I Think Scalia's Originalism Is Like Intelligent Design Of Constitutional Theories

When Scalia died, I realized that I hadn’t seriously examined his ‘originalist’ theory for interpreting the constitution. I knew that he was outspoken, that I disagreed with the most publicized decisions, but also that he was a good off-the-court friend of Ruth Bader Ginsburg, so there had to be more depth than I was seeing.

I was inspired in part by the way Scalia and Ginsburg, so very different in their understanding of the cases which impacted their interpretation of the constitution, liked each other and spent time together outside of the Court.  From an NPR piece:

"They liked to fight things out in good spirit — in fair spirit — not the way we see debates these days on television," NPR's Nina Totenberg recalled on the NPR Politics Podcast. And Ginsburg admitted once that Scalia made her better. One night last year when the two justices appeared onstage for an interview together in Washington, D.C., Ginsburg talked about a time when Scalia showed her his dissenting opinion in a case before she had finished the majority opinion. "I took this dissent, this very spicy dissent and it absolutely ruined my weekend," Ginsburg said. She made some tweaks to her own argument.   [emphasis added]

So I started a blog post looking up ‘originalist’ theory. I thought that while I was inclined to be skeptical, I ought to at least look at it more seriously. I did. I’d like to present here what I’ve found.

Overview of Conclusion

For those who scan posts in 60 seconds or less - my conclusion is that ‘originalism’ has, as one writer put it, good PR, but basically it’s just old wine in a new bottle.  Like creationism, the old strict constructionist theories of law had been abandoned.  This allowed judges to deal with the many kinds of ambiguities in the law, such as conflicting laws, unclear language, situations unanticipated by the law, etc.  A number of canons developed over the years to help judges deal with statutory interpretation.

In my, albeit brief, review of originalism, I think, at this point, that originalism is something like Intelligent Design which came into being as a religious alternative to evolution, one that smells suspiciously like creationism, but packaged in what its authors hoped would be a more palatable package.   Furthermore originalism has the public relations value of sounding like its fidelity to the constitution is greater than living constitutional theories.


Ginsburg’s approach, living constitutionalism, follows the traditions of case law to find ways to deal with inconsistencies in law, generalities in the constitution, and modern situations unanticipated by the constitution.  It isn't simply the bias of the judge substituted for the constitution.  Rather, when  the text of the constitution isn't adequate to resolve a case, a judge then uses other long standing practices to resolve the conflicts and determine a decision that is consistent with the constitution.   Living constitutionalists at least acknowledges that it breathes new life into the constitution in order to deal with situations that weren’t and couldn’t have been anticipated 200 years ago when the constitution was written.


 Scalia’s faction, on the other hand, makes a pretense that it is adhering to the real original meaning of the constitution.   I’m left with the conclusion that this originalist claim to some sort of constitutional authenticity is hollow.

The rest of this post explains why I believe that. I’m not claiming to be a constitutional scholar or to have read all the articles on this, but I’ve read enough that I’m seeing the same arguments repeated, or I’m seeing very esoteric stuff, that may have some relevance to finer points, but doesn't seem to shed light on the basic conflicts.

Looking At Originalism

There's no way I can go into all the intricacies in a relatively short blog post.  You can read a bit more here  for a fairly light overview (with an unfortunate don't-worry-about-it, all's-well-that-ends-well conclusion).  Originalism is a variation of what used to be called 'strict interpretation' theory which argued that one must read the law strictly and follow what it says.  My administrative law book in the 1970s dismissed this view of the law as hopelessly unusable because

• there were often conflicting laws and you had to have a rationale for picking one over the other; 
• the law may be unclear or insufficiently detailed for a particular situation
• situations arise which the law didn't not anticipate.  Not only would this include absurd outcomes, but also situations resulting from new technologies not anticipated when the law was written.

Even Scalia removed himself from this extreme position (from Wikipedia):

"Antonin Scalia, the justice most identified with the term, once wrote: "I am not a strict constructionist, and no one ought to be", calling the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute". Scalia summarized his textualist approach as follows: 'A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.'"

And who judges reasonable here?

To get more details on originalism and reasonableness, you can see the Wikipedia overview.  It's not the final word (nothing really is) but it gives us a sense of the concept.  And as you read it, you'll see that originalists aren't all of one mind.  For instance

The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists. The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.

