Sunday, December 27, 2009

Memento Mori

As year-end approaches, we look back at the extraordinary number of nationally-celebrated old-guard print and broadcast journalism figures who left us in 2009.

A merely cursory search turns up the names of: William Buckley, Walter Cronkite, Don Hewitt, Studs Terkel, Paul Harvey, Irving R. Levine, Cornell Capa, Dith Pran, and the not-so-old-guard Tony Snow; and there were many others less well known.

Added to that, the trade publication Editor & Publisher -- itself in extremis -- points out that a record 68 journalists were killed in 2009, a 60% increase over the previous year. 85% of them were killed as a direct consequence of their profession.

So we are reminded that journalism can be a fickle mistress who may lavish fame and even fortune on the lucky few, but bring only an untimely, violent and unsung death to too many others.

Monday, December 21, 2009

Pants On Fire

The St. Petersburg Times is a rarity among U.S. metro dailies in that it is owned by the Poynter Institute for Media Studies, a non-profit school of journalism. Although the paper itself is rated on the left/right political scale as being generally progressive, its fact-finding website,, is so scrupulously non-partisan that it won the 2009 Pulitzer prize for national reporting.

PolitiFact is an equal-opportunity basher of both sides, so it was reassuring to those of us who believe in the essential justice of universal health care that Sarah Palin's calculatingly cynical "death panel" posting won its "Lie of the Year" Award.

Read about all of the winners (losers?) at:

Sunday, December 13, 2009

An Electrifying Prospect

Dwelling, as I do, in one of the more bucolic corners of the Northeast, and frequently a pedestrian or bicyclist, it had never occurred to me to worry about the possibility of being sideswiped (or worse) by an automobile that -- despite my having normal (albeit age-adjusted) hearing -- I could not have heard coming.

No doubt big-city denizens are already familiar with -- even blasé about -- this scarifying aspect of the modern electric-car era. Presumably, our recent forebearers had to adjust to it when the Electric Carriage and Wagon Company unleashed a fleet of electric taxis on the streets of New York City in 1897, shortly before Wood’s Electric Phaeton became available to any adventurous consumer with $2000. Such relative quietude was, however, soon to be shattered by Mr. Ford’s Model T.

In sum, this silent menace is yet another unanticipated side-effect of 21st Century technology, providing grist for the ever-grinding propaganda mills of global-climate-change deniers and further encouraging the few remaining die-hard Luddites.

For a solution to the problem, see the New York Times piece which triggered this post, at:

Friday, December 11, 2009


Now that the 24-hour news cycle has passed, and we can disregard the political distractions which surrounded the president's Nobel speech, we can sit back, read it, and objectively assess its content.

Like so many attention-challenged Americans, "mine eyes glaze over" at contemplating listening to any speech running more than 5-minutes, no matter how impressive the orator. This, however, was a speech more rewarding in the reading of it than in its delivery, pace Mr. Obama's formidable speechifying skills.

It will have completely satisfied neither the peaceniks nor the warhawks, being a jesuitical mix of Bismarckian realpolitiks tempered by the teachings of Teilhard de Chardin, but it strikingly reflects Mr. Obama's increasingly centrist views.

While some leading Republicans gave it good marks, I must take issue with Bradley E. Blakeman who, writing for Politico, offers the president "kudos" for the speech by asserting that "George W. Bush could have delivered the very same speech". While Mr. Bush may well have felt philosophically comfortable delivering it, that he could have conceived and written it is a reach too far.

For those so inclined, the speech can be read at:

Moses Had It Easy

Having, for the past three-quarters of a century, devoured every scrap of writing that has come my way, starting with the backs of cereal boxes and working my way up to the classics, I have often been struck by just how difficult it is to write a tongue-in-cheek piece about a serious subject and actually bring it off without falling as flat as a slack-stringed banjo.

Paul Duffy, in last week's Barnstable (Cape Cod) Patriot, has risen to, and aced, the task with his spirited exposition of just how difficult and frustrating is the job of leading us cantankerous Americans, who are about as tractable as a roomful of distracted rugrats.

Read and enjoy Paul's column at:

Wednesday, December 9, 2009

Prof. Harold Hill Lives!

When I first read about the Plymouth Rock Studios project in the nearby historic town of Plymouth, my half-century in the sometimes nefarious corridors of the news & entertainment business warned me that therein lay the seeds of an undertaking destined for failure.

I didn't wish them ill, but how many gadzillion times over the years had I read of enterprises to establish an east-coast Hollywood, none of which ever amounted to more than a press release and a lot of dashed hopes.

What this one seemed to have going for it, however, was the sheer magnitude of its ambitions, coupled with the enthusiastic (and -- I assumed -- due-diligence-armed) support of the Town Fathers. It even sounded as if the Commonwealth might kick in some infrastructure funding.

