Oct
09

Jill Lepore's Almost Brilliant American History

            Jill Lepore’s These Truths: A History of the United States, promises to be just the book we need in divisive times. It sets out to consider a question posed at the time of the republic’s founding by Alexander Hamilton: “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

            I raced through the first several hundred pages of the book with a hunger to learn what course she could suggest through what looks like a complete collapse of civility and republican principles in our time. Yes, Magna Carta’s commitment to the rule of law mattered; yes, the English Civil wars and the beheading of Charles I in the 17th century shed new light on a people’s power to resist and laid bare the foundations of political authority; yes, the colonial experiments with self-government sowed seeds that would blossom into rebellion.

            She writes in balanced and sometimes moving prose. (But first you must endure an introduction that putters where it should soar: the Constitution was sent to printers “who set the type of its soaring preamble with giant W, as sharp as a bird’s claw." God save the ornithologists.)

            Once past the preface, however, the prose serve, and serve well. But Lepore never really answers the question she set out to consider. It’s almost as though she wrote 600 or so pages, got us to the post-World War II era, and then, rather than quit while she had a complete narrative arc, decided to press on through the 2016 election.

            Here’s her thesis: As soaring as our founding documents sound, their words do not match the reality of our lives. We speak of the equality of men, but for generations regarded women as something else, and African-Americans as less still. At the heart of the American promise lies a hypocrite’s compromise.

            We’ve stumbled through a civil war in an effort to make plain words have plain practical meaning, but always our prejudices and biases get in the way. Equality? Not so then, at the time of the founding; not so at the time of the civil war;  and not so now – the color line remains real, so, too, does the gender line. And lest you think full equality has arrived, consider now the widening gap between rich and poor.

            We’ve never lived up to the dream we sold to the world as proud inhabitants of a City of a Hill.

            Lepore chronicles the fault line in our lives.  She writes well about W.E.B. DuBois and Susan Anthony. Malcom X speaks, and so, although in an oddly muffled voice, does Martin Luther King. She doesn’t wince when recounting how often our founders and political leaders asserted that this a country built and destined for white folk.

             We’re struggling, all sinners in need of the grace ideals can bestow. Preach, sister. Tell me how to hear the muse of our ideals today, in a post-truth era, where identity trumps character and pathos is king, where fake news is the coin of the realm.

            Somehow, Lepore fails to make the transition into the 21st century in a convincing way. She has plenty to say about the role of parties and polling and computing power to divide us in instrumental ways designed to win elections at all costs. She writes about how computers and IPhones have transformed our worlds. Yet not once did I see her discuss artificial intelligence and the replacement of human capital by the Internet of Things.

            Too much time is spent on Alex Jones, Infowars, and cable news. Yes, we’re divided, fractured, and living in ideological silos. Lepore provides no account of how we’ve become so fractured, except to write extensively about the advent of political consultants. (I learned a boatload about Campaign, Inc., a consulting firm founded in 1933 by Clem Whitaker and Leone Baxter,  that helped torpedo national health insurance and then served as the slash and burn strategists for a series of office seekers. If Donald Trump has ever read anything, I suspect he’s read a Campaign, Inc., playbook. Their campaigns were all about going on the offensive, using half-truths, even lies, boldly proclaimed, and castigating your critics.)

            But slick advertisers, pollsters and political hacks working for a fee didn’t knock us off course. These are the vultures feeding on the culture in which they live.

            Lepore writes as though culture, ideas, philosophy don’t matter. Just how she managed to write a nearly 800-page narrative on American history without ever discussing Isaiah Berlin and his discussion of pluralism and monism, or his essay on liberty, is beyond me.

            Isn’t it possible that the current malaise is nothing more than pluralism taken to its extreme? When everything matters, there is no longer any sense in drawing distinctions between better and worse. We value diversity for diversity’s sake now. There is no meaningful discussion of the good life. In an effort to make every odd duck feel safe, we tolerate everything except the voice foolish enough to assert that some things are better than others. The bottom has fallen out of pluralism, I say. In the absence of even the semblance of trying to distinguish between better and worse, all that really matters is pathos. Everything suddenly matters. A certain weariness sets in, and is soon replaced by exhaustion. You, too? We mutter, as yet another victim -- no, make that survivor -- demands recognition.

            My hunch is that our time is a time of fear. Rapid change has displaced settled notions of what a good life can and should look like. A displaced middle-class looks warily at the immigrants coming here to escape devastation in less fortunate parts of the world. The American pie is shrinking, and, when it is served, the invisible hand doing the serving is less the market that a computer’s idea of efficiency.

            Not a word about opiod deaths, Ms. Lepore? Consider the following possibility: that in an era bereft of common ideals, where the only claim to distributive justice is being a victim,  suicide is less an epidemic than a vote on the American prospect.

            Sure, this is a depressing conclusion. But history has winners and losers. We’ve lost our way and it is by no means clear that there is a way out. Consider simply the confirmation fight in the Senate over Brett Kavanaugh. The U.S. Senate as the world’s greatest deliberative body? Only if you think a food fight is fine dining.

