AN ESSAY
Over the last half century, "imperialism" has become a dirty word in American academic discourse. During that time, prevailing rhetoric has extolled multiculturalism, tolerance and multiperspectivism. It has championed the rights of historically disadvantaged groups while denigrating traditionally powerful ones. It has empowered the downtrodden and strengthened the weak. It has justified the historically unjustifiable. In the process, university rhetoric has identified "imperialism" as the worst thing one culture can do to another. Great civilizations, so the rhetoric goes, no longer conquer and dominate others. Great civilizations tolerate everyone and allow every culture to flourish within their borders.
Yet I venture that this is an anomalous trend. In fact, I argue that Nations unafraid to act imperialistically are strong Nations, while Nations afraid to do so are weak.
I understand that this squarely contradicts how we are "supposed to think" about imperialism today. But true to my word, I am determined to speak out this week about uncomfortable subjects. To use Nietzsche's term, I am determined to make "Uncontemporary Observations" concerning subjects we have been taught never to consider any other way.
Imperialism is about national power. In its purest form, it means the purposeful, intrusive projection of one Nation's military and cultural power over another Nation. To understand what that entails, it is essential to understand what "Nations" are. In past essays, I have noted that "Nations" and "States" are distinct terms. "Nations" refer to discrete populations united by common linguistic, cultural, genetic and religious traditions. "States," on the other hand, refer merely to a population's adherence to a particular governing instrument for the sake of common administration and convenience. Many Nations can exist under a common State. But Nations are unique.
Throughout history, some Nations have prevailed, while others have fallen. Nations that have prevailed generally have successfully engaged in imperialism. They have crushed and dominated their neighbors. They have brutally stamped out opposition and imposed their own cultural traditions on their defeated enemies. These Nations cared nothing for multiculturalism or tolerance. They did not blink at brutality. Rather, they felt so secure in their own power that they gladly violated other Nations' territory to absorb them into their own realms. This is not a popular thing to do these days. But history shows that the most influential Nations have been the most imperialistic, too.
Consider Rome. Rome grew to eminence because it projected its values across Europe, North Africa and the Middle East. By sheer will and military prowess, it subjugated its neighbors, occupied their territory and imposed its values on them. It even made them speak Latin and build infrastructure according to the Roman model. It forced them to live under Roman law and observe Roman customs. Rome was strongest when it was unafraid to conquer. It affirmed its own beliefs when it ruthlessly destroyed all who stood before it. Through imperialism, Rome made itself great. At its height, Rome conquered and killed without a second thought. It believed so strongly in its own values that it did not hesitate to eradicate whole Nations.
But consider now how Rome fell. Rome collapsed several centuries after it stopped waging imperial wars. Once it reached its territorial zenith, Roman values began to weaken. Its government began tolerating new ideas and new cultural trends. Internal cultural cracks developed. Its military power waned. Barbarians began picking away at the frontiers. Put simply, Rome lost its appetite for imperialism. It lost faith in its own rightful dominance. So Nations with more assurance in their own values filled the void. They overran Rome and destroyed it.
Turn now to England and Spain, the "great" European colonizers of the Americas and Asia. Both Nations achieved spectacular eminence because they shamelessly engaged in imperialism. Both Nations reached their zenith when they brutally laid claim to others' land and genocidally slaughtered anyone who opposed them. They unswervingly believed in their own causes: Just like the imperial Romans, the British and the Spanish believed that their values were far superior to the Natives they displaced. So they killed, enslaved and uprooted them without a second thought. In the process, they reshaped the world. Like it or not, the fact that English and Spanish are among the world's most spoken languages is the direct result of unabashed, vicious global imperialism. Like it or not, the only reason why European white people live in North America today is because England and Spain barged in and killed everyone else who used to live there. The very existence of the United States is the product of an original, shocking act of imperialism by Great Britain.
To summarize, Nations are strong when they conquer. They believe in their own values so much that they do not shrink from trampling and absorbing other Nations. Nations weaken when they lose faith in their own dominance and begin tolerating dissention in their own borders. Imperialism showcases a Nation's shameless belief in itself; and its contempt for any culture that differs from it.
Needless to say, it is no longer popular to endorse imperialism. It is no longer acceptable to say that one Nation is rightfully superior to another, let alone to suggest that one Nation has the authority to seize territory and butcher native inhabitants in another country. Yet it is precisely that vicious cultural intolerance that created the United States. That same intolerance sustained all the world's mightiest empires. When a Nation engages in imperialism without shame, it declares to all the world: "My Nation is so great that it deserves to dominate you."
America presents an interesting case. Despite all the recent discourse condemning imperialism, the United States remains an immensely imperialistic country. Since roughly 1865, America has engaged in imperialism all over the world. First, it eradicated or marginalized native populations in its own continental borders. Second, it overran Hawaii. Then it battled Spain and conquered Cuba, Puerto Rico, Panama, the Philippines and numerous Pacific islands. In World War I, it projected its national power into European affairs, playing a substantial role in dictating the peace terms at Versailles. In World War II, the United States achieved monumental national power by almost single-handedly defeating Japan and Germany, then permanently occupying both defeated countries. After World War II, the United States created the United Nations and oversaw "world peace" by policing various national conflicts from Korea to Vietnam to Afghanistan and Central America. Later, the United States invaded Iraq on fabricated "self-defense" grounds, plunging that country into civil war.
America's voracious imperialism does not end with military conquest. Beyond physical incursions into other Nations' affairs, America also engages in unabashed cultural intrusion. Its music and film industry dominate the entire world. Children from China to Germany to Africa all learn English so they can listen to American songs and watch American movies. People in Beirut listen to Michael Jackson and Rihanna. Business people all over the world adopt English as their lingua franca. America's cultural imperialism is so complete that when two foreign businessmen meet, chances are they will speak English to each other, even if neither is a native English speaker. None of these things would ever have come to pass if America had not engaged in overwhelming, successful imperialism over the last 150 years.
In this light, perhaps it is not a bad thing to say that a Nation like the United States is "imperialistic." After all, America dominates the world in a way not seen since Rome. Its culture, language and military cow the globe into submission. All other Nations measure themselves by the American standard. Like all empires in history, America's imperialism shows that the United States ruthlessly believes in itself. It does not tolerate dissention abroad. And it has shown that it will crush any Nation that opposes its power. Put simply, America is strong; and it is not afraid to beat anyone down who thinks otherwise.
Is imperialism unpopular? In university rhetoric, of course it is. But when we look closely at what imperialism means--and what it has wrought in the United States--we discover an embarrassing truth: We are all the products of imperialism. Our "American civilization" arose because England and Spain were unafraid to savagely kill the natives who once occupied this land. We speak English and Spanish in North America because the British and Spanish felt so superior that they had a right to set up shop on a foreign continent. And we now live in the world's most powerful Nation because the United States carried on the imperialistic tradition that gave it life in the first place.
America was born in imperialism. It will always be imperialistic. Imperialism showcases American values. It reflects intolerance for all who oppose us. In a perverse way, however, it also confirms America's health. As long as America is unafraid to savagely destroy its enemies and to project is culture over all the world, it is still--as Rome was--at the height of its power. America has not stopped expanding. Indeed, it is not in our nature to stop expanding. Once we stop expanding--whether culturally or militarily--we are no longer imperialistic. And when that happens, we can expect our power to gradually wane, just as Rome's did.
Thus, despite all the criticism, an imperialistic Nation is a healthy Nation. Imperialistic Nations might act like ferocious animals, but ferocious animals defeat any living thing that opposes them. In that light, we can thank imperialism for giving us this mighty Republic, as well as all the comforts it brings.
This is my uncontemporary observation for the day.
Showing posts with label English. Show all posts
Showing posts with label English. Show all posts
Wednesday, April 28, 2010
Monday, March 22, 2010
LAWYERS : WHAT'S IN A NAME? MORE THAN YOU THINK
AN ESSAY
Lawyers are always in the news. They like talking to the press. And the press likes talking about them. They always have something to say; lawyers are pretty glib. They like free advertising, too. So they are happy to speak up when cameras roll.
But no matter how much press lawyers get, it's usually bad. In most cases, news stories involving lawyers discuss their avarice, moral bankruptcy, hypocrisy or outright criminality. Most recently, for instance, several newspapers reported on the proposed settlement between New York City and 9/11 workers. Apparently, the lawyers in that case (it's a big class action suit) advised the 9/11 workers to settle for around $675 million. That would give the lawyers at least 33%, or $225 million. The 30,000 workers would get the rest. A judge rejected the proposal. The press described it like this: "Judge refuses to bow to greedy lawyers. Rejects 9/11 settlement."
People expect lawyers to be greedy in America. That's their reputation. That's what they do. They intervene in private disputes, work mysterious magic behind the velvet curtain then take their fee. That's just how it works. At the same time, people expect lawyers to break rules as often as they enforce them. Vulgar punners like to cross the word lawyer with "liar;" and the pun is not too far off the mark. When hearing about lawyers, people expect elusiveness, craftiness, dishonesty, theft and nasty-spiritedness. It's all part of the public image. It is no wonder that the public does not respect lawyers. Viewed in the abstract, they are a lousy bunch.
But it's all part of the trade. Lawyering is a lousy business. Government tries its utmost to cultivate respect for the law as a beneficial social construct designed to bring about good. Yet a quick brush with lawyers undermines any respect a citizen might have developed for the law. With lawyers, it's not about doing good. It's about winning. And if winning means subverting good--or even allowing evil to prevail--then so be it. That's business. After all, that's what the client wants. As law firms like to say: "We are result-oriented." How true: Lawyers get results for their clients, even if those results seem despicable to everyone else on earth. The word "result," after all, does not necessarily imply "good" or "ethical." Results depend on who's getting them. A good result for the labor baron is a bad result for the workers. A good result for the State is a bad result for the Defendant. A good result for the employer is a bad result for the employee.
Lawyers sell results. They get them however they can. That is why people don't respect lawyers; they are crass partisans who zealously go to bat for scoundrels. In the process, they milk everyone for money and accuse everyone of lying--except themselves.
Maybe our language has something to do with lawyers' poor reputation in America. Yesterday I thought about the word "lawyer," as well as its interchangeable synonym, "attorney." Then I thought about the German word for lawyer, Rechtsanwalt. I have often uncovered compelling conceptual relationships among English words by comparing their equivalents in foreign languages. Perhaps I could understand why lawyers have such a bad reputation in America by making some linguistic comparisons.
Literally, Rechtsanwalt means "rights advocate." That sounds somehow more detached than "lawyer." Although lawyers are not the most respected members in German society, either, their name reveals something more transcendent than "lawyer." After all, a "rights advocate" is someone who stands up for rights. Rights are principles that mean something greater than individual self-interest. Rights stand for something beyond commerce and winning. Rights symbolize personal worth against government intrusion. Rights are somehow "sacred" and "inviolable." When someone violates a right, the aggrieved person has a claim against the violator. We enshrine rights. They exist beyond life. They encapsulate our deepest values. They express our fundamental expectations as individuals in society. Men have gone to war over rights. They have written philosophical treatises about the "Rights of Man" and launched revolutions to secure "inalienable rights." While rights may just be a human invention, they nevertheless represent something larger in people's lives. People willingly fight for rights. While it is ignoble to die for money, it is noble and just to die for rights.
In this light, a "rights advocate" seems a much nobler name than "lawyer." While lawyers in America--just like Rechtsanwälte in Germany--make their living by defending clients' "rights," their name suggests something far less honorable. "Lawyer" is embarrassingly common. It says nothing about "advocating for rights." Rather, it sounds like just another petty craftsman. In English, after all, the suffix "-yer" historically connotes a street-level artisan, like a "sawyer" (man who crafts wood with a saw) or "bowyer" (man who makes bows). Linguistically, then, lawyers fit into this tradition as "petty craftsmen who bend the law just as a journeyman bends a bow."
This interpretation goes beyond mere mockery. It is surprisingly appropriate in describing the lawyer's role in America. After all, lawyering is all about results in America. It is commercially straightforward. It is no different than manipulating tools to saw planks or build bows. People who want to buy plywood and bows don't care about others' rights. They merely want products to be crafted and built. And lawyers hawk the law in stores, just as sawyers hawked sawcraft in old England.
In a word, the word "lawyer" perfectly expresses the commercial nature of legal practice in America. It is not about "transcendent rights for all." Rather, it is about tailor-made products for particular clients who want particular results. The word's origin conceptually places lawyers exactly where they belong: Among street peddlers and common craftsmen.
But what about "attorney?" Does the synonym save the concept "lawyer" from moral destitution? To determine this, we must examine its etymology. "Attorney" derives from French. It takes its form from the French verb "tourner," meaning "to turn," then adds the Anglicized prefix "at-", meaning "to" or "toward." In French, the past participle of "attourner" is "attourné," meaning "turned to." The suffix "-ey" indicates that at some point an Englishman changed the French past participle into letters he could pronounce: He transformed the foreign-looking "é" into "-ey." Behold: Attorney. Literally: "Person turned to."
So how does this differ from "lawyer?" Is it any "better?" Not much. If anything, the word "attorney" refers to the lawyer's role as confidant and advisor in times of trouble. People need to "turn to" others when something bad happens to them. In some sense, the word "attorney" is paternalistic because it implies that people are too weak to fend for themselves and they need a "father-like" lawyer to shepherd them through difficulty. But in another sense, "attorney" implies that a lawyer is a partisan mercenary who will do anything his client tells him. After all, why would you "turn to" a lawyer if not to win your case at all costs?
In my view, the word "attorney" represents the lawyer's role as adversary in the American system. People "turn to" lawyers when they have a commercial problem. They expect their lawyers to vigorously advance their interests, even if those interests stand at odds with all the world. As a partisan, the attorney will "bend the law" in whatever way he can to win. In this way, the words "attorney" and "lawyer" mutually reinforce the commercial--and result-oriented-- nature of legal practice in America. People expect lawyers to do their bidding, so they "turn to" them. And once they do, they expect lawyers to sell them a ready-made product without quibbling over larger issues like conscience or ethics.
This is not to say that some American lawyers are not "rights advocates." On many levels, they are. Every legal case involves rights. But not all rights are noble. In fact, most legal rights involve contracts, property and other social mechanisms designed to maintain private ownership. As a consequence, legal rights perpetuate unfairness because those who can assert them generally have much more power than those who do not. To speak broadly, those with more riches often have substantially more legal rights than those without riches.
But these are merely "technical," private legal rights. There are public rights, too. And those rights have a largely positive connotation. Most people think about public (constitutional) rights when they hear the word "rights," like the right to free speech and the right to equal protection under law. That is why the German word Rechtsanwalt conveys a more positive connotation with regard to the law than the English words "lawyer" and "attorney." It focuses on rights, not commerce or craftsmanship.
In America, people "turn to lawyers." Yet that is the reason why lawyers always get bad press. No one likes a crafty, small-minded, contentious partisan who bickers and backstabs for a fee. Yet that is what lawyers do here. They are crafty craftsmen who bend bows for a set price, not noble "rights advocates." They sell products, just like any other peddler. But unlike other peddlers, they are paid to fight for one person's "rights"--and trample you if you get in their way.
Lawyers are always in the news. They like talking to the press. And the press likes talking about them. They always have something to say; lawyers are pretty glib. They like free advertising, too. So they are happy to speak up when cameras roll.
But no matter how much press lawyers get, it's usually bad. In most cases, news stories involving lawyers discuss their avarice, moral bankruptcy, hypocrisy or outright criminality. Most recently, for instance, several newspapers reported on the proposed settlement between New York City and 9/11 workers. Apparently, the lawyers in that case (it's a big class action suit) advised the 9/11 workers to settle for around $675 million. That would give the lawyers at least 33%, or $225 million. The 30,000 workers would get the rest. A judge rejected the proposal. The press described it like this: "Judge refuses to bow to greedy lawyers. Rejects 9/11 settlement."
People expect lawyers to be greedy in America. That's their reputation. That's what they do. They intervene in private disputes, work mysterious magic behind the velvet curtain then take their fee. That's just how it works. At the same time, people expect lawyers to break rules as often as they enforce them. Vulgar punners like to cross the word lawyer with "liar;" and the pun is not too far off the mark. When hearing about lawyers, people expect elusiveness, craftiness, dishonesty, theft and nasty-spiritedness. It's all part of the public image. It is no wonder that the public does not respect lawyers. Viewed in the abstract, they are a lousy bunch.
But it's all part of the trade. Lawyering is a lousy business. Government tries its utmost to cultivate respect for the law as a beneficial social construct designed to bring about good. Yet a quick brush with lawyers undermines any respect a citizen might have developed for the law. With lawyers, it's not about doing good. It's about winning. And if winning means subverting good--or even allowing evil to prevail--then so be it. That's business. After all, that's what the client wants. As law firms like to say: "We are result-oriented." How true: Lawyers get results for their clients, even if those results seem despicable to everyone else on earth. The word "result," after all, does not necessarily imply "good" or "ethical." Results depend on who's getting them. A good result for the labor baron is a bad result for the workers. A good result for the State is a bad result for the Defendant. A good result for the employer is a bad result for the employee.
Lawyers sell results. They get them however they can. That is why people don't respect lawyers; they are crass partisans who zealously go to bat for scoundrels. In the process, they milk everyone for money and accuse everyone of lying--except themselves.
Maybe our language has something to do with lawyers' poor reputation in America. Yesterday I thought about the word "lawyer," as well as its interchangeable synonym, "attorney." Then I thought about the German word for lawyer, Rechtsanwalt. I have often uncovered compelling conceptual relationships among English words by comparing their equivalents in foreign languages. Perhaps I could understand why lawyers have such a bad reputation in America by making some linguistic comparisons.
Literally, Rechtsanwalt means "rights advocate." That sounds somehow more detached than "lawyer." Although lawyers are not the most respected members in German society, either, their name reveals something more transcendent than "lawyer." After all, a "rights advocate" is someone who stands up for rights. Rights are principles that mean something greater than individual self-interest. Rights stand for something beyond commerce and winning. Rights symbolize personal worth against government intrusion. Rights are somehow "sacred" and "inviolable." When someone violates a right, the aggrieved person has a claim against the violator. We enshrine rights. They exist beyond life. They encapsulate our deepest values. They express our fundamental expectations as individuals in society. Men have gone to war over rights. They have written philosophical treatises about the "Rights of Man" and launched revolutions to secure "inalienable rights." While rights may just be a human invention, they nevertheless represent something larger in people's lives. People willingly fight for rights. While it is ignoble to die for money, it is noble and just to die for rights.
