Carte Blanche?

Sometimes we do a thing in order to find out the reason for it.  Sometimes our actions are questions not answers.
            John Le Carre, A Perfect Spy 

Over the last few days, it has been revealed that the National Security Administration was monitoring German Chancellor Angela Merkel’s phone (as well as Americans’ phone and internet purchasing activities).  The NSA explained away its action by saying one, everyone does it and two, it was not collecting specific details.  While some Americans are outraged, Germans are more appropriately angry and Ms. Merkel, who was raised in the surveillance state of East Germany, understands all too well the implications.  From the American point of view however, the cries of injustice ring a little hollow.  The idea of government espionage and the protesting Americans’ accusations have technological, societal and moral components and implications.

First, the issue of U.S. government espionage is a product of technological advancements that Americans have increasingly demanded.  Over the last couple of decades, we have required from technology greater power and access to our normal lives and previously considered private domains.  We incessantly and without thinking give our information over at the drop of a hat so that credit card companies and grocery stores can monitor our purchasing and food consumption habits.  Yet, we are outraged by our government’s ability and willingness to use technology to monitor the behavior of foreign leaders (or us) – be they friendly or not.  We demand our lives be open books for our own benefit and feign shock and dismay that others are also benefiting.

Second, this is a societal issue.  We demand that our government know everything.  When the September 11^th attacks happened, some called for answers and wondered why our government did not know.  When Americans are killed overseas, we want to know when the chain of command broke down, why and what the government plans to do about it.  As a society, we are constantly amping up our expectations of government and then wonder why they are listening to or recording everything.  We cannot have both concepts.  We have, over the decades, created a myth that a government can and should be capable of all matter of things and there is a price for that knowledge. 

Lastly, there is a moral implication to the American outrage.  Julian Assange, Bradley Manning, Edward Snowden and others of that ilk have used various methods not dissimilar to our government to hack into and dispense information in such a way as to compromise the United States and, at least initially, get away with it.  Some American protestors hail them as “heroes.”  It would seem, at the least, there is a certain moral relativism that makes the charges as it relates to the government’s actions.  It’s legitimate to question the morality of the U.S. government and its efforts to monitor as much as possible but what are Americans doing to encourage this behavior?  By our acceptance of one, do we not accept the other?  Those who point to the actions of the government leading to the response are suggesting that the end justifies the means.  Such arguments are on shaky moral ground.   

It is not surprising that our intelligence efforts are so pervasive.  I don’t prescribe to the attitude that “those with nothing to hide have nothing to fear.”  That argument is ambiguous and diverting.  The answer lies with Abraham Lincoln.  When he describes a government “of the people, by the people, for the people,” he is not speaking of just the liberties we enjoy as citizens of this democracy.  He is also speaking to the responsibilities of American citizens.  We are not casual observers of the things that transpire in our government and in our society.  We allow it and in doing so, bad things happen.  I do believe that our government should have secrets in order for it to do its job and espionage is essential.  It’s also evident that our expectations and demands of government are not realistic.  A traditional liberal approach requires a paternalistic government.  I think that is dangerous and it might be what we have.

Hi-ho, Hi-ho...

Noël Coward, the English playwright, once said that “Work is much more fun than fun.”  I think in the perfect world, it’s possible, but I’m not sure that many of us live within a perfect world.  Most of us are given a life, we choose a path and we make the most of what we can.  But work?  My efforts at defining my work are complicated by two things – one, many people (most within the profession) label it a “calling” which adds a religious component with which I’m not always comfortable; two, a great many of people have little to no respect for it, which allows many people to feel free to comment on how they think it should best be done.  Which, in the end, still leaves me still pondering how to view work?  There are three major ways one can do so. 

The German philosopher Friedrich Nietzsche saw work, partially, as one’s salvation – the means by which to break through difficulties and emerge stronger in the end.  A later German philosopher, Ludwig Wittgenstein, spoke more plainly when he said that he was not sure why we are here on earth but he was certain it was not to enjoy ourselves.  This type of approach is often characterized by one who buries themselves within their work.  However, this can be damaging.  It does not bode well for one with a family, friends or any semblance of “life.”  It is also potentially damaging to one’s identity.  The one who defines themselves by their work are in a precarious position when something happens to that work.  What happens to one’s identity?  Does the work go on?  Does the true acolyte of Nietzsche say that a “job” is not as important as the “work?”    

