the Nineteenth amendment giving women the Right to vote were enacted because they were adopted by three fourths of the States is only the rudiments of the story. A much more accurate reading of the Country’s history is to assert that the country only slowly realized that both the Declaration of Independence and the Constitutional objective of Domestic Tranquility were inconsistent with the institution of slavery. “All White men would not be free” unless no men were enslaved. Likewise American men slowly realized that they could not live in a genuinely free country if their wives and daughters could not enjoy the blessings of liberty. All “men” cannot be free unless they walk with free women in their pursuit of life’s promise. Our understanding of the Constitution’s meaning has changed primarily, not only because we have amended the Constitution, but also because we better understand the actual Constitution that we adapted in 1788 and have amended on several occasions in subsequent years.


Constitutional Application IV. Why a Written Constitution with Broad and Sweeping Phrases with Value-Laden implications of indefinite Range might still be useful.

This author would argue that the continuing relevance of the U. S. Constitution of 1787 and its Amendments to contemporary American cultural and political life in the 21st Century is due, in part, to the broad framework of a Constitution which uses language that is in the main accessible in substance to the common man. Furthermore, such a broad framework allows some important changes to occur sub silentio as broad changes in intuitive expectations occur within the population occur that do should not, as a general rule, require a Constitutional amendment.

* * *

When Antonin Scalia argues, then, that his duty as a judge and our duty as citizens is to apply literally the Constitution’s meaning as it was adopted in 1788 and/or, on occasion, as subsequently amended, he is denying a fundamental law of human life on this planet. Each of us, consciously and unconsciously, experience changes in the way we understand our deepest beliefs. We may occasionally consciously and explicitly alter some of those beliefs, but many of the most important changes may not be in the actual words, phrase, symbol or creed which we express those beliefs. Mr. Scalia speaks publicly about his Roman Catholic faith. I hope that, privately at least, he is growing in his understanding of the injunction to love his neighbor. Likewise, Justice Scalia has accepted the role of adjudicating the meaning of that grand phrase “Equal Justice under the Law.” If neither he while sitting on the Court for over two decades nor the Country in two hundred years has not grown in its understanding of the meaning of that phrase and other similarly broad injunctions of our Constitution, then I would argue that he and those who share his beliefs have misconceived the Constitution’s meaning from the beginning. There is a single word to describe the implications of an ideology which treats the Constitution as a Pyramid or Mausoleum of frozen meanings bequeathed to us by departed souls, however noble — the word is tyranny.

A final problem with a Constitutional jurisprudence based on bright line interpretations which focus almost exclusively on the actual words of a single Constitutional phrase is that even the clearest sentence in the Constitution is hardly a stand alone verbal item. [B-17] The Constitution, of course, does contain a number of unambiguous statements. For example, the Constitution stipulates that there will ba a President, a House of Representatives, 2 Senators from each State, and a Supreme Court. However, almost all Supreme Court controversies do not involve such relatively unambiguous statements. Instead, they involve the limits of actual powers delegated or reserved to the Federal and State Presidential, Legislative, and Judicial power exercised by the President, Senators, Representatives, and Judges. And, our understanding of these terms used to delimit governmental powers are precisely those whose meanings have been altered by the two centuries of the Republic’s history. Scalia, himself, is particularly insensitive to the implications implications of the Civil War Amendments or actual contemporary problems for reading the Constitution in terms which reflect. He is particularly prone to rail with both intellectual and emotional force against the overreach of legislative powers (using the Constitutional Text of 1787); but — as I argue elsewhere in the Repartees and Appendices — he has been a passionate defender of executive overreach and a partner in the growth of judicial power in the last two decades (actual realities of his world).

DEFINITION: “Constitutional Discourse”

I use the term “Constitutional discourse” as a generic word for discussions and arguments about the proper political, legal, and/or judicial use and interpretation of the Text of the United States Constitution. In such discussions the United States Supreme Court occupies a privileged station as the designated arbiter of the legal disputes that arise under our Constitution. Under normal circumstances we expect that elected officials will honor and enforce its decisions. Even among that important minority who explicitly reserve the right to physically impede the implementation of the Court’s decisions frequently advert to the tactic of civil disobedience only as a last resort to be employed when all other approaches have been exhausted. For clarity, I should add, however, that I do not consider the Court ‘infallible’ in any sense of that word.

Appendix C: Reason and the 4 R’s of Criminology —
Rehabilitation, Restitution, Retribution, Revenge & Other Rationales of Punishment.

logos [Greek]- word; saying, maxim; fable, story; speech; thought, reason; account, consideration; calculation, proportion
ratio [Latin] - account, calculation; consideration, method; reasoning, thought

The four terms listed above, Rehabilitation, Restitution, Retribution, Revenge, — as well as deterrence and incapacitation — are frequently heard in discussions, opinions, and arguments about the acceptability, merits or constitutionality of various punishments. [C-1] A multitude of other rationalizing terms are provided to understand and/or justify society’s authority to inflict legal punishments. I, for one, presume that all of these issues are worthy of further consideration. [C-2] I personally would like to see much more national discussion of rehabilitation and restitution. At other times in our nation’s history, for example, rehabilitation has been emphasized much more prominently than it is today. Indeed, the very word ‘penitentiary’ [a place for prisoner penitence] reflects the hope and, sometimes, the reality that a prisoner can emerge from prison as a wiser person than when he or she first became an inmate. [C-3] However, my purposes here are much more limited. I wish to consider the rationality of three common justifications for legal punishments -- incapacitation, deterrence, and revenge. Once I complete that discussion, I will also consider retribution and other terms which frequently arise, but which are — I believe — essentially encompassed in our discussion of incapacitation, deterrence, and revenge.