In this light, a "rights advocate" seems a much nobler name than "lawyer." While lawyers in America--just like Rechtsanwälte in Germany--make their living by defending clients' "rights," their name suggests something far less honorable. "Lawyer" is embarrassingly common. It says nothing about "advocating for rights." Rather, it sounds like just another petty craftsman. In English, after all, the suffix "-yer" historically connotes a street-level artisan, like a "sawyer" (man who crafts wood with a saw) or "bowyer" (man who makes bows). Linguistically, then, lawyers fit into this tradition as "petty craftsmen who bend the law just as a journeyman bends a bow."
This interpretation goes beyond mere mockery. It is surprisingly appropriate in describing the lawyer's role in America. After all, lawyering is all about results in America. It is commercially straightforward. It is no different than manipulating tools to saw planks or build bows. People who want to buy plywood and bows don't care about others' rights. They merely want products to be crafted and built. And lawyers hawk the law in stores, just as sawyers hawked sawcraft in old England.
In a word, the word "lawyer" perfectly expresses the commercial nature of legal practice in America. It is not about "transcendent rights for all." Rather, it is about tailor-made products for particular clients who want particular results. The word's origin conceptually places lawyers exactly where they belong: Among street peddlers and common craftsmen.
But what about "attorney?" Does the synonym save the concept "lawyer" from moral destitution? To determine this, we must examine its etymology. "Attorney" derives from French. It takes its form from the French verb "tourner," meaning "to turn," then adds the Anglicized prefix "at-", meaning "to" or "toward." In French, the past participle of "attourner" is "attourné," meaning "turned to." The suffix "-ey" indicates that at some point an Englishman changed the French past participle into letters he could pronounce: He transformed the foreign-looking "é" into "-ey." Behold: Attorney. Literally: "Person turned to."
So how does this differ from "lawyer?" Is it any "better?" Not much. If anything, the word "attorney" refers to the lawyer's role as confidant and advisor in times of trouble. People need to "turn to" others when something bad happens to them. In some sense, the word "attorney" is paternalistic because it implies that people are too weak to fend for themselves and they need a "father-like" lawyer to shepherd them through difficulty. But in another sense, "attorney" implies that a lawyer is a partisan mercenary who will do anything his client tells him. After all, why would you "turn to" a lawyer if not to win your case at all costs?
In my view, the word "attorney" represents the lawyer's role as adversary in the American system. People "turn to" lawyers when they have a commercial problem. They expect their lawyers to vigorously advance their interests, even if those interests stand at odds with all the world. As a partisan, the attorney will "bend the law" in whatever way he can to win. In this way, the words "attorney" and "lawyer" mutually reinforce the commercial--and result-oriented-- nature of legal practice in America. People expect lawyers to do their bidding, so they "turn to" them. And once they do, they expect lawyers to sell them a ready-made product without quibbling over larger issues like conscience or ethics.
This is not to say that some American lawyers are not "rights advocates." On many levels, they are. Every legal case involves rights. But not all rights are noble. In fact, most legal rights involve contracts, property and other social mechanisms designed to maintain private ownership. As a consequence, legal rights perpetuate unfairness because those who can assert them generally have much more power than those who do not. To speak broadly, those with more riches often have substantially more legal rights than those without riches.
But these are merely "technical," private legal rights. There are public rights, too. And those rights have a largely positive connotation. Most people think about public (constitutional) rights when they hear the word "rights," like the right to free speech and the right to equal protection under law. That is why the German word Rechtsanwalt conveys a more positive connotation with regard to the law than the English words "lawyer" and "attorney." It focuses on rights, not commerce or craftsmanship.
In America, people "turn to lawyers." Yet that is the reason why lawyers always get bad press. No one likes a crafty, small-minded, contentious partisan who bickers and backstabs for a fee. Yet that is what lawyers do here. They are crafty craftsmen who bend bows for a set price, not noble "rights advocates." They sell products, just like any other peddler. But unlike other peddlers, they are paid to fight for one person's "rights"--and trample you if you get in their way.
Wednesday, January 27, 2010
DO YOU LIKE REWARDS? WHAT A STUPID QUESTION
OESTERHOUDT STRIKES
Everyone likes rewards. Everyone likes receiving things they like. We are programmed to like rewards. It is in our nature to seek them. It is as natural as hunger or thirst. We rarely do anything unless there is some reward for our efforts. Rewards induce human behavior. As such, they drive all economic activity. After all, who would work if he knew he would receive no pay? Who would work harder if he knew he would receive no greater prize for the extra effort?
All this may seem obvious. But I mention it because Citibank® actually poses the question in its latest advertising campaign. On billboards and on computer screens, Citibank® queries: "Do you like rewards? If you do, you should open an account with us." It then lists various perks that new accountholders receive, like a $50 (taxable) bounty, a potential $100 (taxable) payment for new customer referrals and retail "points" that accumulate whenever they use Citibank® debit cards. So if you charge enough Starbucks® coffee on your card, you'll get a $10 "gift" one day.
Those are the "rewards" they are talking about. And who doesn't like rewards?
People love rewards because people are basically selfish. Rewards reflect personal gain; when a person wins a reward, he benefits. He might receive money or gratification. He might receive an emotional payout. No matter what form a reward takes, it appeals to men's base instinct to profit. For that reason, rewards induce behavior. One man offers a reward in order to persuade another man to act as he wishes. He knows that men like rewards, so he knows men will adapt their behavior to get it. This is no different from any other mammal. Dangle a leftover steak in a dog's face and you can it to do every trick in the book.
Yet this basic mammalian urge for rewards forms the basis for all purposeful economic activity in our "civilized" world. The only difference between men and dogs is that you need to dangle paychecks in their faces, not leftover steak. Then they'll do whatever tricks you want.
Put another way, rewards make us human. They might not bring out the best in us, but they are still central to human existence. People live for rewards. Why else would they do anything? Nature intended it that way. After all, why would human beings--or any animals--propagate if there were not some biological reward for propagating? People like sex because it offers an intense physical reward. Without the reward, no one would want to do it. Nature understands how animals think. And man is just another animal: He needs a selfish incentive to do anything. He needs a reward.
When it comes to rewards, man is different from other animals in a crucial respect: He can manipulate rewards to exploit his fellows. Through language and superior resources, a shrewd man can persuade a weaker man to do just about anything for the right reward. And the shrewd man can dictate the conditions under which the weak man obtains a reward. In sum, those conditions reduce the weak man to the shrewd man's control. Rewards, then, become an instrument of tyranny as well as enterprise.
In modern language, exchange influences rewards. Rewards provide a basis for bargaining. In English, for instance, the dictionary says that a "reward" is "something given in return for good, or, sometimes, evil, or for service, or for something lost." Webster's New World College Dictionary (4th Ed.). Rewards, then, are given in return for something else. They must be "earned." As such, superior men can easily manipulate the terms under which they give rewards. They know everyone wants a reward. So they exploit that natural desire to dominate anyone who seeks one.
English is not the only language that implies bargaining in "rewards." German, too, suggests that rewards must be "earned." The closest translation for "reward" is "belohnen," which means: "to compensate a person for his help or effort." Wahrig Deutsches Wörterbuch S. 249 (Ausgabe 2008) (my translation). "Belohnen," in turn, builds upon a simpler German word: "der Lohn." "Der Lohn" means "wage," or, more specifically: "payment, consideration or compensation for work performed." Id. at S. 955 (my translation).
As in English, German reveals that "rewards" don't fall from trees. They provide incentives for work and service to others. That means the person who gives rewards has the power to dictate the terms under which others will receive them. Rewards give power. After all, the master has power over the dog because he has the leftover steak; he can demand any behavior before he gives it to the dog. In the same way, the employer has power over the employee because he has the paycheck; he can demand any behavior before he gives it to employee. In both cases, men and dogs want rewards. And they do what they are told to get them.
Just like dogs, all men want rewards. They want to increase their wealth. They want to feel good about themselves. They want to experience positive emotions. They are prepared to do tricks to get them. Rewards provide a reason to live. They induce behavior. Sometimes they induce good behavior. But certainly not always. Every criminal seeks some reward. Personal gratification motivates genius as much as it motivates destructive cruelty. In that sense, rewards cut both ways. Offer a man $10,000 and he might write a beautiful essay in a writing contest. Offer another man $10,000 and he will kill anyone you choose. The principle is the same: Rewards induce behavior.
But it is just dumb to ask: "Do you like rewards?" That is the same as asking: "Do you like eating a meal when you're hungry?" Everyone does. It is perfectly natural. It might not be very grandiose to spend your whole life seeking rewards. But it's not very grandiose to spend your whole life eating meals, either. Yet both are quintessentially human activities.
Everyone likes rewards. Everyone likes receiving things they like. We are programmed to like rewards. It is in our nature to seek them. It is as natural as hunger or thirst. We rarely do anything unless there is some reward for our efforts. Rewards induce human behavior. As such, they drive all economic activity. After all, who would work if he knew he would receive no pay? Who would work harder if he knew he would receive no greater prize for the extra effort?
All this may seem obvious. But I mention it because Citibank® actually poses the question in its latest advertising campaign. On billboards and on computer screens, Citibank® queries: "Do you like rewards? If you do, you should open an account with us." It then lists various perks that new accountholders receive, like a $50 (taxable) bounty, a potential $100 (taxable) payment for new customer referrals and retail "points" that accumulate whenever they use Citibank® debit cards. So if you charge enough Starbucks® coffee on your card, you'll get a $10 "gift" one day.
Those are the "rewards" they are talking about. And who doesn't like rewards?
People love rewards because people are basically selfish. Rewards reflect personal gain; when a person wins a reward, he benefits. He might receive money or gratification. He might receive an emotional payout. No matter what form a reward takes, it appeals to men's base instinct to profit. For that reason, rewards induce behavior. One man offers a reward in order to persuade another man to act as he wishes. He knows that men like rewards, so he knows men will adapt their behavior to get it. This is no different from any other mammal. Dangle a leftover steak in a dog's face and you can it to do every trick in the book.
Yet this basic mammalian urge for rewards forms the basis for all purposeful economic activity in our "civilized" world. The only difference between men and dogs is that you need to dangle paychecks in their faces, not leftover steak. Then they'll do whatever tricks you want.
Put another way, rewards make us human. They might not bring out the best in us, but they are still central to human existence. People live for rewards. Why else would they do anything? Nature intended it that way. After all, why would human beings--or any animals--propagate if there were not some biological reward for propagating? People like sex because it offers an intense physical reward. Without the reward, no one would want to do it. Nature understands how animals think. And man is just another animal: He needs a selfish incentive to do anything. He needs a reward.
When it comes to rewards, man is different from other animals in a crucial respect: He can manipulate rewards to exploit his fellows. Through language and superior resources, a shrewd man can persuade a weaker man to do just about anything for the right reward. And the shrewd man can dictate the conditions under which the weak man obtains a reward. In sum, those conditions reduce the weak man to the shrewd man's control. Rewards, then, become an instrument of tyranny as well as enterprise.
In modern language, exchange influences rewards. Rewards provide a basis for bargaining. In English, for instance, the dictionary says that a "reward" is "something given in return for good, or, sometimes, evil, or for service, or for something lost." Webster's New World College Dictionary (4th Ed.). Rewards, then, are given in return for something else. They must be "earned." As such, superior men can easily manipulate the terms under which they give rewards. They know everyone wants a reward. So they exploit that natural desire to dominate anyone who seeks one.
English is not the only language that implies bargaining in "rewards." German, too, suggests that rewards must be "earned." The closest translation for "reward" is "belohnen," which means: "to compensate a person for his help or effort." Wahrig Deutsches Wörterbuch S. 249 (Ausgabe 2008) (my translation). "Belohnen," in turn, builds upon a simpler German word: "der Lohn." "Der Lohn" means "wage," or, more specifically: "payment, consideration or compensation for work performed." Id. at S. 955 (my translation).
As in English, German reveals that "rewards" don't fall from trees. They provide incentives for work and service to others. That means the person who gives rewards has the power to dictate the terms under which others will receive them. Rewards give power. After all, the master has power over the dog because he has the leftover steak; he can demand any behavior before he gives it to the dog. In the same way, the employer has power over the employee because he has the paycheck; he can demand any behavior before he gives it to employee. In both cases, men and dogs want rewards. And they do what they are told to get them.
Just like dogs, all men want rewards. They want to increase their wealth. They want to feel good about themselves. They want to experience positive emotions. They are prepared to do tricks to get them. Rewards provide a reason to live. They induce behavior. Sometimes they induce good behavior. But certainly not always. Every criminal seeks some reward. Personal gratification motivates genius as much as it motivates destructive cruelty. In that sense, rewards cut both ways. Offer a man $10,000 and he might write a beautiful essay in a writing contest. Offer another man $10,000 and he will kill anyone you choose. The principle is the same: Rewards induce behavior.
But it is just dumb to ask: "Do you like rewards?" That is the same as asking: "Do you like eating a meal when you're hungry?" Everyone does. It is perfectly natural. It might not be very grandiose to spend your whole life seeking rewards. But it's not very grandiose to spend your whole life eating meals, either. Yet both are quintessentially human activities.
Wednesday, January 13, 2010
IF YOU RUN FOR SENATE, I DEMAND IMPECCABLE GRAMMAR FROM YOU : THE SENATE IS NO ARISTOCRACY
AN ESSAY
New York prepares for an extremely nasty Senate race. For the second time in a decade, an out-of-Stater has taken residence in New York in order to run for Federal office. Eleven years ago, Illinois-born Arkansasan Hillary Clinton bought a house in Westchester County so she could run for Senate. Now, Tennessee native Harold Ford, Jr. has moved to Manhattan in order to battle Democrat Kirsten Gillibrand for her Senate seat.
Technically, there is nothing wrong with out-of-State people moving to New York to run for Senate. It's not like everyone can run for Senate. After all, the American constitutional system is no democracy; as a practical matter, you need to be "part of the club" to run for Senate--the most hallowed clique in the United States. You can't be a plumber from Queens to run for Senate. You can't be a drug dealer or even a university professor with modest savings. No, you need to be in the political elite. You don't need to be an "elite person" from an ethical or moral perspective. You just need to be bred for the job. Generally, that means coming from an extremely wealthy, well-connected family. That's what "elite" means in American political discourse.
Harold Ford meets the criteria. He comes from money. He has served five terms in the United States House of Representatives as a Tennessee delegate. He has sufficient political and economic connections to qualify for Senate membership. In essence, he is "elite." He has the backing and pedigree to join the club.
But unlike Hillary Clinton, Harold Ford's political philosophy does not find an easy home in New York. New York is a famously liberal State. That is why few people had a problem with Hillary Clinton when she waltzed into Westchester to run for Senate. Her political views matched most New Yorkers' views. They elected her by a wide majority, even though some Republicans squawked about "carpetbagging." They thought New York offices should be for New Yorkers, not transplanted former First Ladies from Arkansas.
Harold Ford votes like a southern Republican. New Yorkers like to think that they are nothing like southern Republicans. Yet the same Republicans who complained about Hillary Clinton "carpetbagging" to New York in 2000 now say nothing about Mr. Tennessee.
Who is Harold Ford? New Yorkers should ask that question. They did not have to ask the same question about Hillary Clinton. She was a household name long before her election to the Senate. Everyone knew where she stood on major political issues. Most New Yorkers liked her long before she moved to New York. But what about Ford? Most New Yorkers know nothing about him. He's not even 40. He served ten years in the House. What's so special about that? Unlike Hillary Clinton, he is nothing close to an internationally-recognized celebrity politician.
Ford wrote a brief article yesterday in the New York Post to inform New Yorkers about his candidacy for the Senate. He struggled to deflect early Democratic criticism that he is a "right-wing nut" who opposes abortion and gun control. After all, according to the critics, New Yorkers strongly support both abortion rights and gun control; it would be anomalous if their Senator opposed these things.
I do not know what to think about Ford. I can only speculate based on experience and intuition. Applying my experience, I can say that most representatives from Tennessee would not have their jobs if they supported abortion rights or gun control. Folks from Tennessee don't care much for abortion, and they certainly don't tolerate no Yankees taking away their guns for no thang, no how. Despite Ford's contention that he supports both abortion rights and gun control, I have trouble believing that he could have won five terms in Tennessee with that position. I mean no disrespect to Tennessee when I say that the State is not known for its grand liberalism. That reputation informs my intuition about any politician who serves there.
I know the Civil War has been over for a long time. But former Confederate States are still former Confederate States. Some things survive the generations. Just talk to a drunk Southerner to find out what I mean.
Ford wrote in his article: "I am pro-choice--have always been since I entered politics almost 15 years ago." N.Y. Post, Ford: I'm gearing up for Senate race, Jan. 12, 2010 at 5. But immediately below his article, another blurb disclosed that in 2006 he said to MSNBC's Tucker Carlson: "I'm pro-life, Tucker…I don't run from that." N.Y. Post, Obama elects to stick with Gillibrand, Jan. 12, 2010 at 5.
In lawyer-talk, this is called "impeachment." You're the jury. You decide which statement you want to believe.
No matter what Harold Ford actually thinks about political issues, I insist that he write clear, grammatical English. If someone wants to join America's most elite legislative club, he or she had better know how to write well. Unfortunately, Ford's article reveals that he does not.
First, Ford does not grasp the magical rhetorical art of the semicolon. On terrorism, he says: "Defeating terror isn't a talking point in New York, (sic) it's a way of life." N.Y. Post, Ford: I'm gearing up for Senate Race, Jan. 12, 2010 at 5. Whenever two sentences can stand on their own and they depend on each other for rhetorical effect, commas do not suffice to connect them. Only a semicolon can achieve the desired impact. First-year law students learn this very quickly under pain of academic chastisement. Ford apparently never learned his grammar lesson. He proves it in the next paragraph when he writes: "Rebuilding an economy isn't an item on an issue checklist, (sic) it is what New York does--and must do." Id.
