SCOTUS SCROTUS: Don't Call It A Penalty!

If there's anything that might cause me to rise from my moldy grave to grace the fair internet with my deep insights it's surely the end of a Supreme Court term.

First, because it's my blog and you're all assholes, let's talk about the "Stolen Valor" case.  The Stolen Valor Act made it a crime to falsely claim to have earned certain military honors.  The Court ruled, 6-3, that the law violates the First Amendment.  This seems an obvious result, so it's not worth a ton of any of our time, but I'm slightly troubled by the vote breakdown.  Justice Kennedy, invoking Orwell and getting rather apocalyptic about everything, wrote a plurality opinion joined by the Chief Justice and Justices Ginsburg and Sotomayor.  Justices Breyer and Kagan concurred with the result but suggest that a more narrowly devised statute might survive.  Their reasoning (that the law is merely overbroad and not inherently in violation of the First Amendment) strikes me as flawed and dangerous, insofar as it leaves open the door for just such a narrower law to be passed.  Telling someone a lie for the purpose of gaining some material benefit is already criminal, regardless of the lie, so this suggests that the "narrower" law would still apply in certain cases in which someone lies for no material benefit.  That's a troubling border for the Court to cross.  Also, as someone who has been lying about the size of his dick for twenty years, I'm deeply concerned about this possibility!

Now, the Obamacare ruling(s)!  I'm not entirely surprised by the result -- the math always suggested to me that SOMEONE would join the four liberals in upholding the law.  I'm not even that surprised it's the Chief Justice -- the Chief is generally tasked with maintaining the integrity and reputation of the Court and I believe Roberts may have been motivated by a desire to avoid further partisan splitting at One First.  Kennedy was the Justice that sprang to mind for most people as a potential supporter, but his comments during oral arguments were as wild and violent as Scalia's (and his tendency, note Orwell above, to cast issues in extreme terms belies his weird reputation as a "moderate") and it seemed clear to me that he was out.

I've been saying since these lawsuits were filed that the individual mandate is a tax.  It looks like a tax.  It smells like a tax.  It functions like a tax.  It's a tax.  Even the dissenters don't deny that Congress has the power to levy taxes on people who don't buy insurance.  But the dissenters insist that because the statute calls the tax a "penalty" then it must be treated as such (despite emphasizing how the Court has in the past ruled that penalties that are called "taxes" by Congress should be treated as penalties).  This seems to take strict construction a bit too far, in my mind.  I still think it was foolish of Congress to refuse to admit the mandate amounted to a tax, but what they enacted is absolutely a tax and the Chief Justice rightly ruled so.

There remains the question of the Commerce Clause.  Justice Ginsburg, writing for the liberals, would allow the mandate to stand as consonant with the Commerce Clause.  I'm somewhat conflicted on this issue, although I think in the end I remain true to the Madam Justice.  The dissenters (and the Chief Justice) rightly dismiss the idea that lack of commercial activity can be construed as commercial activity - when there is no activity (e.g.  people are not buying health insurance) there can be no federal regulation.  But they quite obtusely ignore (and seem intentionally to belittle) Ginsburg's actual argument.  The Commerce Clause surely would not allow the government to command people to buy health insurance if the "commercial activity" in question were simply the health insurance market.    But Ginsburg correctly views health insurance as part of a much larger market for health care -- a market in which anyone who will ever receive a prescription, visit a doctor, get a flu shot or be admitted to the hospital (i.e. everyone) participates.  These people are participating in this market.  Congress therefore has the right to regulate their participation through the mandate.

PS: Romney insists that his "replacement" for Obamacare would include a ban on the denial of coverage based on pre-existing conditions.  The result of this would be disastrous without the individual mandate, which increases the number of premiums paid and thus keeps prices down.  Romney, who believes Liberty means Dying In Your House, Covered In Your Own Shit Unless You're Totally Fucking Rich Like Me!, has just endorsed a policy that would REDUCE the number of insured in America.  Thanks, Fuckchops!

