GERMAN BREAK

In 1999, I lived with a German family in Berlin. In retrospect, it was probably the happiest year of my life. I was still very young, but I just remember feeling exhilarated every day in my new environment. My German "parents" seemed to respect and understand me better than my own parents. It broke my heart to go home when I did. Although I have been back to Berlin many times over the last 11 years, I have never recaptured the pure joy I used to feel when I lived there.

As the years passed, I gradually lost touch with my German parents and their two daughters. I regretted this very deeply. I tried several times to contact them but to no avail. That is, until yesterday. My sister called me from Brooklyn to tell me that my German mother had called looking for me. She gave my sister her number. I was overjoyed.

I called my German mother early this morning. She was busy and couldn't talk, but we agreed to have a nice conversation tomorrow morning. I was a little disappointed that we could not talk at that moment, but I'm so glad we've reconnected. Now, I'm just full of memories and old emotions. I can't concentrate at all on my writing, so I'm going to take a day off. Tomorrow I might take another day off so I can talk to the German parents I haven't seen in 7 years.

I'm really quite excited! Hopefully I will have time to write a post, too, but if I don't, you know the reason.

Thanks again for checking in!

Oesterhoudt

IF PALIN WINS, OESTERHOUDT EMIGRATES

I CAN PROMISE YOU THIS...

I just read an article in the New York Times detailing Sarah Palin's increasing political influence. It mentioned that she is positioning herself for future elections and that she even is "educating" herself about relevant events so she can better compete with her opponents. She has walled off her home and turned it into a "compound" for conservative patrons. She makes daily Twitter broadcasts to millions outlining her "rogue" approach to American government, namely, that there should basically be no government--beyond a police department and prison system, of course. You know, to lock up undesirables, communists and the like.

I guess that's what they mean by "The Tea Party Movement."

Well, no matter what they mean by it, today I am making a promise:

I, Balthazar Oesterhoudt, author of that certain online periodical entitled "Reason, Commerce, Justice & Free Beer," published in the GREAT REPUBLIC of the UNITED STATES OF AMERICA, do hereby promise and commit to LEAVE this GREAT REPUBLIC of the UNITED STATES OF AMERICA if--and on the express condition that--SARAH PALIN is elected President of the UNITED STATES OF AMERICA.

That's my promise. If Palin wins, Oesterhoudt emigrates. That's all there is to it.

So, if Palin takes the White House, Oesterhoudt is taking Berlin. End of story.

I usually don't write on the weekends. But the sheer potential horror of a Palin government moved me to write this morning. I don't have a complicated message today. All I want to say is that if the American people really elect Palin, I have no place among them. It's no answer to just cower among my fellow radicals in New York. If Palin wins, it symbolizes a much larger problem than mere sectional differences between Americans. It symbolizes the victory of foolishness over reason, ignorance over learning and backwardness over tolerance.

So again, if Palin wins, ich bin ja raus hier... I'm outta here !

ALTERNATIVE HEALTH REFORM PROPOSALS : LETTING EVERY VOICE BE HEARD

PERSPECTIVES ON THE HEALTH CARE DEBATE

For over a year now, our country has grappled with "the health care problem." At every level of government--and even at every level of our society--we have debated the moral, ethical, practical and financial ramifications that will flow from health reform. For the most part, we hear two sides. One side says that the United States has a "moral responsibility" to care for its citizens' health, even if it costs an astronomical amount and inhibits private commerce. The other side says that private health care more than sufficiently provides medical services to the American people. It also says that any government foray into health care will lead to crushing taxes and bureaucratic interference in private health care decisions. The other side says that the private system--despite its flaws--maintains the classic American spirit of free enterprise that yields beneficial scientific discovery. Without an economic incentive to pursue medicine, according to these voices, such discoveries would wither away.

Our Nation cares deeply about these questions. Congress has ferociously debated health care for months. Our citizens have come to blows over the issue in town hall meetings from Maine to Malibu. Many Americans see the health care debate as a symbolic battle for the country's soul. For them, health care represents sacred ground: If the government trespasses on it, every American's liberty will cease to exist. Some even think that State-run health care will result in "Death Panels" that decide whether elderly citizens live or die.

Here at Reason, Commerce, Justice and Free Beer, we take no position on the health care debate. We merely provide a forum in which Americans--and even foreigners--can candidly offer their opinions about this very important issue. Nonetheless, we find it regrettable that the debate has broken down along traditional political lines. We believe that democracy can only work when every voice is heard. And in the health care debate, it seems we only hear two voices: One Democratic, the other Republican.

As a serious news outlet committed to robust public debate, we believe that the American public has a right to hear alternative proposals for health reform. In that light, we are proud to share our readers' suggestions about how to solve the health care mess in the United States. These suggestions do not fall into the traditional conservative/liberal dichotomy. Rather, they express the compelling variety that makes America such a great Nation. We believe it is time to let every voice be heard on the health care question. Silence benefits no one. Our democracy can only survive when we allow everyone to speak, even those with whose perspectives we may disagree.

SUGGESTION #1: THE ARCHITECTURAL SOLUTION

Dear Sirs,

I am sick and tired of the Democrat-Republican back-and-forth over health care. As a working civil contractor with mouths to feed, I would like to suggest an architectural solution to our health care problems.

Health care takes place in buildings. It costs money to maintain buildings. In fact, the more square footage you have, the more it costs to pay for a building. Now, we could save so much money in the health care system if we simply tightened our belts and knocked down one wall per room in every health care establishment. Think about it. Every room in every hospital, clinic and doctor's office has four walls. If we just sacrificed one wall in every room that provides health care in America, we would reduce health care expenses by 25%. That money could be used for research, charity and providing care for the uninsured, all without governmental interference. We just need to do without one wall per room.

We can do it. We just need to tell ourselves that four walls is too many. I'm ready to make sacrifices. Are you? As a contractor, I know that most walls are unnecessary; we can get rid of a few. And when we do, we'll be amazed how much money we'll save.

Yours truly,

Bill McCloskey, Contractor, Omaha, Neb.

SUGGESTION # 2 : THE PRODUCTIVITY SOLUTION

Liebe Mitleser (Dear Readers),

In 1934, the new government in Germany declared: "God cannot have wished that a deformed baby live." We believe that statement can help America solve its health care problem.

America spends untold amounts caring for malformed children. It spends even more keeping people alive who would not have survived in nature. These people force up costs for everyone else who needs health care. And caring for them yields no increase in production. After all, caring for a deaf-mute with deformed arms for 40 years will not transform him into a Nobel winner or a successful grain wholesaler. Rather, he remains a muted cripple--and a money pit.

We believe, as the new government in Germany believed in 1934, that it makes no sense spending national treasure preserving worthless life. America could save countless dollars if it simply euthanized crippled children and hopelessly injured adults. These vegetables represent the single-most expensive item on the health care menu. Caring for them results in massive financial wastage without any hope of return. This is simply not good financial management.

We propose a final solution to the health care problem. By neutralizing high-priced cripples, mentally-defective children and brain-dead accident victims, we will flush the system with money, as well as free hospital beds for productive citizens who actually stand a chance to recover. We must be pragamtic. We must care for those for whom care will actually make a difference, not those who will never pay tax, never serve in the army and never invent anything worthwhile for society.

If we wish to reform health care in America, let us provide care only to those who can contribute something for the investment we make in them.

Sincerely,

E. Fritz Goebbels, Insurance Broker, Lansing, Mich.

SUGGESTION # 3 : THE CULINARY SOLUTION

Americans fail to understand just how expensive hospital food is. Every year, the health care system spends over $450 billion on low-quality entrees--including pudding--to feed patients. Although this is a shocking fact, I believe we can turn it to our advantage.

I have worked in the St. Luke's Milwaukee Critical Care Unit for over twenty years as Patient Diet Supervisor. During that time, I have seen first-hand how much money we waste on bad hospital food. True, we have nourished patients under our care. But they all complain about the food and many say they would rather eat their shoes than another foil-wrapped Chicken a la King.

I think we can meaningfully reform the health care system in America if we simply stopped serving food at hospitals. Patients don't like it anyway. Plus it costs over $450 billion per year. By dispensing with daily meals, we would free up funds that could be used to perform surgery, set splints, buy medication and open new wards.

Naturally the objection follows: So what will the patients eat? Simple: Anything they want. Nothing is stopping them from ordering their own meals or--God forbid--cooking themselves. Responsible citizens manage their own diets. Just because they are in the hospital should not make them think they can't cook for themselves anymore. If they want KFC, they can order it. If they want to cook a four-course Italian banquet complete with wine and cannoli, let them. This is about personal and financial responsibility.

Some patients might be too sick or injured to order their own meals. In that case, relatives can cook or order for them. It might be difficult for a relative to insert a chicken wing into the mouth of an intubated child, but no one said health reform would be easy. If some patients die because they cannot eat outside food, that's the price we pay. On the other hand, we will happily provide feeding tubes for patients who do not feed themselves. We simply leave it to the relatives to fill those tubes with milkshakes or other liquid meals.

It is amazing how much money we'll save by closing down hospital food services. Plus we'll encourage individual responsibility and healthy eating choices among the patients.

Yours very truly,

Julie M. Wakaska, Patient Diet Coordinator, Milwaukee, Wisc.

FLAG-BURNING AND NATIONALISM : WHOSE FLAG IS BETTER?