And then I read that such funding was not about to happen after all; that the deveopment team had shied away from some questionably-sourced underwriting; and that the plan was being scaled back.

Uh oh!

And now comes this world-class cautionary tale under the guise of an exhaustive investigative report by the Boston Globe, adroitly reported by staffers Scott Allen and Marcella Bombardieri.
It's long-ish but well worth your time if you live in MA or Tinseltown, and/or are obsessed with the machinations of the movie biz.

Shades of Music Man! Meredeth Wilson, where are you when we need you?

Quelle Surprise!

Lawmaker drops push to give Tiger Woods Congressional Gold Medal
By Christina Wilkie - 12/09/09 11:59 AM ET

Tuesday, December 8, 2009

Howard Zinn Lives!

I haven't seen it yet, but, for all you old Lefties out there in cyberspace, Zinn's new documentary, airing on the History Channel this coming Sunday, sounds to me like Appointment TV.

"The work goes on, the cause endures, the hope still lives, and the dream shall never die."

Read more about the program at:

Light At the End of the Tunnel?

Gratified to read in the Sacramento Business Journal that the McClatchy Newspapers will soon end an across-the-board wage freeze in place since 2008. Given that McClatchy publishes 30 newspapers in cities and towns across the country, dare we hope that this is a harbinger of hope that the precipitous slide in the fortunes of the news media may be slowing, if not actually turning around.

This column urges readers who are interested in what's new out there in America's grass roots, day to day, as well as in reading first-class reporting from the Middle East, to sign up for McClatchy's email Journal:

Saturday, December 5, 2009


We have to credit Gail Collins (NYT 12/5) for the sentence-of-the-day, to wit: "The Republicans are the fiscal conservatives in Congress, at least in the years when they aren’t actually in power."

Read the entire column (on the Healthcare debate) at:
(copy and paste to your browser)

Alien Alert!

This morning's AP brings us the alarming news that the British Defense Ministry has shut down its UFO Hotline as a recession-driven cost-cutting measure and will no longer investigate any sightings.

It's not a big leap from there to the terrifying conclusion that those little green men have finally and malevolently lulled us (or at least the Brits) into a state of complacency, and that it is perhaps they, not the Republicans, who are actually responsible for the Recession.

Thursday, December 3, 2009

Irony of the Week

Security being tightened after flap over uninvited guests at state dinner
-- Salon headline

Otherwise known as closing the barn door after the horse has gotten in.

Wednesday, December 2, 2009

The Friend Of My Enemy Is My Enemy (unless he's my friend)

While Afghanistan is -- understandably -- the primary focus of the headlines following the President's speech last night, Brian Fishman -- on "Foreign Policy" magazine's website -- posits that the real war is in Pakistan, with the government there directing its main military efforts against anti-Pakistani militants, a category which does not necessarily include our Al Queda terrorist enemies harbored in Pakistan.

Kipling's "East is East and West is West ... etc." has never been more resoundingly true.

Read more at:

Making Good On Promises

Gratified to read in today's New York Times that, in some of the health care reform proposals currently being scrutinized by Congress, special provision is made for improved medical benefits for American Indians. Until now, too many have been receiving wards-of-the-government type medical care which -- almost by definition -- translates into subsistence-level subvention.

When we treated with the tribes to give up their hereditary freedom and sovereignty and submit to the authority of the United States, we signed countless covenants promising to preserve their integrity and protect their well-being; representations since honored more often in the breach than in the observance.

It takes but little reading of American history to recognize that had we breached as many treaties with, and solemn commitments to, nations around the world as we have with Native Americans, we would be a global pariah. Health care reform is the least we can now bring to them, while benefitting society at large as well.

Monday, November 30, 2009

This Is Not About Sarah Palin

Columnist Frank Rich, in the 11/22 New York Times, quotes Matthew Continetti (Weekly Standard-bearer for Sarah Palin and author of The Persecution of Sarah Palin: How the Elite Media Tried to Bring Down a Rising Star), as having "suggested that she recast the populist outrage of William Jennings Bryan by adopting the message, 'you shall not crucify mankind upon the cross of Goldman Sachs' ".

Interestingly, while Bryan ("The Great Commoner") was undeniably a populist, he was a Democrat; thrice the party's nominee for President, as the Gilded Age morphed into the Twentieth Century. Liberals can certainly embrace Bryan as an avatar of progressivism (e.g., women's suffrage, the income tax, anti-trust legislation, etc.), and claim the mantle of populism for themselves, but they may have reservations about Bryan's fervid religious fundamentalism, his views on evolution, and his ambivalence about condemning the white supremacy of the KKK.