Understanding the mindset of a reasonable person of the late 1780s in the newly independent, but not yet united, colonies is a tricky feat.  Imagining what people thought and understood over 200 years ago is no easier than understanding the people who live in a foreign country today.  That doesn't stop people with little or no knowledge of, say, Afghanistan expounding on what the US should do there anymore than it stops jurists with perhaps a better reading of the 1780's, but no real deep understanding of the mindset of the time.

Furthermore, then, like now, reasonable persons had different beliefs.  (Imagine someone two hundred years hence choosing the reasonable person who would represent today's United States.)  Those who mattered back then were basically white, male, Protestant, landowners. (One delegate from Maryland was Catholic.)  From their view, women rightly needed their husbands'  approval to make most important decisions.  Indians were savages.  Blacks were a lesser form of human, whom their new constitution allowed to be owned by white slaveowners.   Is that really the view that Supreme Court justices today should use to interpret the constitution?

When I wrote that, I was aware that I was extrapolating from some brief overviews and knew that I hadn't read any of the scholarly articles on the subject.  Others might well have addressed my concerns.  So I googled  "definition of reasonable person for originalists."

I found this 2014 BYU Journal of Public Law article by Stephen M. Feldman which shows my thoughts are pretty close to the mark (at least his mark), though the author finds lots more that suggests that those reasonable persons back then would have used far more than the constitution and a 'the reasonable man' to make a decision.

Early judicial opinions and legal treatises reveal an eclectic or pluralist approach to constitutional interpretation; no single interpretive method dominated. Early judges and scholars invoked not only reason, but also the text, constitutional structure, framers’ intentions, original public meaning, and so on. Yet, no judge or scholar maintained that constitutional meaning should be ascertained pursuant to a reasonable-man standard."

And Feldman's comments about the difficulty of understanding the context of the time are similar to what I wrote above:

"The contexts and the contingencies engender, for a historian, the sub-texts, the layers of underlying meaning. But originalists disregard context, contingency, and subtext. Originalists, that is, use history without a “historicist sensibility” or historical understanding. (p. 299)
They want to find a fixed objective meaning when a historical text, such as the Constitution—especially, the Constitution, which forged a nation in a political crucible—is roiling with subtexts." 

And his comments about which reasonable person one would choose are also similar to what I wrote above:

"How did people relate to and interact with others? With family members? With strangers? How did people work? Were they subsistence farmers or involved in commercial transactions? How were they educated? Were they literate? How important were religious beliefs? How about gender and race? Should the researcher limit the investigation to white Protestant propertied males because they were the primary voters? With so many variables—and there are many others—the assiduous researcher would probably conclude that founding-era people were too diverse to be reduced into a hypothetical reasonable person."   (p. 302)]

But if we are going to choose a reasonable man of the period, who better to use than Thomas Jefferson?  Reading critiques of 'originalism' I came across comments he made that are directly relevant here and are called "the Jefferson problem" with originalism.  This is from Society for US Intellectual History (S-USIH):

"In September 1789 Thomas Jefferson wrote to James Madison from Paris that “the question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water.” In making his own answer, Jefferson famously declared that “the earth belongs in usufruct to the living,” that “by the law of nature, one generation is to another as one independant nation to another,” and furthermore that “no society can make a perpetual constitution, or even a perpetual law… Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.'”

Feldman's whole article tends to show much of the originalist 'theory' to be superficial and non-factual.  And he quotes others who see the whole idea of originalist theory as a fiction that allowed for a wide leeway of interpretation.

"In the words of the legal historian Saul Cornell, reasonable-person originalism turns “constitutional interpretation into an act of historical ventriloquism.”   The reasonable person is a dummy who speaks words uttered by the originalist scholar or judge."

[Feb. 25, 1:30pm AKTime:  I did some edits here to remove some accidental repetition.]

Conclusions 

The variations of living constitutionalists don't nail any specific one best way to interpret the constitution.  But they do assume that the framers intended the constitution to be a living document to be interpreted in the context of the times. Surely the fact that the framers created a process to amend the constitution suggests they saw the need for changes as times changed.  Any concept, of course, can be misused by the person applying it.