A REFLECTION

Flag-burning is an interesting subject. So are flags. The first thing I notice when I get back to the States from a long trip to Germany is that there are flags all over the place. In Berlin, you only see flags on the Bundestag building, and that's understandable because it's the seat of government. But private citizens don't fly German flags over their homes, businesses don't drape them over their lobbies, people don't sticker them to their cars and they certainly don't wear flag lapel pins, even the newscasters.

By contrast, it seems that flags are everywhere in the United States. From the moment you step off the plane you see flags. There are flags hanging everywhere at the airport. You can buy little flags at the gift shop, people wear flag T-shirts and even the Dunkin Donuts shop sports a flag, since it is very patriotic to buy pastries and coffee. Outside the airport, there are even more flags. You can't drive through many suburban neighborhoods without seeing flags in windows, flags on poles on lawns, and, if you go inside a house, flags on quilts and blankets, or flags in picture frames. If you get a cocktail at a bar, you might find a paper-flag toothpick in it. Car dealers fly enormous flags over their parking lots. So do amusement parks and waterslides. In New York, every commercial building has a flag in it. Every apartment building I've ever lived in has had a flag in the lobby. I don't know how paying rent to a private landlord (who probably hates taxes) is patriotic, but what do I know?

America is unabashedly nationalistic. It doesn't like flag-burning because it loves flags. Many Americans attach mythical status to their flag. Personally, I don't like unchecked nationalism. I think it's fine to be proud of your country, but I don't feel the need to blare it by displaying flags and shouting down those who burn them. Not only that, but Americans don't really object to flag-burning "in the abstract." You can burn an Afghani or Russian flag and no one would give a fart. No, Americans don't like American flag-burning. So it's more a selective objection than a principled one.

Congress criminalized American flag-burning in the late 1980s. In a brave moment, the Supreme Court invalidated that law. But many saw the same case as a betrayal and reviled the Supreme Court for deciding it. Trouble is, we have a little thing called the "First Amendment" which guarantees "free speech." I think flag-burning is speech. You might hate what the speaker believes, but I think he has a right to say it without being jailed.

Beyond that, I find America's obsession with flags very disturbing. Relentless nationalism is dangerous, pure and simple. If anyone knows that, it's the Germans. That's why they aren't so zealous about flying flags all over the place anymore. 50 million dead worldwide (including genocide) convinced Germany that blind patriotism really wasn't a healthy prescription for anyone, including themselves.

I have difficulty according blind respect to any symbol. True, the American flag has long stood as a symbol for democracy, freedom and self-government. But sadly our Nation often falls short on its promises. As a "world leader," it often comes across as intransigent and churlish, not compassionate or principled. If people burn the American flag, they probably object to some perceived injustice America has committed. In my view, it makes no sense to categorically condemn flag-burning without at least acknowledging what the speaker means to say. Perhaps America truly has done something blameworthy. If we are committed to our principles, shouldn't we want to rectify a bad situation rather than ignore it?

This is the trouble with nationalism: It prevents people from rationally considering divergent opinions, even if they voice legitimate objections. From a nationalist's perspective, there is the "American way" or there is "no way." But life is never so simple. Still, America's love affair with flags all too often reveals that many Americans believe exactly that. In my view, simple-mindedness is not something to be proud of. It is just foolish. And it stifles rational dialogue that could lead to progress.

DIGNITY IS NOT DEAD; IT HAS SIMPLY EVOLVED SINCE 1799: A RESPONSE TO DAVID BROOKS

AN ESSAY

In a recent editorial, David Brooks faulted 21st Century American society for failing to adhere to a “dignity code.” See N.Y. Times July 6, 2009. He begins his argument by applauding George Washington as a “model man,” not just a model General or public official. Brooks observes that Washington scrupulously maintained “dignity” by applying 110 maxims from a manual called “Rules of Civility and Decent Behavior in Company and Conversation.” He says that Washington lived his whole life according to these rules, which cultivated such habits as “standing when another person enters the room,” “refusing to publicly broadcast passions” and “living reticently.” For Brooks, this systematic adherence to 18th Century etiquette represents a lost art. He calls Washington “dignified” for having followed these rules because they resulted in “self-mastery” and “disinterested,” private strength. Against this historical background, he laments that most Americans no longer practice “dignity” because they publicly broadcast their feelings and refuse to submit to “social norms” for guidance in life. Brooks asserts that “the old dignity code has not survived modern life.”

But Brooks is not talking about abstract dignity. He is talking about specific, 18th Century etiquette rules. Of course 18th Century etiquette rules have not survived modern life. It’s only natural that they died centuries ago. Our society has changed out of all recognition from colonial America. Yet Brooks—like many figures in both American government and law—equate George Washington and 18th Century “founding values” with intrinsic worth. See http://reasoncommercejustice.blogspot.com/2009/04/our-proud-colonial-traditions-what-is.html. They “fetishize” bygone values such as genteel chivalry and impossibly modest self-control. Brooks notes that, unlike public figures today, Washington refused to publicly air his passions. Rather, his “moral character set him apart.” He was “reticent,” “disinterested,” “dispassionate” and “private.” In Brooks’ estimation, these 18th Century values transformed Washington into a “symbol for dignity.” And—according to Brooks— “dignity is dead” in American life because people do not act like George Washington anymore.

Dignity is not dead in American life. It is just different from 18th Century etiquette codes. Brooks does not understand that the word “dignity” does not refer to George Washington’s personal moral handbook. Rather, “dignity” derives from the Latin word “dignitas,” meaning “worth” or “worthiness.” In English, “dignity” does not mean technical adherence to a particular moral code. Instead, it refers to “bearing, conduct, or speech indicative of self-respect or appreciation of the formality or gravity of an occasion or situation.” Dictionary.com, “Dignity” Meaning 1. It also means “nobility or elevation of character; worthiness.” Id., at Meaning 2. These definitions stress self-respect, nobility and worth. They do not depend upon allegiance to 18th Century moral norms or etiquette technicalities. They do not involve morality, either. Rather, dignity is a broad term. Dignity involves respect and principle. It implies a refusal to countenance certain “base” conduct, both privately and in government. A “dignified” man refuses to adopt certain means to achieve particular ends, even if the ends are noble. A “dignified government” values its citizens; it ascribes worth to them no matter the circumstances. Both men and governments can be dignified without technically following 18th Century “social norms.” And while “disinterest,” “reticence,” “dispassion” and “privacy” can reflect dignity, a dignified person need not always be disinterested, reticent, dispassionate or private. After all, we are only human. Our feelings, emotions and passions define us as much—if not more—than our reason. If we never give air to our emotions or passions, we renounce our humanity altogether. In short, people and governments can be dignified without following Washington’s 110-step formula from 1750.

Brooks places undue weight on the “technical aspects” of 18th Century dignity. And oddly, he concedes that 18th Century dignity cannot survive in the United States. In a striking admission, he says that “capitalism” makes it virtually impossible to scrupulously adhere to Washington’s “dignity code.” After all, in order to achieve commercial success in America, Brooks says that people must “become managers of [their] own brand, [and] do endless self-promoting end zone dances to broadcast their own talents.” How true. Modern commercial values make it well-nigh impossible to both retain dignity and make money. Commerce forces individuals to engage in undignified behavior because commerce is inherently undignified. Commerce wants results and bottom lines, not dignity. Dignity is about means, not ends. Dignity is about lofty sentiments, principles and nobility. Yet commerce is about petty profiteering, forgettable deals and self-enrichment. In commerce, it doesn’t matter how you get there; you just need to get there. That is the opposite of dignity. A dignified person shrinks from certain “dishonorable” pathways to wealth. But a “go-getter” does not. A go-getter would blast past the hesitating man with dignity, take the job, make a fortune and live happily ever after. A lot of good dignity did the other guy: Honor and dignity don’t pay bills.

Brooks is correct in pointing out that dignity involves reticence. Commerce, however, does not like reticence. It likes loud, misleading, public and crass advertising. It likes self-promotion, boasting and ostentation. Quiet guys do not get the job or the promotion, nor do quiet guys open new accounts. In fact, quiet guys get fired. It is OK for rich guys to be “private” or “quiet” once they amass a fortune. But before that, they need to pull out all the dignity stops to get the money. In this sense, modern commercial values in America make dignity an impossible dream. Essentially, the only way to maintain dignity is to refrain from commerce altogether. Yet this is our system. Brooks laments the fact that dignity is hard to find in American life, yet obliquely recognizes that commerce makes dignity a bad business decision. If it comes between “dignified poverty” and “undignified riches,” most Americans will opt for riches, dignity be damned. That is just the way our society works.

In some sense, America’s dwindling dignity reflects its value hierarchy. Although George Washington and the Framers may have appreciated dignity for its own rewards, they did not create a government that makes dignity a prime concern. The word “dignity” appears nowhere in the Constitution. It is not a governmental value. If dignity were really a concern, the Framers could have included language that enshrined it. The Constitution has a commerce clause; but it does not have a “dignity clause.” This was a fundamental value decision. No matter how important “dignity” may have been to the Framers as individuals, they did not consider it a primary government concern. No, commerce was more important than dignity. There are no requirements that Congress enact “dignified laws,” or that the President act in a “dignified manner” or that the Supreme Court issue “dignified opinions” that respect the “dignity of American citizens.” From a constitutional perspective, dignity simply doesn’t matter. Our Framers could have made dignity a core American value, but they chose commerce instead.