Cannot the notion of work be condensed to the Aristotelian idea of contributing to society and having nothing to do with our personal lives?  The best life is not an actualization of oneself but wrapped in the duty one performs to the society as a whole.  It is a reaffirmation of the notion that our lives are not for ourselves but for others.  This is a self-sacrificing way to view one’s labor and there are certainly noble and amazing individuals whose work was their service to others.  Yet, like the one who buries themselves in work, do not the words of Epicurus remind us of a danger?  One looks upon the example of Mother Teresa or Gandhi.  Can one live a life if they do not experience it?  That is not to say that those two heroic figures did not know life but is it an example for others to follow?  I would say that the person who is absorbed by their work and the one who is absorbed by the needs of others run the same risk, however noble the latter is.   

Or, we could look at work as merely a method by which to enjoy life.  By “enjoy”, I don’t mean some sort of Aristippus notion of pleasure but merely to take part in the wonders of life.  The work is only a means to an end.  One works to enjoy life – work during the week to camp or hike or relax on the weekend.  Yet, this taken to its logical conclusion could lead to a life without work.  I think it is a legitimate idea to consider whether a life without work would be a moral life.  On some level, this is a selfish approach to one’s life and can one truly be moral and not consider the needs of others?  I would imagine that adherents of the first two concepts would not have much respect for a follower of the third.  Certainly, Wittgenstein would suggest that such a life is a wasted one.  The fact that God gives us talents and skills are not there for arbitrary reasons. 

Most Americans’ viewpoint of work is based on a Puritan concept of the importance of a work ethic, but the Christian concept of work only discusses the need for it and not the way it should be approached.  Gandhi viewed all work as noble and the nobility of work is its own reward to both the individual and the society.  After this little exercise, I’m not sure I’m closer to understanding the nature of work than I was earlier.  Like most things, there is a value in each approach but also a danger.  Perhaps, one needs to take the dedication of the first approach, the awareness of the second and the balance of the third.  By doing so (and this certainly is no easy task), perhaps we grow closer to a true answer to our question and an understanding of ourselves. 

The Making of a Judicial Giant

It is emphatically the province and duty of the judicial department to say what the law is…If two laws conflict with each other, the courts must decide on the operation of each….This is of the very essence of judicial duty.
                Chief Justice John Marshall, Marbury v. Madison, 1803

From time to time, the Supreme Court has been the subject of one of my articles.  I love the Supreme Court and am endlessly fascinated with the issues they discuss.  Within the story of the Supreme Court, I’m most intrigued with the career of John Marshall.  He was the third chief justice of the Court and widely considered the most important judicial figure in the history of the United States.  He is responsible for the creation of the modern court and its powers.  However, like most things dealing with the law, one’s career is often centered on a single case.  For John Marshall, that case was Marbury v. Madison in 1803.

In the waning days of the Adams administration, having been defeated by the Democratic-Republican Thomas Jefferson, the Federalist president hurriedly worked to fill a slew of vacant federal judicial positions.  President Adams had been negligent to do so earlier but worked overnight to complete them before leaving the White House for good.  He stacked his pile of “midnight judges” appointees on his desk and assumed that the incoming president of a different party would finish the process.  Upon entering the White House, President Jefferson and his Secretary of State, James Madison, saw the appointees and pondered.  Are they required to fulfill these Federalist positions?  They answered no and likely threw them away. 

One of the judges in question, William Marbury, wanted his post – justice of the peace of Washington, D.C.  At the time, the capital was a sleepy agricultural community with little for a justice of the peace to worry about.  He sued the government and Secretary Madison for his job on the basis of the Judiciary Act of 1789.  In particular, he called for a writ of mandamus – an order for the government to do its job.  For Chief Justice Marshall, the strident Federalist who wants and needs a stronger government for the good of the Court, his sympathies are towards Marbury but he has a problem.  With the little respect or prestige of the Court, if he ruled in favor of Marbury and ordered the president to appoint him, President Jefferson would simply ignore him.  However, in reviewing the law, he sees a chance to gain some much needed credibility for the Supreme Court. 