Paradoxically, we get into very tall socio-political weeds when we try to align conservative vs. liberal ideals with their seemingly conflicting claims to true populism. A constitutional republic such as ours is, by definition, popular (i.e., "of the people"). Such republics are also, by definition, liberal democracies. Furthermore, the Populist Party of the late 19th Century took a leading role in the Democratic Party and gradually merged with The Progressive Movement; thus, liberals would seem to have the determinative edge.

Historically, however, American populism is largely rooted in agrarian and artisanal working-class discontent with a privileged elite (what Bryan called "the money men of the east"), along with nativism and fundamentalism, all markers for a sort of prairie conservatism going back to the early 19th Century, and even, tangentially, to Jefferson and the anti-Federalists.

One has to conclude therefore that neither side has a monopoly on populism which, like libertarianism, occupies a comfortable tent in both camps.

To note that it is often difficult—even dicey—to try to pigeonhole everyone according to their beliefs is to merely state the obvious, especially since political ideologies—among politicians in particular—are not only fungible, but can be highly susceptible to the way the wind is blowing.

We are, and always have been, a nation of strange bedfellows, but, dang it (as Sarah would say), they're our strange bedfellows and we'll work it out.

Saturday, November 28, 2009

The Old Curmudgeon

The fact that our politicians have outlawed unwanted phone calls from most telemarketers while exempting their own arrogantly maddening assaults on our privacy, is rather like our bankers who, having lobbied legislatures from time immemorial to put strong bank-robbing laws on the books, seem to have exempted themselves from punishment for fleecing the public in more decorous -- but equally egregious -- ways.

Saturday, November 21, 2009


In an email to its supporters, the "National Coordinator Team" of the "Tea Party Patriots" noted that tonight's scheduled Senate cloture vote on Healthcare Reform will take place "under the cover of darkness" [emphasis mine].

I guess what this means is that, if cloture fails, it can be conveniently ignored in tomorrow's New York Times as not having occurred [sarcasm mine].

Friday, November 20, 2009

Today's Groaner

How pun-addicted is your correspondent? So hooked that he thought about trading in his PC for a Mac so he could call this blog Kane & Apple.

Thursday, November 19, 2009

Most Wanted Man in Mexico

Coming in at #41 in Forbes' 2009 list of The World's 100 Most Powerful People is one Joaquin "El Chapo" (Shorty) Guzman, kingpin of Mexico's Sinaloa drug cartel. As if his Forbes profile isn't scary enough, he is further mentioned in Pulitzer Prize-winning author Philip Caputo's article in December's The Atlantic, to wit: " 'It's an open secret in Mexico', he [Caputo's informant] said, 'that the army is fighting the [Juarez] cartel to weaken them and pave the way for Guzman' ".

Read Caputo's full hair-raising article at:

Journalists Shield Law

As you probably are aware, one of the biggest obstacles in the long-delayed passage of a Federal Journalist's Shield Law (33 states already have one) has been the absence of a widely acceptable legal definition of what is a journalist. This is an enormously knotty problem in this age of bloggers and other "independent" purveyors of what they would like to think of as being journalism in the spirit of those pamphleteers and broadsiders who helped us to secure our liberty. The Reporters Committee for Freedom of the Press puts it into perspective in this recent article:

PC Gone Bonkers

In order to avoid offending anyone, The Birmingham (England) City Council has decided to rename the annual Christmas lights ceremony Winterval. Can Festivus be far behind?

Wednesday, November 18, 2009


"The human ability to to innovate out of a jam is profound. That's why Darwin will always be right and Malthus will always be wrong."
--- K.R. Sridharar, CEO, Bloom Energy, in The Atlantic, Nov. 2009

Tuesday, November 17, 2009

One Term For Obama?

The always challenging writer Garry Wills posits in this week's New York Review that if Obama does nothing else but find us a way out of our Afghanistan dilemma, and even if that decision to disengage should cost him reelection, both he and the nation will have been well served.
A One-Term President?: The Choice - The New York Review of Books

Onion Tart

Y'gotta see this clip in which The Onion skewers both CNN and the Big O.

Guide to Health Care Legislation

The Kaiser Family Foundation has teamed with the McClatchey Newspapers to produce a daily email providing a non-partisan, blow-by-blow, amendment-by-amendment track on the Health Care bill as it weaves its way thru Congress. This is, in my opinion, a great public service, especially since it is written in well organized and edited journalese.
The link:

Sunday, November 15, 2009

We the People...(II)

Twenty-first Century Americans – at least those whose interest in the Constitution transcends having been required to memorize its Preamble in grade school – love to debate whether the document is fundamentally conservative or liberal. The factiousness that has defined our nation’s political discourse in recent years has merely stoked the rhetoric without settling the argument.

In fact, one of the reasons that the Constitution has survived – even thrived – for the past two centuries is that it is an amalgam of so many hard-won compromises and political accommodations that it can be cited as user-friendly by virtually any segment of the political spectrum.