            Unless something changes the answer to Hamilton’s question will be “no.” The government now is less an instrument of common good and more a tumor to be managed.

           I want historians like Lepore to dig harder. What are the currents that are undoing us?

            The American experiment succeeded so long as there was abundance. In an era of scarcity the rich grow richer. The rest of us scramble in any way we can to matter. Hence the thrill of identity politics. In the absence of realistic hope for earning a share of a shrinking pie by contributing to the public weal, claim victimhood. But when everyone is a victim, then no one is.          

            I hope Professor Lepore does a new edition of this book. She should rework the last four chapters, the part on the post-World War II era. After brilliant analysis of our distant past, Lepore seems to lose her way the closer she got to our time. This, more than anything, tells me that despite her wish to claim that a society founded of choice and reflection can endure, she’s secretly reached the conclusion that it cannot.

            I’m hoping she’s wrong, but nothing in her book reassured me. Everything about the daily news tells me a certain deadly inertia has set it. We the people are enduring dark times.


Sep
16

Will Kavanuagh Sue For Defamation?

We now know the name of the woman who accused Judge Brett Kavanaugh of sexual assault in an anonymous letter to California Senator Diane Feinstein earlier this summer. She is Christine Blasey Ford, a pscyhology professor. The Washington Post reported on her identity this weekend, after she sat with a reporter and provided what corroboration she could to her claims of misconduct.

Judge Kavanaugh should sue Ford for defamation. It would do the country a world of good to see what actual proof looks like.

The food fight that was the Senate Judiciary Committee's hearings on the confirmation of Judge Kavanaugh to serve as Supreme Court justice spared us the Ford saga. Only after the committee hearings ended, did Feinstein leak the contents of the letter she had sat on for months. An ambush is best when the target can't shoot back.

While a high school student, Judge Kavanaugh is alleged to have taken Ford to a bedroom, forced himself atop her, and placed his hand over her mouth. Had the other male in the room not intervened, there's no telling what would have happened. Or so the anonymous letter contends.

Judge Kavanaugh has denied the claims.

Senate Democrats chose not to confront the judge with the accusations in a forum in which he could respond. They went to the press, where the standards of proof are low. The anonymous accuser was the latest #MeToo Madonna. We were told to believe her because she said it. That plays in some quarters, especially among those who are determined to block Judge Kavanaugh's confirmation to the high court at all costs. The judge is too conservative. He might vote to overturn Roe v. Wade. 

But the anonymity of the complaint deprived it of more than public relations value. To be credible, the story needed a face, a name, a person to own it in a public, or semi-public forum. So Ford came forward, in the manner, at the time, and for the reasons of her choice.Let's learn more about her motives, the better to assess her credibilty.

Judge Kavanaugh should have her served with a defamation suit before the Sun goes down.

Ford told The Post that it's all true. She even brought to an interview with reporters records from a treating psychologist whom she saw just a few years ago. She appears to have sought therapy in mid-life, perhaps marital therapy -- the Post doesn't say.

What the Post did say is that she told her therapist there were four men in the room. Not two. The discrepancy? The therapist go it wrong, Ford told the Post. Maybe. Although that's not the sort of detail a "victim" is likely to get wrong.

She also never named the men -- whether it be two, four, six of eight. Why? They are now powerful. They might retaliate. But surely these villains weren't powerful in high school, or in college, or in professional school, or when they first entered the job market? No complaint then? 

Neither would it be credible for her to claim the shame card, the most common reason folks contend they sit on allegations for decades. Ford wasn't raped. There's little shame about being held down by a drunken fellow party goer, as terrifying as that might have been -- if true.  If her claims were true in the 1980s, why not address them then, or in the decades since?

Let's have a public trial. Let's discover Ford's partisan affiliation, her interest in the outcome of the Kavanaugh hearings, her motives for coming forward only when it is too late for the judge to respond except at the cost of derailing his confirmation vote. I'm willing to bet she's a lifelong Democrat. I'm willing to bet she was outraged that Senate Republicans did not bring President Obama's last nominee to the high court, Merrick Garland, to a vote in 2016.

Connecticut Senator Richard Blumenthal and New York Senator Chuck Schumer will now call for delay of the confirmation vote. Perhaps they will even call for reopening the confirmation process. Anything to push a full Senate vote on Kavanaugh off until after the November election, after which time, they no doubt hope, Democrats will be in the majority of the Senate and in a position to block the nomination of anyone President Trump nominates to the high court.

Don't run from this fight, Judge Kavanuagh. Embrace it. File suit. It's high time one of the accused demanded due process in the face of these libidinal smear campaigns. We've seem moguls, media personalities and Senators cut and run in response to anonymous claims of misconduct. Stand up and fight.

Unless, of course, you're guilty.  Then apologize and encourage us all to move on.

In the meantime, the Senate ought to hold a vote on the confirmation. If some Senators think these ancient claims are enough to force them to vote no, then so be it. The rest of us will await a contested civil trial. A weary nation will thank the judge for showing us what real proof looks like.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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