In this textual light, Brooks can scarcely complain that Americans “do not practice dignity.” They are just trying to find success in a system that values commerce more than dignity. And dignity has never been—and cannot be—central to a system in which commercial gain is life’s prime motivation.

But not all societies enshrine commercial success as much as America does. Germany, for instance, makes “human dignity” government’s overriding concern. See Basic Law Article 1 § 1: “Human dignity is inviolable.” That is a profound statement. It sets a basic tone for government and for society. It announces that the State cares about dignity; it cares about the “way it does things” as much as the things it wishes to accomplish. There is no such hopeful language in the American Constitution. Rather, it merely delineates governmental powers without any support for overriding human values like dignity. True, nothing in the Constitution prevents people from embracing dignity in their lives. But there is no impulsion to embrace dignity, either. These are the values we have chosen.

Despite all this, dignity is not dead in America. While the Constitution may not reflect a formal commitment to dignity in American life, many Americans nonetheless believe that dignity is important. In this sense, Brooks is wrong to fault Americans for abandoning the “old dignity code,” if there ever were such a code in the first place. Modern-day dignity refers to the dictionary definition, not to 18th Century ideals. In other words, a modern American can be “dignified” without always being reticent or dispassionate. Americans practice dignity in the modern grammatical sense; they attempt to live their lives with some “nobility” and “self-respect.” They refrain from activity that contradicts their principles. Some Americans refuse to act in ways that lower their own sense of personal worth. Some Americans do not pursue “any means necessary” to achieve particular ends. That reflects dignity. Dignity means the strength to follow one’s own principles over crass personal gain. Some Americans do that, even if they are not always reticent or private. In short, dignity is not dead; it has simply evolved. It means something different today than it meant in 1750.

I do not think David Brooks understands this. Rather, he uses 18th Century ideals to scold modern individuals for “failing to master themselves and their passions.” He uses “dignity” as a way to express condemnation for values he does not like. In particular, he singles out Michael Jackson as a man “untouched by any pressure to live according to the rules and restraints of adulthood.” For Brooks, Michael Jackson was “undignified” because he could not act like a “regular adult” and felt no pressure to adhere to “rules and restraints” associated with “adult life.” In other words, Michael Jackson did not live like George Washington. He lived out loud, so he was not reticent. He showed his passions, so he was not dispassionate. He lived publicly, so he was not sufficiently private. Yet does this mean Michael Jackson was “undignified?” If anything, David Brooks is holding Michael Jackson to a distinct moral standard. In this sense, Brooks uses “dignity” more as a moral weapon than as a phrase to express “worth” or “self-respect.” What does “adulthood” have to do with these things? And what is adulthood, anyway? The way Brooks lives? Does this mean that we are not dignified if we do not encounter the same “rules and restraints” that Brooks encounters in his adult life?

I disagree with Brooks here on many levels, primarily because he confuses dignity with moral judgment. Michael Jackson lived an “unconventional life.” He did things many people consider “abnormal” and “strange.” Yet judging him under a “dignity standard” employs the wrong analysis. It is one thing to apply contemporary moral norms to brand “unconventional people.” But dignity implicates different values. Dignity is largely an individual matter; it is about self-respect and worth. Morality, on the other hand, is a group matter; moral condemnation reflects dominant group judgments about particular conduct and habits. In this way, Brooks confuses dignity with morality. He takes his view of personal dignity and incorporates it into a moral rule, which he then applies to judge Michael Jackson.

Brooks’ views about dignity are hopelessly inapplicable. We cannot possibly apply George Washington’s 18th Century etiquette rules in a society that has changed as much as ours has changed. And I place no intrinsic value on 18th Century values. Unlike many prominent judges, politicians and historians, I do not fetishize things simply because they were popular in the 18th Century. I do not categorically revere things because George Washington revered them. Just because George Washington chose to value something does not automatically entitle his values to respect in 21st Century life. During George Washington’s lifetime (1732-1799), for instance, English authorities disemboweled traitors (1746) (see http://www.capitalpunishmentuk.org/hdq.html), and colonial authorities publicly hanged suspected black murderers in chains until their bodies rotted away (1750). See also http://reasoncommercejustice.blogspot.com/2009/04/our-proud-colonial-traditions-what-is.html. Washington himself did not invariably express “noble” or “praiseworthy” sentiments, either. John Marshall, for example, quoted Washington as calling freed slaves “abandoned vagabonds” and “miscreants” who could not serve in the Continental Army because “[t]he rights of mankind and the freedom of America… have numbers sufficient to support them, without resorting to such wretched Assistance.” Marshall, The Life of George Washington (1804)(emphasis added) at p. 273.

In a word, Washington was no saint. And he did not live in a perfectly rarefied age, either. That is why I deeply suspect anyone who blindly assumes that “18th Century values” are somehow “superior” to modern values. Human beings will always be barbaric; but they were generally more barbaric in 1750 than they are in 2009.

Having said all this, dignity is very important to me. Yet I do not subscribe to Brooks’ definition. I do not live my life attempting to mimic 18th Century etiquettes, nor do I deify everything George Washington ever did. Rather, I believe in dignity as worth and individual self-respect. I apply the dictionary definition, not the Washingtonian one. Modern dignity lives on. Washington’s does not. And there is nothing wrong with that. We don’t disembowel people or hang executed slaves in public anymore, either. I’d say that represents an advance in our society, not a regression. Thus, I see no shame in abandoning moralistic “dignity codes” as antiquated as drawing and quartering. We can do better than that.

CORNERSTONES OF OUR LANGUAGE : ENGLISH PREPOSITIONS

AN ESSAY

Englishmen in America echo George Bernard Shaw's quip that the United States and Great Britain are “two Nations separated by a common language.” I could write at length about the myriad subtle differences between British and American English. But I won’t. Others have written superbly on that subject and there is not much I can add to it. Suffice it to say, Americans speak a wholly different language than the average Briton. Europeans who learn English unanimously confirm this to me. They say that it’s much harder to understand an American than an Englishman, primarily because Americans phonetically alter sounds that appear different in writing. For example, the word “getting” looks like it should contain a “t” sound. Yet when an average American says it, there is no “t” to be heard. At most, you will hear a “d” to replace the “t” (ie, “gedding”). At the least, you will hear a strange, swallowed “-nnh” sound to replace “-tting” altogether (ie, “getting” degenerates into a half-swallowed “ge-nnh”). For a foreigner who learns to pronounce every sound he reads, these American dialectic differences cause immense confusion. By contrast, a Briton does pronounce a “t” in “getting." They do not swallow or alter sounds, allowing the foreigner to more easily hear what he remembers seeing in writing.

Having said all this, I love English. I do not speak British English. Despite some claims to the contrary, Americans really do not like British English; they never have. Since the Revolution, they have done all they possibly could have done to make their English different than their former masters’ language. In fact, to widen the divide between England and America, popular myth has it that Congress even debated switching the national language to German in the 1790s. This would have been an appealing decision for several reasons. First, many European immigrants in America at the time spoke German. Second, among major European languages, German is the closest relative to English. Today, however, German seems a strange choice. After all, many Americans think that German sounds utterly foreign. But this is only because English—both British and American—has changed dramatically since the 18th Century. In 1787, English looked and sounded far more like German than it does today. German and English derive from common Germanic roots. Although English increasingly absorbed French and Latin “frills” after the 13th Century, it has never truly abandoned its “Germanic core.” In 1787, the “core” was far closer to German. That is why it would not have been a dramatic leap to change America’s “official language” from English to German, even for people who grew up speaking only English.

I love English precisely because it has a profound identity crisis. It is a Germanic language that likes to masquerade in Latin finery, but without Latin charm or grace. English is not romantic; it is schizophrenic and crass. Because English draws on so many linguistic traditions, it can express the same thought in two, three or even four ways. For example, to express the idea “a door leading out,” we can say “Exit,” from the Latin “ex” (“out”) and “it” (“he goes”), or we can opt for the good old German “Way Out,” from “weg” (“way”) “aus” (“out”). “Exit” sounds more official and more serious than “way out.” “Way out” is prosaic. It sounds too obvious. For better or worse, English has confused itself into thinking that Latin words are somehow more “urbane” than German ones, even though our German words are much more basic and convey meaning much more readily than Latin imitations. As a writer who uses English, I face a challenge every time I sit down to think about what I want to say: “Do I choose a Latin word, or do I go for the throat with German?” No other European language offers so many potential word choices. English is awash with words. We have at least two ways of saying almost every thought we have. That is why it is so fun and fascinating. There is constant variety.

But what is the “English core?” There are certain “core” words in any language that give it a basic identity. Without these words, there is no way to effectively learn the others. In my view, the most “basic words” in any language are prepositions. Without prepositions, we cannot express the locations of objects or actions. We cannot precisely describe things we see or hear. In short, prepositions allow us to linguistically depict our experiences to others. And what is the point of language if you cannot readily conjure an accurate image in another person’s mind? For instance, suppose you see a sea gull flying over a lake. Without prepositions, you could only say: “Sea gull flying lake.” What does that mean? Flying over a lake? Near a lake? Next to a lake? Beside a lake? Toward a lake? Away from a lake? Off a lake? Prepositions define action with relation to an object. Without them, we cannot communicate.