Forced to choose, however, this observer would tend to fall off the fence on the side of those who view the Constitution as being fundamentally liberal in spirit. For starters, the Constitution is a decidedly populist document. Chief Justice John Marshall held that it is a social contract created by the people. I suggest that the capitalization of the “P” in “We the People…” is not a mere typographical flourish.

Furthermore, the Constitution literally guarantees (Art. IV, Sec. 4) a “republican form of Government”, and constitutional republics such as the U.S. are, by definition, a form of liberal democracy. Article V is an unequivocal set of instructions for effecting subsequent change in the Constitution through legislative amendment, and indicates that the framers did not consider the document an immutable embodiment of time-honored concepts of enlightened governance (i.e., philosophically conservative) but rather the avatar of “a more perfect Union”, embracing such socially-beneficent notions as “justice”, “domestic Tranquility”, and “promotion of the general Welfare”. It isn’t until we get to the subsequent Bill of Rights that conservative tenets of individual rights and liberties are directly addressed.

Finally, the Constitution (in Art. I, Sec 7) places squarely in the hands of the House of Representatives (the only branch of the Federal government that was – at the time – elected directly by the people) the exclusive power to originate laws respecting taxing and spending, the very lifeblood of the republic.

But, for me, it was the opponents to ratification that best define the Constitution’s essential liberality. States-rights traditionalists (Anti-Federalists) for the most part, many of them would have preferred to amend and retain the irremediably flawed and outdated Articles of Confederation. Among their number, FYI, were such genuinely unimpeachable patriots as Sam Adams, Patrick Henry, Thomas Paine, and West Barnstable’s own Mercy Otis Warren.

Let me hasten to concede, however, that the Constitution as written and ratified had at least one notably illiberal facet, that of suffrage. Slavery was the snake in Paradise.

The constructing of Article I, Section 2 posed a knotty problem for the framers: how to enumerate a state’s population for the purpose of representation (the divvying up of congressional districts) and taxation. If slaves were considered as being property then they could not be considered “persons” and would not be counted. If considered as persons, however, they would have to be – like women – counted fully, albeit – like women – disenfranchised in most states. Slave-owners wanted them counted so as to increase their own political power in Congress, even while continuing to treat them as chattels. A compromise was reached in that that three-fifths of the total number of slaves (referred to as “other Persons” in the Article) would be included in a state’s population total. That accommodation had the effect of keeping the South’s political clout disproportionately high for decades.

Disenfranchisement would continue be an ugly fact of life in the U.S. until after – and, in some cases, well after – the Civil War, when the 13th, 14th, 15th, 19th and 26th Amendments (the first three of which are known as the Reconstruction Amendments) came into effect.

Amendment XIII freed all the slaves in 1865, whereas Lincoln’s 1863 Emancipation Proclamation had freed only those held within the Confederate states.

Amendment XIV, ratified in 1868, granted U.S. citizenship to former slaves and eliminated the notorious three-fifths provision. It also prohibited the states from violating the privileges and immunities of a citizen, and guaranteed due process of law -- and equal protection under the law -- to all.

Amendment XV in 1870 eliminated “race, color or previous condition of servitude” as a barrier to voting.

Amendment XIX of 1920 stated that the right of citizens to vote may not be denied on the basis of sex.

Amendment XXVI – The “Voting Rights Amendment” – set 18 years as the minimum voting age as opposed to the 21 years required in most states since the Constitution’s original ratification in 1788.

So we see that Article V has repeatedly proven its worth as a facilitator of progressive change. But it is useful to note in conclusion that, despite over 10,000 prospective amendments having been introduced in Congress since 1789, only 17 (beyond the 10 constituting the Bill of Rights) have prevailed; a tribute to the “checks and balances” system built into our government that has insulated us against a run on the Constitution by transitorily ascendant political factions.

This article also ran in The Barnstable Patriot.

Tx For the Mention, Ed Maroney

Ed Maroney, in his "The Exchange" column in this week's Barnstable Patriot, gave us a mention:

"After reading last month’s column, with its description of the postal permit that allowed editors to exchange free copies of their papers, former CBS News executive Art Kane of Barnstable told us that, in the early 19th century, the average newspaper received 4,300 exchange copies a year. His source is Paul Starr’s Creation of the Media.
Our correspondent also recommends a piece by national media critic Bill Powers of Orleans: Hamlet’s Blackberry: Why Paper is Eternal. You can find it at"

Don Hewitt Remembered

Whatever they teach you in news-writing class about avoiding hyperbole, you can forget that advice when asked to write an appreciation of someone like Don Hewitt.

Don Hewitt was a genius; the only one I ever met in almost half a century in the television industry. I've met lots of smart, talented, dedicated, even amazing, people; but only one actual genius.