Incapacitation, Deterrence, and Revenge

First, my fundamental assumption is that a primary purpose for legal punishment is to prevent future misdeeds by either the perpetrator of a crime or by onlookers who might be dissuaded or deterred from criminal misdeeds because the onlookers have observed that crimes have unpleasant consequences. I further assume that the primary purpose of criminal punishment is to make society-as-a-whole future safer and more secure in the future. We will examine below how there are arguable advantages to looking back at criminal behavior as well as forward. However, unless these ancillary concerns can be expected to result in less crime in the future — then to that extent that (some) punishments tend to result in additional future crime, to that extent such modes of punishment are irrational — and illegitimate. To be sure, the actual effects of the criminal justice system upon an individual receiving punishment and upon the society at large is an inherently complex set of possible affairs which is void of certainty. However, I assume that if you begin with a set of assumptions that are contradictory or unrealistic, then you will usually have worse results than if your assumptions are at least roughly consistent with your ends.

Incapacitation

The first rationale of punishment which I wish to consider is the rationale of incapacitation. If one incarcerates someone who has committed a crime that person is indeed prevented from recommitting that crime outside the prison for the duration of their prison term. Furthermore, while some prisoners may commit additional crimes while in prison, the likelihood is small — especially in a well-run prison system. Of course, if we execute someone for a serious crime such as murder we will be certain that this particular person will never recommit that crime or any other crime. However, the actual likelihood that a person who serves a long prison sentence of two or three decades will revert to serious and vicious crime once released is actually quite small. [C-4] There are, of course, good reasons why most criminal sentences are limited to some specific number of days or years. It is very expensive to keep people in prison or to execute them. While one can indeed compel prisoners to work while in prison, as a general rule running a prison is not a financially rewarding proposition per se. [C-5] We keep prisoners in prison to (putatively) prevent them from wreaking more harm in society at large. Furthermore, keeping a person in prison means that he will not make a substantial contribution to the common weal. The fact is that many prisoners do contribute to the common good after they return to society. How much we should appreciate the advantages of rehabilitation versus the disadvantages of recidivism is of course an open and disputable matter, but I will conclude here by simply stating that I accept the proposition that incapacitation is arguably a rational and morally legitimate justification for criminal sanctions, including imprisonment.
While it does not affect the incapacitation argument per se, it is important to note that if criminal sanctions are unduly harsh and/or if they punish innocent people, there are several serious harmful short-term and long-term consequences for society at large. In any case, such sanctions frequently generate bitterness in the individuals who suffer unduly harsh or untoward punishment. Furthermore, onlookers to harsh and unfair injustices lose their respect for the legal system. Of course, things can get out of hand. One reason for the 1790 executions of the French nobility and of the 1918 executions of Russian royalty were the grievances felt by the people at large towards the “ancien” regime and the Czarist regime, respectively. [C-6]

Deterrence

The second rationale for punishment which I wish to consider is the rationale of deterrence. By “deterrence” I mean simply that a punishment has a deterring effect if someone who sees the punishment of a misdeed is persuaded to avoid doing such actions himself or herself. Of course, the ‘someone’ observing the punishment may be the perpetrator himself. [C-7] There are many — all too many — variations in individual responses to criminal punishment. A fine of a few dollars, a few hours in jail, a ‘slap on the hand,” as it were, can prompt one individual to forsake for a lifetime the repetition of his or her first legal misdeed. Others can perpetrate a series of robberies and/or murders whether their crimes sprees are interrupted by prison time or not. But, usually, when we speak of “deterrence” we are referring to the effect of the punishment upon others who see the punishment being inflicted. Of course, when we say that many or even most people tend to avoid crime because they don’t want to suffer criminal sanctions (which they have either observed or heard or read about) is not saying very much. After all, if people avoid crime simply to avoid getting caught — that would still leave an enormous number of choices for misdeeds which are not legally sanctioned. Furthermore, a punishment that people sense as one that doesn’t “fit the crime” - or , worse, if an entire system of justice is seen as systematically unfair - will have harmful consequences — harmful consequences that might outweigh the advantages of “deterrence.”
As in our discussion concerning incapacitation, we can also elaborate on the merits, demerits and the limits of applicability of punishment as effective deterrence. Again, however, I will conclude by simply stating that I accept the proposition that deterrence is, arguably, a rational, morally legitimate justification for criminal punishment.

Revenge

The third rationale for punishment which I wish to consider is the rationale of revenge. By revenge I mean simply the desire by either victims or members of society to inflict pain or injury upon the perceived or imagined perpetrators of criminal misdeeds. For the nonce, I will leave unresolved the issue of whether the “pay back” is proportional or excessive. The main feature of revenge which I wish to investigate is the emotional investment which accompanies the desire or, more revealingly stated, the “thirst” for revenge. It is stated or imagined that if the culprit suffers, the observing victim or righteous citizen will experience ‘satisfaction.’ [C-8] The reader might perhaps be perplexed that I don’t consider here the term “retribution.” After all, especially in legal discourse, only a few commentators and judges extol revenge per se. Instead, they will — as in the Kennedy opinion cited in Footnote C-2 — talk about the more “measured” approach of having someone receive their “just deserts” or “a punishment which fits the crime.” And, indeed, there is indeed a rational element in a jurisprudence of retribution — an observer of retribution’s enactment may very well be “deterred” from a wrongful deed. However, when I see or hear the phrase “An eye for an eye” the phrase literally looks or sounds like a possibly measured response to a provocation. [C-9] But, in truth, when I hear people use the phrase, they are usually to justifying actions that would “paying back in kind and more —even much more." We will consider the connection between retribution and deterrence below, but we will first consider the matter of revenge.