Prepositions are “core English words:” On, over, below, around, about, with, to, of, without, through, near, beside, under, from, by, off, after, before… the list goes on. How could we live without these words? They allow us to precisely identify how and where actions happen. Not surprisingly, they all come from German. Latin did not influence English prepositions because they are too basic to be replaced. Yet these basic words represent the most vital communicative element in our language. In German, “on” is “an.” “Over” is “über.” “Before” is “bevor.” Here we see the great similarities between English and German. Proceeding from these most basic words, we can see how our language developed into the strange hodgepodge it is today. We all too easily forget that prepositions define our language. In German, like English, prepositions are essential. And in an even more basic way, German combines prepositions with verbs and nouns to create completely new ideas. English used to do this all the time. More often now, however, it merely imports a French, Latin or Greek word to express what could be expressed by combining an English word with an English preposition. For example, to express the idea “more of something than is necessary in the circumstances,” English imported the word “superfluous,” from the Latin preposition “super” (“over”) and “fluere” (“to flow”). German, by contrast, stuck with its own adjectives and prepositions. It expresses the same idea as “überflüssig,” combining the preposition “über” (“over”) with “flüssig” (“flowing, in liquid form”). German did not import any foreign words here; it merely combined a German preposition with a German adjective to create a new idea. English could have done the same. But our word “overflowing” has a different meaning than “superfluous.” This is what happens when you allow too many linguistic traditions in the same language.

Yet English does not completely turn away from German-style preposition use. In fact, English combines prepositions with nouns, adjectives and verbs just the way German does. And in my view, we see English in its purest from when it does this. Consider first how rich our prepositions can be. Let us take a simple one: “On.” Who can mistake such a simple word? “On.” We all know what “on” means, don’t we? Well, it depends. There is the “spatial meaning,” as in: “Where is the sugar?” “It is on the table.” In this sense, “on” refers to the location of an object upon a relative flat surface, whether a table, a floor, a chair or even water. Then there is the “attachment meaning,” as in: “Where is that paper?” “It’s on the wall.” Again, “on” refers to an object’s location, but this time it defies gravity. Here, “on” implies that an object has somehow attached to something else. If we combine this meaning with a verb, we create some truly interesting English, as in: “Stop flicking that glue on your brother,” or “Hold on tight.” In this sense, we use the preposition to describe the end result of an action. We “flick” something and it winds up “attaching” to an object, namely, “our brother.” Or we attach ourselves onto something to keep our footing. And it does not end here. “On” can also imply “continuing action,” as in “Carry on!” “Work on!” “Preach on!” or “Walk on!” It can also imply action “approaching” an object, as in: “Come on now!” “Bring it on!” “This case comes on to be heard on the 24th of April 1987.” These are classic, pure English expressions. They do not depend on Latin for their expressive power. You do not truly speak English unless you intuitively—and reflexively—understand them.

History reveals that English used these “prepositional expressions” even more often than it does now. Still, even today, there are English idioms that use prepositions to express something beyond their literal meanings. Consider idiomatic uses involving “on”: “He is really laying it on thick.” This might refer to flattery, sarcasm, charm or even brutality. It makes no sense without context, and even then, “lay on” literally means something different than the idiomatic meaning. Historically, “lay on” could mean even more. In the 17th Century, “lay on” could also mean “attack” or “strike.” Cf. Shakespeare, Macbeth, “Lay on, Macduff, / And damn’d be him that first cries, ‘Hold, enough.’” Act V, sc. viii. These varied meanings all derive from the time-tested Germanic “prepositional” tradition. By combining a simple verb such as “lay” and the basic preposition “on,” English creates delicate, idiomatic subtleties. And this is just one preposition. When we combine “lay” with other prepositions, such as “off,” “over,” “by,” “to” or “in,” we create even more subtle, idiomatic meanings. In this sense, we do not need Latin to formulate uniquely English expressions.

We can thank our Germanic tradition for this. When I finally understood prepositions, I learned how to decipher German. When I speak to my German friends, I tell them I speak German by translating my thoughts into “Older English,” then translating those “Older English” words into German. After all, “Older English” is virtually identical to modern German syntax and usage. In any event, when confronted with a German “prepositional word,” it makes no sense to forage for a Latin embellishment. I simply break it down into its component parts, which look like “Older English.” Today, we see traces of “Older English” in words such as “hereby,” “insofar” and “be it known.” German continues to use such “old-sounding” expressions: “hiermit;” “insoweit;” and “sei es bekannt.” Thus, when I speak German, I imagine I am simply speaking English from an earlier age. German prepositions combine to form the same idiomatic subtleties that arise when we use English prepositions. Yet in many cases, they follow similar patterns. Germans express the verb “attack,” for example, in much the same way Older English combined “lay” and “on.” The Germans say “angreifen,” which combines the preposition “an” (“on”) and “greifen” (“to grasp” or “to grip”). “Attack,” then, “ means to “grab hold of something” or “lay onto it with force.” Linguistically, both “lay on” and “angreifen” follow the same logic and linguistic patterns. And they convey the same meaning in both languages. “Angreifen” may appear obscure to a modern English speaker who simply knows the word “attack.” But a mere glance into our English history reveals our common Germanic roots. Once we clear away the Latin underbrush, we immediately see the Germanic soil. In that light, "angreifen" appears a close linguistic relative, not a bizarre foreign mystery.

Prepositions make this analysis possible. It is easy to get lost in the Latin and Greek maze into which English has crept over the last 400 years. Yet when we take a step back and study our “core words,” we get back to first, Germanic principles. I have been studying and speaking German now for almost 13 years. During that time, I have improved my English because I finally uncovered the ancestral roots from which my native language derived. Learning German made me master “basic English.” It made me respect our great English prepositions. I have grown to trust basic English, not the foreign clutter that confuses it. I like hard-hitting English words. Although I don’t mind employing French, Latin and Greek-based words when I must, I prefer German variants when I have the chance to use them. “Way Out” is better than “Exit.” It may be less profound, but it is more true to our linguistic history. It just sounds more natural. When push comes to shove, English is German. Just look at our four-letter words. In our honest, vulgar moments, we resort to German. Damn, hell, shit, fuck and ass are not Latin or French. They are not delicate. Yet they express our thoughts precisely when we use them, and no one mistakes us. Furthermore, when we modify our vulgar words with prepositions, we do not use Latin, either. “Fuck off,” “Fuck up,” “Fuck over” and “Fuck around” all use old-time German-based prepositions to supply unique, genuine English meanings. We do not need Latin condescension or finery; English gets the job done.

How can you not love English? The variety is endless. With at least two ways to say every word, you can be serious, satirical, ironic, explanatory and ambiguous all in the same stroke. But when it comes to true, honest and natural expression, our basic German roots—along with our prepositions—convey us best. You can count on that.

JUSTICE ALITO REAFFIRMS HIS COMMITMENT TO SENSIBLE AMERICAN CRIMINAL LAW

WISDOM FROM OUR LEARNED SUPREME COURT JURISTS

By : Mr. Samuel A. Alito, Associate Justice, United States Supreme Court (2006-present) ; Former Circuit Judge, United States Court of Appeals for the Third Circuit (1990-2006); United States Attorney for the District of New Jersey (1987-1990); United States Department of Justice (1981-1987); Federal Prosecutor (1977-1981); Graduate, Yale Law School; Clear Moral Visionary; Charter Member, The Federalist Society; Founding Member, The Anti-Drug-Offender Institute of New Jersey; Board President, The Association of Justinian Lawyers for the Immediate Execution of Child Molesters Upon Suspicion Alone, Constitutional Qualms Notwithstanding, et alias honores.

Every day, I learn to love our American Republic more because Americans understand how to treat criminals. I have dedicated myself to public service since early adulthood, and the longer I live, the more I learn to respect our justice system. Put simply, American criminal law is great because it disrespects criminals—and criminals deserve no respect because they have banished themselves from society.

Criminals have no place in American society. We have an obligation to punish criminals severely. If individuals violate the ground rules that hold our society together, they deserve no grace from our State. In fact, our State has a duty to harshly punish criminals for several reasons. First, we want an orderly society. When the law harshly punishes criminals, we not only remove dangerous threats from our midst; we also send a clear message to other would-be lawbreakers that we will hunt them down and make them suffer. Second, we want a moral society. As an avowed Federalist, I believe the People have the right to enshrine their moral ideals in law. They have a right to criminally punish immoral vagabonds, ruffians and people who do not fit in. As a Federal judge, I respect the States. I refuse to interfere with States’ efforts to punish vicious thugs, porn peddlers, crack pushers and public urinators, except in cases in which the States do not punish conduct I find morally disgusting. In such cases, I do not support the States; rather, I punish criminals consistent with my own values as a Catholic, Republican, Yale-educated jurist in public service. In brief, American criminal law targets recalcitrant rebels who lost the right to live among us. We view criminals as dangers to be expunged. We have a great system. I am proud to serve it.

Yet there are Nations on earth that do not see the light. As a scholar, it is my duty to learn different perspectives about the law. Although America is the greatest country in the world because we believe in "freedom and the dignity of every life" (see State of the Union Speech of President George W. Bush, January 29, 2002), we can learn various new approaches to issues by studying other countries. Occasionally, Europe will devise a good idea about electronics or internet commerce. But in most cases, I have found that European ideas are dangerous, especially in legal and social fields. I read legal texts from many legal traditions. Thanks to my study, I have learned that American criminal law is definitely the best. European approaches to criminal law shocked me. And they should shock every American. Nonetheless, I am glad that I studied European law. In the end, I learned that there is no place like home—especially when it comes to dealing with criminals. Europeans forgive and forget. In America, we crucify and bury our scum. That’s the difference.

