My short essay ‘A Constitution Should Help A Country Govern, Not Hobble It‘ is up at Aeon Magazine. Comments welcome. (Many thanks to Sam Haselby, my editor at Aeon, for all his help.)
For almost three decades (if not more), millions of people watched Michael Jackson perform, on stage, in video. They also saw him alight from planes, from cars, and from there, walk into hotels and stadiums, living the life of a peripatetic, performing celebrity. On almost all of these occasions he was accompanied by his ‘sexual partners.’ Those scare quotes are necessary because unlike the typical male celebrity who flaunts his ‘trophy chicks,’ Michael Jackson showed off his young boys. They went everywhere with him like the girlfriends of male celebrities do; they were present in his hotel rooms; they slept in his bed at his ranch. They had privacy together; and they had sex. Of course, I should not use the phrase ‘had sex’ here. Rather, those boys were made to perform sexual acts at the behest of Michael Jackson who then swore them to secrecy on pain of the fear that their lives would be ruined.
Watching Leaving Neverland confirms, in some measure, what many folks thought of all those exceedingly strange visuals of Michael Jackson’s curious obsession with children. Yes, something really, really weird was going on. We weren’t mistaken. And it wasn’t just weird. It was downright sadistic and cruel: a grown man sexually abusing children, and manipulating them and their families to ensure their secret stayed just that.
The culture of celebrity worship that is exposed in this movie is as much a culprit as Jackson, as much a culprit as the parents of Wade Robson and James Safechuck who handed over their children to Jackson. So is a grim lesson of American life: hard work will not make you money, it will not get your children in school, it will not keep you safe, it will not bring you success in your profession; so if someone rich and famous and powerful–like Michael Jackson–offers you a hand, offering to pull you up the ladder, past all those social and economic obstacles that prevent you from winning in this rigged game, you should take it. Robson’s and Safechuck’s parents did; their children paid for their decision.
Leaving Neverland is not about indicting Michael Jackson. He will not pay for his crimes; he is dead. What it most certainly is about is making the world safer for all the children out there who are still being sexually abused and who will almost certainly be abused if the lessons of this documentary are not heeded. The saddest thing about Leaving Neverland is not just the stories of sexual abuse that it documents, it is also the knowledge that despite these testimonies, there will be those who will continue to attack Robson and Safechuck and defend Jackson, making the world a less safe for all of its children. Those Michael Jackson supporters who have continued to support their idol and have chosen to abuse Robson and Safechuck, have missed the point spectacularly–just like they missed the evidence piling up over the years. There is no material sense in which Jackson will pay. Perhaps his estate and all those who stand to make money of his name will. Maybe that’s why they continue to defend him?
Was our society, which had always been assured of its superiority and rectitude, so confident of its unexamined premises, assembled round anything more permanent than a congeries of banks, insurance companies and industries, and had it any beliefs more essential than a belief in compound interest and the maintenance of dividends?
Eliot wrote these lines shortly after the 1938 Munich Agreement, as Britain and France bowed and scraped before Hitler’s demands for more territorial gains in Europe.¹ The idea expressed at their heart has not lost any of its pungency. Eliot sought to contrast the faith of the Christian, a belief in something more permanent, lasting, morally-inflected, with the commodified, fashionable foundations of the commercial society. But even if you, perhaps of secular persuasion, do not want to fall back on religious faith as an alternative to the call of commerce, there is an acute question that remains raised: what is the great prize of our civilization, the one we offer and hold forth and aloft in front of the gaze of those eager applicants, ‘our youth,’ ‘our best and brightest’?
Something like the following: Go to school, go to college, get good grades, study business, or accounting, or finance, get to work, make ‘good money’–or rather, as much as money as you can, your money-making endeavors unrestricted by any kind of moral impulse. Disdain art and the humanities and all else as not being the real world, as useless and impractical, unsuited to the needs of our times. Regard the history of the world as a mistake, one to rectified by throwing money or weapons at all of its recalcitrant problems. Regard the weekends as a bonus allotment of time to ‘catch up on some work in the office that needs to get done by Monday.’ Birth, (business) school, work, death? The physical details of this are as equally grim: rise and shine, dress up, put on a tie, get in a car and get into traffic, or get into crowded public transportation, and then spend roughly ten hours–if you’re lucky–indoors in climate controlled environments. Rinse and repeat. The utter vacuity at the heart of these pursuits is almost frightening in its blandness, its lack of emotional and spiritual sustenance; the commodification of life and love it promises is genuinely terrifying.
Small wonder so many who live this dream ‘stumble’ from boardroom to bar to coke spoon to therapy couch to the grave. And small wonder that when the allure of something more substantive, more emotional, is held out as bait, so many snap and bite. Perhaps religion, perhaps a ‘new-age cure,’ perhaps, in the most extreme circumstances, an abandonment of family and an older life altogether. We will join these travelers, like all others, in their final destinations, the grave, but we can exercise some measure of control over the paths we take there.