Oops. Same boo boo. Aren't Senators supposed to be rhetorical wizards? This guy doesn't even get his grammar right.
But Ford's grammatical woes do not end with semicolons. He also has a problem with run-on sentences. Try this one on for size: "And New Yorkers want an honest and serious debate about how to grow our economy, create new jobs downstate and upstate and keep New York state (sic) and our country safe." Id.
Whew! Talk about trying to cram too many ideas into a single breath. Let's try to unpack this linguistic crate: Ford thinks that New Yorkers want honest debate about the economy, jobs and safety. He also thinks they want serious debate on the same subjects. He further thinks New Yorkers want both "honest and serious" debate about those issues from an upstate/downstate perspective, not to mention a State/Federal perspective. That 's a lot of debate from a lot of perspectives. It took me a good four sentences to mention all the ideas he squeezed into one. Needless to say, you can't effectively communicate so many things in one line. Multiple adjectives and conjunctions do not make the reader's job any easier.
Some will inevitably label me petty for criticizing Ford's grammar. After all, we all make grammatical blunders from time to time. But I respond that anyone who wants to be a United States Senator must adhere to a higher linguistic standard. I could forgive a college freshman's incessant run-ons and semicolon misuse. But I can't forgive the same foibles in a man who wants to join America's most elite legislative club.
On the other hand, perhaps I demand too much. Ford fits the bill for membership in the Senate. He's wealthy, he comes from a political family, he has connections and he has powerful friends. He comes from the right social class to get in the door. Sadly, that's all you really need to hold high office in the United States. If you happen to be intelligent and eloquent, that's great; but it's not required. In this sense, we see once again that America is neither a democracy nor an aristocracy.
In the original constitutional understanding, the Senate was supposed to be America's "aristocrats' club." It was supposed to comprise the "excellent" people from across the land. Yet as Ford's case shows, Senators need not be intellectually "excellent." They need only fit the property and pedigree requirements for membership. Quality is irrelevant.
I wish quality were more relevant in American government. The word "aristocracy" has a dirty meaning in American discourse because Americans allegedly believe that everyone is equal. They also associate "aristocracy" with the arrogant British nobility that led the colonies to revolt from England.
But in the Aristotelean sense, it is no insult to call someone an "aristocrat." To the contrary, it is the best thing a politician can be. A true "aristocrat" is a person with naturally excellent moral, intellectual and ethical characteristics. Aristocracy implies inequality; not everyone can be "excellent." Yet this is not a bad thing, because it is only prudent that "naturally excellent, unselfish" people rule the State.
Ford's case shows that American Senators are not aristocrats. They are oligarchs. Oligarchy means rule by a few, irrespective of personal excellence. To be a Senator, you don't need to be excellent. You just need to be part of the "few" who are eligible for the job. In that sense, it is incorrect to call Senators "aristocrats." If they were truly aristocrats, there would never be any scandal, corruption or acrimony in the Senate. But a quick glance at congressional history reveals that scandal is the rule, not the exception.
Instead, we have an oligarchy. Oligarchs don't need to be excellent. Far from it: They don't even need to know how to use semicolons.
New York prepares for an extremely nasty Senate race. For the second time in a decade, an out-of-Stater has taken residence in New York in order to run for Federal office. Eleven years ago, Illinois-born Arkansasan Hillary Clinton bought a house in Westchester County so she could run for Senate. Now, Tennessee native Harold Ford, Jr. has moved to Manhattan in order to battle Democrat Kirsten Gillibrand for her Senate seat.
Technically, there is nothing wrong with out-of-State people moving to New York to run for Senate. It's not like everyone can run for Senate. After all, the American constitutional system is no democracy; as a practical matter, you need to be "part of the club" to run for Senate--the most hallowed clique in the United States. You can't be a plumber from Queens to run for Senate. You can't be a drug dealer or even a university professor with modest savings. No, you need to be in the political elite. You don't need to be an "elite person" from an ethical or moral perspective. You just need to be bred for the job. Generally, that means coming from an extremely wealthy, well-connected family. That's what "elite" means in American political discourse.
Harold Ford meets the criteria. He comes from money. He has served five terms in the United States House of Representatives as a Tennessee delegate. He has sufficient political and economic connections to qualify for Senate membership. In essence, he is "elite." He has the backing and pedigree to join the club.
But unlike Hillary Clinton, Harold Ford's political philosophy does not find an easy home in New York. New York is a famously liberal State. That is why few people had a problem with Hillary Clinton when she waltzed into Westchester to run for Senate. Her political views matched most New Yorkers' views. They elected her by a wide majority, even though some Republicans squawked about "carpetbagging." They thought New York offices should be for New Yorkers, not transplanted former First Ladies from Arkansas.
Harold Ford votes like a southern Republican. New Yorkers like to think that they are nothing like southern Republicans. Yet the same Republicans who complained about Hillary Clinton "carpetbagging" to New York in 2000 now say nothing about Mr. Tennessee.
Who is Harold Ford? New Yorkers should ask that question. They did not have to ask the same question about Hillary Clinton. She was a household name long before her election to the Senate. Everyone knew where she stood on major political issues. Most New Yorkers liked her long before she moved to New York. But what about Ford? Most New Yorkers know nothing about him. He's not even 40. He served ten years in the House. What's so special about that? Unlike Hillary Clinton, he is nothing close to an internationally-recognized celebrity politician.
Ford wrote a brief article yesterday in the New York Post to inform New Yorkers about his candidacy for the Senate. He struggled to deflect early Democratic criticism that he is a "right-wing nut" who opposes abortion and gun control. After all, according to the critics, New Yorkers strongly support both abortion rights and gun control; it would be anomalous if their Senator opposed these things.
I do not know what to think about Ford. I can only speculate based on experience and intuition. Applying my experience, I can say that most representatives from Tennessee would not have their jobs if they supported abortion rights or gun control. Folks from Tennessee don't care much for abortion, and they certainly don't tolerate no Yankees taking away their guns for no thang, no how. Despite Ford's contention that he supports both abortion rights and gun control, I have trouble believing that he could have won five terms in Tennessee with that position. I mean no disrespect to Tennessee when I say that the State is not known for its grand liberalism. That reputation informs my intuition about any politician who serves there.
I know the Civil War has been over for a long time. But former Confederate States are still former Confederate States. Some things survive the generations. Just talk to a drunk Southerner to find out what I mean.
Ford wrote in his article: "I am pro-choice--have always been since I entered politics almost 15 years ago." N.Y. Post, Ford: I'm gearing up for Senate race, Jan. 12, 2010 at 5. But immediately below his article, another blurb disclosed that in 2006 he said to MSNBC's Tucker Carlson: "I'm pro-life, Tucker…I don't run from that." N.Y. Post, Obama elects to stick with Gillibrand, Jan. 12, 2010 at 5.
In lawyer-talk, this is called "impeachment." You're the jury. You decide which statement you want to believe.
No matter what Harold Ford actually thinks about political issues, I insist that he write clear, grammatical English. If someone wants to join America's most elite legislative club, he or she had better know how to write well. Unfortunately, Ford's article reveals that he does not.
First, Ford does not grasp the magical rhetorical art of the semicolon. On terrorism, he says: "Defeating terror isn't a talking point in New York, (sic) it's a way of life." N.Y. Post, Ford: I'm gearing up for Senate Race, Jan. 12, 2010 at 5. Whenever two sentences can stand on their own and they depend on each other for rhetorical effect, commas do not suffice to connect them. Only a semicolon can achieve the desired impact. First-year law students learn this very quickly under pain of academic chastisement. Ford apparently never learned his grammar lesson. He proves it in the next paragraph when he writes: "Rebuilding an economy isn't an item on an issue checklist, (sic) it is what New York does--and must do." Id.
Oops. Same boo boo. Aren't Senators supposed to be rhetorical wizards? This guy doesn't even get his grammar right.
But Ford's grammatical woes do not end with semicolons. He also has a problem with run-on sentences. Try this one on for size: "And New Yorkers want an honest and serious debate about how to grow our economy, create new jobs downstate and upstate and keep New York state (sic) and our country safe." Id.
Whew! Talk about trying to cram too many ideas into a single breath. Let's try to unpack this linguistic crate: Ford thinks that New Yorkers want honest debate about the economy, jobs and safety. He also thinks they want serious debate on the same subjects. He further thinks New Yorkers want both "honest and serious" debate about those issues from an upstate/downstate perspective, not to mention a State/Federal perspective. That 's a lot of debate from a lot of perspectives. It took me a good four sentences to mention all the ideas he squeezed into one. Needless to say, you can't effectively communicate so many things in one line. Multiple adjectives and conjunctions do not make the reader's job any easier.
Some will inevitably label me petty for criticizing Ford's grammar. After all, we all make grammatical blunders from time to time. But I respond that anyone who wants to be a United States Senator must adhere to a higher linguistic standard. I could forgive a college freshman's incessant run-ons and semicolon misuse. But I can't forgive the same foibles in a man who wants to join America's most elite legislative club.
On the other hand, perhaps I demand too much. Ford fits the bill for membership in the Senate. He's wealthy, he comes from a political family, he has connections and he has powerful friends. He comes from the right social class to get in the door. Sadly, that's all you really need to hold high office in the United States. If you happen to be intelligent and eloquent, that's great; but it's not required. In this sense, we see once again that America is neither a democracy nor an aristocracy.
In the original constitutional understanding, the Senate was supposed to be America's "aristocrats' club." It was supposed to comprise the "excellent" people from across the land. Yet as Ford's case shows, Senators need not be intellectually "excellent." They need only fit the property and pedigree requirements for membership. Quality is irrelevant.
I wish quality were more relevant in American government. The word "aristocracy" has a dirty meaning in American discourse because Americans allegedly believe that everyone is equal. They also associate "aristocracy" with the arrogant British nobility that led the colonies to revolt from England.
But in the Aristotelean sense, it is no insult to call someone an "aristocrat." To the contrary, it is the best thing a politician can be. A true "aristocrat" is a person with naturally excellent moral, intellectual and ethical characteristics. Aristocracy implies inequality; not everyone can be "excellent." Yet this is not a bad thing, because it is only prudent that "naturally excellent, unselfish" people rule the State.
Ford's case shows that American Senators are not aristocrats. They are oligarchs. Oligarchy means rule by a few, irrespective of personal excellence. To be a Senator, you don't need to be excellent. You just need to be part of the "few" who are eligible for the job. In that sense, it is incorrect to call Senators "aristocrats." If they were truly aristocrats, there would never be any scandal, corruption or acrimony in the Senate. But a quick glance at congressional history reveals that scandal is the rule, not the exception.
Instead, we have an oligarchy. Oligarchs don't need to be excellent. Far from it: They don't even need to know how to use semicolons.
Monday, October 12, 2009
RECRUIT OR HIRE? WHEN DID PRIVATE EMPLOYMENT BECOME A MILITARY CAMPAIGN?
AN ESSAY
Our language is organic. Words that meant something 50 years ago mean something completely different today. Even words that meant something 10 years might have changed. "Gay" and "epic" come to mind. So does "fail." All this interests me because it shows that language is never static. I might complain when words degenerate or mutate because I became accustomed to their older usages. But words change by nature. Language evolves much more quickly than we do. In many ways, we should be thankful for that.
But many linguistic changes deserve condemnation. In particular, I do not like changes that weaken a word's impact or meekly skirt a concept without piercing its heart. Euphemisms fall into this category. To say "collateral damage" when you mean "bombs veered off target and killed 42 children," you are not conveying reality with your language. Put simply, euphemisms reveal discomfort with language. They also reveal a discomfort with the truth, to the extent that we can all agree that something happened at a certain time and place. When a speaker resorts to euphemism, he fears what will happen if he uses truthful language. Euphemism, then, sacrifices linguistic accuracy for the speaker's comfort. In the end, everyone loses; only historians and investigators will find the truth behind meek language.
Euphemisms are not the only linguistic dilutions that obscure truth. In recent years, a nauseating "corporate" language has developed that not only obscures truth, but also fundamentally betrays traditional etymological meaning. This development coincides with rising corporate influence on American government, as well as the hypnotic "career myth" that permeates modern American society. Corporations wield far more power than they like to admit. And they do not just wield economic and social power. Through language, they wield a power over meaning that transcends generations.
In the movie "Into the Wild," the main character is a wanderer who rejects a "traditional approach" to life by venturing into the wilderness. Along the way, an old man encounters him. The old man says something like: "Son, you're 23 years old. Don't you think you should start thinking about getting a job and making something in this life?" The young man responds: "I think the whole modern notion of a career is a 20th Century invention. I choose not to partake in it."
What an interesting line. It matches my view that corporate power in America increased at the same time Americans convinced themselves that "careers were essential" to individual happiness. The wanderer in "Into the Wild" correctly observed that the meaning of the word "career" fundamentally changed in the mid-20th Century. Before 1950, very few people went to college to prepare for a "career" at a private corporation. Instead, they got a basic education and went to work for small businesses (if they lived in cities) or in agriculture (if they lived in the country). A tiny minority went on to college and entered learned professions.
After 1950, however, more and more people abandoned those "old ways" and began following a new paradigm: Go to college, get a job at a private corporation, make lots of money, buy a home live in the suburbs, raise a family and live in relative comfort until pension and death. This was a new life path in 1950. Yet it took hold very quickly; it completely altered America's social landscape. And as more and more people embraced this lifestyle, America's private corporations assumed their commanding influence in American life. Corporations generated the wealth that propelled this new lifestyle. Without them, it would all fall apart.
Against this background, it should come as no surprise that corporations began wielding more power after 1950 than they did before. As America's overall lifestyle changed, so did its habits. Since 1950, the United States has become a voraciously consumer society. Americans spend more money than they have, and that is just the way corporations (and banks) like it. All the while, they depend on private employment with corporations to sustain the money flow necessary to buy all the wonderful things consumer culture has to offer. It is an endless, spiritually vacuous cycle. At the same time, corporations rake in all the profits. They bombard the airwaves with advertising. They speak all the words. And Americans have listened for about 60 years straight. It is no wonder that corporations have assumed power: They have a captive audience that wants to buy all the things they sell.
But I am not writing about advertising or commercial power today. I am writing about language. To illustrate just how much corporate "culture" has infiltrated American life, consider two words: Recruit and hire.
Today, corporations proudly talk about their "recruiting efforts." In 1920, employers used to say: "Doggone it, Joe, we need to hire someone to replace the cashier who quit last week." Now, they say: "Call up the recruiting agency. We need to recruit someone to assume the junior sales associate position following the previous junior sales associate's withdrawal due to personal pressure." In both instances, the employers want to do the same thing: To find a person to do a job for pay. In 1920, the employer says "hire." In 2009, he says "recruit." Why the change? Shouldn't different words have different meanings?
Of course they should. Strictly viewed, "recruit" and "hire" are not synonyms. They are not the same as "crimson" and "red." They involve fundamentally different concepts. "Recruit," for instance, has a genuinely military connotation. The word stems from the Latin "recrescere," meaning to "grow again." According to Webster, the transitive verb "recruit" means: "1. To raise or strengthen (an army, navy, etc.) by enlisting personnel; 2. To enlist personnel into an army or navy; 3. (a) To enlist (new members), as for a party or organization; (b) To hire or engage the services of a person." Webster's New World College Dictionary (4th Ed.). The dictionary defines the intransitive verb "recruit" to mean: "To enlist new personnel, especially for a military force." Id.
In this light, what does "recruit" have to do with private employment? A quick look at the dictionary shows that "recruit" has an almost universally military meaning. It involves "enlisting personnel" for military purposes. Only Meaning 3(b) hints that it might involve private employment. In that meaning, we see a link to the old concept "hire." There is a distinction between "hire" and "recruit." The distinction is a military one. Our language delineates between military "regrowth" and private "hiring."
Yet private corporations have co-opted the verb "to recruit." They like to say "recruit" rather than hire. Why? Is private employment a military campaign? Armies recruit when they suffer casualties in battle. Do private corporations fight battles and incur losses? Certainly not. But this example precisely illustrates how private corporations have infiltrated and plundered the English language. "Recruit" no longer has a distinctly military connotation. Now, it is nothing more than "hiring."
On the other hand, corporations have also stolen another military word in order to describe resignations and firing: "Attrition." The military justifies "recruitment" when "attrition" thins out the ranks. Corporations "recruit" when "attrition" results in open job spots. In the military, "attrition" means guys got their heads blown off and need to be replaced. In private corporations, "attrition" means some guy got up from his desk at the insurance company and said: "Fuck you, I'm outta here." He, too, must be replaced. So the corporation "recruits" a replacement.
What about "hiring?" Why is "hire" insufficient for private corporations? In my view, "hiring" much better describes what private corporations do to replenish their work forces than "recruit." "Hire" is a pure English word with Germanic roots. It is related to the Dutch word "huur" and the German "heuern." Both kindred words mean to "rent out" in a commercial setting. They do not involve the military, nor do they involve "regrowth." No, "hiring" is a commercial word, and it has always been a commercial word. It is only fitting that corporations--as the ultimate commercial actors--should use commercial words to describe their activities. The dictionary defines "to hire" as: "1. To get the services of a person or the use of a thing in return for payment; employ or engage; 2. To give the use of a thing or the services of a person in return for payment." Webster's New World College Dictionary (4th Ed.).
What could be clearer than that? "Getting someone's services for payment" or "employing" them: That's hiring. That's what corporations do. So why must corporations say "recruit" when they mean "hire?" No matter how intensely corporations might pursue "market success," they do not wage military campaigns and they do not suffer casualties in battle. They have no right to use the specialized word "recruit" to describe their purely commercial quest to obtain people's services for a paycheck. The army "recruits" at the "recruiting station." Corporations "hire" at their "offices." There is a distinction in the language that should remain intact.
In my view, corporations have corrupted the word "recruit" and robbed its unique meaning in English. They have succeeded. They hold much more power than Americans care to admit. After all, corporations represent the pathway to "career" and all the miraculous consumer goods that flow from a career's cumulative paychecks.