PPS: Not to get all extremist on y'all, but please remember that a vote to repeal the ACA amounts to a vote to MURDER AMERICAN CITIZENS.  Pro Life 4-Eva!

Tranströmer, More Than Meets The Eye!

The Swedish Academy has risen from their icy catacombs once again to deliver unto us a new Nobelist.

Several years ago a member of the committee caused a riot (the literary kind, involving a lot of obscure adjectives marked DEROGATORY in the OED) by declaring that American writers do not deserve the Nobel Prize because we're all a bunch of self-indulgent whiners with no sense of cosmopolitanism. This year, to prove just how universal and global literature is, the Swedes chose the guy who lives down the street!

They've tapped Tomas Tranströmer, "because, through his condensed, translucent images, he gives us fresh access to reality."

That seems like a perfectly decent reason to win the Nobel Prize, and all kidding the Swedes for picking a Swede aside, he is a widely known, translated and admired poet. I don't read a tremendous amount of modern poetry that isn't written by people who have won the Nobel Prize so I haven't read much of his work and therefore I have neither quarrel with nor praise for the Academy this year. Sure, the guy seems to write a lot of nature poems, which I generally detest, but those images are pretty translucent!

Besides which, I'm not certain I could form an especially good opinion of his work anyway. Why? Because poetry is extremely difficult to translate. I posted a few months ago about the art of translation, and I think it goes without saying that poetry poses a lot of problems that prose does not. There are so many structural issues to consider -- rhyme schemes, metrical feet, marginal shape, poetic sound, etc. Yes, prose writers have a voice posessing most of these qualities, too. Getting an author's voice is hard, y'all. But poetry is a whole 'nother ball of wax.

For example, I'm currently reading Breon Mitchell's recent-ish translation of "The Tin Drum", a "fresh translation" sponsored by Gunther Grass (he invited translators in various languages to stay with him in the area the novel takes place, which is sort of like a Tower of Babel Summercamp!) that is at least intended to improve upon the Ralph Mannheim translation. Here is Mannheim's translation of the opening sentence:

Granted: I am an inmate of a mental hospital; my keeper is watching me, he never lets me out of his sight; there is a peephole in the door and my keeper's eye is the shade of brown that can never see through a blue-eyed type like me.

.. . and here is Mitchell's:

Granted: I'm an inmate in a mental institution; my keeper watches me, scarcely lets me out of sight, for there's a peephole in the door, and my keeper's eye is the shade of brown that can't see through blue-eyed types like me.

Mitchell's has a certain informal flow to it, is more visceral and immediate, but basically these are the same sentence, tweaked slightly. Now, as is often the case with older books, Grass says this new translation is better in part because it includes material that American publishers were squeamish about including when it was first released. So, that's a fundamental difference between the texts. But in terms of the material both people translated, it's very, very similar.

Now take a poem by Mr. Tranströmer in two different translations, both of which are, strangely, the work of Scottish men named Robin, so don't get confused! The two translators do not even agree upon a title. Robin Fulton gives us "Loneliness (1)":

One evening in February I came near to dying here.
The car skidded sideways on the ice, out
on the wrong side of the road. The approaching cars---
their lights---closed in.

My name, my girls, my job
broke free and were left silently behind
further and further away. I was anonymous
like a boy in a playground surrounded by enemies.

The approaching traffic had huge lights.
They shone on me while I pulled at the wheel
in a transparent terror that floated like egg white.
The seconds grew---there was space in them---
they grew big as hospital buildings.

You could almost pause
and breathe out for a while
before being crushed.

Then a hold caught: a helping grain of sand
or a wonderful gust of wind. The car broke free
and scuttled smartly right over the road.
A post shot up and cracked---a sharp clang---it
flew away in the darkness.

Then---stillness. I sat back in my seat-belt
and saw someone coming through the whirling snow
to see what had become of me.