To illustrate, consider Germany’s Criminal Code (Strafgesetzbuch). In recent decades, Germany transformed from a National Socialist dictatorship into a liberal, federal republic that prizes self-determination, human dignity, social welfare and progressive thought. In so doing, it repealed harsh criminal laws and replaced them with mild, weak social “controls.” Through my extensive study, I learned that Germany prefers to tap criminals on the wrist rather than make them suffer. In so doing, the State disrespects morality, insults crime victims and lets wretched hooligans escape justice. In my view, this is a national disgrace. And the Germans should be ashamed of themselves, especially given their proud tradition of strict, effective penalties for even minor crimes (i.e., guillotine for distributing critical political leaflets; shooting in the back of the head for communist leanings, etc.).

To understand why German criminal law is so bad, we must uncover its stated principles. In his Introduction to the German Criminal Code, Dr. Thomas Weigend, a law professor at the University of Cologne, provides a good beginning: “When the law provides for the deprivation of liberty or property if certain rules are violated, it shows that society considers it absolutely necessary to adhere to these rules.” Einführung, Strafgesetzbuch, 45. Auflage (München: Deutscher Taschenbuchverlag 2008)(hereinafter “Introduction to the Criminal Code”) p. 9. I cannot argue with this assertion. In America, too, we believe that every society has a right to imprison or fine people who transgress against “extremely important” social rules. Dr. Weigend correctly points out that: “Every society needs an opportunity to express its moral disapproval for severe violations against the protected interests of others or the interests of the community.” Id. I could not agree more. Every society has both a right and a duty to condemn those who deviate from acceptable community standards. American communities must punish lawbreakers to remind everyone what is right and wrong.

Yet after a promising beginning, Dr. Weigend veers into dangerous territory. Concerning punishment objectives in the German system, he writes: “Criminal convictions…do not devalue the perpetrator's person,” and that criminal penalties serve the “notion that a convict should not be permanently excluded from society; rather, the State should make it easier for him to make his way back to a responsible life. In this sense, modern-day criminal law in the Social State of the German Constitution is unconditionally obligated to the principle of humanity.” Id.

This is utter nonsense. In America, we do not look with munificence on convicted criminals, nor do we accord them “humanity.” By deviating from fundamental social rules, criminals lose their right to be treated as citizens, let alone with humanity. They are no longer humans; they are criminals. Unlike the Germans, we believe that social miscreants should be permanently excluded from society; we reject wholeheartedly the idea that the State owes criminals the duty to “make it easier for them to make their way back to a responsible life.” In America, the State does not give anything to anyone, even to law-abiding citizens. If anything, the State takes away. It defies imagination to suggest that the State has an obligation to provide criminals a way “back to a responsible life.” The State does not even have an obligation to provide education or health care, let alone the “social means to get your life together.” In short, you only get one shot at life in America. If you mess it up, that’s your problem, even if you are not a criminal. The State does not help anyone find their way in life, let alone lawbreakers who trample on society. The State does not exist to help its citizens; it exists merely to provide a stable environment in which to do business. In short, I find it beyond absurd that Germany “obligates” itself to “humanity.” Criminals do not deserve such indulgences. They are the worst of the worst. If anything, they should be treated inhumanely, not humanely.

I hate criminals. It gets me really angry when I learn that foreign law treats them with respect. We have a duty as a civilized people to make criminals suffer for visiting harm upon our society. They do not belong among decent people. Criminals violate everything sacred about American life: Decency, hard work, thrift, sexual propriety, moral living, financial responsibility, honesty, goodness, compassion, generosity, forgiveness, mercy and Christian caring. When criminals rape, kill, steal, defraud and defile, they do not care about the pain they inflict on their victims. Yet the Germans overlook that pain and slap these barbarians on the wrist like naughty Kindergarteners. In my view, this denigrates both crime victims and American values. But according to Dr. Weigend: “[T]he prosecution of criminal law in Germany is understood to be the task of the governmental community; its purpose is not to provide satisfaction to crime victims.” Introduction to the Criminal Code, p. 11. So the victim is voiceless? What about terrified baby girls who have been burned, raped, tortured, sodomized and traumatized? What about the mother of a 17-year-boy killed by brutal gang thugs? What about a man paralyzed by a drunk driver? Are you telling me that the law should overlook these people’s profound outrage against the criminals who destroyed their lives?

In my view, the law has a duty to listen to victims—and their loved ones—in order to assess the true impact of criminal conduct. Unlike the Germans, we care about people in America. The criminal law is not an abstract encounter between a perpetrator and cold, neutral laws; it is a superheated emotional crucible in which the community expresses its outrage, sorrow and desperation against antisocial monsters. In our law, we care about a mother’s anguish when she loses a daughter to a savage rapist-murderer. We care about a brother’s sadness and loss when a vicious thug kills his sibling in a fight. It is not enough to merely show that a killer intended to kill a victim. We want to hear about the misery, terror, pain, loss and anger in the victim’s family. We want to express our outrage against those who author tragedy in society, even if that outrage has nothing to do with the narrow circumstances surrounding the criminal act. Crime affects the entire community; in America, we are determined to make criminals suffer for the horrific results they inflict on everyone, not just the immediate victim. We revisit the full quantum of pain, horror and misery on criminals that they visit upon their victims. This is true justice, not weak German “resocialization.” In a word, we do not want criminals back in our society. We want them to rot and die in rancid cells after writhing in pain on cold, hard floors for several decades.

Yet the Germans do not understand this. Dr. Weigend writes more about “humanity:” “The principle of humanity…obligates the State to treat even those who have grossly violated the rules of peaceful human coexistence as citizens and brethren, as well as to make every effort to win them back into the community.” Introduction to the Criminal Code, p. 10. If “humanity” means treating criminals like “people” and “winning them back” into our midst, we do not want “humanity” here. Quite the contrary, we would rather be “inhumane” than offer “humanity” to criminals. In America, we believe in fair deals. In our “social contract,” you promise to behave. If you break your promise, you pay the price. You do not get a second chance. Forevermore, you are a “criminal,” not a “person.” The Germans call this “inhumane.” We call it “responsibility.” We do not believe it is difficult to live a normal, law-abiding life. All you need to do is refrain from raping, killing, stealing, lying, defrauding and acting badly. It is not difficult. Just be quiet, live normally and do not make mistakes. It is not brain surgery. The State does not owe an “obligation” to be “humane” to anyone. Nothing in the United States Constitution or any State Constitution requires an American State to be humane. States maintain roads and collect taxes. They imprison criminals and assess parking fines. They operate schools and mental clinics. They have no further obligation; and they certainly have no obligation to act “lovey-dovey” with convicted mass murderers, child rapists, thieves, scoundrels and Bernie Madoff-style fraud artists. In response to any German invitation to introduce “humanity” into American criminal law, I say: “Hell no, we won’t go.”

There is nothing wrong with American criminal law. After studying German criminal law, I am reassured in my belief that we have the best system on earth. We are getting along just fine, thank you very much. In fact, I believe that America is the greatest Nation on earth because we understand that criminals are garbage to be discarded, not “recyclables” to be “re-used.” We understand that criminals are not “regular people.” These are people who have broken the social contract and thus deserve worse treatment than others. Criminals hold nothing sacred; they do not want to reintegrate into our society. We have no desire to “win them back” or “resocialize” them. If anything, we want to eliminate them. And we want them to suffer the same pain they inflicted on their victims. As a Federalist, I am not opposed to State efforts to execute criminals who do not cause death. See Kennedy v. Louisiana, 554 U.S. __ (2008)(Alito, J., dissenting, slip opinion at pp. 43-66). States have a right to decide whether conduct represents such a deviation from acceptable community standards that perpetrators deserve to die for it. Whether States decide to kill to jail criminals, the result is the same: We believe that criminals are worthless pieces of unwanted garbage. We do not try to “resocialize” garbage; we want to throw it away—permanently. This is how we view criminals in America. They are nothing but disgusting, worthless, nauseating trash; and States have a right to dispose of it as they see fit.

Of course, the Germans do not execute criminals because they want to “win them back” into society. They think they have “intrinsic worth” as human beings. See, e.g., Basic Law (Grundgesetz) Art. 1 ("The worth (or "dignity") of every human being is inviolable. It is the obligation of all governmental authority to respect and protect it."). That is their prerogative. All I can say is that Americans are smarter than Germans because we know where our garbage belongs. We do not bring garbage back into our living rooms. We toss it onto the trash heap or burn it. If something is worthless, you get rid of it. You do not keep it hanging around your house.

Americans will always face criticism. Europeans will always contend that forgiveness and “humanity” are better policies than draconian criminal penalties. They will even invoke Christianity to support their theories, including Jesus’ dictum: “How you treat the least of my brothers is how you treat me.” Matthew 25:40. I am a devout Christian and I fervently believe in Christ. Yet Christ’s words do not apply to criminals, because criminals are not “my brothers.” Moreover, criminals are not even people. They are lawbreakers. As such, different rules apply to them. In this sense, America faces no religious quandary when it mercilessly hunts down and punishes criminals. We can treat them as poorly as we wish without violating Christ’s word, because criminals are not “Christ’s brothers.”