But it seems that originalism has more built in contradictions than living constitutionalism, which acknowledges that it must fill in where the constitution leaves off.  It's very difficult, for example,  to figure out how, theoretically, an originalist deals with, say, both the document ratified in 1788 which considered slaves as 2/3 of a man for purposes of determining population and gave them no rights, and with the 14th Amendment adopted in 1868.   When they consider the reasonable man of 1788, do they simply cut out that part of his mind that allowed for slaves in 1788 and leave the rest intact?

Is my title metaphor too strong?  Perhaps.  Intelligent design is a religious take on life on earth as opposed to the science of evolution.  Originalism isn't that removed from living constitutionalism.  But the metaphor works, when we think about originalism as a warmed over version of strict constructionism with better public relations as a way to push a philosophy that conservatives believe will work better for them.  The fiction parts include that it  a) is more true to the constitution and b) doesn't allow for bias to color decisions.



I've been writing, reading, cutting, and pasting, more reading, talking to folks, and I realize this post could go on forever.   As much as I'd like this to be a complete overview with a neatly proven conclusion, this is not a law review, and most of my readers will never get as far as this sentence.   And there is much I haven't read where some of what I say is already said, or corrected.  Think of this more as working notes.  I hope readers who see problems point them out and their sources.

There's lots more to cover in this topic.  I'm going to cut and paste the left overs and if time allows and the spirit is willing, I'll go further in future posts.  I'd like to look at living constitutionalism in more detail and criticisms of it.  I'd also like to look at some cases where Scalia reveals that despite originalism, he himself seems to be susceptible to substituting his bias for the constitution, such as Bush v. Gore.  And I'd also like to pursue a bigger question:  how does an individual decide which constitutional philosophy is best?  Is there some objective 'best?'  Or are there simply different approaches and there is no foolproof way to pick one? That all contain their own strengths and weaknesses?  And, is originalism a sincere effort to better interpret the constitution or was it designed as a cover to move American legal decisions to the right?  And I realize that it needn't be an either/or question.  It could be both.

Alaska Airlines Mediterranean Tapas Is All Packaged Processed Food In A Box

We fly Alaska Airlines a lot.
For the most part I'm pleased with Alaska.
They're updating all their planes to have outlets at every seat and most flights we take along the west coast are the updated ones.
And their 20 minute baggage guarantee means you almost always get your luggage in 20, maybe 30, minutes after the plane gets to the gate and opens the door.  I remember waiting 45 minutes or more for luggage, so this is a good deal.

But we flew east yesterday from Seattle.  An old plane.
The crew was still good.
And I'd seen Mediterranean Tapas on the menu on the last flight.  Sounded good.  A vegie option.





Oh dear.

Tapas.  My image is lots of little plates with delicious plates of Mediterranean dishes.

Alaska Airlines' image is a brown cardboard box.

Jusr as bad was when we opened it.

Instead of an array of fresh items, we saw a bunch of sealed bags - dried apricots, olives, salty chips, hummus, and a chocolate.

OK, what did I expect for $6?

But to call this 'tapas' bordered on presidential candidate truth.

The box was to tapas, as a tanning machine is to the beach.

Fortunately, when we got to Chicago, L took us to The Grape Leaf, a tiny neighborhood restaurant, that had real Mediterranean food.  Here's a shot of my granddaughter's lentil soup.  (Yes, she and her mom came with us to visit friends and lots of relatives who we want to reconnect with after my mom's passing last year. And one side benefit is that she and I got to walk in the swirling snow today, something Anchorage folks haven't been able to do much of this year.  Though nothing looks like it's going to stick.)


When we got home after dinner and I finally got online for the first time yesterday, I had an email from Alaska Airlines addressed to my granddaughter.

They do have on their records that she's only 3 years old.  But it gave me an opportunity to let them know how I felt about Mediterranean tapas.  And last time I filled out one of their surveys they sent me a $50 discount on my next flight.  As I said up front, as airlines go these days, Alaska isn't bad at all.  But the tapas meal was really disappointing.


[I'm reposting because Feedburner isn't picking the original up.  Meanwhile, snow is sticking on most surfaces except the streets.]

Milk Bottle And Hide And Seek

So, look at this picture.

Why this image?