And Robin Robertson prefers "Solitude (I)":

I was nearly killed here, one night in February.
My car shivered, and slewed sideways on the ice,
right across into the other lane. The slur of traffic
came at me with their lights.

My name, my girls, my job, all
slipped free and were left behind, smaller and smaller,
further and further away. I was a nobody:
a boy in a playground, suddenly surrounded.

The headlights of the oncoming cars
bore down on me as I wrestled the wheel through a slick
of terror, clear and slippery as egg-white.
The seconds grew and grew – making more room for me –
stretching huge as hospitals.

I almost felt that I could rest
and take a breath
before the crash.

Then something caught: some helpful sand
or a well-timed gust of wind. The car
snapped out of it, swinging back across the road.
A signpost shot up and cracked, with a sharp clang,
spinning away in the darkness.

And it was still. I sat back in my seat-belt
and watched someone tramp through the whirling snow
to see what was left of me.

Start with the title: in English, "loneliness" and "solitude" are two very different, if somewhat related, concepts. Perhaps neither title is entirely adequate to convey the meaning of the Swedish title, but the results are two poems that from the onset present very different emotional worlds.

The first stanza is the best example of their different techniques -- Fulton's is jagged and abrupt and has a physical form similar to the events it describes. Robertson's version is more peaceful and dreamlike. I have no idea what Tranströmer intended, but the two translations are, for all intents and purposes, two entirely different poems!

I realize that it's just a matter of picking a translator you like and going with it, but with poetry always wonder if I like the poet or the translator -- or if there's even a meaningful difference.

Let me know if you have any good advice for reading foreign poetry, litfags!

Fashion Experts Agree: Jail Too Fancy For Sweatshirts

A lady in South Carolina called 911 to request the cops come and arrest her because her husband wanted her to go to jail. "Because, basically, I slapped him this morning because he won't have sex with me and hasn't had sex with me in a couple of months, so I slapped him across the face and he wants me to go to jail."

When the dispatcher requests she remain at her neighbor's until the cops arrive she protests: "No honey, I'm in a sweatshirt and boxer shorts."

However, what makes this story truly genius is that when the officers arrive the husband insists his wife never slapped him and that she made it up because she just wanted to go to jail. Like, just for fun? Musta been pizza night! Fancy dress only, please!

Mario Kourt

At long last, fags and fagesses, the Supreme Court has handed down its decision in Brown v. EMA (a case the Court heard so long ago that it magically changed names! At oral arguments last fall it was still Schwarzenegger v. EMA) the violent video games case.

Last year, you may recall, the Court struck down a law that banned the sale of "crush videos" (they're gross, Google them yourselves, pervs!) on the basis that there is no free speech exemption for depictions of animal cruelty. And it's this ruling that California had to try most strenuously to overcome. I mean, if videos of ladies using their high heels to crush mice to death is protected then it's kind of hard to ban . . . okay, let's be honest here, I'm not cool enough to know any of the names of actual violent video games, except Grand Theft Auto, and surely the genre has advanced? So, here's the deal: When I say "Mortal Kombat" you change it in your brain to an actual relevant video game that you know about because you're a fucking nerd who gets a nerdboner while raping pixel ladies, okay?

California tries to get around this by saying that standards are different for minors (a key piece of yet another case) but, as Scalia pointed out then and in the today's opinion, that case dealt with obscenity: a class of speech that is wholly unprotected. There is some sort of half-hearted attempt to claim that violence is obscene, but that's not going to get one very far at One First.

And so, the Court delivered a FATALITY (ha ha ha ha) to California's law. Scalia, joined by all the ladies (even Anthony Kennedy!), delievered the opinion while Alito (who I really thought would vote to uphold the law) and the Chief filed a concurrence while Thomas and Breyer dissented.

You can read the opinion, and really you should, because while hardly as amazing as it could be, it's pretty great stuff. I mean, this part, in which Scalia attacks an argument made by Alito (who concurred in the judgment!) is wonderfully snide and hilarious and it's buried in a footnote!:

[Alito points out that] the “crush-video” statute at issue there might pass muster if it were limited to videos of acts of animal cruelty that violated the law where the acts were performed. There is no contention that any of the virtual characters depicted in the imaginative videos at issue here are criminally liable.