The Republic turns its lonely eyes to its hero, Bob Mueller, again. Thanks to the latest developments in the Paul Manafort and Michael Cohen cases, a new rash of analytical thinkpieces is upon us, all informing us in breathless tones about how the Mueller investigation is now moving into high gear, of how much legal jeopardy Trump could be facing, of how ‘impeachment is again on the table if Trump issues pardons’ and so on.
Speculation is permissible when it comes to our national politics; indeed, with our dreaded ‘twenty-four hour news cycles’ and our always-on, always-working internet news sites, all dependent for advertising revenue driven by the proverbial ‘clicks’, such speculation is indispensable: how else can time-slots on news channels be occupied, how else can viewers be driven back, again and again, to check on ‘the latest developments on Trump’s legal troubles’?
Unfortunately, the real legal trouble at hand is for the republic. Its legal and political institutions do not work. It has handed over control of its politics to a Federal prosecutor’s investigation, trusting him to set things right; it is afflicted by historical amnesia, for it seems not to remember that the law in this nation has never adequately curtailed the powers of the rich and powerful and famous, that its most heavy-handed dispensations are reserved for the relatively powerless. The president can issue pardons for all and any federal crimes, and his track record thus far–Joe Arpaio, Dinesh D’Souza–suggests he will do it again and again to save those who might be tempted to rat out on him. And again. For who can stop him? Not the threat of impeachment, for that will be stalled by his mates in the Senate. Not any legal threat to the power of the President and the Executive Branch by subpoena or actual indictment; we can be sure that if that constitutional question ends up in the Supreme Court, we will return with a 5-4 verdict handed down by a handpicked bench. When the smoke clears, we will find the Trump family standing, protected by the legal advice tendered to the Executive Branch by the Office of Legal Counsel, by a phalanx of expensive lawyers. You might hold out the fond hope that Mueller will drive the Trump businesses bankrupt, that he will temper the carpetbagging tendencies of the Trump offspring; but again, here the history of actual persecution of corporate offenders should calm us down all over again.
The lesson here, as it has been for a while, is to step back from the notion of the law and the legal system doing the business of politics. Trump will not be defeated by the rule of law; neither will the real culprits in all of this, the Republican Party. They will only be beaten by a coherent political platform, delivered clearly, loudly, and repeatedly to the folks that really matter: the electorate. The rest of this ludicrous sideshow is an employment scheme for overpaid lawyers and legal commentators.
If you are one of those folks who responds to any debate in the domain of copyright reform with one of the following responses (or some variant thereof), please cease and desist. You are revealing yourself to be a functional illiterate.
- Oh, so according to you, anyone should be able to take something written by an author and just rip it off, right? [I’m presuming ‘rip it off’ means ‘use without attribution.’]
- I should be able to take something you’ve written, change your name to mine and just sell it, right?
No. You may not. You would be a plagiarizer then. Folks advocating reforms of copyright laws–typically shorter copyright terms, more lenient understandings of the doctrine of ‘fair use‘ mainly–have never advocated plagiarism. They still don’t.
Copyright reformers do not advocate that copyright protections should not exist. They do argue, however, that these protections are sometimes extended to material that should not be copyrighted–for example the baseball statistics that are put into a particular format by an author should remain uncopyrighted while their new tabular format certainly should be; they also advocate that those terms of copyright should be limited–as originally envisaged in the US Constitution–so that the copyrighted material can serve as ‘raw material’ for other creators to build on, to modify. They also express concern that over-stringent application of copyright laws are sometimes problematic in the digital world in which we live today – one in which creative products can be more readily copied, modified, and distributed.
But they do not, ever, advocate that someone should be able to take someone else’s’ work and pass it off as their own.
This persistent misunderstanding of copyright reformers’ claims has two unsavory interpretations:
- Critics of copyright reformers are lazy and illiterate; they cannot read, and if they can, they cannot be bothered to read the actual claims made by copyright reformers.
- Critics of copyright reformers are intellectually dishonest, engaging in willful misreading in order to systematically misrepresent the reformers’ claims.
I pen this short screed today because this past Monday, my essay ‘End Intellectual Property,’ which argues that the term ‘intellectual property’ is a misleading piece of rhetorical excess and should be discarded in favor of the precise use of ‘copyrights’, ‘patents’ ‘trademarks’ and ‘trade secrets’ instead, appeared in Aeon Magazine, and almost immediately, many readers online made some version of the responses above. I’m left shaking my head. Especially as my essay included the following line:
And neither do copyright reformers argue that plagiarists be somehow rewarded; they do not advocate that anyone should be able to take a copyrighted work, put their name on it, and sell it.
P.S: There are several other persistent misunderstandings–or willful misreadings– of copyright reformer’s claims making the rounds. As they have been for a while. Like vampires, they refuse to die. On those (‘so you think artists should not be paid for their work?’ and ‘how come your books are not made available for free?’), more anon.