Most Americans could care less whether corporations commandeer the English language. They just want the paycheck. They don't care whether they are "recruited" or "hired."
I care. I think deeply about language and its transmutations. It saddens me when powerful interests can change our language at will. But I am not normal.
Our language is organic. Words that meant something 50 years ago mean something completely different today. Even words that meant something 10 years might have changed. "Gay" and "epic" come to mind. So does "fail." All this interests me because it shows that language is never static. I might complain when words degenerate or mutate because I became accustomed to their older usages. But words change by nature. Language evolves much more quickly than we do. In many ways, we should be thankful for that.
But many linguistic changes deserve condemnation. In particular, I do not like changes that weaken a word's impact or meekly skirt a concept without piercing its heart. Euphemisms fall into this category. To say "collateral damage" when you mean "bombs veered off target and killed 42 children," you are not conveying reality with your language. Put simply, euphemisms reveal discomfort with language. They also reveal a discomfort with the truth, to the extent that we can all agree that something happened at a certain time and place. When a speaker resorts to euphemism, he fears what will happen if he uses truthful language. Euphemism, then, sacrifices linguistic accuracy for the speaker's comfort. In the end, everyone loses; only historians and investigators will find the truth behind meek language.
Euphemisms are not the only linguistic dilutions that obscure truth. In recent years, a nauseating "corporate" language has developed that not only obscures truth, but also fundamentally betrays traditional etymological meaning. This development coincides with rising corporate influence on American government, as well as the hypnotic "career myth" that permeates modern American society. Corporations wield far more power than they like to admit. And they do not just wield economic and social power. Through language, they wield a power over meaning that transcends generations.
In the movie "Into the Wild," the main character is a wanderer who rejects a "traditional approach" to life by venturing into the wilderness. Along the way, an old man encounters him. The old man says something like: "Son, you're 23 years old. Don't you think you should start thinking about getting a job and making something in this life?" The young man responds: "I think the whole modern notion of a career is a 20th Century invention. I choose not to partake in it."
What an interesting line. It matches my view that corporate power in America increased at the same time Americans convinced themselves that "careers were essential" to individual happiness. The wanderer in "Into the Wild" correctly observed that the meaning of the word "career" fundamentally changed in the mid-20th Century. Before 1950, very few people went to college to prepare for a "career" at a private corporation. Instead, they got a basic education and went to work for small businesses (if they lived in cities) or in agriculture (if they lived in the country). A tiny minority went on to college and entered learned professions.
After 1950, however, more and more people abandoned those "old ways" and began following a new paradigm: Go to college, get a job at a private corporation, make lots of money, buy a home live in the suburbs, raise a family and live in relative comfort until pension and death. This was a new life path in 1950. Yet it took hold very quickly; it completely altered America's social landscape. And as more and more people embraced this lifestyle, America's private corporations assumed their commanding influence in American life. Corporations generated the wealth that propelled this new lifestyle. Without them, it would all fall apart.
Against this background, it should come as no surprise that corporations began wielding more power after 1950 than they did before. As America's overall lifestyle changed, so did its habits. Since 1950, the United States has become a voraciously consumer society. Americans spend more money than they have, and that is just the way corporations (and banks) like it. All the while, they depend on private employment with corporations to sustain the money flow necessary to buy all the wonderful things consumer culture has to offer. It is an endless, spiritually vacuous cycle. At the same time, corporations rake in all the profits. They bombard the airwaves with advertising. They speak all the words. And Americans have listened for about 60 years straight. It is no wonder that corporations have assumed power: They have a captive audience that wants to buy all the things they sell.
But I am not writing about advertising or commercial power today. I am writing about language. To illustrate just how much corporate "culture" has infiltrated American life, consider two words: Recruit and hire.
Today, corporations proudly talk about their "recruiting efforts." In 1920, employers used to say: "Doggone it, Joe, we need to hire someone to replace the cashier who quit last week." Now, they say: "Call up the recruiting agency. We need to recruit someone to assume the junior sales associate position following the previous junior sales associate's withdrawal due to personal pressure." In both instances, the employers want to do the same thing: To find a person to do a job for pay. In 1920, the employer says "hire." In 2009, he says "recruit." Why the change? Shouldn't different words have different meanings?
Of course they should. Strictly viewed, "recruit" and "hire" are not synonyms. They are not the same as "crimson" and "red." They involve fundamentally different concepts. "Recruit," for instance, has a genuinely military connotation. The word stems from the Latin "recrescere," meaning to "grow again." According to Webster, the transitive verb "recruit" means: "1. To raise or strengthen (an army, navy, etc.) by enlisting personnel; 2. To enlist personnel into an army or navy; 3. (a) To enlist (new members), as for a party or organization; (b) To hire or engage the services of a person." Webster's New World College Dictionary (4th Ed.). The dictionary defines the intransitive verb "recruit" to mean: "To enlist new personnel, especially for a military force." Id.
In this light, what does "recruit" have to do with private employment? A quick look at the dictionary shows that "recruit" has an almost universally military meaning. It involves "enlisting personnel" for military purposes. Only Meaning 3(b) hints that it might involve private employment. In that meaning, we see a link to the old concept "hire." There is a distinction between "hire" and "recruit." The distinction is a military one. Our language delineates between military "regrowth" and private "hiring."
Yet private corporations have co-opted the verb "to recruit." They like to say "recruit" rather than hire. Why? Is private employment a military campaign? Armies recruit when they suffer casualties in battle. Do private corporations fight battles and incur losses? Certainly not. But this example precisely illustrates how private corporations have infiltrated and plundered the English language. "Recruit" no longer has a distinctly military connotation. Now, it is nothing more than "hiring."
On the other hand, corporations have also stolen another military word in order to describe resignations and firing: "Attrition." The military justifies "recruitment" when "attrition" thins out the ranks. Corporations "recruit" when "attrition" results in open job spots. In the military, "attrition" means guys got their heads blown off and need to be replaced. In private corporations, "attrition" means some guy got up from his desk at the insurance company and said: "Fuck you, I'm outta here." He, too, must be replaced. So the corporation "recruits" a replacement.
What about "hiring?" Why is "hire" insufficient for private corporations? In my view, "hiring" much better describes what private corporations do to replenish their work forces than "recruit." "Hire" is a pure English word with Germanic roots. It is related to the Dutch word "huur" and the German "heuern." Both kindred words mean to "rent out" in a commercial setting. They do not involve the military, nor do they involve "regrowth." No, "hiring" is a commercial word, and it has always been a commercial word. It is only fitting that corporations--as the ultimate commercial actors--should use commercial words to describe their activities. The dictionary defines "to hire" as: "1. To get the services of a person or the use of a thing in return for payment; employ or engage; 2. To give the use of a thing or the services of a person in return for payment." Webster's New World College Dictionary (4th Ed.).
What could be clearer than that? "Getting someone's services for payment" or "employing" them: That's hiring. That's what corporations do. So why must corporations say "recruit" when they mean "hire?" No matter how intensely corporations might pursue "market success," they do not wage military campaigns and they do not suffer casualties in battle. They have no right to use the specialized word "recruit" to describe their purely commercial quest to obtain people's services for a paycheck. The army "recruits" at the "recruiting station." Corporations "hire" at their "offices." There is a distinction in the language that should remain intact.
In my view, corporations have corrupted the word "recruit" and robbed its unique meaning in English. They have succeeded. They hold much more power than Americans care to admit. After all, corporations represent the pathway to "career" and all the miraculous consumer goods that flow from a career's cumulative paychecks.
Most Americans could care less whether corporations commandeer the English language. They just want the paycheck. They don't care whether they are "recruited" or "hired."
I care. I think deeply about language and its transmutations. It saddens me when powerful interests can change our language at will. But I am not normal.
Thursday, July 9, 2009
"SEX" IS NOT A BAD WORD ; CENSORSHIP IS
OESTERHOUDT STRIKES
Jeremih’s single “Birthday Sex” should have been just another R&B song about a young man’s assumed romantic prowess. When Def Jam released the single in April, audiences responded with enthusiasm: It went to #1 on the R&B charts and #4 on the pop charts. It fit the “urban love anthem” mold: A man does not buy gifts for his girlfriend on her birthday, so he gives her “birthday sex” as a replacement. And true to the smug, sexually conceited male caricature that so often appears in the R&B canon, Jeremih assures his listener that his sex is better than any material gift.
This is not an uplifting message. In fact, it is laughable. But I am not writing today to mock “Birthday Sex.” I am writing today because mainstream radio stations bleep out the word “sex” when they play the song.
Since when did “sex” become a word “bad” enough to warrant censorship? We all know that the Federal government has power to prevent us from hearing a few “really bad” words during mainstream broadcasts. See, e.g, F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). But those “really bad words” are familiar vulgarities, colorful English phrases that go straight to the unrefined truth about sex and the body. We know we are not allowed to hear the words “fuck,” “shit,” “asshole” and “cock” on everyday broadcasts because those words cut to the linguistic quick about sex, excrement and “private parts.” Popular morality teaches us to revile these things, so law provides society a way to protect our ears from them. For better or worse, these traditionally “bad words” have real rhetorical punch. Their strength lies in their unabashed directness. Their strength lies in their pure Germanic derivation. No doctor or scientist mulled a Latin equivalent for these words. They are brutally honest, English core words. And to some extent, that is one reason why popular morality reviles them: Our society has an uneasy relationship with sex and the body, so it recoils from overly honest expressions about them.
But the traditional reasons for banning “bad words” do not apply to the word “sex.” “Sex,” unlike “fuck” or “shit,” is a Latin-based medical coinage, not a vulgarity. When people honestly talk about sexual conduct, they generally do not use medical terms. They use tried-and-true Germanic vulgarities. They do not say: “May we now engage in sexual activity?” In much the same way, they do not use medical coinages when referring to basic bodily functions. People do not say: “I must defecate now.” Latin does not tell the same story as German. Every English speaker knows that “shit” is a more honest word than “defecate.” Yet it ruffles feathers precisely because it so honestly describes “a coarse bodily function.” “Defecate” distances the listener from the body. That is why it is permissible to broadcast “defecate” during a daytime radio show, but not “shit.” The same reasoning should apply to “sex;” it is a medical coinage that distances the listener from the honest truth about sexual contact between human beings. In this case, however, the usual reasoning does not apply.
Why the inconsistency here? You would think that using the word “sex” instead of its coarse Germanic cousins would satisfy the decency police. After all, it purifies the language from uncomfortable honesty. “Sex” inevitably will offend fewer prudes than “fuck,” even though both words refer to precisely the same activity. But in this case, the censors bleeped out “sex,” too. In a way, I pity Jeremih. He tried his best to write a sensual song without using “traditional vulgarities” because he knew those words would be censored. Yet despite his efforts to use satisfactory words, the censors muffled him anyway.
I can only explain this new hostility toward the word “sex” by positing that popular morality does not like sexual conduct in the abstract. Although doctors created the word “sex” to make it easier to discuss sexual conduct without using uncomfortable Germanic vulgarities, apparently the subterfuge isn’t working anymore. The subject matter is apparently so uncomfortable that even Latin circumlocution can no longer suppress the shame. What can explain this if not a profound discomfort with anything concerning sexual contact between human beings? The word “sex” was supposed to disguise the raw, bodily truth about sexual conduct. It is deliberately uncolorful, undescriptive and unmemorable. But now, it is just as bad as the subject matter it was intended to conceal.
This is not just censorship. It is sloppy, incompetent censorship. A good censor has consistent reasons for suppressing certain words. For thirty years, censors at the F.C.C. consistently applied the “traditional vulgarity” test to determine whether a word “could be heard” on the airwaves. That test protected young ears from “overly honest descriptions” about sex and bodily function while preserving some “decorum” during daytime broadcasts. The test was exquisitely formal and categorical: Either the word was on the “dirty words” list or it was not. But now, the F.C.C. has scrapped the categorical approach. “Sex” was never on a “dirty words” list; it is a euphemism calculated to avoid using a word on that list. Yet now it is just as bad as the words it was intended to circumvent.
This is censorship by moral fiat, not reasoned analysis. I argue that such an approach disparages government’s obligation under the First Amendment to “make no law…abridging the freedom of speech.” The Supreme Court has steadily eroded our right to speak as we please under the Constitution. But it has nonetheless always reminded government that it cannot drive certain words from discourse without compelling justifications based in reason. See, e.g, Cohen v. California, 403 U.S. 15 (1971). The Court said that driving “traditionally vulgar words” from discourse could be justified because it was important to “protect children” and “unwilling listeners” from coarse language. F.C.C. v. Pacifica, 438 U.S. 726, 748-750 (1978). But it never said anything about words that are not “traditionally vulgar,” “shocking” or “coarse.” Viewed linguistically, the word “sex” is neither vulgar nor coarse. It is not “shocking,” either. In fact, it is supposed to take the “shock” out of traditionally “vulgar” expressions. Its capacity to give offense lies solely in the subject matter to which it refers, not the honest tone in which it describes the subject matter. By any test ever used to judge “decency” under the First Amendment, “sex” clearly passes. It is therefore shocking that the F.C.C. now decides to rewrite the law to censor a word that violates no legal standard.
If we allow the F.C.C. to drive the word “sex” from discourse, how are we supposed to “properly” talk about sex? What about shows like “Sex in the City” or songs like “Sexual Healing?” Those titles contain the word “sex.” What about a broadcast discussing “sexually transmitted diseases” or “sex therapy?” What about the countless advertisements for products addressing “sexual dysfunction” and “normal sex lives?”
In short, the word “sex” has evolved into an “acceptably neutral” means to express human sexuality without offending the decency police. We rely on it to discuss a profoundly important aspect of our lives. If it suddenly becomes as “bad” as the other “dirty words,” how are we supposed to discuss it? This may sound extreme, but we are on that path. The F.C.C. censored the word “sex” in Jeremih’s song. For all concerns and purposes, government decided that we should not hear the word because it was somehow “bad” or “offensive.” Yet “sex” is not a “bad word.” It was invented in order not to give offense. It is ironic that authorities now seek to suppress a euphemism.
I strongly resent any government attempt to control language. Our Constitution grants American citizens a broad right to speak freely. We should only tolerate restrictions on our language for the most compelling reasons. Moral awkwardness about sex does not even remotely rise to that level. Yet if we do not express our disapproval about censorship when it happens, we tacitly certify government’s power to regulate our language. That is why it is important to oppose censorship whenever it appears. “Birthday Sex” may be stupid, juvenile and absurd. But if we don’t say something to oppose government’s attempt to outlaw a perfectly legitimate word in our language, we empower government to take even more steps to muzzle us. In this case, government has applied its own moral queasiness to suppress a neutral word we all have a right to use. Moral queasiness is no justification for ignoring the First Amendment, no matter how many supersensitive mothers call to complain.
America has deep and fundamental social problems with sex. But those problems should not be allowed to impact our rights under the First Amendment. Censorship should worry us all, no matter where it appears. Our language existed before the Constitution and before the government. It is ours. As long as we do not use it to injure others or foment violence, government has no right to trespass against it. When government targets our language, we all lose expressive possibilities. Without expressive possibilities, we do not truly enjoy our rights as individuals. That is why I detest ungrounded censorship. It is not just an attack on the speaker’s expressive powers. It is an attack on us all.
Jeremih’s single “Birthday Sex” should have been just another R&B song about a young man’s assumed romantic prowess. When Def Jam released the single in April, audiences responded with enthusiasm: It went to #1 on the R&B charts and #4 on the pop charts. It fit the “urban love anthem” mold: A man does not buy gifts for his girlfriend on her birthday, so he gives her “birthday sex” as a replacement. And true to the smug, sexually conceited male caricature that so often appears in the R&B canon, Jeremih assures his listener that his sex is better than any material gift.
This is not an uplifting message. In fact, it is laughable. But I am not writing today to mock “Birthday Sex.” I am writing today because mainstream radio stations bleep out the word “sex” when they play the song.
Since when did “sex” become a word “bad” enough to warrant censorship? We all know that the Federal government has power to prevent us from hearing a few “really bad” words during mainstream broadcasts. See, e.g, F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). But those “really bad words” are familiar vulgarities, colorful English phrases that go straight to the unrefined truth about sex and the body. We know we are not allowed to hear the words “fuck,” “shit,” “asshole” and “cock” on everyday broadcasts because those words cut to the linguistic quick about sex, excrement and “private parts.” Popular morality teaches us to revile these things, so law provides society a way to protect our ears from them. For better or worse, these traditionally “bad words” have real rhetorical punch. Their strength lies in their unabashed directness. Their strength lies in their pure Germanic derivation. No doctor or scientist mulled a Latin equivalent for these words. They are brutally honest, English core words. And to some extent, that is one reason why popular morality reviles them: Our society has an uneasy relationship with sex and the body, so it recoils from overly honest expressions about them.
But the traditional reasons for banning “bad words” do not apply to the word “sex.” “Sex,” unlike “fuck” or “shit,” is a Latin-based medical coinage, not a vulgarity. When people honestly talk about sexual conduct, they generally do not use medical terms. They use tried-and-true Germanic vulgarities. They do not say: “May we now engage in sexual activity?” In much the same way, they do not use medical coinages when referring to basic bodily functions. People do not say: “I must defecate now.” Latin does not tell the same story as German. Every English speaker knows that “shit” is a more honest word than “defecate.” Yet it ruffles feathers precisely because it so honestly describes “a coarse bodily function.” “Defecate” distances the listener from the body. That is why it is permissible to broadcast “defecate” during a daytime radio show, but not “shit.” The same reasoning should apply to “sex;” it is a medical coinage that distances the listener from the honest truth about sexual contact between human beings. In this case, however, the usual reasoning does not apply.
Why the inconsistency here? You would think that using the word “sex” instead of its coarse Germanic cousins would satisfy the decency police. After all, it purifies the language from uncomfortable honesty. “Sex” inevitably will offend fewer prudes than “fuck,” even though both words refer to precisely the same activity. But in this case, the censors bleeped out “sex,” too. In a way, I pity Jeremih. He tried his best to write a sensual song without using “traditional vulgarities” because he knew those words would be censored. Yet despite his efforts to use satisfactory words, the censors muffled him anyway.