He also writes a brilliant and lengthy footnote tearing apart Justice Thomas for his view that minors possess no First Amendment rights at all.

But the best section of Scalia's opinion is his thorough and masterful demolition of the idea that our culture has historically restricted minors' access to depictions of violence. He starts off with Cinderella's stepsisters getting their eyes pecked out and then on to the AP English syllabus with relentless emphasis on the gore and guts:

Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they beskewered by devils above the surface. And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.

Next he tackles California's argument that "interactivity" makes video games special. And that's when Scalia trots out a reference to his very favorite book:

The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugar-cane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to.

But, lurking behind all this talk of warped minds, desensitization to violence and interactivity, is a much more real threat to the First Amendment. And, seizing upon Justice Alito's lengthy description of what Scalia calls "disgusting video games", he lets loose with what I think might be one of the best denunciations of the anti-video game crowd ever penned by a dude in his 70s:

But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.

And he has scant patience for the "research" showing children react violently after being exposed to depictions of violence:

One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App. 496, 506 (internal quotation marks omitted). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.

The dissenters, and Alito in his concurrence, really got nothing compared to Scalia's sweeping and unrelenting attacks. But that passage of Alito's Scalia was referring to really is pretty awesome. If I was the producer of violent video games I'd use it in my ads!

Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.

New this Fall from VideoFag, creators of "Supreme Court Bloodbath" and "Sexy Prison Torture Pit" comes "By The Dozens" . . . Justice Alito raves: "Blood gushes, splatters and pools!"

PS: I couldn't quite find a way to slide this excellent quote into the above post, but it's one of my favorites! Echoing Sontag's famous statement that "if I must choose between Dostoevsky and the Doors, of course I choose Dostoevsky", Scalia writes in footnote 4: "Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.But these cultural and intellectual differences are not constitutional ones."

Anonymosity

As a blogger who has always used his real name, despite the sometimes dubious content I post, I applaud Farhad Manjoo's anti-anonymity manifesto on Slate. I agree with him on every point, so I won't say much other than to tell you to read his piece. But I will say that I find the privacy argument especially laughable. We live in a world where privacy as a value, much less a right, has been so thoroughly undermined that it seems silly to offer up as an argument in virtually any context, but as an argument in favor of anonymous comments it's even worse. After all, no one is required to post comments in any online forum. We step into that public role willingly and unnecessarily. If a comment is important enough to post, it's important enough to own up to. When, long ago, Mr. Manjoo worked for Salon, I wrote a post here on Fagistan about an article he wrote that ended with the (only slightly regrettable) invocation, "I hate you, Farhad Manjoo!" This led to a rather interesting series of comments, posts and e-mails between myself at Manjoo that made me quite happy. But even had this not happened, at least Farhad always knew who was slinging the hate!

That being said, Fagistan, defying its reputation as an oppressive and cruel regime, has always allowed anonymous comments. I don't intend to change this (for one thing, my options here are limited mostly to sign-in systems that are easily anonymized) because, while I can't say that anonymity adds all that much to the forum, it doesn't really detract either. For one thing, in my hay-day I drew a couple of hundred views a day, and only a tiny fraction of them commented on anything at all. On those rare occasions when a Big Blog picked up my post, I received a lot more traffic but not a tremendous increase in comments. I'm amazed by the number of people willing to use a name, presumably their own, in posting things about me getting AIDS or having my urethra packed with feces. I also recognize that some of my faithful readers (if there are any left after so long an exile!) prefer a slight bit of anonymity to protect their jobs, and since I consider them part of a community of smart people I enjoy receiving comments from, I prefer to risk the occasional 5,000 word rant about Beth Twitty's plastic surgery to shutting them off altogether.

So keep on posting secretly, even if it makes you a total fuckwad!

