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Archive for March, 2013


all winter i have been worrying
about the japanese maple in our yard.
whether it was just sleeping?
now its spring leaves make me happy.
i believe i shall miss it
if i have to quit this place too soon.



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Human relationships are frequently very challenging. How do we get our needs met in relationship? Those pesky emotions always getting in the way. It is very tempting, I believe, to polarize the situation: either the other person has what I need completely or I reject them completely. Living in the black and white polarities of life reduces stress in the short term because at each end of the polarity, at least I minimize the stress of disappointment. The disappointment of earnestly trying to negotiate a middle path and not having it work out the way I want it to. Unfortunately, the result of this type of living is that we tend to overuse punishment. Complaining about what we didn’t get from the other person in the past instead of skillfully eliciting more of what we do want to get in the future. And the problem with punishment is that it rarely leads to new learning. It just teaches avoidance of the punisher, and the punishment. In my experience as a teacher, ineffective learning is often the result of ineffective teaching. Of the teacher being out of tune with the student. Bringing myself more in tune with the student is often very difficult, almost impossible at times. But when it does happen, nothing is more rewarding to me!


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A long time ago someone asked me, “can you imagine what it’s like to not feel yourself at home in the world?” The answer of course, is that I could very well imagine that. The question was posed to me in the context of understanding what it is like growing up “abnormal.” That is, being beings that are labeled as abnormal, feeling feelings that are labeled as abnormal, thinking thoughts that are labeled as abnormal, or wanting wants that are labeled as abnormal. Whether we’re talking about marriage equality or emotional suffering, the issue is the same. In the end laws don’t protect people. Only people protect people. We have nothing but each other.



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Sometimes when I see friends with their new babies, I am filled with a complete sense of regret and despair about a life that was wasted and denied. Then I realize that even if I had realized my life long dream, there would still be other people waking up with their new babies long after I and mine had died.



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Classical liberalism, the doctrine which founded this country, has many problems, not the least of which are its assumptions about basic human nature (“solitary, poor, nasty, and brutish”). However, one cannot seek to establish a natural rights republic without believing in something like progress. To wit:

“I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

–Thomas Jefferson



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Scalia’s doctrine of textualism represents a very clever and age old method for the aggregation of power. It is the power of apparent power reduction. By ostensibly advocating judicial restraint, he wishes to invoke the age old trick of the man behind the curtain, hoping that we will pay no attention. But as Nietzsche pointed out in 1887, feigning powerlessness is itself a very shrewd political trick. And we need not be fooled by it any longer.



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…here’s my proof that Scalia’s textualism is a bunch o’ hooey:



From one perspective the constitutional doctrine called textualism makes sense. Textualism is the doctrine that statutes should be interpreted and applied solely as they would have been understood by a competent user of the original language at the time they were written. Interpretations which make use of other data sources – committee reports of the legislative body that drafted the statute, or evolving cultural standards as perceived by the jurist—are considered contaminating materials that subvert the democratic process. The reasoning goes that the statutory language was reached in a democratic process of compromise, worked out by representatives elected by the people. To re-interpret such language based on extra legal sources would be to subvert the democratic process of debate and compromise, since it substitutes the jurist’s judgment for the legislator’s, that is, the people’s. The proper remedy for an unjust or ineffective law is not to re-interpret it, but re-write it. And only the legislature can do this. In this way, so the textualist argument goes, the democratic process of republican debate and compromise is preserved.

Yet this entire line of argument rests on one faulty premise: that the US judiciary is not itself a part of representative government. Our constitutional democracy provides for a clear and ordered way for the people to choose their jurists, just as much as we choose our executives and our legislators. Jurists are duly appointed according to the principles of our constitutional system, through a mechanism which ensures a republican process. And in fact they can be removed by the same system if they abrogate their constitutional duties. So if I were to pluck a feather from the textualist’s hat, I might argue that in fact our constitution outlines a very clear mechanism for linking the activity of the jurist to the will of the people. And as duly appointed republican representatives, they indeed have the power, are explicitly granted the power by our constitution, to interpret the laws presented to them in the manner that comports with their experience and training.

Clearly, one wants jurists who do not cave into the whim of the day, or who fail to understand Scalia’s cautionary statement that “the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one’s own views.” However, the decision to act, in any given case, as a duly appointed representative of the people does not mean, a priori, that a jurist who interprets the law liberally is making a grave constitutional mistake. In fact I would argue that based on a strictly textualist reading of the constitution, it would seem that that is exactly what the law requires them to do. To presume anything else commits the very mistake that the textualist wishes to avoid: the unwarranted privileging of the presumed intent of the lawmakers over their actual words and deeds.



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