The first thing to keep clearly in mind is that when we seek revenge we are not — as a matter of intention — trying to make the future better. It may be — as a matter of fact — that if we seek and obtain revenge, the future might turn out to be better than it would have otherwise been if we had done nothing. On the other hand — also as a matter of fact — it is rather clear that the extraction of revenge sometimes results in some very dreadful and baneful consequences. [C-10] One of the most important results from the standpoint of jurisprudence is that the desire that “someone should pay” for a crime distracts from the proper focus of a trial. The primary question for a juror should always be, “Am I certain beyond reasonable doubt that the accused did in fact commit the alleged crime?” When jurors and/or prosecutors become focused upon the “need” for someone to pay for a horrible crime, their fallible judgment is even further clouded with a predisposition for conviction. During the past two decades here in the United States it has become rather clear that the large number of definitive reversals of conviction based on DNA evidence is symptomatic of a judicial system gone awry. One primary component of the judicial imbalance, I would argue, is the prejudicial predisposition for revenge.
Thus, I would argue that fundamentally a jurisprudence of “Retribution” is a jurisprudence which combines the arguably legitimate purpose of “deterrence” with the almost invariably distorting perspective of “revenge.” One can, of course, note the historical and psychological pervasiveness of revenge in legal proceedings from time immemorial. That may give some a false sense of justifying psychological, legal, or even “religious” comfort, but it does not undo the fact that revenge-motivated punishment is not rational and it does not help to “establish domestic tranquility.” The straightforward legitimization of revenge by contemporaries such as Pat Robertson and colonialists such as Cotton Mather have been honored directly only occasionally in American jurisprudence. {Special Footnote C-1} The more diluted presence of revenge as a component of “retribution” is, however, usually accepted in American jurisprudence. Unfortunately, that continuing diluted presence of the revenge factor in our penological practice is still a poisonous component.
A jurisprudence which would defend punishment against the standard of being “cruel and unusual” solely on the basis that at sometime in our colonial or national history it has been accepted by some or many judges and/or juries is not a standard of justice — it is a standard of malice.


APPENDIX D: Dead Spots in Scalia’s Constitution

A Principle of Construction.

"In expounding the Constitution of the United States every word must have its due force and appropriate meaning; for it is evident from the whole instrument, that, no word was unnecessarily used, or needlessly added. The many discussions which have taken place upon the construction of the Constitution, have proved the correctness of this proposition; and shown the high talent, the caution and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation and its force and effect to have been fully understood.” Chief Justice Taney in Holmes v. Jennison (1816)

DEADSPOT - The Ninth Amendment.

“the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.” Antonin Scalia in Troxel v. Granville (2000)

MAXIM - The Buck Stops Here!

“The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Harlan in Mugler v. Kansas (1887)


In the words at the top, Justice Taney is perhaps unusually appreciative of our Constitution. The Constitution is, after all, a human document. Still, the default assumption for Constitutional interpretation is that the judge is pledged and expected to honor the entire document. When you examine Scalia’s record, however, you find that certain portions of the U. S. Constitution are almost never utilized in Scalia’s jurisprudence. [D-1] This is particularly true for the 8th and 9th amendments.

Scalia almost invariably rejects 8th Amendment claims of ‘cruel and unusual punishments’ because he believes jury discretion is the final arbiter of what should be deemed appropriate punishment. Scalia invariably demurs or explicitly rejects 9th Amendment claims or implications because he apparently thinks a judge cannot properly ascertain [‘discover’] rights that the people have not already honored explicitly in their long and hallowed history. And at his confirmation for the U. S. Appeals Court Scalia claimed that the 10th Amendment was Constitutionally “redundant.” And there are other dead spots in his Constitutional jurisprudence. For example, there is virtually no tension in his interpretation of the 1st Amendment’s “establishment” and “free exercise” clause — the “free exercise” clause inevitably trumps the “establishment” clause. Likewise, his use of the 14th Amendment to counter affirmative action (essentially equating it with “reverse discrimination”) is historically untethered. He ostensibly believes that with the removal of de jure segregation that it is almost impossible for structural forms of racism to rise to the level of Court scrutiny. When it comes to these issues, any petitioner referring to these amendments and clauses comes to the Supreme Court one vote down. Scalia likes to talk about his ‘dead’ or ‘rigid’ or ‘unchanging’ Constitution. However, the relevant point is that for these Amendments, in toto or in part, the pages of his Constitution are essentially null and void.

Appendix E - Casuistry in the Opinions of Justice Antonin Scalia

“My only agenda is to be a good judge.”