When I joined Douglas Edwards with the News as a newly-minted production manager in 1961, Don had already been there for over a decade, and Doug was soon to be replaced by Walter Cronkite.

Hewitt had an attention span – and, in those days, a fuse -- so short as to render any previous definition of shortness obsolete. But wow, did he know how to grab – and hold – people's attention. Everything worthwhile I learned about putting pictures and sound of actual people and real events up on a television screen, I learned from him.

But mostly I remember the sheer exuberance we all had working at CBS News, that almost iconic journalistic arm of what was admiringly referred to in those days as the Tiffany Network. We were flying by the seat of our pants and making things up as we went along, and it was Don Hewitt who was making most of those things up. We were a little nuts, but we worked really hard and we were – Don used to say – respectable, as you had to be if you were laboring in Bill Paley's vineyard.

Don was also – in the early days at least – an inveterate prankster. Pity the poor film editors with whom Don used to pass lunch hours in our conference room eating sandwiches and betting on the answers to questions on the game shows being aired mid-day on the room's TV screen. What the editors didn't know was that the shows were airing on a new device called videotape, and Hewitt had been down in the tape room earlier that morning taking notes as they were being rehearsed.

Some years later, his penchant for shenanigans (don't get me started!) got him into hot water with no-nonsense CBS News President Fred Friendly who didn't find it at all amusing when Don swiped NBC's 1964 Republican Convention playbook from under the seat of an unaware NBC exec at a TV Pool meeting. Don pleaded that "we were only kidding around" , but it almost got him fired.

Don eventually grew up and, when he did, he invented an entirely new television genre, the TV newsmagazine. I'll leave it to others more qualified than I to chronicle the spectacular history of that particular Hewitt innovation except to remark that 60 Minutes is the longest running vine in Mr. Paley's legendary vineyard, and certainly one of the most profitable.

It's a little off-putting to be asked to write about a former colleague with whom you haven't actually worked in four decades. Those who knew Don well in subsequent years may fail to recognize him in the picture I've tried to paint, but I'll close with two anecdotes that leap to mind as being particularly reflective of the Don Hewitt I remember.

If you lived in Manhattan in the Sixties, you'll recall the huge projection screen we mounted in Grand Central Station to show the liftoff of one of the first manned space shots. Commonplace subsequently, but eye-boggling at the time. Need I note that this was yet another Hewitt innovation? My job was to get it set up overnight in time for a morning rush-hour launch. Screen and projector in place, I rushed back to the studio just in time to hear Don on the intercom to one of the Grand Central TV cameras, barking, "Find me a shot of a nun praying". And wouldn't you know, only Don Hewitt would be rewarded with the very shot he'd been looking for and it was perfect! That's not luck or divine intervention, that's having a visceral anticipatory sense given to very few.

The other story concerns a lunch I had with Don shortly before I left the News Division to join the then nascent Viacom International. He'd recently had his CBS News contract renewed for an extended term, when, hard on the heels of the signing, came an offer from the West Coast to produce documentaries for a major studio under the sort of extravagant Hollywood Producer terms that even the most successful of us in New York TV at the time could only dream of. Don went to then president of CBS News Richard Salant asking to be let out of his contract so that he could accept the offer. Salant turned him down, saying that there were few people in the organization he considered to be indispensible, and that Hewitt was one of them. So I asked Don whether Dick mightn't be concerned that Don would simply coast through the balance of his contract in hope of being let out of it. Don's reply has stuck with me: "Art, you and I are compulsive overachievers and you know as well as I that we are both constitutionally incapable of deliberately doing a bad job".

He was right, of course, and I've always remembered how gracious it was for him to have included me in his analogy on the meaning of professionalism.

This piece also ran in "World Screen News."

Remembering Walter

If you're old enough to still be reading a newspaper, you'll have noted that I didn't need to include a surname in the headline. But it was, after all, almost 30 years ago when Cronkite quit being a daily presence in our living rooms, and he is today primarily remembered by the younger among us as an ancient artifact of pre-Reality Televison.

Many of the encomiums penned about his honesty, credibility and transcendent professionalism might well be summed up as: "whatcha saw was whatcha got". What you saw was, as Alessandra Stanley put it so succinctly in the New York Times, an "air of authority, lightly worn and unquestioned".

As his production manager during the 60's, I always felt that at least part of the secret of his genuineness was the fact that he was born, raised, educated, and spent his early career in, the American heartland. He looked it, sounded it, and acted it, thereby discrediting news-media bashers of the time who were always ready to paste the "eastern establishment" label on network television newsmen, despite the very evident middle-America credentials of Cronkite and many of his counterparts who were the most highly visible presenters (and often the managing editors) of those programs.