As John Marshall laid out his ruling, he began by saying that Marbury was appropriately appointed and should be given his position.  Nothing in the Constitution limits when a president can make judicial appointments and therefore, the post should go to Marbury.  As the audience begins to think that the Federalist judge has ruled in favor of the Federalist plaintiff, Marshall shocks by attacking the Judiciary Act of 1789.  In short, Marshall ruled that the portion of the law used by the plaintiff was unconstitutional and therefore, Marbury’s case and basis was invalid and his petition denied.  Jefferson was now in a bind.  If he did not accept Marshall’s opinion, he would be compelled to give Marbury his position, with many other midnight judges likely to follow the same path.  By accepting the Court’s opinion, he bestows upon the Court the ability to review the actions of government and determine its constitutionality.  In short, John Marshall took one step back to take two steps forward at a later date.  It worked and the Court was given an important power over the other branches – judicial review.   

The Supreme Court has the authority to review not only the actions of the government but those of the lower courts, both federal and state.  Over the course of his career, Marshall’s decisions would establish a strong federal government in the areas of interstate commerce, international contracts and on the question of federal law superseding state law.  Given the impact that he had, it is surprising that he is not more well-known.  Hopefully, I’ve changed that to some degree with this little story.  His life and his work is worthy of attention and study.    

Once More unto the Breach, Dear Friends

Shades of 1995 loom large as the congressional Republicans and a Democratic president face off over a question of the budget that has led to a government shutdown.  There must be a large institutional memory among both parties regarding how the last showdown turned out.  However, it is difficult to see this without conceding the Democrats refusal to negotiate.  It is a trend that began when the health care law was passed without a discussion or debate.  The House Republicans are trying to have some conversation about spending and debt but the Democrats, particularly in the Senate, refuse.  The Democrats are not seeking a solution. 

One of the Democratic talking points is that the Republicans are willing to hurt the average American by shutting down the government.  Meanwhile, the president has made a mantra, in between the ad hominem attacks, that he is willing to negotiate.  It has not been the experience of the congressional Republicans that the president is open to discussion.  If anything, the president is doubling-down on the rhetoric against his “ideologue” Republican opponents.  In addition to the president’s talking points, and much like what happened during the sequestration fiasco, the Democrats are seeking to make things as horrible as possible for the average American in order to convince the public the Republicans are irrational and mad.  Some newspapers took the administration to task earlier this year with regards to the disproportionate “pain” the Americans felt – particularly with the FAA, whose across-the-board minimal budget cuts (4%) turned into a delay of nearly half of all flights, according to the Wall Street Journal.     

Now, open air monuments are shut and privately funded parts of the National Park Service are ordered to close their doors.  Stern-faced administrative officials have hit the talk shows and issued flight safety warnings and national security concerns.  God forbid there should be a terrorist attack.  The administration will blame the Republicans.  Meanwhile, the non-ideologue president says he is willing to do anything to bring the government back into operation.  However, his Democratic compatriots view as outrageous the Republican effort to fund essential services of the government.  This led to a horribly unfortunate comment by Senate Majority Leader Harry Reid (D-NV), where he incredulously asked why he would want to save a child with cancer (by agreeing to Republican efforts).  If you are dumbfounded, join the crowd; so were the reporters at the scene. 

I’m not sure it was the best idea to tie the question of public funding with the Affordable Care

Act by leveraging a possible shutdown of the government.  However, the dye is cast and the only way the Republicans can salvage the situation is if they can get some reduction in government spending or the national debt.  However, what began as a blunder by congressional Republicans is quickly becoming a telling moment for the president and the Democrats.  It should be known that my lovely bride is currently “enjoying” an unpaid vacation due to the shutdown.  My thoughts on the matter are not capricious rants.  However, if the Republicans can make some progress, it might be worth it.  The American people will see this and the nay-sayers who cast doubt about the Republican chances in 2014 might be overstating their point.