Antonin Scalia, Before the Judiciary Committee, 1986

“I urge you then — as Hamilton would have urged you — to keep in mind that the Federal Government is not bad but good. The trick is to use it wisely.” [My Italics]

Antonin Scalia, 1982 Speech

Over two millennia ago the Greek sophists shook the foundations of philosophical thought when they began to give public displays and private advice in the art of arguing either side of an argument. Today, high school debaters and top flight lawyers are expected to be able to articulate both sides of an argument as a matter of course. In American jurisprudence the assumption is that if both parties to a legal controversy are well represented then we can be confident that a wise judge or an alert jury will reach the truth of the matter. Many observers and participants in the American legal framework are skeptical about how well the assumption works out in actual practice, but it is the underlying justifying assumption. If, on the other hand, a judge uses a particular legal argument to defend parties on one side of a political divide, but uses an essentially contrary argument to attack the parties on the other side of that divide — well, in this case, our legal system is undone. In theology and in legal jurisprudence this particular mode of reasoning is termed casuistry.

Now to be fair, none of us is fully consistent. This is not merely because we sometimes deceive ourselves, but it seems to me that is also a necessary consequence of our limited and finite minds. In any case, in a separate Appendix (Appendix F) I treat some tensions and apparent contradictions within Scalia’s thinking. In this Appendix, however, I treat what appear to be examples of transparently contradictory arguments.

INSTANCES OF CASUISTRY (below):
Habeas Corpus and Executive Power
Tolerated and suppressed religious groups
The Eighth Amendment and the Death Penalty
The Ninth Amendment and Gay Rights
The Eleventh Amendment and Sovereign Immunity

Habeas Corpus and Executive Power [4 cases noted]

With the exception of a case involving an American citizen [Yasser Esam Hamdi] held at Guantanamo, Scalia has consistently argued that the Supreme Court has no power to adjudicate the issues arising from the treatment of prisoners detained at the U.S. military base in Guantanamo, Cuba [Hamdan; Rasul; Boumedien]. One feature of his arguments have been particularly specious. Early during the Bush administration the U.S. government decided to use Guantanamo because as it was not on “American soil” it was thought that prisoners held there would beyond the reach of various legal protections — such as habeas corpus — that are usually available to prisoners, including aliens, who are held inside the United States. Of course, under the terms of the lease with Cuba, Guantanamo is totally controlled by the United States and the base has all the customary accoutrements of any “home” military base [complete with a MacDonalds and other mainland chains]. Scalia argues that the mere fact that the geographical location is outside the formal boundaries of our Country trumps the political reality that behavior at the base and treatment of the prisoners is controlled completely by U. S. soldiers following the directives of the United States President, the Secretary of Defense, and their subordinate officers. By an large, the Court itself has rejected these arguments proffered by lawyers such as John Wu and by Scalia himself, but it is amazing how vociferously Scalia has defended the use of such legal fig leafs to avoid addressing the issues presented.

The Establishment Clause: Tolerated & Suppressed Religious Groups [2 cases noted]

In our discussion of Scalia’s treatment of the establishment clause [Maxim 6], we have pointed out that Scalia seems to have a much more deferential and supportive stance in cases that involve conservative and moderately large religious groups than he does in cases, for example, that involve a small Amerindian religious group [Cf. Employment Division,... v. Smith (1990)]. Even more surprising was his long opinion (over 20 pages) in Edwards v. Aguillard (1987). In his dissent (joined only by Rehnquist) Scalia defended the right of Louisiana to require the teaching of “creation science” in biology classes as a possible alternative to evolution. Besides arguing that the Louisiana statute was “secular in nature” — utterly ignoring the loud and forcible protestations of fundamentalist religious citizens in these issues — Scalia also spent several pages in an analysis of the legislative history of the Louisiana law. Now, as a matter of fact, I believe that legislative history can be a very useful source of insight into the nature of a statute (in this case it would be to see if there was an attempt to insert partisan religious beliefs into the classroom). However, given that Scalia has frequently — especially when adjudicating Federal legislation — argued that legislative history is irrelevant to interpreting the presented issues his contrary practice here is striking. Several times he has said, “My view on legislative history is, quite simply, that it not be used as an authoritative indication of the meaning of a statute. Ordinarily, this means that it should be consulted not at all.” [E-1] Does Scalia really think that he can tack 175-180° on an issue and his inconsistency will not be noticed??

The Death Penalty [3 Cases examined here]:

In Gray v. Mississippi (1987) the Court reversed a Mississippi capital murder by holding that a juror who would had reservations about the death penalty was improperly excluded [Following the precedent of Witherspoon v. Illinois, 391 U.S. 510 (1968)]. However, when the Court in Morgan v. Illinois (1992) held that a juror who would always impose the death penalty case for capital murder was not impartial, Scalia dissented. Scalia apparently expected the Illinois juror to have an absolutely closed mind about the appropriateness of execution for all capital murderers and the Mississippi juror to have an absolutely open mind about the guilt of an accused murderer.

In Simmons v. South Carolina (1994) the Court reversed a death penalty sentence when a prosecutor called for the execution of a defendant as an act of “self-defense” while the jury was unaware that, failing execution, the defendant would remain in custody for the rest of his life. Scalia dissented, construing the term “self-defense” as a sort of generic platitude which was unrelated to whether the defendant would be on the streets or in custody. [E-2] Scalia’s obliviousness to the plain meaning of the actual words represents judging at its worst.

The Ninth Amendment and Gay Rights [1 Case examined here]:

In Lawrence v. Texas (2003), the Court struck down a Texas sodomy law. [E-3] This reversed the Court’s earlier Bowers v. Hardwick (1986) which was more in keeping with Scalia frequent publicly expressed disdain for “homosexual sodomy.” In Scalia’s dissent he argued that the Texas law applied equably to both sexes since ‘sodomy’ was proscribed for women couples as well as men couples. Scalia overlooked the fact that the Texas law did not proscribe such contact in married couples of different sex.

