Norms Not Laws Are What Matter

Antonin Scalia - Norms Not LawsJonathan Chait wrote what is probably the best discussion of what the death of Antonin Scalia really means, Will the Supreme Court Just Disappear? The point is that the Supreme Court has power because we all accept that it has power. This is the truth of any kind of political power. It’s like money: a shared delusion. As Chait noted, “While the Republican blockade may lack any ­precedent, it, too, is probably well within the law.” It isn’t a matter of law. The Constitution is pretty vague about it. What really matters are norms.

I’ve discussed the broader issue here many times. A couple of years ago, I wrote, Boehner’s Paradox of Power. There I discussed how John Boehner only had power as Speaker of the House as long as he didn’t use it. The moment he actually managed the House as he thought was right, he would be thrown out. And this is a situation that supposedly powerful people have always faced. Sure, Boehner could in theory have allowed the Debt Ceiling to be raised, but he couldn’t do it practically, so his power was thus theoretical and not practical.

Look at my discussion of Marbury v Madison. That was the case where the Supreme Court proclaimed itself as the institution that defined what the Constitution meant. Regardless of that, it was the result of the Court avoiding a confrontation with the executive branch where it would be shown to be powerless. And the truth was then as it still is that the Court has no way to enforce its decisions. It is only because the rest of the nation abides by the norm that the Supreme Court defines what the law is. Norms are a very powerful thing.

A divided Court will mean that the law of the land will depend upon where you live. In a sense, it will be the Confederates getting what they wanted… Antonin Scalia’s death could succeed where the treason of Jefferson Davis and Robert E Lee failed.

Think about it on the microscale. I think the vast majority of people are like me. I wouldn’t break into my next door neighbor’s house. And the reason is because I know it is wrong. My reason is not that I will get caught and go to jail. And this is the reason society is able to get along. We don’t need to resolve every issue by what the law says. We are socialized. We know the way that people are supposed to behave and that is how we behave.

This is also true of institutions. This is the basis of Kissinger on Revolutionary Power. They do not abide by norms because they see the system itself as invalid. And this is what we’ve seen with the Republicans over the past four decades — but most especially since Obama took office. There is no consideration for the way that things have been done in the past. If there is no legal document that says it cannot be done, the Republicans will do it if it is to their advantage.

Changing Norms for Not Replacing Scalia

Right now, the Republicans are making the argument that the president should not be allowed to appoint a new justice in his last year in office. This is clearly just an ad hoc norm they’ve devised that has no precedent. And if Scalia had died at the beginning of 2013 (the first year of Obama’s second term), they would have come up with a different ad hoc reason for why they should have filibustered for the next two years and then refused to allow any other appointment during the next two. And if Clinton is president next year, they will come up with another reason why it simply isn’t acceptable for a Democratic president to appoint a replacement to Scalia.

It is this total lack of respect for norms that most concerns me about the United States as a going concern. It would have been different in the 1960s, because everyone would be getting pretty much the same news. But roughly half the nation will be hearing nothing but apologetics about how whatever new norm the Republicans are destroying is totally right and just. And if the new norm is that presidents don’t get to place justices on the Supreme Court, why even accept the power of the Supreme Court? It is just one of our norms after all.

As Ian Millhiser pointed out in his discussion of the effects of Scalia’s death, a divided Court will mean that the law of the land will depend upon where you live. In a sense, it will be the Confederates getting what they wanted. All those nutcases who want to secede from the Union will get what they’ve so long wanted: the Dis-United States of America. They always knew they weren’t going to control New York and California, just as they knew they wouldn’t control France or Japan. But those glorious states under the Fifth Circuit Court of Appeals will be able to return to the “true” America of the 1830.

Antonin Scalia’s death could succeed where the treason of Jefferson Davis and Robert E Lee failed.

Leif Skoogfors and Photography Copyright

Oscar Romero by Leif SkoogforsAs you all know, I’ve gotten serious about image copyright around here over the last nine months or so. The truth is that I always thought that I could use any image on Wikipedia because they were free and that was that. Well, that was not that. Most of the images on Wikipedia at least require attribution. And a large number of them are Fair Use, which is a whole legal can of worms.

I got a good and fast introduction when I started working for Quality Nonsense. It’s not that anyone took me aside. But I found myself editing a bunch of articles on copyright and plagiarism. It made me paranoid. And then, I got put in charge of finding images for our biggest website Who Is Hosting This? So getting serious about the use of images was easy enough. Just the same, with over 7,000 articles on Frankly Curious, I haven’t been able to go back and fix my previous problems.

It’s easy to be casual about image copyright when you are running a tiny blog that no one reads. But Frankly Curious has become big enough that people start to notice. And what’s more, I’ve decided that I would like to make the blog as professional as possible with a set publishing schedule and my prohibition against coarse language in articles. But until you reach that point, a blog is like a collage that you put together during the commercial breaks of Dancing With the Stars — something you do without the thought that what you are doing is going anywhere. It’s just for fun or your own self-actualization.