I can only explain this new hostility toward the word “sex” by positing that popular morality does not like sexual conduct in the abstract. Although doctors created the word “sex” to make it easier to discuss sexual conduct without using uncomfortable Germanic vulgarities, apparently the subterfuge isn’t working anymore. The subject matter is apparently so uncomfortable that even Latin circumlocution can no longer suppress the shame. What can explain this if not a profound discomfort with anything concerning sexual contact between human beings? The word “sex” was supposed to disguise the raw, bodily truth about sexual conduct. It is deliberately uncolorful, undescriptive and unmemorable. But now, it is just as bad as the subject matter it was intended to conceal.
This is not just censorship. It is sloppy, incompetent censorship. A good censor has consistent reasons for suppressing certain words. For thirty years, censors at the F.C.C. consistently applied the “traditional vulgarity” test to determine whether a word “could be heard” on the airwaves. That test protected young ears from “overly honest descriptions” about sex and bodily function while preserving some “decorum” during daytime broadcasts. The test was exquisitely formal and categorical: Either the word was on the “dirty words” list or it was not. But now, the F.C.C. has scrapped the categorical approach. “Sex” was never on a “dirty words” list; it is a euphemism calculated to avoid using a word on that list. Yet now it is just as bad as the words it was intended to circumvent.
This is censorship by moral fiat, not reasoned analysis. I argue that such an approach disparages government’s obligation under the First Amendment to “make no law…abridging the freedom of speech.” The Supreme Court has steadily eroded our right to speak as we please under the Constitution. But it has nonetheless always reminded government that it cannot drive certain words from discourse without compelling justifications based in reason. See, e.g, Cohen v. California, 403 U.S. 15 (1971). The Court said that driving “traditionally vulgar words” from discourse could be justified because it was important to “protect children” and “unwilling listeners” from coarse language. F.C.C. v. Pacifica, 438 U.S. 726, 748-750 (1978). But it never said anything about words that are not “traditionally vulgar,” “shocking” or “coarse.” Viewed linguistically, the word “sex” is neither vulgar nor coarse. It is not “shocking,” either. In fact, it is supposed to take the “shock” out of traditionally “vulgar” expressions. Its capacity to give offense lies solely in the subject matter to which it refers, not the honest tone in which it describes the subject matter. By any test ever used to judge “decency” under the First Amendment, “sex” clearly passes. It is therefore shocking that the F.C.C. now decides to rewrite the law to censor a word that violates no legal standard.
If we allow the F.C.C. to drive the word “sex” from discourse, how are we supposed to “properly” talk about sex? What about shows like “Sex in the City” or songs like “Sexual Healing?” Those titles contain the word “sex.” What about a broadcast discussing “sexually transmitted diseases” or “sex therapy?” What about the countless advertisements for products addressing “sexual dysfunction” and “normal sex lives?”
In short, the word “sex” has evolved into an “acceptably neutral” means to express human sexuality without offending the decency police. We rely on it to discuss a profoundly important aspect of our lives. If it suddenly becomes as “bad” as the other “dirty words,” how are we supposed to discuss it? This may sound extreme, but we are on that path. The F.C.C. censored the word “sex” in Jeremih’s song. For all concerns and purposes, government decided that we should not hear the word because it was somehow “bad” or “offensive.” Yet “sex” is not a “bad word.” It was invented in order not to give offense. It is ironic that authorities now seek to suppress a euphemism.
I strongly resent any government attempt to control language. Our Constitution grants American citizens a broad right to speak freely. We should only tolerate restrictions on our language for the most compelling reasons. Moral awkwardness about sex does not even remotely rise to that level. Yet if we do not express our disapproval about censorship when it happens, we tacitly certify government’s power to regulate our language. That is why it is important to oppose censorship whenever it appears. “Birthday Sex” may be stupid, juvenile and absurd. But if we don’t say something to oppose government’s attempt to outlaw a perfectly legitimate word in our language, we empower government to take even more steps to muzzle us. In this case, government has applied its own moral queasiness to suppress a neutral word we all have a right to use. Moral queasiness is no justification for ignoring the First Amendment, no matter how many supersensitive mothers call to complain.
America has deep and fundamental social problems with sex. But those problems should not be allowed to impact our rights under the First Amendment. Censorship should worry us all, no matter where it appears. Our language existed before the Constitution and before the government. It is ours. As long as we do not use it to injure others or foment violence, government has no right to trespass against it. When government targets our language, we all lose expressive possibilities. Without expressive possibilities, we do not truly enjoy our rights as individuals. That is why I detest ungrounded censorship. It is not just an attack on the speaker’s expressive powers. It is an attack on us all.
Friday, July 3, 2009
LEGAL LANGUAGE IS BETTER THAN ENGLISH, PURSUANT TO LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY THEREOF
By : Mr. Cornelius J. Stumme, Esq., Attorney-at-Law; Senior Partner, Stumme, Barking, Speaker & Husstel, a Law Firm Specializing in Appellate Advocacy & Trial Practice on behalf of the Energy Industry; Winner, American Bar Association’s 2001 Linguistic Precision Award (LPA); Published Speechwriter; Author, Write Thee Not for Understanding (Doubleday Publishers : New York 2005); Charter Member, American Lawyers for Professionalism Through Inaccessibility and Confounding Language.
Too many lawyers today disparage legalese. In law school, young attorneys learn to avoid “old-sounding” legal language because it sounds “confusing” and it is “hard to read.” Instead, their writing teachers instruct them to write staccato, informative sentences that read like newspaper headlines. Put briefly, lawyers today learn to write clearly. They want their readers to understand what they say the first time they read it.
This is disgraceful. Clarity in writing and speech contravenes the traditions of our profession. For centuries, lawyers gained a reputation for bewildering language that no one could truly understand except other lawyers and judges. And that was precisely the point: By learning legal language, lawyers separated themselves from the masses. Lawyers held an exalted station in society because they knew something no one else could learn without specialized training. Because only lawyers knew the language, they could rightfully advertise a “special skill” that others needed. But now, lawyers learn to speak the same way everyone else does. They learn to write for understanding, not obfuscation. This besmirches lawyers’ status. We should be different from laymen because we are smarter. And our language defines us. An attack on our language represents an attack on our very spirit.
Despite the trend favoring “clear language” in law practice, I continue to speak legalese. Moreover, I encourage all my colleagues to revitalize their respect for our linguistic traditions. I teach courses reminding lawyers that legalese makes us special. I encourage them to take pride in legalese. In short, legalese may be a dying art, but I am doing all I can to revive it every day. If I have anything to say about it, every lawyer will soon gladly use these words: “It being mutually agreed herewith, pursuant to notice and subject to all applicable legal limitations, qualifications, definitions and distinctions appurtenant thereon, that this certain Tract, located in and for the County of New York, by, through, by the grace of and under the legal auspices of the State of New York (an independent sovereignty constituted on the Continent of North America, having lawfully descended from the Crown of England, by the Grace of Majesty) commonly and colloquially known as 43 Bleecker Street, notwithstanding any vulgarities varying the same (hereinafter known as “The Plot”), shall henceforth, forever and always be subject to the Management, Control, Maintenance and skillful care of those Artisans, resident in and for aforesaid County and State of New York, known by Virtue of, and pursuant to the New York General Corporations Law, as Rosenberg Realty, Inc., except to such extent as the same would violate any Law, Ordinance, Judicial Decree, common law holding, cease and desist order, injunction—whether equitable or constructive, the constitutionality whereof notwithstanding, reliance whereon is hereby disclaimed for all time, indemnity wherefor is hereby demanded, including costs—or police quarantine, unless the Chief Operating Officer of aforesaid Rosenberg Realty, Inc. be not named Richard Rosenberg, in which case Plot shall never be subject the Management, Control, Maintenance and skillful care of such Artisans as mentioned herein; provided in all events it is not Good Friday.”
These words define us as lawyers. People pay us to write these words because they cannot. Anyone can say: “Rosenberg Realty will now manage 43 Bleecker Street.” But who can write it legally? Only we can. Did we go to law school to write and speak like everyone else? Certainly not. We went to law school—and we charge $575 an hour for it—because we know special words that other people do not know. And they need us to read, write and speak those special words in order to save their property.
We should be proud of our language. We should not be ashamed. Who cares what some intellectual thinks about “clarity in writing?” The law is not about clarity; the law is about special words. The law is not about equal access; the law is a brotherhood. We refuse to surrender our language to some left-wing crusade for accessibility and comprehensibility. After all, who would need a lawyer if they did not need to know what “notwithstanding aforesaid” means? Who would need a lawyer if they did not receive a letter threatening “equitable, as opposed to constructive, condemnation pursuant to General Statute § 346-1(a)(4) (West 2009)?” We have families to feed. And we can only feed them when legal language remains inaccessible.
Legalese not only provides us the means to support ourselves. It is also our lineage. In centuries past, lawyers enjoyed a high social reputation. Laymen respected lawyers because they spoke a mystical language they could scarcely understand. They identified lawyers’ language with learning, study and education. In the layman’s mind, legalese represented an academic achievement that demanded respect. Laymen might have ridiculed us for our language, but they never said we were not smart because we spoke it. In centuries past, we were not afraid to say “pursuant,” “notwithstanding,” “beyond cavil,” “thereunto,” “ultra vires non potest,” “waiver whereof” or “instant disclaimer excepted.” Our words dazzled laymen, leaving them both strangely impressed and utterly confused. They paid us well to dazzle others with our language. They did not expect us to speak clearly. No, they expected magic spells, not common words. Historically speaking, our profession gained prestige from its inaccessible language. When we sacrifice it, we sacrifice the very thing that makes us better than everybody else.
I refuse to give up legalese because it is better than English. I believe in legalese. I do not need to be clear because I do not need to be. In fact, I would be unprofessional if a layman could understand everything I say. When I appear in court, my clients expect me to say things that they cannot say. I do not say: “Your Honor, this is a Motion to Dismiss the other side’s lawsuit.” Anyone could say that. So I say: “Gracious and humble arbiter, appointed to this tribunal by those certain Executive authorities constituted rightfully under those founding documents central to our government, I appear herein to present my client’s contention that all pleadings in this matter made against his interest, even if believed true, exception whereto is hereby vigorously made, state no cause, either in law or fact, in ethics or law, or in common decency or decorum. This being so, I humbly move this Honorable Court, pursuant to law, the Rules of Civil Procedure, the Rules of the Supreme Court, any book, paper or pamphlet, and any or all authorities relevant to the disposition hereof, to fully and forevermore dismiss all claim against this, my client in interest.” My client expects nothing less. Why would he pay me $575 per hour to say something that is self-evident? No, he wants language that sounds perplexing. He wants language that only a professional can understand. That is what I deliver. I do not communicate. I obfuscate and bewilder. And I win with my language.
I believe in legalese so much that I use it in everyday life. I am a first and foremost a lawyer. I am a human being second. To that extent, I am proud to use a lawyer’s language to express even the most rudimentary information and to ask the most basic questions. If I did not, I would lose my identity as a lawyer. I worked too hard for that to happen. In that light, I do not use banal English; I use legalese. When ordering a sandwich at a fast food restaurant, I do not say: “Gimme a Big Mac® with cheese and onions, plus fries and a small drink.” Rather, I say: “I, Mr. Cornelius J. Stumme, Esq. (hereinafter known as “Buyer”), doth hereby present, tender and extend this Offer to Purchase (the “Offer”) to McDonald’s Restaurants, Inc. (an Illinois Corporation)(hereinafter known as “Seller”), acting by and through its duly-authorized agents, assigns, employees, attorneys and contractors, be they authorized by law or custom, or clothed therewith by fact: (1) One (1) Big Mac® sandwich, bearing therewith all Warranties of Fitness for a Particular Purpose, Merchantability and Title, permission to disclaim wherefrom is hereby expressly refused, applicability whereof is expressly made conditional for Acceptance; (2) One (1) twelve (12) ounce package of ‘French Fried’ curly potatoes, bearing therewith all Warranties of Fitness for a Particular Purpose, Merchantability and Title, permission to disclaim wherefrom is hereby expressly refused, applicability whereof is expressly made conditional for Acceptance; and (3) One (1) sixteen (16) ounce cup wherein may be poured, at Buyer’s sole and unreviewable discretion, any “Soft Drink” as may be offered by Seller upon the Premises whereupon this certain Sale Contract be concluded, pursuant to law and notwithstanding any contrary considerations, including any judicial determination in Seller’s favor. Acceptance of aforesaid Offer be made expressly conditional on full and final acquiescence to Buyer’s precise terms. Inclusion of varied, different or additional terms by Seller—for any reason and under any circumstances, whether innocent, negligent, intentional, reckless or simply stupid—shall immediately revoke Offer in toto, without recourse to legal remedy whatsoever. But Seller’s error, negligence or breach shall in no wise revoke Buyer’s right to pursue all legal remedies against Seller, whether in tort or contract, or under any applicable statute, State or Federal, including, but not limited to: compensatory damages; exemplary damages; loss of profits damages; pain and suffering damages; treble damages; or punitive damages without limitation whatsoever, the United States Constitution and common decency, humanity, good faith, dignity or shame notwithstanding.”
I like the way I speak. It makes me different. I do not speak like a commoner. I speak in the language of my legal ancestors. I owe it to myself and to my clients. For me, law is a way of life. It is not just a job. It provides an alternate way to express thoughts and to control reality. I resist all efforts to make me speak like my clients. If lawyers start speaking like everyone else, they cease to be lawyers. As lawyers, we must defend our heritage. That means defending—and proudly using—our language. No more will we say: “Honey, please pass me the salt.” From now on, we will only say: “I, Cornelis J. Stumme, Esq. (hereinafter known in this context as “Martial Promisor,” or “Husband”), being fully and validly licensed as a practicing Member of the Bar of the State of New York, and having laid forth legally-sufficient evidence of that certain good Character & Fitness necessary to practice law before the Courts of said State, the truth of the matter notwithstanding, doth hereby present this Request to Marital Promisee (also known as “Wife”), who, having assumed contractual obligations to render domestic, conjugal and household services to Marital Promisor for good consideration, including the provision of certain tableside services (see Stumme v. Stumme, 546 D.S.C. 421, 431 (2008)(“tableside services” include the passing of salt from Marital Promisee to Marital Promisor under any circumstances, on demand or at a definite time) to pass one (1) six (6) ounce salt shaker to Marital Promisor immediately, and without delay, subject to all sanctions for lateness, disobedience or nonperformance as provided in the Master Marital Contract (MMC), Section 56 (see, e.g., Flogging), appeal wherefrom is hereby disallowed.”
If people do not like our language, to hell with them. Our language pays our bills and makes us different. No matter what the public or the law professors say, we will not abandon legalese. We do not want to communicate clearly. We want to keep our traditions alive. If people want to understand us, they can learn our language. We refuse to speak English any longer. From now on, we will speak only legalese. And we will speak it proudly—pursuant to notice, subject to law and notwithstanding any contention, request or demand to the contrary, exception to which is hereby taken, all rights having been reserved; but under no circumstances shall such statement be construed as a waiver.
Monday, May 18, 2009
LUCKY OR HAPPY? WHAT'S THE DIFFERENCE?
AN ESSAY
I often write about happiness and unhappiness. In my view, human beings long to experience good, positive feelings as much as they can in life. Freud thought the same: “What do [men] demand of life and wish to achieve in it? They strive after happiness; they want to become happy and remain so.” Civilization and its Discontents, p. 25. Yet people say they want to be “happy” without really knowing what it means. All they know is that they want to feel good more than they feel bad—or at least more than they feel physical pain. Still, “feeling happy” is complex, especially in American life. Many people cannot feel happy unless they first achieve some “subsidiary aims,” such as making money, owning property or obtaining the “right life mate.” They exhaust themselves seeking these “subsidiary aims” to such an extent that they lose sight of the end goal: Happiness. Instead, they endless obsess over the “subsidiary aims.” In short, “a means” to happiness replaces the “end.”
Money is the best example. Money is a medium; it is a means to obtain other things, things that will ostensibly bring happiness. Yet many people forget this when they set out upon “the money-making life.” Even Aristotle recognized this 2500 years ago. Interestingly, both Freud and Aristotle agree that men seek happiness in life: “…[What] is it that we say…is the highest of all goods achievable by action? Verbally there is very general agreement; for both the general run of men and people of superior refinement say that it is happiness, and identify living well and doing well with being happy.” Ethics, Book I, Ch. 4. But Aristotle expressly ruled out “money-making” as a pathway to true happiness: “The life of money-making is one undertaken under compulsion, and wealth is evidently not the good we are seeking; for it is merely useful and for the sake of something else.” Ethics, Book I, Ch. 5. In other words, Aristotle understood that money is a “subsidiary aim” that is “merely useful…for the sake of something else,” namely, “happiness.” Despite Aristotle’s warning, however, many Americans live their lives for money. They think it will categorically bring them happiness. In so doing, they are “barking up the wrong tree.” Perhaps that explains why so few Americans think they are happy. If “living for money” categorically cannot win happiness, then there is no way a true “money-maker” will ever find happiness.
If money does not bring happiness, what does? In truth, we can forgive many Americans for their error. After all, we are merely sensory creatures. We believe what we see and hear. Our senses tell us that money appears to make wealthy people happy. They appear to want for nothing. They do not worry about their rent or their bills. They drive beautiful cars, go on exotic vacations and do what they want every day. This stands in stark contrast to our own lives, in which money is a constant worry. When money is a worry, it dominates our outlook. It provides too many opportunities for suffering. In these circumstances, we cannot feel the “strongly positive emotions” that mark happiness. Freud said that the “presence of unpleasure” makes happiness impossible. Cf. Freud, Civilization and its Discontents, p. 34. To paraphrase Bobby McFerrin: When we worry, we cannot be happy. Nonetheless, we believe that if we only cast off the “money yoke,” our worries would disappear, leaving our minds free to finally experience “strongly positive emotions.” From our perspective, the rich have that freedom. That is why we think they must be happy. And that is why we think that money will automatically make us happy, too.
