The Big Flag

For decades, our civilized and tolerant small town has enjoyed the distinction of being the home of the world's largest barber pole (left). Not content with its renown in the specialized field of tall poles, the city recently constructed a huge flagpole smack in the center of the main entry to its downtown. It supports one of the most disproportionately massive U.S. flags (30' x 60') ever. The "Big Flag" represents, to me, a kind of superpatriotism run amok — a phenomenon that a psychotherapist might describe as "overcompensated doubt." Further speculation on the topic of pole fixations and outsized flags is best left to professionals.

Proponents of the flag have expressed shock and disgust that the decision was criticized in some quarters, though they haven't yet accused anyone of being a communist — not publicly, at least. Critics joke that the flag is not only visible from a neighboring town, but "possibly from space." (When it's not at half-staff, at least, which in a country waging two wars is much of the time.) It's plainly visible from our house, more than two miles away.

My gifts for satire are way too modest for further exploration of this ripe subject. Let me instead refer the reader to two masters, starting with Stephen Colbert's hilarious riff on Sean Hannity's brand of more-patriotic-than-thou fanaticism. Be sure to watch the last 10 seconds (I tried to embed it but it didn't work).

And second, I offer the following excerpt excerpt from a classic novel that seems forever relevant on just about any level you'd want to consider — from the Big Flag to Iraq to Afghanistan.

And with that, 'nuff said.

"Nately's Old Man" Catch-22, Chapter 23 By Joseph Heller (1961) "America ," he said, "will lose the war. And Italy will win it." "America is the strongest and most prosperous nation on earth," Nately informed him with lofty fervor and dignity. "And the American fighting man is second to none". "Exactly", agreed the old man pleasantly, with a hint of taunting amusement. "Italy, on the other hand, is one of the least prosperous nations on earth. And the Italian fighting man is probably second to all. And that's exactly why my country is doing so well in this war while yours is doing so poorly." Nately guffawed with surprise, then blushed apologetically for his impoliteness. "I'm sorry I laughed at you," he said sincerely, and he continued in a tone of respectful condescension. "But Italy was occupied by the Germans and is now being occupied by us. You don't call that doing very well, do you?" "But of course I do," exclaimed the old man cheerfully. "The Germans are being driven out, and we are still here. In a few years you will be gone, too, and we will still be here. You see, Italy is really a very poor and weak country, and that's what makes us so strong. Italian soldiers are not dying anymore. But American and German officers are. I call that doing extremely well. Yes, I am certain that Italy will survive this war and still be in existence long after your own country has been destroyed." Nately could scarcely believe his ears. He had never heard such shocking blasphemies before, and he wondered with instinctive logic why the G-men did not appear to lock the traitorous old man up. "America is not going to be destroyed!" he shouted passionately. "Never?" prodded the old man softly. "Well..." Nately faltered. The old man laughed indulgently, holding in check a deeper, more explosive delight. His goading remained gentle. "Rome was destroyed, Greece was destroyed, Persia was destroyed, Spain was destroyed. All great countries are destroyed. Why not yours? How much longer do you really think your own country will last? Forever? Keep in mind that the earth itself is destined to be destroyed by the sun in twenty-five million years or so." Nately squirmed uncomfortably. "Well, forever is a long time, I guess." "A million years?" persisted the old man with keen, sadistic zest. "A half million? The frog is almost five hundred million years old. Could you really say with much certainty that America, with all its strength and prosperity, with its fighting man that is second to none, and with its standard of living that is the highest in the world, will last as long as the... frog?" Nately wanted to smash his leering face. He looked about imploringly for help in defending his county's future against the obnoxious calumnies of this sly and sinful assailant. He was disappointed. [...] "How old are you?" Nately asked, growing intrigued and charmed with the old man in spite of himself. "A hundred and seven." The old man chuckled heartily at Nately's look of chagrin. "I see you don't believe that either." "I don't believe anything you tell me," Nately replied with a bashful, mitigating smile. "The only thing I do believe is that America is going to win this war." "You put so much stock in winning wars," the grubby iniquitous old man scoffed. "The real trick lies in losing wars, in knowing which wars can be lost. Italy has been losing wars for centuries, and just see how splendidly we've done nonetheless. France wins wars and is in a continual state of crises. Germany loses and prospers. Look at our own recent history. Italy won a war in Ethiopia and promptly stumbled into serious trouble. Victory gave us such insane delusions of grandeur that we helped start a world war we hadn't a chance of wining. But now that we are losing again, everything has taken a turn for the better, and we certainly will come up on top again if we succeed in being defeated." Nately gaped at him in undisguised befuddlement. "Now I really don't understand what you're saying. You talk like a madman." "But I live like a sane one. I was a fascist when Mussolini was on top, and I am an anti-fascist now that he has been deposed. I was fanatically pro-German when the Germans were here to protect us against the Americans, and now that the Americans are here to protect us against the Germans I am fanatically pro-American. I can assure you, my outraged young friend" - the old man's knowing, disdainful eyes shone even more effervescently as Nately's stuttering dismay increased - "that you and your country will have no more loyal partisan in Italy than me - but only as long as you remain in Italy." "But," Nately cried out in disbelief, "you're a turncoat! A time-server! A shameful, unscrupulous opportunist!" "I am a hundred and seven years old," the old man reminded him suavely. "Don't you have any principles?" "Of course not." "No morality?" "Oh, I am a very moral man," the villainous old man assured him with satiric seriousness [...] "I can't believe it," Nately remarked grudgingly [...] "I simply can't believe it. "But it's all perfectly true. When the Germans marched into the city, I danced in the streets like a youthful ballerina and shouted 'Heil Hitler' until my lungs were hoarse. I even waved a small Nazi flag that I had snatched away from a beautiful little girl while her mother was looking the other way. When the Germans left the city, I rushed out to welcome the Americans with a bottle of excellent brandy and a basket of flowers. The brandy was for myself, of course, and the flowers were to sprinkle upon our liberators. There was a very stiff and stuffy old major riding in the first car, and I hit him squarely in the eye with a red rose. A marvelous shot! You should have seen him wince." PHOTO: Flickr