I am reassured in my commitment to American criminal law. We view criminals as we should view them: As garbage to be discarded. Although we will always face criticism for what some perceive as repressiveness against criminals, we take refuge in the knowledge that we are right. America is dedicated to liberty, equality and justice for all. But as soon as you break the law, you have no right to anything but suffering and pain. You lose your worth and your status as a person. This is justice. We owe it to the victims. As a Supreme Court Justice, I will never deviate from these principles, no matter what the Constitution says. There are citizens and there are criminals. They are not the same. I will never treat them the same, either. In a word, I know what to do with my trash: I throw it away.

LEARN A FOREIGN LANGUAGE; MAKE THE EFFORT, IT WILL AMAZE YOU

I have learned many things by studying German. Germans tell me I have reached “near native” ability, but there are always peculiar words and expressions that elude me. Foreign languages always remain foreign languages, no matter how long you study them. There comes a point beyond which you just cannot really learn any more. If you were not born with a language and did not experience early life with it, you will never achieve the limited fluency you achieve later by abstract, theoretical study. That is not to say that you cannot learn languages later in life. It simply means that you can never master all the idiomatic intricacies that native speakers naturally sense when they speak, read and write. That is a cultural inevitability.

For me, German has been an adventure. From my earliest childhood, I have been fascinated with Germans and their language. I could imitate German when I was a child, but I did not start learning the language until I was 18. For some reason, it was an easy process. I have studied many other foreign languages in my life. But none came as easily as German. It came to me almost by second nature. For years, I have tried to understand why. Was it my ancestry? My family line traces partially back to East Prussia and German-speaking Protestants in modern-day Poland. One hundred years ago, my great-great grandfather was a newly-arrived immigrant in Connecticut who spoke no English at all. By my mother’s time, no one spoke German in my family. Then I resumed the family tradition by speaking German again. Perhaps it is easier to learn your ancestors’ language if only a single generation separates you from it.

German is remarkably similar to English. As a native English speaker, that could also explain why it was relatively easy to learn. In centuries past, English looked even more like German than it does today. They both come from a common “Germanic” tradition. Over the past 300 years, English has changed drastically by assuming numerous French and Latin-based words. Even its word order, grammar and spelling have changed. German has not changed as much. German still retains peculiar rules for spelling, word order and grammar. English used to have similarly peculiar rules. Like the Germans, we capitalized all our nouns (read the Constitution; almost all the nouns are capitalized) and we combined prepositions to create words like “thereof,” “hereby” and “whereby.” The Germans do that all the time, as in “davon,” “hiermit” and “wobei.” Now, English speakers simply say: “I haven’t heard of that.” In times past, they said: “Thereof have I not heard.” Germans still use the old-style syntax: “Davon habe ich nicht gehört.” To understand German, you simply must imagine that you are speaking old-time English. If you can do that, the two languages appear virtually identical.

English used to distinguish between formal address and informal address with the words “You” and “Thou.” “You” was formal. “Thou” was informal. German retains the distinction. In formal address, Germans use the word “Sie.” In informal address, they use the word “Du.” Our linguistic heritage provides an easy explanation for this. In English, the sound “th” is unusual. Many foreign speakers cannot make the sound because it does not exist in their languages. In times past, however, the English “th” used to be a hard “t” sound, almost a “d.” That explains why German words with a hard “d” generally have English counterparts containing “th.” “Du” became “thou.” “Doch” became “though.” And “durch” became “through.” In passing, you can also see that the soft English “gh” used to be guttural, matching the German “ch.” With time and study, these similarities and interrelationships become obvious. They have led me to the conclusion that German and English are extremely close linguistic relatives. Thus, if you can speak English, you simply need to make a few systematic changes and you can speak German. You just need to cut through the Franco-Latin underbrush that has grown over the basic Germanic roots. In some cases, the roots are still visible. “Der Finger” in German still means “finger” in English. “Der Fisch” means “fish,” and the list goes on.

Once I achieved some proficiency in German, I began reading original German texts. This was a remarkable adventure. From philosophy and literature to law and history, I gained insights into a new world of ideas. Many great German texts have not been translated into English. By reading books in German, I began to understand that there are different ways to approach problems and different ways to discuss them. Language channels thought, and when you can speak a different language, the thoughts come out differently. German can analyze ideas and create concepts in a way different than modern English. True, It can be difficult to read. But it is worth the effort.

I spent three years studying American law. During that time, I read almost without pause. I learned how to examine arguments and writing styles. Nonetheless, almost all American judicial writing follows some common patterns. For one, it draws on a common Anglo-American legal tradition. Second, it applies English rhetorical techniques that only make sense within the Anglo-American value system. Third, it is in English. That may sound prosaic, but I mention it for a reason. English has limitations. It is difficult to create concepts in English without clumsily splicing ideas together with “ofs,” “fors” and “-ations.” English sloppily splits and reconstitutes ideas in ways that German does not. When it comes to the law, such imprecision can be confusing.

During my last year in law school, I opened Immanuel Kant’s “On the Metaphysics of Morals.” After studying Anglo-American law for almost three years, I was stunned to see a legal work written with such conceptual coherence. The concepts were well-defined. The arguments were logical and concise. There was no muddling about facts. There were no tedious exceptions or qualifications. There was no bad writing or English double-talk. There they were: Concepts and arguments in clear, concise, precise German. Yes, it was difficult to sift through the writing at first. But it is difficult to grasp any legal concept during your first encounter with it. After reading Kant just once, however, I felt like I understood a whole lexicon of new ideas. Unlike American judges who fashion ponderous “fact-based” tests and bizarre English grammatical conundrums such as: “Unless it requires proof of an element that the other offense does not,” Kant labeled his terms, defined them, then made arguments based on them. It was remarkably intuitive. And I have never forgotten them. I re-read them when I must, but unlike American cases and statutes, I do not need to constantly re-read them just to understand what they are saying.

This is the problem with English: There are so many different ways to say the same thing that it can be difficult to grasp immediately what the author is talking about. Studying German made me appreciate that. That is why I strive to be as clear as I can in my English writing. I do not want to confuse; I want to enlighten. I want people to know what I think. You can’t do that if your reader has to re-read your sentences forty times before guessing what you mean.

Lately, I have been reading the German Civil Code, Germany’s all-encompassing authority on civil law. Germany does not have a system in which a contract defense may exist in Arkansas but not in Nebraska. It does not have fifty disparate tribunals that pronounce different legal rules for negligence by referencing strange facts from ancient cases. Rather, it sets forth a uniform standard for claims involving private parties, no matter the facts. Even the concept “tort” makes more sense in German: “Impermissible Acts (Unerlaubte Handlungen) Bürgerliches Gesetzbuch § 823.”

I think it is helpful to understand how other countries resolve legal questions. Although Justice Scalia rejects reliance on foreign law to understand American law, you do not have to use foreign law as a means to decide cases. You can deepen your understanding about the law in general by examining how other countries think about the same issues. Actual reliance on German law to decide an American case presents technical problems in the American federal system. But there is nothing wrong with keeping an open mind to other legal traditions merely for enrichment. Justice Scalia is hostile to all foreign law because he thinks advocates will use it to warp American legal traditions. See, e.g. Roper v. Simmons, 543 U.S. 551, 622-630 (2005)(Scalia, J., dissenting). He buttresses his argument with familiar republicanism by claiming that the “American people” adopted their legal traditions and judges have no right to import European replacements without democratic consent. I do not sound such alarms. I simply believe that it is beneficial for any perceptive person to understand how other countries approach legal problems. I have a simple rule in this regard: The more you know, the better you are. And you can make better decisions if you know more than if you know less. Justice Scalia’s hostility to foreign law proceeds on the rationale that it is better to know less than more. In my view, that is not a good policy.

I often write about debt and the difficult issues it raises with regard to fairness and power. In German law, the Civil Code defines a “Debt Relationship” as follows (my translation): “By the power of the Debt Relationship, the Creditor obtains the right to demand a service or performance from the Debtor.” Bürgerliches Gesetzbuch § 241. What a remarkably concise definition. This is good, clear German explication. Rather than sifting through ancient cases to discover what “debt” means in every American State, here we find a simple, pithy definition that applies in every court in the country. From a substantive perspective, we sense immediately that debt implies a power relationship. There can be no “debt” without a “relationship,” and that “relationship” creates power in the “creditor.” More particularly, the “creditor” has a “right” to “demand” a “service or performance.” These are not uncertain words. They say exactly what it means to be a “debtor” and a “creditor.” They starkly reveal that the creditor can “demand” a “performance,” just as a master might demand a slave’s performance, or a paying patron might demand an artist’s performance. Debt compels action; even if the debtor does not wish to perform, the law gives the creditor the “right” to “demand” performance. He who has the power to compel action necessarily has more power than the person compelled. The law favors the creditor and oppresses the debtor. The relationship is precisely the same in American law; it just does not come across as clearly as it does in the German statute. In that sense, I praise the German statute for getting right to the heart of the matter. The German statute defines the relationship, the parties and their respective powers. It does not mince words and we remember immediately what it means. It is rare to find a similarly concise statute in American law.

I mention this brief example to underscore how much you can learn by studying German or any other foreign language. If I had not learned German, I never would have been able to read this statute or think about how it relates to American norms. I do this all the time. I constantly read, compare, think and reflect. It is not enough merely to read one language. We disserve our minds when we consume only English discourse. There is so much knowledge concealed in foreign discourse. To access it, we must make the effort and learn a new linguistic tradition. Once we do, we never think the same way again. That is a great step forward in itself.