The Eleventh Amendment and Sovereign Immunity [2 cases]

When deciding Constitutional cases, Scalia appeals to his Jurisprudence of original and fixed meaning — the Constitution means today what it meant over 200 years ago. Or, in the case of Constitutional Amendments, the Amendments in the the Constitution mean today what they meant when adopted. Thus, the Eleventh Amendment — which limited the ability of citizens to sue states in federal courts — was adopted in 1795 and should by this logic mean today [2010] what it meant 215 years ago.
Restrictions on the power of citizens to sue their own or other governments are frequently phrased in terms of a “doctrine of sovereign immunity.” The reach of sovereign immunity is frequently debated and various court cases in local, state, federal, and international law are a rather complex mixture of competing interests. There is, of course, some rationale for limiting the number of law suits that might be filed for frivolous or mischievous ends. However, one characteristic of Scalia’s jurisprudence is that he tends to be very generous in attributing to the states various legal immunities which arise before his Court. These cases do not always gain large audiences outside the affected parties as the issues are frequently technical and not easily presented to the general public. But curiously enough, even one of Scalia’s very sympathetic commentators (Rossum, 2004) takes Scalia to task for his very expansive and non-textual opinions in Eleventh Amendment cases. [Rossum analyzes in detail Scalia’s reasoning in Pennsylvania v. Union Gas Co. and Blatchford v. Native Village of Noatak.] Personally, I am not very surprised — Scalia’s respect for his preferred subset of the “powers that be” is somewhat obsequious at times.


Appendix F - Tensions and Contradictions in Antonin Scalia’s Constitutional Views

“We know the truth not only with our reason but also with our heart.” Pascal

“Without a secure structure of separated powers, our Bill of Rights would be worthless, as the bill of many nations that have adopted, or even improved upon the mere words of ours..” Antonin Scalia, Morrison v. Olsen (1998)

“A foolish consistency is the hobgoblin of little minds.” Ralph Waldo Emerson

Opaque Tensions & Structural Contradictions in Scalia’s Thought

For the record, while it is true that many of the drafters of the original Constitution thought that the Separation of Powers would be fundamental to the protection of the people’s security and liberty, the people who actually adopted that Constitution held that a Bill of (enumerated) Rights was a sine qua non. In other words, the adopters of the original Constitution did not believe that a Bill of Rights would be a set of subordinate clauses.

For all human beings knowledge and wisdom are elusive goals. As part of our effort to be more responsible, provident and articulate we are prone to value consistency in both thought and action. We are particularly prone to expect and even demand consistency in judicial settings [“Justice should be ‘even-handed’ or ‘blind’,” we say]. A problem with this expectation, of course, is that none of us is fully consistent. There are apparently many reasons for this and there is no widespread consensus on why we can be so inconsistent at times. To initiate the discussion, I mention three reasons which I believe to be among the most important. [The reader might prefer to highlite others.] Most fundamental, it seems to me, is that however much we strive to construct consistent views and opinions about the world, a necessary consequence of our limited, finite minds is that in a human lifetime we cannot coordinate the enormous information presented us into a consistent whole. Complicating matters further, we are often aware that we cannot always articulate what we in some sense “know.” How much weight we should give to hunches and intuition is always an uncertain matter, but it seems clear that there are situations where we utilize significant, if imperfect, unconscious knowledge. Finally, to makes things worse, much worse, as inidviduals and in groups we human beings have a propensity to deceive ourselves. In any case, in a this Appendix I treat some pronounced tensions and contradictory tendencies within Scalia’s thinking which require a critical response.

Scalia has been both articulate and insistent in his support for separation of powers as the foundation of our freedom. As in the quote above he has on occasions either asserted or suggested that our most important “Bill of Rights” is the separation of powers, both thru Federalism and the three branches of government. In many ways, his approach to the Constitution and its “blessings of liberty” is similar to Alexander Hamilton’s pre-Ratification approach. So, he is particularly zealous on these matters. Indeed, probably his most lasting and sometimes useful contribution to Constitutional law has been his attempt to give clarity to the proper boundaries of the various branches of government. There are, however, some hidden tensions and even contradictions below the surface. As we move from some general considerations about separation of power, we will gradually hone in on his particular views on the relationship between executive and legislative power.

There are a number of generic issues we must consider to discover the more covert contradictions in Scalia’s methodology. For the most part, Scalia’s approach is similar to Alexander Hamilton’s pre-Ratification approach — he occasionally asserts that our most important “Bill of Rights” is the separation of powers, both thru Federalism and the three branches of government. So, he is particularly zealous on these matters. Particularly important, however, have been some of his contrary dispositions on the issues of executive and legislative power — dispositions which Scalia tends to justify in Constitutional terms. As a general rule Scalia is much more willing to trench upon legislative power than upon executive power. We can fairly characterize Scalia’s position as one that is in keeping with what, in contemporary circles, is called “the unitary executive.” We examine here with those views.


An Extended Examination of Article I in the U. S. Constitution: Scalia’s Deferential & Passive Response to the Expansion and Extension of Executive Power

When deciding cases which effect the Constitutionally appropriate reach of executive power, Scalia appeals to his Jurisprudence of original and fixed meaning — the Constitution means today what it means 200 years ago. In order to construe his opinions that are concerned with his concern for the implications of the Constitution’s ‘original meaning’ and he is likely to quote the British Judge Blackstone and the French author de Tocqueville as well as 18th Century Americans such as Hamilton, Madison, and Jefferson — especially Hamilton. And, we should also note that as a general rule, Scalia has a propensity for ‘bright line rules.’