Originalist sin

"It will almost certainly cause more Americans to be killed."

So wrote Antonin Scalia in his dissenting opinion in Boumediene v. Bush (as noted earlier), which permits detainees at Guantanamo and elsewhere to challenge the legality of their imprisonment by filing writs of habeas corpus in federal courts.

A few days later, with no apparent sense of irony, the Supreme Court released Scalia's opinion for the 5-4 majority in District of Columbia v. Heller, which invalidated D.C.'s ban on handguns. Scalia neglected to mention that the result in Heller is absolutely certain to "cause more Americans to be killed."

While I can't say I've gotten through all 157 pages of Heller, it's interesting to see how Scalia has parsed the 2nd Amendment's reference to "[a] well regulated Militia, being necessary to the security of a free State..." In it he finds, through breathtaking contortions, an individual right to bear arms rather than a collective right, as the phrase would plainly suggest.

It's a familiar display of sophistry and outcome jurisprudence, armed to the teeth (bad pun) with cites to often-obscure sources (including a "Linguists' Brief") over two centuries. It's as if Scalia thinks an opinion creaking under the strain of so many sources would compensate for the feeble logic of his position.

Scalia's meticulous resort to centuries of legislative history in Heller directly conflicts with his long hostility to reliance on legislative and historical sources:

It says to the bar that even an "unambiguous (and) unequivocal" statute can never be dispositive; that, presumably under penalty of malpractice liability, the oracles of legislative history, far into the dimmy past, must always be consulted. This undermines the clarity of law, and condemns litigants (who, unlike us, must pay for it out of their own pockets) to subsidizing historical research by lawyers. The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators. . . . But not the least of the defects of legislative history is its indeterminacy. If one were to search for an interpretative technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history. [Conroy v. Aniskoff, 507 U.S. 511 (1993).]

Or, as Scalia wrote a few years earlier, "the main danger in judicial interpretation of the Constitution — or, for that matter, in judicial interpretation of any law — is that the judges will mistake their own predilections for the law." [1]

Scalia's contortions evoke Harry Frankfurt's notion of bullshit:

"His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose."

Scalia's textualism, it seems, depends entirely on the context.

NOTES

[1] Antonin Scalia "Originalism: The Lesser Evil," 57 University of Cincinnati Law Review 849, 851 (1989) [as quoted here].

[A version of this entry was cross-posted as
a comment on Lawyers, Guns and Money.]