There's a long post at madehow giving the history of the milk carton that begins like this:

"Up until recent times, milk was not usually available as a retail item. Once milk is removed from the cow, it spoils quickly in heat, and is vulnerable to contamination. Until this century, the most economical and hygienic way to store milk was to leave it in the animal. In Europe, a town cow keeper would bring his or her cow directly to the doorstep of the customer, and milk the animal there into a household container. In some places, milk was sold from a shop next door to the cow stall. In either case, the milk could not be safely stored for anything but a small amount of time. A large metal milk container was developed in Europe between 1860 and 1870. Called a churn, the lidded metal container could hold about 21.12 gal (801) of milk."

In reading about the relative benefits of plastic jugs, cardboard cartons, and glass bottles, I found out:

• Plastic cartons are recyclable, but only 29% are recycled, the rest pollute the landfill for hundreds of years.  But it's the lightest weight, so transportation is cheaper.
• Cardboard cartons come from renewable trees.  Not much heavier than plastic.
• Glass comes from sand  a non-renewable  (but plentiful) resource (and it said that sand is one of the major exports of North Korea). Very heavy!
• "extraction of raw materials and manufacturing consume, by far, the most energy in the life of a milk container. So choices that can be reused or recycled are preferable. A 1997 EPA study bears this out, as refillable glass was found to use about half as much energy during its life cycle than either plastic or gable-top cartons. "
• ultraviolet light, which can penetrate clear glass bottles (PDF) and HDPE (PDF), degrades vitamins A and D and riboflavin. That's no small matter, considering between one-third and one-half of American adults are vitamin D deficient."

My guess is that people think milk is better out of glass bottles, or at least their marketing survey said that, and so they put a picture of a glass bottle on the cardboard container.  I think it's bizarre.



Hide And Seek

My granddaughter wanted to play hide and seek yesterday.  She hasn't quite comprehended the concepts, because when she plays, she tells me where I should hide.  And she still has a great time finding me.

Is "Kurd" More Than Just A Word In The News For You? Who Are They?

We'd just gotten back from a Bainbridge library Great Decisions presentation by Dr. Reşat Kasaba, Director of the Henry M. Jackson School of International Studies at the University of Washington Future of Kurdistan,  when I saw this piece in the Morning Briefings section of the Saturday ADN online. (Here's the longer original AP story.) From the ADN:

TURKEY Kurdish group claims responsibility for Ankara attack ANKARA — 

"A Kurdish militant group on Friday claimed responsibility for a suicide car bomb attack in the Turkish capital Ankara which killed 28 people. In a statement posted on its website, the Kurdistan Freedom Falcons said it carried out the attack to avenge Turkish military operations against Kurdish rebels in southeast Turkey. The Turkey-based group is considered an offshoot of the Kurdistan Workers’ Party, or PKK, and has carried out several violent attacks in the past. Turkey had blamed a U.S.-backed Syrian Kurdish militia group for the attack, saying they had acted in collaboration with the PKK."

[If you're looking at the picture and wondering about the Bainbridge Island library - well, the talk was held at the Bethany Lutheran Church which has more space than the library.]


Violence by Kurds in Turkey was not addressed, but here are some points Dr. Kasaba made:

• Kurds are the indigenous people who have been in the Middle East longer than anyone else there today, including Arabs.
• They've never had their own autonomous state.
• They are tribal - which he said means family based - and so there are many tribal divisions
• They have a major presence in Turkey, Syria, and Iraq, and a smaller but more integrated presence in Iran.
• The Kurdish area of northern Iraq is relatively autonomous and doing ok.  The Syrian group, with military support from the US to fight ISIS is relatively ok.
• The Turkish Kurds are having trouble because of the 15 year Islamic government in Turkey.  He pointed out that any government in control that long becomes more autocratic and corrupt.
• Cities with the biggest number of Kurds include Istanbul and Berlin.
• Helping the Turks to treat the Kurds better - recognizing their ethnic and linguistic identity and better integrating them into Turkish society - would go a long way to improving the region.
• The nuclear treaty with Iran isn't a solution, but it gives the US a ten year breather in relations with Iran
• Kurds tend to be more egalitarian and women have much more power than is generally the case in the countries they live
• The 2003 Iraq war set back the US in the Middle East
• Trying to solve the Syrian conflict alone would take hundreds of thousands of US troops and lots of funding and with a person like Asad who is willing to destroy his country rather than lose power, even that would have no guarantees
• Russia is not a strong as people think.  Internally they are suffering due to the drop in oil prices and nationalistic ventures like the Ukraine and Syria are attempts to gain support for Putin