But this is a delusion. One must merely pick up a tabloid newspaper to see that even mega-rich superstars are not happy, either. They might not worry about bills and health care, but they find other sources for “unpleasure” in their lives: Cheating boyfriends, bitter divorces, cancer, lost contracts, sagging boobs, wrinkles, potbellies, baldness, betrayals, Oscar snubs, humiliations, criminal prosecutions for disorderly conduct, drunk driving or domestic abuse… the list goes on. Money did not cause pain here. These unhappy stars have plenty of money. Yet they clearly are not happy, either. They simply experience unpleasure from a different source than the rest.
Where are the happy people, then? If wealth does not bring happiness, what does? In America, commerce is King. This is not just left-wing rhetoric: We really think we can buy anything. Why can’t we buy happiness, too? It seems like a cruel joke. If we seek happiness but we can’t buy it, what is all this chatter about “becoming successful” and “working hard?” If neither success, nor hard work, nor money can categorically create happiness, what is the point? We work hard and attempt to become successful because we want the power to buy things. But if we can’t buy happiness, what do we have? Aristotle and Freud say that we all want happiness. At the same time, American life tells us we need to be successful. Yet the two are not consistent. Success and money do not automatically create happiness. They may provide a means to it, but they are not replacements for happiness. Happiness comes from somewhere else, somewhere within ourselves.
Or does it? Can we fool ourselves into happiness no matter our external circumstances? Can we manipulate our attitudes so that we always feel “strongly positive emotions?” To answer that question, we must examine language. While we colloquially understand that “happiness” means a prevalence of “strongly positive emotions” over “negative feelings, stress and pain,” does that mean that external circumstances play no role in the analysis? Or can we become happy by sheer force of will, despite all the ills that fate throws upon us? In other words, are happy people simply “lucky?” If they are, what does that say about all our frantic efforts to “become happy” in life? If happiness is basically just a crapshoot, why bother even trying to “find happiness” in the first place?
This is not a small concern. In English, there is a very close relationship between the concepts “happiness” and “luck.” “Happy” is an ancient English word. It derives from the root “hap,” which in turn stems from the Old English “haep” and Old Norse “happ,” meaning “convenient” or “suitable.” Webster’s New World College Dictionary, 4th Ed. “Hap” means “chance, luck or lot,” or at least an “occurrence or happening.” “Hap” gives rise not only to “happy,” but also to “happen” and “happenstance.” All these words imply purely random, chance occurrences over which human will appears to have little influence. Looking more closely at “happy,” the dictionary tells us that the word means: “1. favored by circumstances; lucky; fortunate; 2. having, showing or causing a feeling of great pleasure, contentment, joy, etc., joyous, glad, pleased; 3. exactly appropriate to the occasion.” Id. A “happy person,” then, appears to have made little effort in life. Rather, he is merely “favored by circumstances” and “fortunate” to feel the way he does. He feels “great pleasure, contentment and joy” because circumstances favor him. But why do circumstances favor him? Because he is simply “lucky?” If he is “just lucky,” does that mean he played a role in his own happiness? Or did “fate” just randomly bless him? Here, we can already see the trouble brewing. To be “happy,” our “circumstances” must “favor us.” We must be “lucky” and “fortunate.” We must benefit from “chance occurrences” and “happenstance” to be “happy.” Our own efforts seem irrelevant to the task. Put simply, “happiness” requires “luckiness.”
So what does “lucky” mean? According to Webster, “lucky” means “having good luck; fortunate.” Webster’s New World Dictionary, 4th Ed. Again, we see “fortune” at work in these concepts. Fortune involves random chance, not purposeful action. And what about “good luck?” “Luck,” like “hap,” is an ancient English word. It derives from the Indo-European root “leuk,” meaning “what bends together” or “what occurs.” That root evolved into the Middle Dutch “luk” and the German “Glück.” In German, “Glück” translates not only to “luck,” but also to “happiness.” Bertelsmann’s Deutsches Wörterbuch tells us that “Glück” means: “1. favorable, fortunate circumstances or a turn of events; a coincidence; 2. the success that comes from that turn of events; 3. a feeling of inner satisfaction and joy, especially after accomplishing sought-after wishes; 4. favorable chance (my translations).” In English, Webster says that “luck” means: “1. the seemingly chance happening of events that affect someone; fortune; fate; 2. good fortune; success; prosperity; advantage.” Webster’s New World College Dictionary, 4th Ed.
In all these words, we see an undeniable link between “chance,” “luck” and “happiness.” In German, the link is intrinsic; “Glück” means both “luck” and “happiness.” It describes not only “chance events” and “favorable occurrences,” but also the “feeling of inner satisfaction and joy” that springs from them. It is no coincidence that the English “luck” relates to “Glück.” Although the English definition for “luck” does not list “the feeling of inner satisfaction and joy” that springs from chance events, the word “happy” directly implies “luckiness.” See “happy” definition, supra. And both words relate back to the Indo-European notion that “luck” merely means that things “bend together” for a person’s benefit. Put another way, luck is random. Human will does not affect it. It blesses its beneficiaries without regard to their efforts, intentions, wishes or merits.
In this etymological light, does it make any sense to “pursue happiness?” It appears not. After all, it seems that happiness depends on luck. Luck blesses at random; it does not favor those who “really want to be happy” or who “work really hard” at it. Without “chance occurrences,” “fortune,” “coincidence,” “turns of events,” “fate” and “favorable circumstances,” we will never truly fit the “happy” definition. The word “pursue” implies purposeful action directed toward a particular object. Yet when we “pursue happiness,” we attempt to secure something that eludes human intention altogether. We cannot really “pursue” something that will happen by chance. Our best and most intensive efforts will not cause something to occur at random. At the most, we can “hope” for such events; we do not “pursue” them. We can boldly struggle to mold our circumstances by effort and toil. But if chance stands against us, it seems that we will never find happiness. Ironically, however, a person may be happy even if he makes no effort at all. As long as “fortune” and “luck” meet on his side, he will experience the “joy and contentment” that arise from his “lucky circumstances.” On some level, we all know this. We have seen examples. This is why we contemptuously dismiss some “happy people” as “lucky bastards.” It just doesn’t seem fair that circumstances “bent together for them,” but not for us. After all, we think we did more, earned more and worked more than they did. Yet they became happy because they got lucky, while we slave away without fortune’s blessings. And we certainly do not experience “great contentment or joy,” because our circumstances are not “favorable.”
But fairness and happiness do not go hand in hand. To use a cliché, life is not fair, just as random events, chance occurrences and “fortune” do not reward us all equally. This perplexes us. We learn that hard work, determination and rational behavior will bring us success, then happiness. We think we have rational control over our feelings and our destinies. We think we should be rewarded for “making all the right moves” and “paying our dues.” Yet “circumstances favor” certain people over others without regard to their merit, effort, ability or zeal. It is no answer to say that some “really hard working people” generate their own circumstances. To some extent, life unfolds without regard to human choice or will. Certain people benefit from totally random occurrences. They meet the right people at the right times. They have the right idea in the right decade. Or they simply happen to please the right person, who happened to live at the right moment in history. Others are simply born with great advantages. No calculation can presage these “chance” occurrences. Yet “luck” bestows them on some, and not others. Blessed with luck, they relish the “feeling of inner satisfaction and joy” that flows from their circumstances: They are “happy.” But they were “lucky” first.
Where does this leave us? In a word, it leaves us with the disheartening impression that we do not have total control over our lives. Benjamin Franklin and other enterprising Americans throughout our history disparaged luck, claiming that hard work and “good decisions” “manufactured” luck for them. They said: “Anyone can make it as long as they work hard.” But this, I fear, is propaganda. In my view, men like Benjamin Franklin benefited from luck and chance, no matter how hard they worked. Lord knows how many hard working people have lived on this planet who never benefited from “lucky chances.” They never became successful, famous or even happy. The lucky ones will always say: “This is how I did it… and you can do it, too!” That statement defies the very nature of luck. Luck only chooses some, not all. And it has nothing to do with talent or merit. Talent does not even increase the chances that “luck will strike.” Random means random. There is no way to influence it.
At this point, I cannot avoid discussing destiny as opposed to pure reason. I must confess that I believe in destiny, at least to the degree than I cannot rationally account for certain chance events in life. I cannot verify with my senses why I met certain people in life, why certain people lived, and others died. Quite simply, luck plays a huge role in life. And grammatically speaking, it is a prerequisite for happiness. Thus, it is a matter of chance and coincidence whether we become happy, since nothing can control the “random events” that will generate the circumstances necessary to experience the “strongly positive emotions” that flow from those lucky circumstances. Or perhaps it is destiny that determines who benefits from “chance events,” if they are even “chance events” at all. What do I know? If destiny chooses the people who benefit from chance events—and thus become happy—does that not sound like quasi-religion? There are chosen ones and there are the damned.
We all want happiness. We all want to feel good more than we feel bad. We listen to philosophers and heroes who offer us ways to find it. Yet we cannot escape grammar. Happiness turns largely on luck. Lucky people are happy. Unlucky people are not. Think about it. If some truly unlucky event befalls you, are you happy? Definitely not. Chance did not favor you. But if a lucky event befalls you, are you happy? Absolutely. You benefited from chance. It changed your circumstances and you feel great about it. Did you influence the chance events? Probably not. They would not be “chance events” if you did.
I suppose the only way to cope with luck is to cultivate a healthy respect for uncertainty in life. Maybe we will be happy. Perhaps we won’t. Yet we can spare ourselves heartbreak if we refrain from pursuing it. After all, we cannot pursue luck. And without luck, there is no true happiness. In America, this is a hard way to live. We learn that we can control our lives and we can buy anything. Yet no store sells luck or happiness. Luck can give us money, but money can’t give us luck. By the same token, money can’t give us happiness. You need luck for that.
I often write about happiness and unhappiness. In my view, human beings long to experience good, positive feelings as much as they can in life. Freud thought the same: “What do [men] demand of life and wish to achieve in it? They strive after happiness; they want to become happy and remain so.” Civilization and its Discontents, p. 25. Yet people say they want to be “happy” without really knowing what it means. All they know is that they want to feel good more than they feel bad—or at least more than they feel physical pain. Still, “feeling happy” is complex, especially in American life. Many people cannot feel happy unless they first achieve some “subsidiary aims,” such as making money, owning property or obtaining the “right life mate.” They exhaust themselves seeking these “subsidiary aims” to such an extent that they lose sight of the end goal: Happiness. Instead, they endless obsess over the “subsidiary aims.” In short, “a means” to happiness replaces the “end.”
Money is the best example. Money is a medium; it is a means to obtain other things, things that will ostensibly bring happiness. Yet many people forget this when they set out upon “the money-making life.” Even Aristotle recognized this 2500 years ago. Interestingly, both Freud and Aristotle agree that men seek happiness in life: “…[What] is it that we say…is the highest of all goods achievable by action? Verbally there is very general agreement; for both the general run of men and people of superior refinement say that it is happiness, and identify living well and doing well with being happy.” Ethics, Book I, Ch. 4. But Aristotle expressly ruled out “money-making” as a pathway to true happiness: “The life of money-making is one undertaken under compulsion, and wealth is evidently not the good we are seeking; for it is merely useful and for the sake of something else.” Ethics, Book I, Ch. 5. In other words, Aristotle understood that money is a “subsidiary aim” that is “merely useful…for the sake of something else,” namely, “happiness.” Despite Aristotle’s warning, however, many Americans live their lives for money. They think it will categorically bring them happiness. In so doing, they are “barking up the wrong tree.” Perhaps that explains why so few Americans think they are happy. If “living for money” categorically cannot win happiness, then there is no way a true “money-maker” will ever find happiness.
If money does not bring happiness, what does? In truth, we can forgive many Americans for their error. After all, we are merely sensory creatures. We believe what we see and hear. Our senses tell us that money appears to make wealthy people happy. They appear to want for nothing. They do not worry about their rent or their bills. They drive beautiful cars, go on exotic vacations and do what they want every day. This stands in stark contrast to our own lives, in which money is a constant worry. When money is a worry, it dominates our outlook. It provides too many opportunities for suffering. In these circumstances, we cannot feel the “strongly positive emotions” that mark happiness. Freud said that the “presence of unpleasure” makes happiness impossible. Cf. Freud, Civilization and its Discontents, p. 34. To paraphrase Bobby McFerrin: When we worry, we cannot be happy. Nonetheless, we believe that if we only cast off the “money yoke,” our worries would disappear, leaving our minds free to finally experience “strongly positive emotions.” From our perspective, the rich have that freedom. That is why we think they must be happy. And that is why we think that money will automatically make us happy, too.
But this is a delusion. One must merely pick up a tabloid newspaper to see that even mega-rich superstars are not happy, either. They might not worry about bills and health care, but they find other sources for “unpleasure” in their lives: Cheating boyfriends, bitter divorces, cancer, lost contracts, sagging boobs, wrinkles, potbellies, baldness, betrayals, Oscar snubs, humiliations, criminal prosecutions for disorderly conduct, drunk driving or domestic abuse… the list goes on. Money did not cause pain here. These unhappy stars have plenty of money. Yet they clearly are not happy, either. They simply experience unpleasure from a different source than the rest.
Where are the happy people, then? If wealth does not bring happiness, what does? In America, commerce is King. This is not just left-wing rhetoric: We really think we can buy anything. Why can’t we buy happiness, too? It seems like a cruel joke. If we seek happiness but we can’t buy it, what is all this chatter about “becoming successful” and “working hard?” If neither success, nor hard work, nor money can categorically create happiness, what is the point? We work hard and attempt to become successful because we want the power to buy things. But if we can’t buy happiness, what do we have? Aristotle and Freud say that we all want happiness. At the same time, American life tells us we need to be successful. Yet the two are not consistent. Success and money do not automatically create happiness. They may provide a means to it, but they are not replacements for happiness. Happiness comes from somewhere else, somewhere within ourselves.
Or does it? Can we fool ourselves into happiness no matter our external circumstances? Can we manipulate our attitudes so that we always feel “strongly positive emotions?” To answer that question, we must examine language. While we colloquially understand that “happiness” means a prevalence of “strongly positive emotions” over “negative feelings, stress and pain,” does that mean that external circumstances play no role in the analysis? Or can we become happy by sheer force of will, despite all the ills that fate throws upon us? In other words, are happy people simply “lucky?” If they are, what does that say about all our frantic efforts to “become happy” in life? If happiness is basically just a crapshoot, why bother even trying to “find happiness” in the first place?
This is not a small concern. In English, there is a very close relationship between the concepts “happiness” and “luck.” “Happy” is an ancient English word. It derives from the root “hap,” which in turn stems from the Old English “haep” and Old Norse “happ,” meaning “convenient” or “suitable.” Webster’s New World College Dictionary, 4th Ed. “Hap” means “chance, luck or lot,” or at least an “occurrence or happening.” “Hap” gives rise not only to “happy,” but also to “happen” and “happenstance.” All these words imply purely random, chance occurrences over which human will appears to have little influence. Looking more closely at “happy,” the dictionary tells us that the word means: “1. favored by circumstances; lucky; fortunate; 2. having, showing or causing a feeling of great pleasure, contentment, joy, etc., joyous, glad, pleased; 3. exactly appropriate to the occasion.” Id. A “happy person,” then, appears to have made little effort in life. Rather, he is merely “favored by circumstances” and “fortunate” to feel the way he does. He feels “great pleasure, contentment and joy” because circumstances favor him. But why do circumstances favor him? Because he is simply “lucky?” If he is “just lucky,” does that mean he played a role in his own happiness? Or did “fate” just randomly bless him? Here, we can already see the trouble brewing. To be “happy,” our “circumstances” must “favor us.” We must be “lucky” and “fortunate.” We must benefit from “chance occurrences” and “happenstance” to be “happy.” Our own efforts seem irrelevant to the task. Put simply, “happiness” requires “luckiness.”
So what does “lucky” mean? According to Webster, “lucky” means “having good luck; fortunate.” Webster’s New World Dictionary, 4th Ed. Again, we see “fortune” at work in these concepts. Fortune involves random chance, not purposeful action. And what about “good luck?” “Luck,” like “hap,” is an ancient English word. It derives from the Indo-European root “leuk,” meaning “what bends together” or “what occurs.” That root evolved into the Middle Dutch “luk” and the German “Glück.” In German, “Glück” translates not only to “luck,” but also to “happiness.” Bertelsmann’s Deutsches Wörterbuch tells us that “Glück” means: “1. favorable, fortunate circumstances or a turn of events; a coincidence; 2. the success that comes from that turn of events; 3. a feeling of inner satisfaction and joy, especially after accomplishing sought-after wishes; 4. favorable chance (my translations).” In English, Webster says that “luck” means: “1. the seemingly chance happening of events that affect someone; fortune; fate; 2. good fortune; success; prosperity; advantage.” Webster’s New World College Dictionary, 4th Ed.
In all these words, we see an undeniable link between “chance,” “luck” and “happiness.” In German, the link is intrinsic; “Glück” means both “luck” and “happiness.” It describes not only “chance events” and “favorable occurrences,” but also the “feeling of inner satisfaction and joy” that springs from them. It is no coincidence that the English “luck” relates to “Glück.” Although the English definition for “luck” does not list “the feeling of inner satisfaction and joy” that springs from chance events, the word “happy” directly implies “luckiness.” See “happy” definition, supra. And both words relate back to the Indo-European notion that “luck” merely means that things “bend together” for a person’s benefit. Put another way, luck is random. Human will does not affect it. It blesses its beneficiaries without regard to their efforts, intentions, wishes or merits.