Now, let me stipulate, I think it is both quite proper and illuminating to consider the opinions of all these persons when trying to construe the proper limits of for today’s executive power under our Constitution. But, this is a sword that cuts in more than one direction. As a prefatory consideration, we should not forget that at the Constitutional Convention Hamilton originally supported an elective monarchy. So, when Scalia argues in support of an expanding executive reach in domestic, foreign and military affairs, his failure to consider some of the Founders’ trenching stipulations is, at the least, a cause for concern.
The Constitution does put the President of the United States in the so-called “catbird’s seat,” particularly in his role as the “Commander in Chief”. However, before the Constitution defines or describes the executive power in Article II, it spends about three times as long to define and describe the legislative power in Article I of the Constitution. In particular there are extensive remarks about the conduct of war and other military operations in Article 1, Section 8. I will first select and quote some of the more familiar sections, but I then want to look more carefully at a couple of sections which are often overlooked:

The Congress shall have Power To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States...;
...
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
...
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
...
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions...

Nothing controversial here, but now let me highlite a couple of sections I passed over:

[The Congress shall have Power...]
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

According to our original Constitution, then, not only is the President restricted to the enumerated Powers of the Constitution, in several fundamental ways his job is to execute those powers, including the military powers, so as to hew to the path provided by Congress. Furthermore, since it is the duty of the Courts to declare the Law, we would expect a Court that is faithful to the original Constitution of the United States to watch over the activities of the United States to keep the President and his agents within the limits of the Supreme Law of the Land.

But then, you say, BUT, BUT... Well, our understanding of the Constitution has changed. For one, we have amended the Constitution - plus, such events such as our Great Civil War, World War II, and the terrorism of the 21st Century have required that we have a more powerful and more rapidly reacting President and Executive. Fine, that makes sense. But it makes sense only if you believe that the terms of the Constitution are to be interpreted in terms of their plain and pragmatic meaning for U. S. citizens of the Twenty-first Century — an approach that Scalia usually disparages as the view of a “living Constitution.”

While a more scholarly approach would necessarily have to make more distinctions in assessing the work of both Hamilton and Scalia within the context of their own times and their own development, in the context of this much shorter work of a citizen, it is worth noting that at the Constitutional Convention Hamilton originally supported an elective monarchy. Scalia, of course, has been associated with the ‘conservative’ proponents of the unitary executive — a powerful Presidency that, in the minds of many of us, would be properly described as wielding monarchial powers.
It is, one might add, much more faithful both to the Founders’ intentions and their words to remember that our Constitution was born from a struggle with a tyrannical monarch. There is neither gain nor honor in ceding legitimacy to a contemporary elected monarchy instead of the hereditary monarch of our colonial period.

So far, I have — perhaps — presented only an argument. But there is more — and, I believe, it is dispositive. Scalia has not only been an aggressive about supporting the President’s “executive” powers, he has also been equally aggressive in restricting the power of Congress — and, herein, lies our tale.

Quite frequently, Scalia will casts his argument to support the executive power in terms of Constitutional History. For the most part, Scalia appreciation is similar to Alexander Hamilton’s consistent pre-Ratification effort in support of a powerful and ‘energetic’ executive power. On the other hand, Scalia is dismissive of any interpretations based on Legislative History. Instead, he professes to be concerned about the abuses of legislative power as understood by the founders. Here, his arguments are salient — but often somewhat untethered in historical context. The Framers and Adopters of the original Constitution were indeed concerned about abuses of power by any governmental branch. However, during the first few decades of our nation’s history, relatively speaking, the legislative powers vis-à-vis executive powers were much stronger then. Today, the scales have tipped towards a more powerful executive branch. And, of course, we have a much more active judiciary — sometimes active in protecting human or civil rights and sometimes active in protecting republican and citizen property rights, but in either case always active. Scalia is frequently an active participant in the expansion of both judicial and executive power power, but he usually writes his opinions as if the only permanent issue before the Court is the extent to which the legislative branch needs to be brought to its heels. [Personally, I think Scalia’s insistence on these issues has had some useful consequences as legislators are indeed frequently ambitious for policies which do not promote either the rule of law or the public weal. Lacking an equivalent interest in checking executive or judicial excess, however, his uneven approach remains fundamentally flawed.]



FOOTNOTES; CASES; BIBLIOGRAPHY (Appendices)

FOOTNOTES (Appendices A, B, C, D, E, F):
[A-1] In my view, “meritorious” is usually a more appropriate word than “correct” which is more likely to be accompanied with a connotation of unobtained objectivity. Of course, we all have different views of meritorious.