Others have eulogized Walter far more skillfully and intimately than I, but I did want to point out that his being "the most trusted man in America" did not occur in a vacuum. Cronkite was fortunate enough to have brought his enormous skills, reporter's credentials and charisma to the CBS Evening News at a time when he would be surrounded and supported by a group of people who were journalistic true believers. Among them were producer-director Don Hewitt (later going on to his own fame as the creator of 60 Minutes) who had graduated from the Ed Murrow/Fred Friendly school of TV journalism and who was at the time CBS News's resident genius at producing and presenting compelling audio-visual information on the small screen. And there was Sanford Socolow who was to become Walter’s editorial eminence grise, and a phalanx of correspondents unparalleled at the time and unequaled since.

Dick Salant, president of CBS News during most of Walter's anchorage, was a gifted and protective chief executive widely admired inside and outside the organization. At the top of the heap sat CBS president Frank Stanton, diligent defender of the 1st Amendment, stickler for journalistic integrity, and a lightning rod for the political slings and arrows historically directed at those who presume to tell truth to power. Some of you will recall that CBS was admiringly known in those days as "the Tiffany network".

My thanks to President Obama for providing me with this spot-on closer: "[Walter] invited us to believe in him, and he never let us down.

Fair winds to Fiddlers Green, Old Ironpants.

* * * * * *

This piece originally appeared in a slightly different version in the Cape Cod Times.

We the People... (I)

September 17 is Constitution Day.

Created by Congress only in 2004, the day commemorates the signing of the final draft of the U.S. Constitution by its framers on that date in 1787. Subsequently ratified by the required number of states in 1788, it became "the law of the land". It is the world's oldest written constitution…and the shortest.

There was a wide diversity of backgrounds among those framers: cultural, geographic, political and otherwise. They represented agricultural, industrial and commercial sectors of a young nation wherein slavery was legal in some parts and not in others.

Some of them (the anti-Federalists) wanted a government that was loosely organized (a confederation) whereas others – the Federalists -- wanted a strong, well-structured central government. The document which emerged from the Constitutional Convention of 1787 was – as a consequence -- the result of many compromises, including a series of 10 immediately subsequent amendments penned in 1789 by delegate James Madison of Virginia; later unofficially titled the "Bill of Rights".

Because of the many factors and factions influencing the "Founding Fathers" of our Constitution, its language in some instances is quite specific and detailed (such as in Article I establishing the legislative powers of Congress), but it can also be vague in assigning or prohibiting other constitutional powers.

Even with all the compromises included in a document that was approved by the states only after an arduous and contentious ratification process, there still existed strong conflicts among the representatives and the areas of the country they represented. In those southern states where slavery was an important element of a primarily agrarian economy, a weak federal government, and strong state governments were favored.

The primarily northern, slavery-free states, where manufacturing and other forms of commerce were prevalent, advocated a strong central government and weaker state governments.

This essential tension, coupled with some vagueness in the language related to the resolution of issues between the state and federal governments, and between the legislative and the executive branches, created the need for an independent agency to interpret language and rule accordingly.

It took more than a decade to determine that this agency was to be the Supreme Court.

The Supreme Court of the United States (or SCOTUS, as contemporary news media usage would have it) was created by Article III of the Constitution, which defines the federal judicial system. Few of the framers were lawyers and, while Article III reads to us laymen as a reasonably straightforward exposition of the judicial branch's powers, it is in fact a mosaic of legalistic generalities waiting to seduce the unwary as it threads its way between honoring ancient concepts of jurisprudence while creating a judiciary befitting a modern republic.

As Yale constitutional-law scholar Akhil Reed Amar notes in his excellent, highly readable, America's Constitution, "Most of the constitutional controversies that flared up in the republic's first dozen years never came before the…Supreme Court." In fact, America's first chief justice, John Jay, after serving for six years, declined subsequent reappointment because, in Jay's words, the judiciary "lacked the energy, weight and dignity which are essential to its affording due support to the national government". Jay, incidentally, went on to become Governor of New York.

He was succeeded by John Rutledge who served for only a year before being replaced by Oliver Ellsworth who sat until John Marshall took over the chair in 1801. Staunch Federalist Marshall, now hailed by history as "The Great Chief Justice", was the sitting Secretary of State when president John Adams appointed him to the court. He became the principal architect in consolidating and defining its powers and set the tone of constitutional law that prevails to this day.

In order that the court might speak in a far more authoritative single voice, Marshall encouraged his fellow justices to discontinue the then practice of writing seriatim (separate or individual) opinions.

But it was the court's unanimous striking down of an Act of Congress (the Judiciary Act of 1789) in Marbury v. Madison, on the grounds that it violated the Constitution, that established the now longstanding principal of Judicial Review, and made the Supreme Court the final arbiter of constitutionality.