'Major Kurdish populations in the Middle East' from Encyclopedia of the Middle East

When you consider his thoughts, you might want to consider that Dr. Kasaba's undergraduate degree is from Turkey and his graduate degrees are from SUNY Binghamton.  So he has a native's understanding of Turkey and the region, but has been in the US long enough to have a good understanding of us as well.  His webpage at UW says:

"Over the last three decades, my research and publications on the Ottoman Empire, Middle East, and Turkey have covered economic history, state-society relations, migration, ethnicity and nationalism, modernity and urban history. Recently, I have started researching the role of education in the formation of modern Turkish identity in the twentieth century."

The Encyclopedia of the Middle East has more on Kurds and the map I'm using comes from their site because the photos I took of Kasaba's maps were awful.   It does say there are 26-36 million Kurds in the world, 10-15 million of whom live in Turkey.

To put that into context, this list of countries ordered from highest to lowest population, would put a country of 30 million at number 39, right after Uganda, in its list which includes 155 nations with a population of over 1 million people (plus more with fewer).

I'd note, it's Sunday and here's another story I saw in the Alaska Dispatch News from the (longer) Washington Post article, that highlights Kasaba's point that coming to terms with its Kurdish population is one of the key issues in the Middle East today.

"A rift with the United States, Turkey’s closest and most vital ally, over the status of the main Syrian Kurdish militia, the People’s Protection Units (YPG), has further exposed Turkey’s vulnerability. A demand by President Recep Tayyep Erdogan that Washington choose between NATO ally Turkey and the YPG, its main Syrian ally in the fight against the Islamic State, was rebuffed by the State Department this month, despite Turkish allegations that the YPG had carried out the bombing in Ankara. On Saturday, Turkey dug in, demanding unconditional support from the United States. “The only thing we expect from our U.S. ally is to support Turkey with no ifs or buts,” Prime Minister Ahmet Davutoglu told journalists in Ankara."

McConnell"s Legislative Activism - Changing President's Term To Three Years

From the New Yorker:

WASHINGTON (The Borowitz Report)—In a television appearance on Sunday, the leading Senate Republican warned President Obama “in no uncertain terms” against doing anything in his remaining three hundred and forty days in office. “The President should be aware that, for all intents and purposes, his term in office is already over,” Mitch McConnell said on Fox News. “It’s not the time to start doing things when you have a mere eight thousand one hundred and sixty hours left.”

McConnell continues to astound me.  He's concerned, among many things, about the president nominating a successor to Scalia, a constitutional 'originalist.'  Let's look, Mitch, at what the constitution's Article II, Section 1, Clause 1 says about the president's term of office:

"The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows" [emphasis added].

Sounds like a little legislative activism to try to cut the president's term to three years.

But consider the source.  Here's McConnell back in December 2010:

"Our top political priority over the next two years should be to deny President Obama a second term."

His job the last five years has been to obstruct the operations of the United States of America.  This seems to be the key plank of the Republican Party's platform.

Well, even with two years to do it, McConnell couldn't deny Obama that second term, and now it seems his top priority is to deny President Obama the fourth year of that term.  The constitution be damned.

Babies are conceived and born in less than a year.  Ask any mother how long just nine months is.

Relax

I was going to explain this picture.  But why?  Just absorb its quiet, relaxing tones.

Driftwood

Yesterday we got in some beach time before it started raining again.  We did then go across to the Bainbridge Island Japanese Exclusion Memorial as the rain began.  I thought I'd posted about this memorial before but I can't find such a post.  It's very powerful, reminding us about the dangers and injustices of condemning whole groups of people.

From the beach walk, here are some images of the driftwood someone little walked across.

[This post and the last had  Feedburner problem again. So I'm reposting.]

Writing Honestly About The Death Of A Famous Person

Antonin Scalia has died.  When someone dies who has, in your view of the world, been a force that has made rich people richer, poor people poorer, and inflicted unnecessary suffering on many human beings, how does one respond? 