In this etymological light, does it make any sense to “pursue happiness?” It appears not. After all, it seems that happiness depends on luck. Luck blesses at random; it does not favor those who “really want to be happy” or who “work really hard” at it. Without “chance occurrences,” “fortune,” “coincidence,” “turns of events,” “fate” and “favorable circumstances,” we will never truly fit the “happy” definition. The word “pursue” implies purposeful action directed toward a particular object. Yet when we “pursue happiness,” we attempt to secure something that eludes human intention altogether. We cannot really “pursue” something that will happen by chance. Our best and most intensive efforts will not cause something to occur at random. At the most, we can “hope” for such events; we do not “pursue” them. We can boldly struggle to mold our circumstances by effort and toil. But if chance stands against us, it seems that we will never find happiness. Ironically, however, a person may be happy even if he makes no effort at all. As long as “fortune” and “luck” meet on his side, he will experience the “joy and contentment” that arise from his “lucky circumstances.” On some level, we all know this. We have seen examples. This is why we contemptuously dismiss some “happy people” as “lucky bastards.” It just doesn’t seem fair that circumstances “bent together for them,” but not for us. After all, we think we did more, earned more and worked more than they did. Yet they became happy because they got lucky, while we slave away without fortune’s blessings. And we certainly do not experience “great contentment or joy,” because our circumstances are not “favorable.”
But fairness and happiness do not go hand in hand. To use a cliché, life is not fair, just as random events, chance occurrences and “fortune” do not reward us all equally. This perplexes us. We learn that hard work, determination and rational behavior will bring us success, then happiness. We think we have rational control over our feelings and our destinies. We think we should be rewarded for “making all the right moves” and “paying our dues.” Yet “circumstances favor” certain people over others without regard to their merit, effort, ability or zeal. It is no answer to say that some “really hard working people” generate their own circumstances. To some extent, life unfolds without regard to human choice or will. Certain people benefit from totally random occurrences. They meet the right people at the right times. They have the right idea in the right decade. Or they simply happen to please the right person, who happened to live at the right moment in history. Others are simply born with great advantages. No calculation can presage these “chance” occurrences. Yet “luck” bestows them on some, and not others. Blessed with luck, they relish the “feeling of inner satisfaction and joy” that flows from their circumstances: They are “happy.” But they were “lucky” first.
Where does this leave us? In a word, it leaves us with the disheartening impression that we do not have total control over our lives. Benjamin Franklin and other enterprising Americans throughout our history disparaged luck, claiming that hard work and “good decisions” “manufactured” luck for them. They said: “Anyone can make it as long as they work hard.” But this, I fear, is propaganda. In my view, men like Benjamin Franklin benefited from luck and chance, no matter how hard they worked. Lord knows how many hard working people have lived on this planet who never benefited from “lucky chances.” They never became successful, famous or even happy. The lucky ones will always say: “This is how I did it… and you can do it, too!” That statement defies the very nature of luck. Luck only chooses some, not all. And it has nothing to do with talent or merit. Talent does not even increase the chances that “luck will strike.” Random means random. There is no way to influence it.
At this point, I cannot avoid discussing destiny as opposed to pure reason. I must confess that I believe in destiny, at least to the degree than I cannot rationally account for certain chance events in life. I cannot verify with my senses why I met certain people in life, why certain people lived, and others died. Quite simply, luck plays a huge role in life. And grammatically speaking, it is a prerequisite for happiness. Thus, it is a matter of chance and coincidence whether we become happy, since nothing can control the “random events” that will generate the circumstances necessary to experience the “strongly positive emotions” that flow from those lucky circumstances. Or perhaps it is destiny that determines who benefits from “chance events,” if they are even “chance events” at all. What do I know? If destiny chooses the people who benefit from chance events—and thus become happy—does that not sound like quasi-religion? There are chosen ones and there are the damned.
We all want happiness. We all want to feel good more than we feel bad. We listen to philosophers and heroes who offer us ways to find it. Yet we cannot escape grammar. Happiness turns largely on luck. Lucky people are happy. Unlucky people are not. Think about it. If some truly unlucky event befalls you, are you happy? Definitely not. Chance did not favor you. But if a lucky event befalls you, are you happy? Absolutely. You benefited from chance. It changed your circumstances and you feel great about it. Did you influence the chance events? Probably not. They would not be “chance events” if you did.
I suppose the only way to cope with luck is to cultivate a healthy respect for uncertainty in life. Maybe we will be happy. Perhaps we won’t. Yet we can spare ourselves heartbreak if we refrain from pursuing it. After all, we cannot pursue luck. And without luck, there is no true happiness. In America, this is a hard way to live. We learn that we can control our lives and we can buy anything. Yet no store sells luck or happiness. Luck can give us money, but money can’t give us luck. By the same token, money can’t give us happiness. You need luck for that.
Sunday, May 10, 2009
PUNISHING "BAD WORDS" : MORALITY, JUDGMENT AND THE FIRST AMENDMENT
OESTERHOUDT STRIKES
I like May and June because they are the months in which the Supreme Court issues its most contentious opinions. This not only invigorates my critical spirit; it also gives me plentiful fodder for satire. After all, with a bitter conservative majority on the bench determined to buck Democratic control in Washington, I expect especially rancorous and divisive opinions this year. I have often written that I have lost much faith in the Supreme Court. In recent years, it appears to me that the Justices merely translate their own political beliefs into “opinion-speak,” then try to fool their readers into thinking that they actually made principled decisions. Although I have greater contempt for conservative justices than liberal ones, both sides are guilty. Doctrines that avoid questions altogether—like standing, political question and “constitutional avoidance”—typically arise when the prevailing side uses it to win the case. For example, Justice Scalia may extol “judicial restraint” by “deciding only the statutory question” if the statutory question will lead to conservative victory. But when conservative victory depends on “ignoring the statutory question” and interpreting the Constitution, all his “restraint” rhetoric goes out the window. At the same time, the liberals will argue “restraint” when the conservatives interpret the Constitution, and they will interpret the Constitution when the conservatives argue “restraint.” It is pitifully predictable. It is pitifully political. In short, the Supreme Court has become expedient. They merely dress up their prejudices and subjective inclinations in perplexing jargon. But prejudices and subjective inclinations they remain.
I find this disheartening because I truly believe that the Constitution stands for something greater than ourselves. When justices infuse their own foibles and political judgments into questions involving lofty principles such as the “freedom of speech” or “Equal Protection,” they forget what the Constitution really means. In my view, “constitution” is a good word. It brings to mind abstract freedom, liberty, justice, rights, humanity, goodness and compassion. I think most people share that impression. Even R&B King James Brown echoed this “positive” impression about the Constitution in his 1971 recording “Get Up, Get Into, Get Involved” when he sang: “We don’t need Revolution/ We Got to have Constitution/ We don’t need sorry fools/ We got to have better schools.” Revolution of the Mind Album (1971). Mr. Brown thought that the Constitution represented America’s great solution to burning social problems. In his view, we did not need revolution because the Constitution already provided us all the liberty and justice we need. And he equated the Constitution with “better schools.” Schools are good. In other words, the Constitution, too, means something good. It is so good that we do not need to revolt against our government. In the popular view, the Constitution is good. It stands for all the great ideals that Americans think represent America: justice, equality, freedom, etc., etc.
At least, this is what people believe. If they went to law school and read some Supreme Court cases, they would discover the sad truth that our Constitution does not always lead to justice. While the Constitution theoretically offers America a path to justice, more often it operates simply as a “governing document” that provides for “basic peace, security and stable commerce.” True, the Constitution guarantees individual rights against governmental interference. But rights are hazardous. If the people have too many rights, the government could not get anything done. Recognizing this, the Supreme Court has done much to curtail the “majestic generalities” contained in constitutional language. For example, while the Fourteenth Amendment, § 1 reads: “No State shall…deny to any person within its jurisdiction the equal protection of the laws,” this does not literally mean that States must treat everyone equally. Indeed, the Supreme Court has effectively eviscerated this hopeful-sounding language by allowing States and the Federal government to make whatever legal distinctions they wish, provided they can show that the distinction “rationally relates” to a “permissible State interest.” See, e.g., Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-176 (1980). Sometimes the State must show greater justifications. But the point is that constitutional language does not mean exactly what it says, no matter how nice it looks. The Supreme Court limits it until the original language becomes a virtual mockery unto itself. Nonetheless, most Americans do not know about Supreme Court decisions. They cling to the idea that the Constitution is good. They continue to think it stands for liberty and justice.
Consider the First Amendment. I deeply care about the First Amendment, especially its protection for “free speech” (“Congress shall make no law…abridging the freedom of speech, or of the press…). U.S. Const. Amd. I. The First Amendment has assumed mythical status in the American value system. After all, what would “freedom” mean if we could not speak out on issues without fear of governmental sanction? How could we claim “liberty” about anything if our own government could punish us for speaking our minds? What would individuality mean if the State could punish individual expression? To my mind, “freedom of speech” is my core liberty. Without it, I could not express my own ideas. I could not challenge, criticize, satirize or lampoon my government. Perhaps I could, but I may go to prison for it. Yet that would be quintessentially “un-American,” wouldn’t it? After all, Americans think that they have the right to criticize the government and to speak their minds on virtually any issue. That’s what makes us “free.” According to this common understanding, the First Amendment stands for much more than the freedom to say things. It stands also for the freedom to think for ourselves and to have a conscience, even if our thoughts cause tension with others. To my mind, the First Amendment is a glowing beacon of liberty in otherwise cold and remorseless legal world. It is my shelter to be who I am, and to say what I think, even if it is not “appropriate,” “decent,” “moral,” “just,” or “appetizing.” That is breathtaking liberty. And that is why people think that the Constitution is “good.” After all, if it stands for such wonderful rights, how could it be bad?
But the First Amendment has not escaped the Supreme Court’s pruning shears. While the Court sometimes strengthens the First Amendment and sings praises to the fundamental liberty it guarantees (see, e.g, New York Times v. Sullivan, 376 U.S. 254 (1964)), more often it steps in to “put a sock” in speakers’ mouths. Especially in recent decades, true “freedom of speech” has been whittled down into an illusory guarantee, in much the same way the “equality principle” housed in the Fourteenth Amendment has been qualified into oblivion. How could this happen? How could the bastion of our rights as individual citizens be interpreted away like this? Easily: Because the Supreme Court is a political institution. Justices in our times do not think about liberty in the abstract. They think about how they can disguise political judgment as constitutional law. That approach has savaged our constitutional liberties. Not only can we not speak as freely as we could in times past, but we are also not as secure in our persons, property and dignity as we once were. It is much easier for the police to wring confessions and search homes today than it was in 1970. Through an endless series of fact-based exceptions, qualifications, explanations and limitations, the Supreme Court has stripped our liberties, rendering them technical shibboleths with no romantic appeal at all. Our “freedom of speech” is no exception to this trend.
When the Supreme Court takes a wrecking ball to the First Amendment, I get upset. When justices impinge upon our liberty to speak by disguising their own moral and political prejudices in fancy legalese, my blood boils. Recently, the Court broke out the demolition equipment again in the case F.C.C. v. Fox Television Stations, Inc., 556 U.S. ___ (2009). Here, the Court revisited the “indecency in broadcasting debate” that began with the classic case F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). In essence, Pacifica held—without precedent—that “indecent, nonobscene” language in broadcasting could be banned because it had a “unique power to offend,” it was “uniquely pervasive” and it was “uniquely accessible to children.” Even though there was no constitutional basis to ban such “nonobscene” speech outright, the Court created a special “category” for so-called “indecent speech” that might “injure a listener who does not want to hear it” because it had “lower value” than other protected speech. In the usual case, the First Amendment’s free speech guarantee prohibits government from regulating speech based merely on its “content” or “message.” Rather, the government may only regulate speech based on content if it fits a “traditionally proscribable category,” such as “fighting words,” “obscenity,” “incitement to riot,” or “libel.” In Pacifica, the Court admitted that the broadcast at issue was not obscene—it merely “deliberately and repeatedly” referenced “sexual and excretory functions and organs.” Nonetheless, based on “moral considerations” and “context,” it decided that government could fine a broadcaster for crossing the “decency line.” After all, according to the Court, such language has “low value.” In essence, the Court made a moral judgment. It concluded that certain otherwise constitutionally protected speech has “lower value” than other speech. Because the Court found the broadcast “patently offensive” on moral grounds, it fined the broadcaster.
Liberty took a significant hit in Pacifica. In the ensuing decades, the Federal Communications Commission began policing broadcasts for “indecent speech” that could potentially “offend an unwilling listener” with “sexual or excretory” language. Over the years, the Commission developed a torturous, morality-laden common law by which it analyzed whether particular words were “patently offensive,” looking to such details as whether the “words were deliberate or repeated,” whether they “literally referred to sexual or excretory function” and whether “they merely were fleeting, expletive uses” that would not offend as many people. In other words, it would be “indecent” to broadcast: “I need to take a shit” because that “literally refers to excretory function, but it would not be indecent to broadcast: “Oh shit! I’m on fire!” because that is merely a fleeting, expletive “non-literal” use of the word. Under this labyrinthine common law, referring to real excrement was “indecent,” “disgusting” and “offensive.” But merely making an “exclamation” was not.
In the Fox case, Justice Scalia tightened the “indecency” noose even further. In a predictable 5-4 decision (conservatives Roberts, Scalia, Thomas, Alito and Kennedy v. liberals Stevens, Souter, Breyer and Ginsburg), the Court concluded that the Commission could fine Fox for broadcasting the words “fuck” and “shit” during the Billboard Music Awards in 2003. Cher uttered her bad word when she lashed out at her critics: “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. Fuck ‘em.” See slip opinion at p. 6. Paris Hilton and Nicole Richie uttered their bad words with a joke about “cleaning cow shit from a Prada bag; it’s not that fucking simple.” Id. The Commission said that Fox violated its rules prohibiting “indecent language” on the airwaves. See, e.g., 18 U.S.C. § 1464. In the Commission’s view, even “fleeting, non-literal” “bad words” could be “patently offensive,” despite a prior rule to the contrary. The Board reasoned that the word “fuck” was always offensive “because that word has an inherently sexual connotation” and “[it] is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language.” Id. at p. 7. Why exactly is “fuck” so offensive? According to the Commission: “Because it invariably evokes a coarse sexual image.” Id. And why was Cher’s “fuck ‘em” comment so offensive? According to the Commission: “Because she metaphorically suggested a sexual act as a means of expressing hostility to her critics.” Id. Justice Scalia implicitly agreed with this linguistic analysis, adopting the Commission’s reasoning: “An expletive’s power to offend derives from its sexual or excretory meaning.” Id. at p. 8.
Justice Scalia proceeded to expressly reject a constitutional challenge to the Commission’s action, choosing instead to review the case as “an administrative matter” under the Administrative Procedure Act, 5 U.S.C. § 551. See slip opinion at pp. 9-12. Under that deferential standard, the broadcasters were doomed to fail. The Commission merely had to show that its reasons for adopting the new “no expletive” policy were not “arbitrary or capricious.” Id. at p. 9. To meet that standard, the Commission simply had to say that it explained its reasons and believed them. Id. at p. 11. Justice Scalia even refused to apply a somewhat “heightened review” to the Commission’s action because its “policy change” did not “contradict any previous factual findings,” nor did the old policy engender “serious reliance interests.” Id. at pp. 11-12. After all, this was merely a case involving “bad words.” There was no need to bring up the First Amendment.
This reasoning outraged me because it so dismissively rejected the constitutional implications inherent in the Commission’s action. In my view, no matter how offensive a word may be, it is still “speech,” and if government has a problem with the content, it must proffer a very compelling justification to suppress it. See United States v. O’Brien, 391 U.S. 367 (1968). Worse, the Court implicitly adopted the Commission’s rhetoric that a word’s “power to offend” flows from “sexual or excretory meaning.” This is not constitutional law, nor even detached legal analysis. This is pure value judgment. According to this logic, any word that has a “sexual or excretory meaning” has “the power to offend.” It follows, then, that not just “fuck” or “shit” would be “offensive,” but also “coitus,” “intercourse,” “copulation,” “defecate” or “poopie.” All those words have “sexual or excretory meaning,” and thus—according to this preposterous analysis— “the power to offend.” What does this moral oversensitivity have to do with the liberty to speak and use language? To me, this is Puritanism masquerading as constitutional analysis. And value-laden Puritanism is no basis upon which to make decisions that impact every American’s rights under the First Amendment.
Under the Court’s reasoning, Cher could have said: “Intercourse my critics” and the Court would still have approved a fine for “indecent speech.” Nicole Richie could have said: “Have you ever tried to clean cow dung from a Prada bag? It’s not so copulatingly simple” and she still would have used words that “have the power to offend” because they have “sexual and excretory meaning.” Further, the Court agreed that the phrase “Fuck ‘em” was “bad” and “offensive” because it “metaphorically suggested a sexual act as means of expressing hostility to [Cher’s] critics.” It also said that the word “fuck” “invariably evokes a coarse sexual image.” This is pure rubbish. Anyone with a rudimentary understanding of English slang knows that the word “fuck” is immensely versatile. It is not always sexual, nor does it always “evoke a sexual act or image.” Dictionary.com provides the following definition: “Fuck (verb used with object): 2. slang to treat unfairly or harshly.” Cher used the verb in exactly this sense. She expressed harsh contempt for her critics. It had nothing to do with sex. In that light, the Commission’s linguistic reasoning is demonstrably false and exaggerated.
I find these matters critically important, even if they involve only “vulgar speech.” Although the Commission identified “fuck” as a “bad word” because it was “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” I defend language for its own sake. I like knowing that I can use whatever word I please to describe my own thoughts and impressions. Words are not evil in themselves, nor should we ban them because they engender moral revulsion in faint hearts. If we entrust governmental agents to screen out certain words based on their own, regressive moral sensibilities, we cede our individual liberty to their judgments. And if the Commission and the Supreme Court represent the “standard” for “decency,” we can expect to cede a great deal more.
I often criticize dominant morality because it is not based in reason. Rather, morality derives from age-old intuitions concerning a general societal belief that something is “disgusting,” “revolting,” and thus “blameworthy” and “inappropriate.” Yet the Constitution and individual rights should be based in reason, not intuition. The Constitution is not a moral treatise. But the Fox case, as well as the whole “indecency doctrine” in general, make morality the entire basis for constitutional decisionmaking. Reason did not influence the Commission’s rationale for banning “offensive” speech. Rather, intuitive moral revulsion influenced the rationale. Some overly moral tightass got uncomfortable when he heard the word “shit,” then prevailed upon his fellow overly moral tightass friends in power to ban the word. The Supreme Court majority in Fox agreed in principle with these overly moral tightasses, even if it disguised its moral approval with vacuous legal nonsense about “standards of review” and the “Administrative Procedure Act.” These legal mechanisms represent a mere technical subterfuge for brazen moralizing. And Justice Scalia’s refusal to address the constitutional dimension to “indecency bans” reflects his own moral belief that “indecent speech” is “bad” because it is “disgusting.” Again, this is not constitutional analysis. It is value judgment.