The Court went on to adjudicate more constitutional issues during Marshall's extraordinary 34 years as its chief justice (e.g., McCulloch v. Maryland, Cohens v. Virginia) but we feel certain that the casual reader of this piece is no more interested in pursuing the intricate legal niceties of case law than we are qualified to discourse thereupon. For those interested in further exploring the subject, all libraries are (or should be) well stocked with pertinent books; in fact, there are so many that we can't even begin to fashion a bibliography. Those of you on – or with access to – the Internet, might start with the enormously helpful guide,, which can be downloaded free of charge.

We conclude by quoting Marshall's political enemy Thomas Jefferson who lamented that the doctrine of Judicial Review "made the Constitution a mere thing of wax in the hands of the judiciary, which they may twist of shape into any form they please". Sound familiar? Accusations of "judicial activism" and "legislation from the bench" are no less prevalent in the early 21st Century than they were in the early 19th, or anywhere in between.

But, 220 years later, the Constitution lives on and is today accorded more respect – even reverence -- than when it was the brilliantly conceived, if initially somewhat shaky, cornerstone of a young and vigorous nation.

Happy Constitution Day!

This piece also ran in "The Barnstable Patriot"

We the People...(III)

September 17 is Constitution Day. The commemoration was established by Congress only in 2004 to memorialize the signing of the final draft of the U.S. Constitution by its framers on that date in 1787. Subsequently ratified by the requisite number of states in 1788, it then became "the law of the land" (Article VI). It is the world's oldest written constitution…and the shortest.

Now, 222 years later, some of its provisions (and of its 27 subsequent Amendments) can be as contentious as when they were drafted. 18th Century Federalists (who favored a strong central government) and the Anti-Federalists (who didn't) would instantly recognize — despite some evolutionary cross-breeding — their political heirs of today, who, having inherited a republic almost miraculously intact, can still find ambiguity in some of our most fundamental laws.

The ultimate interpretation of those laws falls to the Supreme Court, to which Article III of the Constitution granted limited original and broad appellate jurisdiction, particularly in cases arising under the Constitution (and other federal statutes) or in disputes between the States.

I am neither lawyer nor Constitutional scholar, but I anticipate no challenge when I remark that the Supreme Court's most potent weapon is that of judicial review, i.e., having the power to ultimately decide whether a law – when challenged – is, or is not, constitutional. That power was effectively established under Federalist John Marshall, "the great Chief Justice", in the case of Marbury v. Madison in 1803.

The ideological makeup of the Court from conservative to liberal and back again has, over the years, shifted with the political winds (Justices are, after all, appointed by the President) and it has at times been accused of undue activism; of making law (a privilege presumably reserved to Congress) instead of simply interpreting it. Of late, those accusations have been coming mostly from the political right, but redoubtable former Justice Sandra Day O'Connor, hardly the embodiment of extreme liberalism (and a canny reader of the public mood) is quoted by author Jeffrey Toobin in The Nine as having said, "We're a common law court…Of course we 'make' law as we go along." Judicial activism, like beauty, is often in the eye of the beholder.

The Constitution is, however, written on paper, not on stone, and time and institutions change. The Confederacy contended that Article VII of the Constitution allowed them to secede, a view not dismissed as baseless by every legal scholar at the time, Northern or Southern. That particular debate was, of course, settled by force of arms, but Ulysses S. Grant, in his memoirs, contended not that the South was wrong in its interpretation, but, rather, that the Constitution itself was in need of revision:

"[it is] preposterous to suppose that that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies. The application of steam to propel vessels had not yet been thought of. The instantaneous transmission of messages around the world by means of electricity would [in the revolutionary era] have been attributed to witchcraft or a league with the devil. Immaterial circumstances had changed as greatly as material ones. We…ought not to be rigidly bound by the rules laid down under circumstances so different for emergencies so utterly unanticipated. The fathers themselves would have been the first to declare that their prerogatives were not irrevocable."

Indeed, Article V, by providing for ongoing amendment to the Constitution, ratifies Grant's assessment of the intentions of the framers, a view pre-affirmed by the philosophical founder of modern conservatism, Edmund Burke (1729-1797) and echoed in unmistakable language over the years by such diverse political thinkers as Thomas Jefferson, John Marshall, Oliver Wendell Holmes, Jr., Richard Posner, and others. Thus it not a question of whether the Constitution may be changed, but how such change may proceed.

The crux, of course, is that amendment must arise out of due process, and many Americans are concerned lest change come via flawed interpretation by "activist judges" — on the left or the right — rather than by legislative deliberation. That the Constitution may be interpreted was foreseen – however obliquely – by the 9th Amendment, but contemporaneous theories of Constitutional interpretation evidence more shades of coloration than a rainbow.

Close scrutiny of the actual language used by the framers in order to divine their individual and collective intent has long been the normative standard, as in: "what did he mean by that". But modern Constitutional interpretation has taken on complex dimensions not easy to get one's arms around.