Leif Skoogfors

Well, this morning, I got an email message from Leif Skoogfors. He had noticed that I was using the image above in an article, Religion Is Politics. I had provided no attribution, as was my habit in those days. He was extremely nice about it and only asked for credit, which I gladly provided on the article and another where I had used the image, 35 Years Without Óscar Romero.

Leif Skoogfors is more or less the romantic archetype of a photographer. I know a lot of photographers. I greatly admire the visual arts, although I have no talent for it. But most of the people I know work in studios or forests. And that’s great! But Skoogfors was working in El Salvador in the late 1970s! Looking over his career, he seems to have gone wherever he had a good chance of being killed.

An eight year old child of Fatah Jordan, 1969

Of course, it isn’t just the romantic aspect of the photographer throwing himself in harm’s way to get the shot. Much of Leif Skoogfors’ work is stunning. Take, for example, Eight Year-Old Child of Fatah. It was taken in 1969 at the Baka refugee camp in Jordan. You can see men marching in the background and some buildings and other structures. If there were no people in the photo, it would be a fine bit of nature photography. I think that’s an olive grove in the upper right hand corner. But instead, we focus on this child, holding a machine gun and wearing… sneakers. When the picture was taken, I was 4 years old. My life was utterly different. It’s hard to imagine that the boy in the picture is still alive. What a sick and arbitrary world we live in.

Check out Leif Skoogfors’ other work. He does have a great eye and documented some of the most important things that happened in the world over the last fifty years. He is certainly a man who should be acknowledged. And compensated.


I received a followup email message from Leif Skoogfors. Part of the text above was changed based upon a correction he alerted me to. Here is part of the email, that adds a little more to the story of that photo:

The guide translator who showed me around was thoughtful and pulled the loaded drum magazine out of the weapon and replaced it with an empty one, thinking that the boy might get nervous and pull the trigger.

It was a few years after I’d been there that I realized the very nice “freelance journalist” in Cairo who’d arranged the introduction to Al-Fatah for me was with the CIA. Perhaps the first time I’d run into one of those guys…

I appreciate the article on copyright. Many folks have pointed out, if artists don’t get paid for their work, how can they continue to create. When I ran an image search on the Oscar Romero photograph, over 400 sites showed up. Only 9 were licensed.

Yes, I feel sorry being in that list of 400. But I’m glad to get the chance to highlight the work of Mr Skoogfors.

Morning Music: Pacing the Cage

Charity of Night - Pacing the CageMemory is a hard thing. You never know if its real. Or I don’t anyway. It seems that most people I know think their memories are video files stored on a micro-SD card in their brains. To me, they are more like creations of random event generators that our consciousness tricks us into thinking are real. Still, I have this memory of being at the San Francisco Zoo when I was perhaps six years old. And there was this panther in a small enclosure, walking back and forth — pacing the cage.

The third song of Bruce Cockburn’s album The Charity of Night was “Pacing the Cage.” I asked him once about the song — or I reflected on it. Regardless, he said it was about feeling trapped. I hated to hear that because its such a trivialization of the song and the metaphor. As I remember back to that panther, it wasn’t feeling trapped or looking for a way out. It had more been driven mad by living a life it could not understand. And Cockburn knows that. The song starts off:

Sunset is an angel weeping
Holding out a bloody sword
No matter how I squint I cannot
Make out what it’s pointing toward

If he’s trapped, it’s by his own mind. He’s lost. You don’t have to be confined to be at a loss of the way forward. In fact, not being confined can be the problem. And there is a pointlessness of life that causes all human activity to be nothing more than pacing the cage. In such circumstances, death is a release. Because your other choices are to pace inside the cage or pace outside the cage. There is the appearance of freedom only — no actual freedom. Until you die, you will find yourself pacing the cage.

Anniversary Post: the Battle of the Alamo

The AlamoOn this day in 1836, the Battle of the Alamo started. I remember visiting it when I was a kid. But I have no idea where. They seem to move the damned thing around all the time. But what’s amazing about it is that it’s this big deal in the mythology of America. But there are a few problems with it. First, it was part of the Texas Revolution. It wasn’t part of the United States. And the people of Texas were even worse than than they are now. The other thing that is remarkable about it is that the Texans lost the battle.

Now, I understood that when I was a kid. But I had this idea that the Texans were totally outnumbered. Really, I remember it being presented as a couple hundred Texans against a hundred thousand Mexicans. Hooray! Ain’t the white man great! But that wasn’t the case at all. The Texans were a couple hundred strong, and they were inside the Alamo. They had the advantage. They were under siege by less than two thousand Mexicans. In the end, the Mexicans had about double the casualties as the Texans. Given the circumstances, I would say that the Mexicans did pretty well. If I were a Texan, I’d try to brush this historical event under the carpet.

But no. Everything is bigger in Texas, and nowhere is that as true as in its egos. Oh, but they fought to the death! That’s one of the great lies of manliness. There is nothing noble about fighting to the death unless you are doing it to protect others. If you are suicidal, then just get on with it. But don’t expect the rest of us to hold you up as some kind of a hero. Regardless, I’ve come to see pretty much all armed conflicts as a battle between two powerful groups over who will be the most powerful. The rest of us just want to be left out of it.

But I am pleased that Sam Houston survived and was able to keep all his slaves.