In an Op-Ed for the New York Times, Neal Katyal, the “acting solicitor general under President Barack Obama and…a lawyer at Hogan Lovells,” and George Conway III, “a litigator at Wachtell, Lipton, Rosen & Katz,” argue that Donald Trump’s appointment of Matthew Whitaker as the the Acting Attorney General is unconstitutional. Roughly, according to the Appointments Clause of the US Constitution, Article II, Section 2, Clause 2, “principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.” Whitaker is a principal officer, and he has not been confirmed by the Senate. So, “Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States…is unconstitutional. It’s illegal.”
(Katyal and Conway buttress this argument by invoking the words of Justice Clarence Thomas, who argued last year that the appointment of the general counsel of the National Labor Relations Board without Senate confirmation, which was ruled invalid on statutory grounds, was unconstitutional for precisely the same reason – it violated the Appointments Clause.)
Katyal and Conway sign off with a rhetorical flourish that should be familiar to anyone who has read claims alleging the unconstitutionality of a statute or executive action:
[T]he Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”
We must heed those words today.
Stirring words. Exemplary legal analysis. Alas, something is missing. How can we “heed those words”? What legal redress do American citizens have? Can I call a police officer and ask him to arrest the President? Who will step forward to address this violation of the law? Illegal acts have been committed; what can be done? Katyal and Conway do not bother to tell us. They tell us that something is is illegal and then they drop the mic. Unconstitutionality Alleged! Boom!
What Katyal and Conway have failed to do is tell us who has standing to sue. Standing is “the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case” or “the requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved.”
So, who, if anyone, has standing to sue in this case? I am not a lawyer or a legal expert. I do not know what the rules are for standing to sue alleging constitutional violations. Mea culpa – my civics lesson were clearly inadequate. It would be nice if a pair of expert lawyers, who enjoy access to one of the the nation’s most visible media platforms, would tell me.
This complaint is a more general one. In the years since Donald Trump has become president, a veritable blizzard of op-eds have descended upon us, alleging some kind of illegal behavior by the administration. (Most of these are admittedly allegations that some norms, rather than laws, have been violated.) In almost none of those is the reader informed of how the citizens of this nation can find legal remedies. An opportunity for a little civics lesson, a little legal education, is missed out in each case. And the impression that citizens have, that the laws of this nation simply do not check the actions of the powerful, is reinforced. From a political standpoint, polemics are of little use if they do not include some call to action: here is the legal violation, this is what must be done to redress it. Elementary rules of composition for political or legal writing, I think.
As things stand, Whittaker is Acting Attorney General. And for all we can tell, no one can do anything about it. If that is the case, it would be nice to know why.
Kris Kelvin, Snow, Gibrarian, and Sartorius are all puzzled and perplexed; as other educated and intelligent residents of Station Solaris–a sophisticated scientific laboratory–have been before them. They are stumped and bewildered by their interactions with the planet Solaris, with the ocean that covers its surface, the one that plays host to mimoids and symmetriads and asymmetriads and vertebrids extensors and fungoids and other strange and wondrous physical forms, which seems to be able to conjure up, out of its own chosen raw materials, facsimiles of the human form–like Kelvin’s former, dearly beloved, and now sadly departed love–that are good enough to induce genuine confusion about their identity on the part of those who would interact with them.
Does the ocean live, is it conscious, does it have a body or a mind? Is it intelligent? Is it communicating with human beings? Does it speak a language? Does it possess knowledge of mathematics or computation? Does the surface of the ocean on Solaris engage in computations; is that what the changes in its physical form signify?Are these human forms, the ones that look like the ones we love, are they forms of communication on the part of the planet? Has it scanned our brains, discovered our obsessions and physically realized them in an attempt to establish contact with us? Has it performed a series of vivisections on our brains and psyches, treating us flippantly like objects for experimentation–the way we have treated physical materials and other species on this planet?
The planet is, of course, Wittgenstein’s lion. It has spoken and we do not understand it. All that the scientists on Station Solaris can bring to bear on their interactions with the planet is their knowledge of themselves and other human beings–and their interactions with each other; this knowledge–of their particular ‘forms of life’–forces them into a particular interpretive stance with respect to the planet, one whose prisoners they remain, and which does not afford a unique and determinative understanding of what the nature of the planet is, and or what it might be trying to say–if it is trying to say anything in the first place. The planet has its own ‘form of life‘ that regulates and determines the form and content of its interactions with the human beings engaged with it; there is little guarantee that this communication is set up to enhance, or even make possible, understanding on the part of its human interlocutors.
Kelvin and Snow and Sartorius and Gibarian have come to realize that these concepts they trade in–life, mind, consciousness, thought, persons, intelligence, brain, language–find their meaning with respect to a particular form of life and being–they do not transcend it. They do not allow for the determination of whether the planet, a ‘being’ perhaps radically similar or dissimilar to them, traffics in similar concepts, or anything like them. If they were to ascribe a ‘life’ or a ‘mind’ to Solaris, it would be an asterisked one–‘life as we know it’–and perhaps that’s all we can or should aspire to.