One could, for example, write an article longer than this entire newspaper on the interpretive theory of Originalism (and its corollaries, original intent and original meaning) which contend, in short, that the Constitution has a fixed meaning, established at its drafting, which must be always applied in pertinent cases. Justice Antonin Scalia, often referred to inaccurately (and to his great displeasure) as a strict constructionist is, rather, a commonsensical textualist, i.e., one who relies on the "fairly understood" meaning of words rather than trying to guess at the intent of their writer. But "fairly understood", in the lexicon of original meaning theorists begs the question: what would the words have meant to a normal speaker of English at the time they were originally promulgated; not what they might mean to the average American in the 21st Century. Originalists postulate that it is the then-prevailing understanding by those who originally voted to ratify the constitution that gives the text its power as law; hence their view – if ascertainable -- should prevail. The view of the then unenfranchised, who at the time comprised two-thirds of the population, is, regrettably, lost to history.

As to original intent, who in the present day could unerringly speculate on the unified intent of 50 such highly idiosyncratic individuals as our Founding Fathers, who were divided more by regional and philosophic differences than united by any collectively held credo other than a consummate love of liberty and the urgently compelling need to get the document written and ratified before fractious regionalism unraveled the nascent union.

And so we come to the antithesis of Originalism, the Living Constitution, an unfortunately-labeled characterization of a theory embraced by those who would welcome more flexible interpretation into the judicial review process. I say "unfortunately labeled" because it is yet another of those liberal coinages that, in its earnest good intentions, invites scathing parody. Even Justice Scalia was moved to quip, "I prefer the dead [later modified to 'enduring'] Constitution to a living one".

Living Constitutionalists agree with Originalists that where the constitutional text is clear, it controls; but they prefer to view the Constitution as a dynamic, "living" document; a durable structural framework upon which to build rather than a set of static commandments resistant to evolving changes in society except via an arduous and sometimes immovable political process (see Equal Rights Amendment, Child Labor Amendment, etc.).

Such thinking is, of course, anathema to conservatives who see it as simply opening the door to activist judges to inject their personal values into constitutional interpretation.

Thus, the essential stasis between liberalism and conservatism in America is preserved in this issue, and seems unlikely to be disturbed anytime in the next 222 years.

This piece also ran in "The Barnstable Patriot"

Genesis -- The Ombudsman

In the Beginning was the Word.

And God in his infinite generosity decided to share the word, so he created Man.

And Man was delighted with the word and used it constantly, incessantly and in multitudes.

And God saw that Man needed an outlet for his words, so He created Woman in order to provide Man with a captive audience who would hang on Man's every word and agree with him on all things great and small. But that didn't work.

Thus, after countless eons of observing Man's failure to communicate, God caused the printing press to be invented, even though well aware of what would transpire when anybody who could afford one would be able to publish his own opinion on every imaginable subject, including thoughts that had not yet occurred to anyone and perhaps shouldn't. To ease the tension between those who owned printing presses and those who didn't, God created the ombudsman.

Blessed is the ombudsman, a peacemaker perpetually pouring conciliatory oil upon troubled waters. As a member of one team (the Insiders), his job is to listen to the complaints of the other team (the Outsiders) and report back so that the Insiders can tell him how misguided, reprehensible, and even unprintable are the opinions of the Outsiders. When the ombudsman protested that even Outsiders are entitled to their opinions, his colleagues dismissively responded, "let them get their own newspaper!"

And this made God angry, and He quoth, "up with this state of affairs I will not put," thereby setting on edge the remaining teeth of those few aged copy editors who hadn't set their spellcheckers on auto-correct.

And He smote the newspapers, forcing many of them into Chapter 11 and winnowing the staffs of others down to a pitiful few. And, just for good measure, He created the blog, thereby confounding those who had thought that it was Satan who was responsible for the Internet. Almighty indeed was the wrath provoked by the dissing of the ombudsman.

And so, they reformed, lionizing the ombudsman and giving him his own PA to screen complaints. And God was pleased. And He rewarded the Insiders by casting Craig Newmark into the fiery pit, restoring circulation to pre-1990 levels, re-making the Editorial page so as to be reader-friendly, and lavishing Pulitzers upon the editors, each and every one.

This piece also ran in the "Cape Cod Times" and in "Editor & Publisher".

Saturday, November 14, 2009

Terror Threat?

Attorney General Holder announced yesterday that the Guantanamo terrorists' trial will take place "in New York [he paused briefly and then repeated] New York". Am trying to figure out whether that repetition means he thinks we're all too dense or too slow to twig to his allusion to 9/11, or whether he's just doing a Bush-like "bring 'em on" to show the world we're not afraid of any possible retaliatory consequences.