Edward Snowden retweeted a Glenn Greenwald article about how people should react when Margaret Thatcher died a couple of years ago - conservatives saying to be respectful of the family yet predicting things like,

"Former Tory MP Louise Mensch, with no apparent sense of irony, invoked precepts of propriety to announce: Pygmies of the left so predictably embarrassing yourselves, know this: not a one of your leaders will ever be globally mourned like her."

He points out that while the conservatives wanted liberals to be respectful and not criticize Thatcher immediately following her death, they didn't follow the same rules themselves.

"Tellingly, few people have trouble understanding the need for balanced commentary when the political leaders disliked by the west pass away. Here, for instance, was what the Guardian reported upon the death last month of Hugo Chavez:

 'To the millions who detested him as a thug and charlatan, it will be occasion to bid, vocally or discreetly, good riddance.'"

Greenwald also points out a political, and what I'd call a 'ways of knowing' reason, not to hold off on the problematic aspects of someone's life - it biases the public record and people's emotional record of the person who died.

"[T]hose who admire the deceased public figure (and their politics) aren't silent at all. They are aggressively exploiting the emotions generated by the person's death to create hagiography. Typifying these highly dubious claims about Thatcher was this (appropriately diplomatic) statement from President Obama: "The world has lost one of the great champions of freedom and liberty, and America has lost a true friend." Those gushing depictions can be quite consequential, as it was for the week-long tidal wave of unbroken reverence that was heaped on Ronald Reagan upon his death, an episode that to this day shapes how Americans view him and the political ideas he symbolized. Demanding that no criticisms be voiced to counter that hagiography is to enable false history and a propagandistic whitewashing of bad acts, distortions that become quickly ossified and then endure by virtue of no opposition and the powerful emotions created by death. When a political leader dies, it is irresponsible in the extreme to demand that only praise be permitted but not criticisms."

Hagiography is on my long list of favorite words and I'm always surprised at how few people know what it means.  Most people at least recognize that the Greek 'graph' has to do with writing (biography, autograph, telegraph) but not hagio which is holy.  Technically, hagiography is the writing of the lives of saints.  but it's also taken on the meaning that Wikipedia describes:

"the term hagiography is often used as a pejorative reference to biographies and histories whose authors are perceived to be uncritical or reverential to their subject."

But I think the problem is not all that difficult.  The key is to write a factual account of someone's life that includes both the positive and the negative.  Very few public figures are simplistically good or evil.  We have the charming fools and we have the arrogant, but effective figures, and many other variations of meshed characteristics.  

David G. Savage seems to have walked the tightrope in his overview of Scalia's life, highlighting the complexity of his subject.

Recognizing that he and Ruth Bader Ginsburg were close friends, gives me pause about my general sense of Scalia voiced above.  I think his basic ideology is wrong, but he was a bright man, so I need to think through this and check up a bit on both originalism and the decisions he supported.  I'm pretty sure I'm right, but he knew he was.  Maybe that's my advantage over him.

Gramping Cramping Blogging

My granddaughter and I made oatmeal.  We ate strawberries.   We did some juggling.  Lots of giggling. We even made a video and used the slow motion to see better how to throw and catch the juggling balls.  She's working on juggling one ball right now.  We Walked, ran, hopped, skipped, sashayed, and piggybacked to the paper store.  Where we met J.


I'm not allowed to post images of her (not a bad rule in the age of face recognition and massive data gathering and sharing).  If I did, you'd all melt and understand my affliction.    So, I have to find other ways to convey how much fun we have together.










It's really wonderful to have someone else who is willing to spend so much time looking at cracks in the sidewalk, feeling the bark on the trees,  and examining and touching and smelling the camellias.

I'd note there was one area with a bunch of camellias bushes, but only one bush was blooming.

She also pondered with me the flies that seemed to be taking advantage of the sunshine that broke up the days of Seattle area rains.

We could feel and hear the wind.  We couldn't actually see it, but we could see the branches and her curls moving in the wind.  And I only consciously considered  today the fact that we can feel with more of our body than we can hear or see or taste or smell.  And my sunshine first touched the edges of the camellia leaves with her fingers, but then tried it on her forehead, and it worked there too.  She's so lost in concentration, and then she giggles.