Reason should guide the United States Supreme Court, not morality. In many cases, reason and morality can coexist. But when it comes to constitutional liberty, morality must give way to the abstract guarantees to which citizens are entitled. Morality is intensely subjective. It plays upon emotion and passion. Indeed, any belief system that draws upon disgust necessarily disparages reason. As such, any so-called “constitutional jurist” must handle morality with the greatest care when addressing constitutional questions. Morality has the power to introduce concerns that have no place in the pantheon of constitutional liberty. The First Amendment contains positive abstractions that favor the individual and his expression. Morality, on the other hand, provides a basis to judge other individuals and their expression “revolting.” A prudent jurist will recognize that tension and rule for abstraction over morality, even if he finds the individual’s expression “disgusting.” In the Fox case, the Court should have addressed the constitutional dimension to the Commission’s morally charged rule-making. When morality treads too harshly on core constitutional guarantees, a conscientious jurist must address the constitutional issues. The fact that the Court here did not even broach the First Amendment bespeaks its modern-day malaise—and even cowardice.
If we truly are a “Nation of laws,” our Supreme Court would disapprove the “indecency doctrine.” Law dictates that only certain “speech categories” may be banned. “Indecency” is not one of them. The Court allowed morality to tarnish its respect for liberty. Pacifica was a mistake. Fox perpetuates its error. Until the Court recognizes that liberty must win over morality, we can expect more absurdities in the future, as well as less freedom to speak.
And I don’t give a damn about the children. Parents should start paying attention to what their children are watching. I cannot bear the fashionable rhetoric that justifies reducing constitutional liberties to protect some fanciful child. Our Constitution is timeless. Our children are not. I would rather have my liberty than overprotected children who will wind up speaking vulgarities anyway. It is a harsh world. “Bad words” will reach them some day, somehow.
I like May and June because they are the months in which the Supreme Court issues its most contentious opinions. This not only invigorates my critical spirit; it also gives me plentiful fodder for satire. After all, with a bitter conservative majority on the bench determined to buck Democratic control in Washington, I expect especially rancorous and divisive opinions this year. I have often written that I have lost much faith in the Supreme Court. In recent years, it appears to me that the Justices merely translate their own political beliefs into “opinion-speak,” then try to fool their readers into thinking that they actually made principled decisions. Although I have greater contempt for conservative justices than liberal ones, both sides are guilty. Doctrines that avoid questions altogether—like standing, political question and “constitutional avoidance”—typically arise when the prevailing side uses it to win the case. For example, Justice Scalia may extol “judicial restraint” by “deciding only the statutory question” if the statutory question will lead to conservative victory. But when conservative victory depends on “ignoring the statutory question” and interpreting the Constitution, all his “restraint” rhetoric goes out the window. At the same time, the liberals will argue “restraint” when the conservatives interpret the Constitution, and they will interpret the Constitution when the conservatives argue “restraint.” It is pitifully predictable. It is pitifully political. In short, the Supreme Court has become expedient. They merely dress up their prejudices and subjective inclinations in perplexing jargon. But prejudices and subjective inclinations they remain.
I find this disheartening because I truly believe that the Constitution stands for something greater than ourselves. When justices infuse their own foibles and political judgments into questions involving lofty principles such as the “freedom of speech” or “Equal Protection,” they forget what the Constitution really means. In my view, “constitution” is a good word. It brings to mind abstract freedom, liberty, justice, rights, humanity, goodness and compassion. I think most people share that impression. Even R&B King James Brown echoed this “positive” impression about the Constitution in his 1971 recording “Get Up, Get Into, Get Involved” when he sang: “We don’t need Revolution/ We Got to have Constitution/ We don’t need sorry fools/ We got to have better schools.” Revolution of the Mind Album (1971). Mr. Brown thought that the Constitution represented America’s great solution to burning social problems. In his view, we did not need revolution because the Constitution already provided us all the liberty and justice we need. And he equated the Constitution with “better schools.” Schools are good. In other words, the Constitution, too, means something good. It is so good that we do not need to revolt against our government. In the popular view, the Constitution is good. It stands for all the great ideals that Americans think represent America: justice, equality, freedom, etc., etc.
At least, this is what people believe. If they went to law school and read some Supreme Court cases, they would discover the sad truth that our Constitution does not always lead to justice. While the Constitution theoretically offers America a path to justice, more often it operates simply as a “governing document” that provides for “basic peace, security and stable commerce.” True, the Constitution guarantees individual rights against governmental interference. But rights are hazardous. If the people have too many rights, the government could not get anything done. Recognizing this, the Supreme Court has done much to curtail the “majestic generalities” contained in constitutional language. For example, while the Fourteenth Amendment, § 1 reads: “No State shall…deny to any person within its jurisdiction the equal protection of the laws,” this does not literally mean that States must treat everyone equally. Indeed, the Supreme Court has effectively eviscerated this hopeful-sounding language by allowing States and the Federal government to make whatever legal distinctions they wish, provided they can show that the distinction “rationally relates” to a “permissible State interest.” See, e.g., Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-176 (1980). Sometimes the State must show greater justifications. But the point is that constitutional language does not mean exactly what it says, no matter how nice it looks. The Supreme Court limits it until the original language becomes a virtual mockery unto itself. Nonetheless, most Americans do not know about Supreme Court decisions. They cling to the idea that the Constitution is good. They continue to think it stands for liberty and justice.
Consider the First Amendment. I deeply care about the First Amendment, especially its protection for “free speech” (“Congress shall make no law…abridging the freedom of speech, or of the press…). U.S. Const. Amd. I. The First Amendment has assumed mythical status in the American value system. After all, what would “freedom” mean if we could not speak out on issues without fear of governmental sanction? How could we claim “liberty” about anything if our own government could punish us for speaking our minds? What would individuality mean if the State could punish individual expression? To my mind, “freedom of speech” is my core liberty. Without it, I could not express my own ideas. I could not challenge, criticize, satirize or lampoon my government. Perhaps I could, but I may go to prison for it. Yet that would be quintessentially “un-American,” wouldn’t it? After all, Americans think that they have the right to criticize the government and to speak their minds on virtually any issue. That’s what makes us “free.” According to this common understanding, the First Amendment stands for much more than the freedom to say things. It stands also for the freedom to think for ourselves and to have a conscience, even if our thoughts cause tension with others. To my mind, the First Amendment is a glowing beacon of liberty in otherwise cold and remorseless legal world. It is my shelter to be who I am, and to say what I think, even if it is not “appropriate,” “decent,” “moral,” “just,” or “appetizing.” That is breathtaking liberty. And that is why people think that the Constitution is “good.” After all, if it stands for such wonderful rights, how could it be bad?
But the First Amendment has not escaped the Supreme Court’s pruning shears. While the Court sometimes strengthens the First Amendment and sings praises to the fundamental liberty it guarantees (see, e.g, New York Times v. Sullivan, 376 U.S. 254 (1964)), more often it steps in to “put a sock” in speakers’ mouths. Especially in recent decades, true “freedom of speech” has been whittled down into an illusory guarantee, in much the same way the “equality principle” housed in the Fourteenth Amendment has been qualified into oblivion. How could this happen? How could the bastion of our rights as individual citizens be interpreted away like this? Easily: Because the Supreme Court is a political institution. Justices in our times do not think about liberty in the abstract. They think about how they can disguise political judgment as constitutional law. That approach has savaged our constitutional liberties. Not only can we not speak as freely as we could in times past, but we are also not as secure in our persons, property and dignity as we once were. It is much easier for the police to wring confessions and search homes today than it was in 1970. Through an endless series of fact-based exceptions, qualifications, explanations and limitations, the Supreme Court has stripped our liberties, rendering them technical shibboleths with no romantic appeal at all. Our “freedom of speech” is no exception to this trend.
When the Supreme Court takes a wrecking ball to the First Amendment, I get upset. When justices impinge upon our liberty to speak by disguising their own moral and political prejudices in fancy legalese, my blood boils. Recently, the Court broke out the demolition equipment again in the case F.C.C. v. Fox Television Stations, Inc., 556 U.S. ___ (2009). Here, the Court revisited the “indecency in broadcasting debate” that began with the classic case F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). In essence, Pacifica held—without precedent—that “indecent, nonobscene” language in broadcasting could be banned because it had a “unique power to offend,” it was “uniquely pervasive” and it was “uniquely accessible to children.” Even though there was no constitutional basis to ban such “nonobscene” speech outright, the Court created a special “category” for so-called “indecent speech” that might “injure a listener who does not want to hear it” because it had “lower value” than other protected speech. In the usual case, the First Amendment’s free speech guarantee prohibits government from regulating speech based merely on its “content” or “message.” Rather, the government may only regulate speech based on content if it fits a “traditionally proscribable category,” such as “fighting words,” “obscenity,” “incitement to riot,” or “libel.” In Pacifica, the Court admitted that the broadcast at issue was not obscene—it merely “deliberately and repeatedly” referenced “sexual and excretory functions and organs.” Nonetheless, based on “moral considerations” and “context,” it decided that government could fine a broadcaster for crossing the “decency line.” After all, according to the Court, such language has “low value.” In essence, the Court made a moral judgment. It concluded that certain otherwise constitutionally protected speech has “lower value” than other speech. Because the Court found the broadcast “patently offensive” on moral grounds, it fined the broadcaster.
Liberty took a significant hit in Pacifica. In the ensuing decades, the Federal Communications Commission began policing broadcasts for “indecent speech” that could potentially “offend an unwilling listener” with “sexual or excretory” language. Over the years, the Commission developed a torturous, morality-laden common law by which it analyzed whether particular words were “patently offensive,” looking to such details as whether the “words were deliberate or repeated,” whether they “literally referred to sexual or excretory function” and whether “they merely were fleeting, expletive uses” that would not offend as many people. In other words, it would be “indecent” to broadcast: “I need to take a shit” because that “literally refers to excretory function, but it would not be indecent to broadcast: “Oh shit! I’m on fire!” because that is merely a fleeting, expletive “non-literal” use of the word. Under this labyrinthine common law, referring to real excrement was “indecent,” “disgusting” and “offensive.” But merely making an “exclamation” was not.
In the Fox case, Justice Scalia tightened the “indecency” noose even further. In a predictable 5-4 decision (conservatives Roberts, Scalia, Thomas, Alito and Kennedy v. liberals Stevens, Souter, Breyer and Ginsburg), the Court concluded that the Commission could fine Fox for broadcasting the words “fuck” and “shit” during the Billboard Music Awards in 2003. Cher uttered her bad word when she lashed out at her critics: “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. Fuck ‘em.” See slip opinion at p. 6. Paris Hilton and Nicole Richie uttered their bad words with a joke about “cleaning cow shit from a Prada bag; it’s not that fucking simple.” Id. The Commission said that Fox violated its rules prohibiting “indecent language” on the airwaves. See, e.g., 18 U.S.C. § 1464. In the Commission’s view, even “fleeting, non-literal” “bad words” could be “patently offensive,” despite a prior rule to the contrary. The Board reasoned that the word “fuck” was always offensive “because that word has an inherently sexual connotation” and “[it] is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language.” Id. at p. 7. Why exactly is “fuck” so offensive? According to the Commission: “Because it invariably evokes a coarse sexual image.” Id. And why was Cher’s “fuck ‘em” comment so offensive? According to the Commission: “Because she metaphorically suggested a sexual act as a means of expressing hostility to her critics.” Id. Justice Scalia implicitly agreed with this linguistic analysis, adopting the Commission’s reasoning: “An expletive’s power to offend derives from its sexual or excretory meaning.” Id. at p. 8.
Justice Scalia proceeded to expressly reject a constitutional challenge to the Commission’s action, choosing instead to review the case as “an administrative matter” under the Administrative Procedure Act, 5 U.S.C. § 551. See slip opinion at pp. 9-12. Under that deferential standard, the broadcasters were doomed to fail. The Commission merely had to show that its reasons for adopting the new “no expletive” policy were not “arbitrary or capricious.” Id. at p. 9. To meet that standard, the Commission simply had to say that it explained its reasons and believed them. Id. at p. 11. Justice Scalia even refused to apply a somewhat “heightened review” to the Commission’s action because its “policy change” did not “contradict any previous factual findings,” nor did the old policy engender “serious reliance interests.” Id. at pp. 11-12. After all, this was merely a case involving “bad words.” There was no need to bring up the First Amendment.
This reasoning outraged me because it so dismissively rejected the constitutional implications inherent in the Commission’s action. In my view, no matter how offensive a word may be, it is still “speech,” and if government has a problem with the content, it must proffer a very compelling justification to suppress it. See United States v. O’Brien, 391 U.S. 367 (1968). Worse, the Court implicitly adopted the Commission’s rhetoric that a word’s “power to offend” flows from “sexual or excretory meaning.” This is not constitutional law, nor even detached legal analysis. This is pure value judgment. According to this logic, any word that has a “sexual or excretory meaning” has “the power to offend.” It follows, then, that not just “fuck” or “shit” would be “offensive,” but also “coitus,” “intercourse,” “copulation,” “defecate” or “poopie.” All those words have “sexual or excretory meaning,” and thus—according to this preposterous analysis— “the power to offend.” What does this moral oversensitivity have to do with the liberty to speak and use language? To me, this is Puritanism masquerading as constitutional analysis. And value-laden Puritanism is no basis upon which to make decisions that impact every American’s rights under the First Amendment.
Under the Court’s reasoning, Cher could have said: “Intercourse my critics” and the Court would still have approved a fine for “indecent speech.” Nicole Richie could have said: “Have you ever tried to clean cow dung from a Prada bag? It’s not so copulatingly simple” and she still would have used words that “have the power to offend” because they have “sexual and excretory meaning.” Further, the Court agreed that the phrase “Fuck ‘em” was “bad” and “offensive” because it “metaphorically suggested a sexual act as means of expressing hostility to [Cher’s] critics.” It also said that the word “fuck” “invariably evokes a coarse sexual image.” This is pure rubbish. Anyone with a rudimentary understanding of English slang knows that the word “fuck” is immensely versatile. It is not always sexual, nor does it always “evoke a sexual act or image.” Dictionary.com provides the following definition: “Fuck (verb used with object): 2. slang to treat unfairly or harshly.” Cher used the verb in exactly this sense. She expressed harsh contempt for her critics. It had nothing to do with sex. In that light, the Commission’s linguistic reasoning is demonstrably false and exaggerated.
I find these matters critically important, even if they involve only “vulgar speech.” Although the Commission identified “fuck” as a “bad word” because it was “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” I defend language for its own sake. I like knowing that I can use whatever word I please to describe my own thoughts and impressions. Words are not evil in themselves, nor should we ban them because they engender moral revulsion in faint hearts. If we entrust governmental agents to screen out certain words based on their own, regressive moral sensibilities, we cede our individual liberty to their judgments. And if the Commission and the Supreme Court represent the “standard” for “decency,” we can expect to cede a great deal more.
I often criticize dominant morality because it is not based in reason. Rather, morality derives from age-old intuitions concerning a general societal belief that something is “disgusting,” “revolting,” and thus “blameworthy” and “inappropriate.” Yet the Constitution and individual rights should be based in reason, not intuition. The Constitution is not a moral treatise. But the Fox case, as well as the whole “indecency doctrine” in general, make morality the entire basis for constitutional decisionmaking. Reason did not influence the Commission’s rationale for banning “offensive” speech. Rather, intuitive moral revulsion influenced the rationale. Some overly moral tightass got uncomfortable when he heard the word “shit,” then prevailed upon his fellow overly moral tightass friends in power to ban the word. The Supreme Court majority in Fox agreed in principle with these overly moral tightasses, even if it disguised its moral approval with vacuous legal nonsense about “standards of review” and the “Administrative Procedure Act.” These legal mechanisms represent a mere technical subterfuge for brazen moralizing. And Justice Scalia’s refusal to address the constitutional dimension to “indecency bans” reflects his own moral belief that “indecent speech” is “bad” because it is “disgusting.” Again, this is not constitutional analysis. It is value judgment.
Reason should guide the United States Supreme Court, not morality. In many cases, reason and morality can coexist. But when it comes to constitutional liberty, morality must give way to the abstract guarantees to which citizens are entitled. Morality is intensely subjective. It plays upon emotion and passion. Indeed, any belief system that draws upon disgust necessarily disparages reason. As such, any so-called “constitutional jurist” must handle morality with the greatest care when addressing constitutional questions. Morality has the power to introduce concerns that have no place in the pantheon of constitutional liberty. The First Amendment contains positive abstractions that favor the individual and his expression. Morality, on the other hand, provides a basis to judge other individuals and their expression “revolting.” A prudent jurist will recognize that tension and rule for abstraction over morality, even if he finds the individual’s expression “disgusting.” In the Fox case, the Court should have addressed the constitutional dimension to the Commission’s morally charged rule-making. When morality treads too harshly on core constitutional guarantees, a conscientious jurist must address the constitutional issues. The fact that the Court here did not even broach the First Amendment bespeaks its modern-day malaise—and even cowardice.
If we truly are a “Nation of laws,” our Supreme Court would disapprove the “indecency doctrine.” Law dictates that only certain “speech categories” may be banned. “Indecency” is not one of them. The Court allowed morality to tarnish its respect for liberty. Pacifica was a mistake. Fox perpetuates its error. Until the Court recognizes that liberty must win over morality, we can expect more absurdities in the future, as well as less freedom to speak.
And I don’t give a damn about the children. Parents should start paying attention to what their children are watching. I cannot bear the fashionable rhetoric that justifies reducing constitutional liberties to protect some fanciful child. Our Constitution is timeless. Our children are not. I would rather have my liberty than overprotected children who will wind up speaking vulgarities anyway. It is a harsh world. “Bad words” will reach them some day, somehow.
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