[B-1] Allusions in the footnotes to actual cases may not be sufficiently neutral for some readers. I remember once riling a lawyer when I alluded to ‘some’ (unspecified) lawyers as ‘hired guns’ for corporations.
[B-2] A more formal definition of” Constitutional Discourse” is found at the end of the Appendix Text. There are some very fine books which make many of the points I am making in legalese or formal discourse. These include the books by Brigham (1978), Hand (1958), and Hart (1961). Essentially, without necessarily stating this explicitly, these books bring the linguistic sophistication of Chomsky and Wittgenstein and other linguistic philosophers into the discussion of Constitutional Discourse. The advantage of my own treatment here is that we get to the intractably contentious issues in only a few pages and then admit that they are contentious. A disadvantage for some is that with my own formal training in math and science we start with the most ‘logical’ issues of language first. (We also find that even the most logical and unambiguous language has hidden complexity and other pitfalls.)
[B-3] Explicitly controversial issues are, of course, are the topics of the Main Text (“The Immoral Maxims”) and some Appendices.
[B-4] As a whole this work is deliberately argumentative and even polemical in many details. However, as a point of honor I am attempting to make my most important assumptions transparent. If persons of unlike mind can undermine these assumptions, they deserve to win the argument. Failing any such resolution, we still might find ways to disagree in more amicable fashion.
[B-5] Whoa!! Isn’t this a very long sentence to say you are going to start with the simplest case. Precisely, we are going to find out that there is nothing simple about ‘clear and simple’ language. This is true even when (occasionally) we agree about the meanings of our words.
[B-6] Gödel’s proof is rather technical. A good start is the article by Nagel & Newman in Newman’s World of Mathematics. A little less recondite is Hofstadter’s Gödel, Escher, Bach. See Bibliography for details.
[B-7] Of course, it is is sometimes quite difficult to conflate these terms into a complex mathematical or logical argument. And, speaking as a retired former mathematics and science teacher, it is important to remember that there are a number of unsuspecting difficulties in learning how to properly utilize mathematical terms in their ‘received’ meanings.
[B-8] In geometry we discuss a “perfect sphere” though none of us has every seen one.
[B-9] With, of course, various levels of actual or imagined success.
[B-10] Of course, mathematical terms can be given an extended definition. For example, mathematicians have defined “hyper spheres’ which have surfaces in four or more dimensions. ( The most common equation used for a 3-D sphere is x2 + y2+z2= R2; for a 4-D sphere the equation is x2 + y2+z2+w2= R2. You don’t have to understand the equation to see some similarities.) The point here is that in this case, mathematicians can on their own volition extend their definition to meet their own needs in readily understandable discourse with other mathematicians.
[B-11] I must apologize to the impatient reader. It is simply that here (e.g., in the Appendices) I need to be a clear as I can about the assumptions that underlie the rhetorical language of this work.
[B-12] Onomatopoetic words are perhaps the only common type of words which were not, originally, ‘metaphors’ as we usually use the term. [You could, of course, consider them ‘auditory metaphors.’]
[B-13] This perspective on language was been most forcefully and persuasively argued by Friedrich Nietzsche, but it continually reappears in more pedestrian linguistic studies. A good introduction to this issue is found in Chapter 3 of Clark’s book, Nietzsche on Truth and Philosophy.
[B-14] I immediately think of such disciplines as actuarial statistics and historical linguistics, but these complexities are tangential to the line of thought of this essay.
[B-15] Even the biological complexities of the simplest creatures are beyond our usual expectations. Whether viruses are ‘alive’, whether archaic bacteria constitute delimitable species, and the extent to which defined gender or sex is a biologically meaningful category are but pointers to biological fields fraught with enormous scientific, economic, and social implications.
[B-16] A good illustration of such metaphorical creation is found in the various meanings of the words “digit” and “digital.” A doctor, is prone to use the word digit in referring to a finger, while a mathematician may refer to a “digit” as a calculating cipher [100 is a ‘three-digit number”]. Meanwhile, the younger generation is enamored of digital technology. Underlying this discussion is that as children we count on our fingers and that as adults we use machines that ‘calculate’ in computer code.
[B-17] To be sure, Scalia does argue that the Framework of Separation of Powers underlies the entire Constitution. However, even his understanding of the Separation of Powers is based primarily upon his (sometimes tendentious) reading of documents which are over 200 years old.

[C-1] While in my main argument I will not concentrate on my “4 R’s,” there is a reason so many important terms in criminology begin with the prefix “re.” Criminal sanctions are usually “responses,” actions which return or give “back” a reaction to an initial destabilizing action. [Latin prefix “re” - back, again] “Preventive justice,” of course, is not justice at all — other than, perhaps, in American jurisprudence, proper grounds for censure or impeachment.
[C-2] Kennedy’s concurrence in Harmelin v. Michigan (1991) singles out retribution, deterrence, incapacitation, and rehabilitation [all listed above] as examples of acceptable justifications for punishment. Marshall’s Concurrence in Furman v. Georgia (1972) lists six common justifications for the death penalty (retribution, deterrence, prevention, encouragement of guilty pleas and confessions, eugenics, and economy).
[C-3] Occasionally, modest efforts at restitution transpire (having the prisoner work to make conditions better for crime victims) — but such efforts have a hard row to hoe. [Part of the problem is that, historically, black prisoners in chain gangs in the American South were so cruelly and inexcusably misused.] A number of years ago I personally had an interesting experience when I lived in American Samoa — where misdeeds are punished with restitutional measures whose burdens are largely assumed by the culprit’s family.
[C-4] The serious student of capital punishment is often surprised to find that many prison wardens oppose both ‘life without parole’ and ‘capital punishment’ because of the wardens’ own discoveries that almost all people who are imprisoned for long sentences — even those who have perpetrated vicious crimes — both ‘wizen up’ with age and become less violent.
[C-5] Those systems which have tried to systematically force prisoner to pay the ‘full’ price for their criminality have been notorious in both their injustice and in their inefficiency. The segregated white South once built many of its roads with innocent or overpunished convicts. And, today, the Chinese have extracted the body parts of executed criminals…
[C-6] The large number of young Afro-American males in our prisons — well out of proportion both to the number and to the the seriousness of their crimes — is, currently, an intolerable situation. I am not making any predictions here, but — the truth will out. The consequences of such systematic injustice cannot be good.
[C-7] As some odd brew of physiological and societal factors have created a society in which most legally defined crimes are committed by men, I will mostly refer to “himself” when speaking about a generic individual. I personally would prefer the term “hemself” = “himself or herself.”
[C-8] Thus, when the State of New York reinstated the Death Penalty in the 1990’s there were exultant cheers in the State Chambers and Galleries. For those who are interesting in exploring the non-superficial aspects of retribution, Sister Helen Prejean’s Dead Man Walking provides accounts of several victims’ families who found that the execution of a murderer did not provide “closure.”
[C-9] Indeed, I remember studying the Mosaic Laws and reading somewhere that the Mosaic Code prevented the extraction of untrammeled revenge. According to the Commentators, the Mosaic Injunctions softened the penalties and practices of the day.