TO REGULATE OR NOT TO REGULATE : GOVERNMENT IN COMMERCE

AN ESSAY

Yesterday I ran across an interesting passage in the introduction to Germany’s Civil Code (Bürgerliches Gesetzbuch). Unlike England and America, Germany applies civil law, a legal system in which virtually every legal rule finds expression in statutes passed by the legislature. That differs substantially from the Anglo-American tradition, in which many basic legal rules filter down from the supposed wisdom of unelected “common law judges” who make decisions on unique factual issues, which in turn provide binding guidance for similar factual issues in the future. This “judge-made” law dominates private legal ordering, especially in the economic field. The whole notion of “contract” in England and America derives largely from judicial rumination on private transactions. Judges say what “prudent commercial men” should do in particular circumstances, and judges lay down rules that provide legal recourse against naughty bargainers. In theory, these rules are supposed to allow an “equal exchange” between two willing private parties through fair bargaining. But parties to economic exchanges are rarely equal. One party always has something the other does not. This creates a fundamental power disparity that allows the stronger party to force unfair terms on the weaker party. With the industrial revolution and postmodern distribution systems, the disparity in power grew even more. If common law rules provided the only guidance for economic exchanges in this environment, weak parties would not stand a chance. Stronger parties could tyrannize them—legally.

Legislatures in America recognized the dangers inherent in private commercial common law late in the 19th Century. During the so-called “Progressive Age,” they attempted to impose regulations on private dealings between economic actors. They mandated lower work hours, better working conditions, fair prices, mandatory overtime pay, product quality controls and other measures intended to level the playing field between stronger economic actors (industrialists, manufacturers, wholesalers, etc.) and weaker ones (employees, consumers, etc.). Legislatures did this because existing commercial common law actually permitted stronger economic actors to pay workers 5 cents a day under horrific working conditions. In fact, the common law prescribed no standards for pay, working conditions or “fairness;” as long as two parties bargained for something, the law would not question its substance. Of course, this “liberty to contract” existed only in fantasy. Workers take jobs “freely,” but they must work to feed their families and pay their rent. To that extent, workers are not really “free” to choose work terms. They act under economic compulsion: Work or starve. Is that a “free choice?” In the late 19th Century and early 20th Century, employers could dictate any terms they wished. The common law courts called this “freedom to contract.” In practice, it led to blatant unfairness and tyranny. After all, how could a poor worker negotiate with the massive company that paid his wages? If he complained that the contract was “unfair,” a court would merely say: “Well, you bargained for it. So you must adhere to it,” even if the employer reaped all the benefits from the employee’s work.

Fairness does not matter in the commercial common law. The only question is whether two parties voluntarily agree to do or not to do something in return for a promise or performance. If they do, there is no further discussion concerning the fairness of the relationship or the terms it imposes. Nonetheless, legislatures saw that this system led to unfairness. Perhaps they acted from conscience when they began to meddle in commercial affairs. Perhaps their Christian impulses could not countenance weak parties suffering under unfair contracts while strong parties got away with anything they wanted. Whatever their motivation, they took action and laid the foundations for the modern “regulatory State.”

They did not have an easy time, either. In 1905, the United States Supreme Court invalidated New York State’s attempt to limit bakers’ working hours as an “encroachment on the fundamental liberty of master and servant to bargain with one another.” Lochner v. New York, 198 U.S. 45 (1905). In other words, the Court protected employers’ rights to tyrannize their employees because they had a “fundamental liberty” to bargain for contracts as they saw fit. In essence, the Court used constitutional liberty guarantees to advance commercial common law. According to the Court, strong parties in commerce have the “liberty” to bargain any way they damn well please, even if that means forcing workers to labor for 12 hours a day with no overtime. To avoid slavery problems, they must merely say: “If you don’t like it, you can quit.” But can a worker really quit if he has mouths to feed? Therein lies the illusion of freedom in commercial life. Only the strong party has real freedom. The weak party must adhere to the strong party’s terms or he does not get wages or products he needs to survive. This is what happens in unregulated commerce. And the law actually facilitates it.

During the 1930s, the Supreme Court overruled Lochner. See, e.g., Nebbia v. New York, 291 U.S. 502 (1934). By that time, the public could no longer tolerate unchecked commercial power. After all, unregulated business led to the Crash in 1929. That convinced even the moderates that commercial common law could no longer persist; government had to intervene in relationships between private economic actors. With the legal way now clear, Roosevelt’s New Deal ushered in a whole new era of government intervention in commerce. No longer could strong parties force terms on weaker parties. They had to comply with basic norms and standards prescribed by the government. Although this seems “only fair” to us today, it was revolutionary at the time. In commerce, fairness was never the goal—and it still isn’t. Yet legislatures and the People believe that it should be. This fundamental tension stokes the perennial debate between private enterprise (deregulation) and government activists (regulation). Private enterprise wants to do business without interference, while government activists want to stop private enterprise from exploiting its power to tyrannize the weak.

In the decades since the New Deal, private enterprise has adapted its approach. Aided by well-paid lawyers, it complies with regulatory requirements in letter. But in spirit it has slowly reasserted the commercial common law. For example, companies comply with the Food and Drug Administration and Securities & Exchange Commission because if they do not they face fines or prosecutions. When there is an external obligation, they conform. Yet in every case in which regulations do not apply, private enterprise will exploit its power. When private enterprise can tyrannize, it will tyrannize. If private enterprise does not have to provide health insurance to workers, it will not. If a landlord can charge $10,000 per month for a small apartment, he will. In essence, private enterprise follows a simple rule: “I will charge as much as I want because I can.” If someone complains: “Why are you charging me so much? That is unfair,” private enterprise responds: “Because I can.” As long as private enterprise does not violate an external legal obligation, the commercial common law applies. And the commercial common law gives private enterprise a free hand in private dealings.

Unfairness and commerce go hand in hand. In fact, companies “earn the right” to be unfair because unfairness guarantees success. In other words, success entitles the winner to unfairness. Fairness implies that everyone has an equal chance to win in a particular enterprise. Unfairness implies that one party holds superior advantages that reduce or eliminate the other party’s chances to win. If a person has a choice, don’t you think he would prefer to be unfair? After all, you can’t lose if you act unfairly, and who likes losing? This may sound simplistic, but commerce is simple. It is a game, and money is the prize. If an economic actor can maximize his chances to win through unfairness, he will.

Yet unfairness offends our sensibilities. When we fall victim to unfairness, we feel embittered and hurt. When we hear about unfairness that affects others, we feel the same way, even if to a lesser extent. We also feel resentful that strong parties continue winning a “rigged game.” This bitterness and resentment propels us to use the government to curtail unfairness in commerce. When a business practice really rankles us, we employ the regulatory State to crush it. To that extent, the regulatory State provides us a means to correct unfairness in commerce. On the other hand, politicians control the regulatory State. If their constituents benefit from unfair business practices, they will not use the regulatory State to correct those practices. In that sense, commercial unfairness exists as a matter of political grace. If “business hostile” politicians control the government, they will make it harder for private enterprise to tyrannize weak parties. But if “business friendly” politicians control the government, they will refrain from regulation and give private enterprise a free hand. Thus, while government regulation in commerce looks good in theory, it actually does not work without the political will to intervene in private dealings.

So it goes, at least in the United States. But perhaps not in Germany. As mentioned, Germany applies a Civil Code to provide a framework for private economic dealings. Like the United States, Germany is a free market economy. It also has enormous regulatory mechanisms to rein in the unfairness that inheres in private economic dealings. But unlike the United States, Germany has different reasons for regulating private enterprise. While the American government seems to apply regulations only when there is public outcry about particularly atrocious business excesses, Germany appears to regulate on principle. Consider this passage (I translate):

“According to our current understanding, the government’s ordering task cannot limit itself to establishing formal rules of conduct and responsibility in commercial intercourse. Rather, the government must intervene much more, if and to the extent that serious dangers to social justice arise from the exercise of private autonomy. For that reason, the task increasingly falls to the law to protect those who are economically weak…In the field of private law, the main problem for legislation and jurisprudence is—and remains—to fairly deal with and overcome the tense relationship between economic freedom and social justice.” Dr. Helmut Köhler, Einführung in das Bürgerliche Gesetzbuch, München : Deutscher Taschenbuch Verlag (61st Edition 2008).

Here, we see a slightly different approach to “the fairness problem” than we saw in American legislative responses to the issue. As was the case in American law, the Germans appreciate that “private law” (i.e., “commercial common law” in America) is not enough to protect the public. As Dr. Köhler says, “the government cannot limit itself” to prescribing general rules for conduct and responsibility in private commerce. After all, we saw that unregulated commercial common law leads to unfairness, exploitation and—as Dr. Köhler calls them—“serious dangers to social justice.” In the German view, the government has an essential “task” to combat “dangers to social justice.” In the American view, regulation arose to allay public outcry about unfair business practices. It was not concerned—as a matter of principle—with “social justice.” In that sense, the German impulse to regulation has a more principled rationale: It is the government’s “ordering task” to defend social justice as much as it is to provide formal rules for commercial intercourse. The German view also supports the notion that these “serious dangers to social justice” arise from “the exercise of private autonomy.”