Faithful Spouses Are Basically Terrorists

Politicians are known for coming up with comical excuses for their behaviors. Like, remember when Tom DeLay said he couldn't fight in Vietnam, because all those great jobs were taken by black people? Well, let's add Newt Gingrich to the list.

In an interview with some guy from CBN, Newt discussed his extramarital affairs and offered this excuse:

There’s no question at times of my life, partially driven by how passionately I felt about this country, that I worked far too hard and things happened in my life that were not appropriate.

So, what you're telling us, Professor Gingrich, is that your deep passionate love for this country exploded inside the vagina of a woman who wasn't your wife? You were just so hopped up on America that you couldn't help but violate the sacred vows you made to your [second] wife? That the American public should thank you for loving us so much you were Constitutionally required to get laid?

For years now I've been begging politicians to ditch the Cosmos Made Me Do It defense for extramarital poundage. Well, Newt, you've answered my prayers! Surely the American people will rejoice to know you did it all for the good of the nation. And on the bright side: no rehab!

While the highlight of this interview was clearly the Patriotism Made Me Fingerbang Her part, there's another interesting passage as he discusses his relationship with The Man Upstairs:

I do feel, in that sense, that God has given me, has blessed me with an opportunity as a person. Forget about all this political stuff. As a person, I’ve had the opportunity to have a wonderful life, to find myself now, truly enjoying the depths of my life in ways that I never dreamed it was possible to have a life that was that nice.

This might appear to be standard Christian-politician boilerplate, but please consider the context. What is the "opportunity" God gave him? Presumably, his nice life has something to do with his children [via Mrs. Gingrich the First] and his latest wife. So, it seems impossible to read this as anything but an affirmation that God let him commit the sin of adultery -- over and over again! -- because it would allow him to live a nice life. This goes pretty far beyond a "forgiving God" and all the way into a libertine God who doesn't even give a shit about adultery as long as it makes you happy!

Okay, sure, God has, at various times in Biblical history, totally approved of men having multiple wives. He even let Abraham have sex with a woman who wasn't his wife, but only because Sarah was barren -- the fact that he "opened" Sarah's womb later on only makes this one of the great examples in the Bible of God making no sense even on his own terms. But the modern Christian Right would have us believe that God really cares about marriage, and that monogamous heterosexual marriage is the only kind of sexual relationship God approves us. And yet here he's given Newt three consecutive wives just so he could have a nice life!

But God still disapproves of gay marriage. So, I guess that means we don't deserve nice lives!

Professor Uppercut v. Some Idiot

In other cruelty-to-animals news: a math professor in Minnesota punched Goldy Gopher in the face, damaging the poor little loser's mask. If he were any kind of real gopher he'd have chewed the fuck out of the professor's kneecaps! But no, he just goes whining to the cops! What a terrible gopher!

Also, this happened at a gymnastics meet.

I'll Give You Something To Cry About!

Quiz Time: So you're a nineteen year old woman and, for reasons unknown to us, but for which you should probably seek some sort of therapy, you get into a "dispute" with your nine year old neighbor. Maybe she really pissed you off (that's what being nine is all about!) What is the proper way to resolve this conflict?

A) Walk away, because, come on, you're fighting with a little kid!
B) Make a training bra joke, because that's hiilarious!
C) Calmly reason with her, pretending that you are an adult.
D) Yank on her stupid, ugly ponytail.
E) Challenge her to a wicked jump-rope-off.
F) Kill her pets!

If you answered F, you are correct:

According to authorities, Smith killed the hamster with her hands and threw the pet across the street during a dispute with the owner. The hamster belonged to a 9-year-old child.

Oh, but it gets so much better. Because this hamster got the full-on Crossing Jordan treatment:

Results of a necropsy at ASPCA's Bergh Memorial Animal Hospital revealed that the hamster had suffered blunt force trauma, liver damage and an associated hemorrhage.