{Special Footnote C-1} It is hard not to note the prominent role of some religious leaders in the jurisprudence of excessive punishment.

[D-1] I say “almost never” because I do not have the computing skills and resources to determine if Scalia has actively utilized these Amendments in some minor or non-controversial cases. There is, to be sure, a case in which Scalia voted to overturn a Death Penalty case in which the judge overruled the jury. Cf. Appendix A.

[E-1] Quoted in Staab, p. 200.
[E-2] Scalia wrote, “This reference to “self-defense” obviously alluded, neither to defense of the jurors’ own persons, nor specifically to defense of persons outside the prison walls, but to defense of all members of society against this individual, wherever he or they might be.” [My boldface]
[E-3] “Sodomy” in the Texas statute referred to both oral and anal sex.
[F-1] See Staab Staab, James B. (2006). The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court.

CASES CITED (APPENDICES ONLY)

Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) Scalia for the Court
Boumediene v. Bush, U.S. #06-1195 (2008) Scalia dissent
Bowers v. Harwick, 478 U.S. 186 (1986)
County of Riverside v. Mclaughlin, 500 U.S. 44 (1991) Scalia dissent
District of Columbia v. Heller, 554 U.S. ___ [#07-290] (2008) Scalia for the Court
Edwards v. Aguillard, 482 U.S. 578 (1987) Scalia dissent
Employment Division, Oregon Department of Human Resources v. Smith , 494 U.S. 872 (1990) Scalia for the Court
Furman v. Georgia, 408 U. S. 238 (1972)
Grey v. Mississippi, 481 U.S. 648 (1987) Scalia dissent
Hamdan v. Rumsfeld, U.S. #05-184 (2006) Scalia dissent
Hamdi v. Rumsfeld, 542 U. S. 507 (2004) Scalia Dissent
Harmelin v. Michigan, 501 U.S. 957 (1991)
Holmes v. Jennison, 14 U.S. 540 (1816)
Lawrence v. Texas, 539 U.S. 558 (2003) Scalia dissent
Martin v. Hunter's Lessee, 1 Wheatstone 304 (1816)
Maryland v. Craig, 497 U.S. 836 (1990) Scalia dissent
Minnesota v. Carter, 525 U.S. 83 (1998) Scalia concurrence
Morgan v. Illinois, 504 U.S. 719 (1992) Scalia dissent
Mugler v. Kansas, 123 U.S. 623, 661 (1887)
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) Scalia dissent
Rasul v. Bush, 542 U.S. 466 (2004) Scalia dissent
Ring v. Arizona, 536 U.S. 584 (2002) Scalia concurrence
Simmons v. South Carolina, 512 U.S. 154 (1994) Scalia dissent
Texas v. Johnson, 491 U.S. 397 (1989)
Troxel v. Granville, 530 U. S. 57 (2000) Scalia’s dissent
Witherspoon v. Illinois, 391 U.S. 510 (1968)



BIBLIOGRAPHY (APPENDICES):
Brigham, John (1978). Constitutional Language: An Interpretation of Judicial Decision. Greenwood Press: Westport, CT; London, England. 183 pages.
Maudemarie Clark (1990). Nietzsche on Truth and Philosophy. Cambridge University Press: Cambridge; New York; Melbourne. 298 pages.
Learned Hand (1958, 1979). The Bill of Rights. Atheneum: New York. 97 pages. {The Oliver Wendell Holmes Lectures}
Heubert Lionel Aldolphus Hart (1961). The Concept of Law. Oxford University Press: London. 262 pages.
Douglas R. Hofstadter (1980). Gödel, Escher, Bach: an Eternal Golden Braid. Vintage Books (Random House): New York.
Ernest Nagel & James R. Newman, “Goedel’s Proof” In James R. Newman, Editor (1956). The World of Mathematics, Vol. 3, pp. 1668-1695. Simon and Schuster: New York.
Helen Prejean (1993). Dead Man Walking: An Eyewitness Account of The Death Penalty In The United States. Random House: New York.
Ralph A. Rossum (2006). Antonin Scalia’s Jurisprudence: Text and Tradition. University of Kansas: Lanham, Boulder, New York, Toronto, Oxford. 298 pages.
Staab, James B. (2006). The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court. Rowman & Littlefield Publishers, Inc.: Lanham, MD. 369 pages.
Ludwig Wittgenstein (1964). Blue and Brown Books. Harper and Row.