This directness is refreshing. In German law, legislators and judges understand that “private autonomy” goes hand in hand with “dangers to social justice.” In the commercial common law, American courts fabricated an artificial reality in which “fairness” flowed from the theoretical “liberty of master and servant” to freely bargain with each other, even though—as a practical matter—the master always had superior power. In the German view, however, the law takes a more realistic approach: It knows that private autonomy grants all power to the superior party. After all, that is what creates “serious dangers to social justice.” In that light, government intervention in commerce is mandatory. In German law, fairness is a governmental concern, because unfairness damages “social justice.” And because the government has a duty to protect “social justice,” it also has a duty to constrain unbridled “private autonomy.”

This interests me because I care about fairness. I think that fairness should be a governmental concern. Yet in American commerce, I am reminded every day that fairness is not the goal. In fact, commercial interests detest fairness. They say it is too difficult and too costly to worry about. They say that courts must never label contracts “unfair” or “unconscionable” because that will merely force them to increase costs on everyone else. That may be true. But that does not excuse the theoretical difficulty in defending unfairness as a business practice. Unfairness pays. And businesses know how to get away with it.

Regulations can only go so far in the United States. Until we make “social justice” an actual “ordering task” for government, we can be sure to get raw deals for as long as we live. It is not enough to wage small wars on especially egregious business practices, such as the Enron fraud or Bernie Madoff's ponzi scheme. These are merely symptoms of a much more entrenched ailment: Institutionalized unfairness in commercial exchange.

Or we can strive to be successful, in which case we win the right to force raw deals on everyone else.

LET'S RETHINK THE FOURTH AMENDMENT

By : Special Agent Frank L. Fahnding, Search & Seizure Department, Federal Bureau of Investigation, Washington, D.C.

In the workplace, we constantly encounter annoyances that make life difficult. During our professional lives, we contend with bothersome supervisors, challenging accounts, deadlines and broken vending machines. We deal with demoralizing performance reviews, late nights and lost weekends. These things come with our jobs because circumstances change. That’s life. And we must strive to adapt.

But all these workplace challenges pale in comparison to the institutional difficulties I face as a law enforcement professional. I have a responsibility to root out child molesters, murderers, car thieves and stock market fraud artists. We all want to catch these scumbags. Yet I can’t do it. Why? Simple: The United States Constitution. To be more precise, the Fourth Amendment to the United States Constitution. Never before has a single sentence both permitted so much crime and made my job so difficult. I would rather deal with a fire-breathing bitch who castrates me daily at the office than to live one more day with this hateful piece of constitutional text.

To catch criminals, you must find evidence. Evidence proves people guilty. That’s just how our system works. In most cases, you know if a guy is guilty if he dresses a certain way, acts a certain way, talks a certain way or if he has something to hide—or gain. But for certain reasons unknown to me, our Nation created a justice system that requires the government to find evidence to prove people guilty. It is not enough to look at a gang member and say: “Oh yeah, it was him; just look at the prison tattoos, the bandana and the torn jeans.” No, you need to call up some witnesses who swear under oath that they saw the guy pull out a knife, smack an old woman in the face and take her lunch money. If you can’t do that, you need to find the knife, find the lunch money and ask the old woman if “this is the man who did this to you.” As you can see, this is a tough business, because it is rarely easy to scrape up evidence.

Our Fourth Amendment makes the job even tougher. It provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Now, I don’t speak 18th Century early American English, but this basically means that you can’t search people or places without “probable cause” or a “warrant.” It also means you can’t arrest people without “probable cause” or a “warrant.” You have no idea how difficult this is. Do you know how inconvenient it is to get a warrant? I receive tips about drug dealers all damn day, yet I can’t tell you how many times they have escaped while I try to get a goddamned warrant. Other times, my agents haul crooks into the station for robbery, then some ACLU lesbian barges in claiming we had “no probable cause” and I have to turn them loose. Or a kid says his scoutmaster has nudie pictures on his computer, so I send over some agents to take the computer. Before you know it, some bright-eyed Harvard Law grad shows up at the field office waving the Constitution in my fucking face telling me we “live in a police State.”

What a royal pain in the ass. I’m just trying to do my job and clean up the streets. Nobody likes killers, robbers, child molesters, terrorists, fraud artists, hustlers, pimps, vagabonds, ne’er-do-wells, drunks, hobos, bail-jumpers, parole violators, hit-and-run drivers, anarchists, thugs, deadbeats or gangsters. Yet I can’t effectively jail these assholes because the Fourth Amendment makes me assemble “probable cause” before I can arrest them. Do you know how much crime I could stop if I could just search people at random? Do you know how many drunk drivers I could catch if I could just arrest everyone at a bar with a parking lot? Do you know how many children I could protect if I could watch everyone’s computers at all times, then arrest anyone who logs onto a porn site? Do you know how many drugs I could get off the street if I could just walk into anyone’s home without waiting for some egghead magistrate to give me a warrant? Look, I know who the bad guys are. Let me do my job and arrest them. I can’t be bothered with all this legal mumbo-jumbo.

Yeah, yeah, yeah, I know what you’re going to say: “The Fourth Amendment protects fundamental liberties by requiring governmental officials to assemble evidence before invading citizens’ liberty.” Well guess what? I don’t care about criminals’ liberty. I know a child molester when I see one, and if that means knocking down some doors and performing a couple groundless strip-searches every now and then, by God I’m going to do it. Protecting children means we sometimes need to yield our precious “privacy.” That’s what the critics do not understand. The Fourth Amendment does not guarantee “privacy.” It just forbids “unreasonable searches and seizures.” Frankly, I don’t care about your privacy. If you want to have sex or masturbate, there’s nothing in the Constitution that guarantees you a private place to do it. Go ahead and roll the dice. I’m looking for the bad guys. There is nothing “unreasonable” about that, is there? If you ask me, no search or seizure is “unreasonable” if it is intended to find bad guys. Screw your privacy. I have children to protect.

If we really want to stop crime, we must rethink the Fourth Amendment. Back in 1787, our Founding Fathers had a clear vision in mind when they wrote the Amendment. They wanted to stop British troops from rifling through colonists’ homes and frisking them on the street. Well, we don’t live under British occupation anymore. And the Framers would be horrified to see how modern-day rapists, thugs and drug pushers use the Fourth Amendment to bail themselves out of trouble. The Fourth Amendment was intended to stop the British army, not the American police. Yet this is precisely what has happened. Today, every American police force must sit around waiting for warrants while criminals run rampant across the countryside, terrorizing old ladies, children and handicapped invalids. Our Framers would never have approved this result. I say it’s time to put the law first. It is time to stop defending criminals. And it is time to make my job easier.

During the 1930s, Germany greatly reduced crime by abolishing constitutional liberty guarantees. The German government achieved an unparalleled degree of social tranquility by permitting police forces to do their jobs without interference from courts, lawyers and civil liberties groups. In Germany, private citizens could make private complaints to the police, and the police could make arrests based upon those complaints. They could also freely search suspects’ homes without warrants, then question the suspects based upon the search. In almost every case, they won convictions. Crime plummeted. The German government understood that if someone acts suspiciously, he is probably a criminal. It made no sense to wait for a court to issue a warrant; a swift arrest did the job without the red tape. This is exactly what we should do in America. If we want to really stop drug dealers and smut peddlers, we must abolish constitutional guarantees that shield criminals. Crime in Germany was low in the 1930s because the German government did what had to be done to stop criminals. We can learn from their example.

Privacy fosters crime. True, everyone relishes the idea no can watch them at particular times or in particular places. But criminals exploit privacy to conspire, plot, terrorize, swindle and bag narcotics. The Fourth Amendment perpetuates privacy and protects it. In so doing, it aids the wicked and punishes the good. As a society, we should be less solicitous about criminals and more attuned to the people. The People want less crime, not more. Because the Fourth Amendment leads to more crime, I believe we should abolish it. After all, we live in a democracy. Shouldn’t we give the people what they want once in a while? By abolishing inane warrant requirements, probable cause burdens and expensive lawsuits that penalize police for investigating criminals, we will stop crime before it happens. By eliminating privacy, we can sniff out crime before it becomes crime. Good citizens have a right to know what suspicious citizens are up to. That is why we must completely rethink the Fourth Amendment.

I have a dream that we will one day live in a country that punishes criminals rather than protects them. I have a dream that the police will one day have the power to collect information about all citizens without fearing lawsuits or legal sanction. I have dream that law enforcement officials will have the power to listen in on any suspicious phone conversations without waiting for a magistrate to find “probable cause.” I have a dream that our Nation will protect our children, not allow molesters to withhold evidence from prosecutors and courts. I believe that we can reduce crime in America. We must merely have the courage to abolish outmoded constitutional text. We can do it. We can protect the children. I know that every good citizen would be perfectly willing to cede his privacy in order to stop crime and to protect the children.

There are some things in life more important than privacy. We all want to live in a safe society. We revile murderers, robbers, thieves, pickpockets and stock market pirates. Don’t we have a right to effectively pursue these pernicious evildoers? I believe we do. And by abolishing the Fourth Amendment, we will allow law enforcement professionals to effectively protect us all from them.

On that happy day, my job will be easier. When I can do my job without difficulty, you will sleep better at night—unless you hear a knock at your door at 3 AM. But never fear: Even if you are under investigation, remember that you are doing your part to protect the children. You want to protect the children, don’t you?