I'm glad they pinpointed the exact cause of death! After all, without this groundbreaking necropsy it would be possible to believe the hamster just died of old age while flying through the air!

President Safe From Ice Skating Assassins

Or is he?

Sure, the Secret Service beat the FBI in their annual ice hockey game, but the score was 7-6. You'd think an organization dedicated to defending the leader of the free world could find a better goalie!

Walker Sucks Koch

I grew up in a household where, though the UFW's grape boycott ended in 1970, a decade before I was born, I didn't eat a grape until I started school. Unionism, labor activism and the vital necessity of solidarity with our brothers and sisters around the world was the closest thing to a religion I ever had. Of course, like many people, I could never quite swallow my utopian socialist father's teachings whole. Despite brief, college-and-whiskey fueled flirtations (complete with college-and-whiskey fueled heavy petting and premature ejaculation) with Communism, Maoism (apparently, there's an audio recording somewhere out there of me declaring, "Mao was totally hot!"), anarchism, syndicalism and just general, you know, like, radicalism, man!, I've emerged from the other end a pretty traditional liberal.

But on the issue of unions, Father Gibson and I will always agree. Unions are good for workers, they're good for business and they remain virtually the only force standing between working people and utter serfdom. If America is a great nation, as I believe it is, the labor movement deserves a very big chunk of the credit.

All of which means that every image and story about the beautiful protests in Wisconsin fills my heart with love and awe and joy. And the fact that the brother of one of my most loyal and cruel warlords is a Wisconsin teacher only doubles these emotions.

In a way, it's a strange feeling. I don't like protests. The last one I went to ended with a baby getting pepper-sprayed in the face, which, though clearly hilarious, was also so symbolic of the ways in which protesters, counter-protesters and the police all behave like stupid fucking assjammers that I just left feeling sick and dazed. And not just by the tear gas.

And over the last couple of years our chief images of protests have come from the Tea Party rallies, with all their bizarre antics and wild-eyed demon-creatures and Michelle Malkins.

As a pretty typical overthinking intellectual, this troubles me. Is it simply a matter of bias: that because I disagree with the Tea Partiers they seem completely insane and high on PCP? Or does my natural affection for unions and big, sweaty, sexy Teamsters blind me to the same hysteria in a slightly different pitch?

But I think the answer to both questions is no. The biggest difference between these two movements is that the Tea Party just seems to be angry, like, in general. "Jesus Christ, we're just ragin', okay?!" It's an inchoate, disturbed sort of movement, the kind of shapeless anger at "the Government and stuff" that, while probably as necessary to cultural and political health as lancing a super nasty boil is to physical health, is most useless.

But in Wisconsin we see brave and hopeful and angry people standing up for something real, specific and vital. Governor Walker's attack on collective bargaining rights for public employees, while cloaked in something approaching a vague resemblance to something we might generously describe as reasonable, strikes at the very hard of more than a century's worth of struggle to make our world more fair and to return to workers some share of the wealth they create. To let the government destroy one union is to let it destroy them all. And that, dear friends, is not something this demented and syphilitic despot is willing to let happen.

Already Walker's popularity is dropping, his attempts to blame the unions for the budget crisis are failing and if those threatened layoffs come to pass it is the governor who deserves the blame.

So keep it at it, all you beautiful motherfuckers in Wisconsin!

Solidarity!

PS: this was supposed to be a humorous and light-hearted post about all the Koch-inspired signage in Madison. The title of the post comes from a sign witnessed by David Weigel, who has a very fine piece of the context of non-violence in labor rallies, and the relative difficulty of filming gotcha moments at them, in Slate. Somewhere else, I think on the aforementioned teacher-friend's Facebook page, I saw another sign reading "Scott Walker is high on Koch." The latter of these signs is more likely to have been penned by an English teacher, since it preserves the Koch brothers' preferred pronunciation, but y'all know that I'm the kind of guy who refers to former New York Mayor Ed Koch as "the Kochsucker", so pronunciation is never a bar to me making dicksucking jokes.