And we've been watching the daffodil buds for the last few days and I've been predicting they would open soon.  And here's the first one we saw.  We had to look and touch and smell.





Later, after I wrote a long overdue letter on one of the cards I bought, then put a photo on the cover, we walked down to the post office.  $1.20 to Japan. The clerk pulled out a beautiful swallowtail butterfly stamp - $.71.  I wondered out loud what you could do with a $.71 stamp and she said they had stamps of all sorts of amounts.  She added a $.39 stamp.  Then to the market next door because someone wanted some strawberries.  Then off to another nearby park where there was lots of time on the slides and swings and other interesting ways to climb and move.

Finally, she climbed back into the stroller, clipped herself into the safety harness, put on her gloves, and we started home.  She stayed awake about 3/4 of a mile.  Then just as we got almost home her neck muscles relaxed and her head nodded down.


You'd think I could gramp and blog.  But blogging requires time to think, time to write, time to reconsider.  Gramping requires paying attention to a little human, not to the computer screen.   She's pulled my fingers away from the keyboard and closed the laptop a few times and closed my book while I was reading so we could explore together.   And I know that before too long, she'll have lots of friends and other things to do, and she won't have time to spend all day with grandpa.

Fond Memories of Rep. Max Gruenberg

I was saddened to hear just now that Rep. Max Gruenberg died this morning.  He had invited me to come to Juneau after I retired to become a 'scholar in residence.'  His idea was to both get legislative advice from the scholar as well as hoping the scholar would write about what he saw.   He said at the time I could work out of his office - as a volunteer - and pursue whatever interested me.  He wanted to set up a program that would support a scholar in residence at the legislature to record what happens in the capitol in a more academic way.  I was caught up with other things for a couple of sessions but I finally accepted his offer for the 2010 session.

Max Gruenberg (r) with staffers and Anchorage Transportation Chief in 2010

By then I was an active blogger and asked that we set up some ground rules for my blogging from Juneau.  Max, who still dictated memos and letters, really didn't know what a blog was, but I showed him a couple of posts - including the one I did when he and I went to talk to Joyce Anderson in the ethics office - and he said that was fine.

Signs of trouble began right away when he was told I couldn't have an email account and they got worse when communications from Nancy Dahlstrom, chair of the rules committee, were telling Max that he couldn't have a volunteer staffer.  Max was getting legal opinions from the legislative legal office saying he could.  But while Max, an attorney, was arguing law, Dahlstrom was arguing power and eventually I was in a meeting in the Minority Chair's office where I got lots of apologies, but I wouldn't be able to be a volunteer staffer for Max.  By then I'd been learning a lot - mainly from people responding when I said I was a staffer for Max.  Things like, "He works his staff harder than anyone else" and "He's known as the Great Amender" because he's always making little fixes to bills.

The whole time in Juneau, Max was always extremely helpful.  He proved, over and over, that his mind was very sharp.  He was at the time, if I recall correctly, the person who had been in the legislature the longest, with a couple term break in service.  He remembered legislative history and how and why things were done.  Sometimes I'd be thinking, Max, leave it be, you're getting too nitpicky, and then it would become clear that he had a very good reason for making the points he was making.

He was a strong defender of justice, of the poor, of people of all backgrounds, of dogs and their owners, and he was a proud Navy veteran.  His invitation to come to Juneau gave me a session long window into the legislature that was stimulating and very enlightening.  While I was waiting to see how the conflict would resolve between Max and Nancy Dahlstrom, I had decided that I would stay in Juneau one way or the other - either as a staffer or as a blogger.   And as I left the meeting where I was told volunteering for Max wasn't going to happen,  Rep. Dahlstrom found me in the stairwell and  assured me that the decision had nothing to do with me personally and she was very supportive of my staying in Juneau to blog.   Nearly all my posts from mid January 2010 to mid April 2010 are about the legislature or Juneau.  Here are the ones tagged Alaska Legislature 2010.  I didn't quite fulfill Max's vision of an academic in residence, but my blog did give a close up view of things happening in Juneau, and a few posts did step back and look at things in a more academic way.

My condolences go out to Kayla Epstein - Max's wife - and the rest of his family.  His solid voice, backed by lots of legislative history and an excellent legal mind, will be sorely missed.