Revisiting Originalism

 As I listen to the Supreme Court nomination hearings, it seems like this is a good time to revisit a previous post on originalism that I wrote after Justice Scalia's death.  From February 16, 2016.  This was the Supreme Court opening the Republicans, led by Senator McConnell, argued should not be filled during a Presidential election year.  An argument that we now clearly see was simply rhetoric to justify not filling the seat, not an argument made based on principle.  We know that since they are ignoring that now, adding more rhetoric to justify their 180˚ switch, adding the footnote about a president and senate of the same party.  Even though millions of people have already voted in the current presidential election.  Below is the previous post.

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 to allow 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 fictional account of constitutional authenticity that allowed for a wide leeway of interpretation.

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. 

Here's a follow up post on this:  https://whatdoino-steve.blogspot.com/2017/03/as-neil-gorsuch-takes-center-stage-what.html

Biden Appears Ahead In Mail-In Ballots. When Do The States Count Them?

 I've been getting the sense that Biden voters are going to vote early, for several reasons:

• They want to make sure their vote counts
• Questions about mail delivery time
• They don't want to wait in long lines on election day, perhaps get turned away
• They don't want to be exposed to COVID-19

Trump voters, on the other hand, are more likely to vote in person on election day:

• Trump's been telling them mail-in ballots won't be counted
• They want to be sure their votes get in
• They aren't worried about COVID-19

And now I come across this Tweet with a poll that confirms this:

Enormous voting mode gap in new ABC/WaPo poll:

Early in-person/mail (58%): Biden 70%-26%
Election Day (40%): Trump 64%-32%

— Dave Wasserman (@Redistrict) October 11, 2020

Here's more information from USA Today (Oct 6, 2020)

"More than 5.6 million people have voted early in the presidential election, vastly exceeding the pace of 2016 as Democrats amass a commanding lead in returned mail ballots."

In Florida – where Republicans historically have a strong advantage in absentee voting – 497,000 Democrats have returned mail ballots, compared with 270,000 Republicans. In North Carolina, 206,000 Democrats have returned mail ballots, more than triple the 68,000 Republicans who have. Thirty-five percent of North Carolina Democrats who requested mail ballots have returned them, compared with 29% of Republicans. 

Even in ultra-conservative South Dakota, where Trump won the 2016 election by 30 percentage points, Democrats have returned nearly as many mail ballots (26,900), as Republicans (29,699). Fifty-seven percent of Democrats who requested mail ballots have returned them, a greater share than the 45% of Republicans."

A Republican analyst is quoted saying that the problem for Democrats is that more mail-in ballots get invalidated then in-person ballots.  It's true, you do have to read the instructions, put the ballot in the right envelopes, and sign the envelope, and often you need a witness signature.  And voting officials have a lot of leeway in rejecting signatures that don't match what's on record.  

How Will People React On Election Night?

When I started this post, I thought that there were states that would wait until after the election to count the mail-in votes.  And that this would lead to Trump taking an early lead and Biden votes coming in the next day or more.  

That would lead to Trump claiming victory and Trump supporters believing they got robbed when the numbers change in the following day or three.  

But before posting, I checked when mail-in/absentee votes get counted in various states.

I was wrong.  Mail-in votes get counted in all but one state on election day, starting early in the morning in some states, or after polls close in other states. 

Then there's 13 states where ballots can either be tallied starting before the election or set up to be counted, but not actually counted.  In all states, no tallies may be released before the closing of the polls on election night.  Here are the states that may start counting before election day: (All this information comes from the National Conference of State Legislatures.)

Before - no specific time

• Connecticut - "At the discretion of the local registrar of voters."
• Kansas - 'Prior'
• Ohio - Scanned before, but not disclosed
• Oklahoma - "Prior' with approval of Secretary of State.  
• "When counting occurs before the election, the county election board shall remove the election results storage media from the voting device, without obtaining a printout of results, and seal ballots counted that day in a transfer case secured by the sheriff until the time the board next meets to count. Results cannot be reported earlier than 7 p.m. on Election Day."
• Utah - 'Before'
• Virginia - 'Before'

Before - with a specific earliest date

• Florida - 22 days before
• Colorado - 15 days before
• Arizona - 14 days before
• North Carolina - two weeks before 
• Oregon - 7 days before
• Montana - 1 day before
• Nebraska - 24 hours before

On Election Day

The times range from 7am on election day until after polls close.

This includes all the other states EXCEPT Kentucky which says:

"Counting begins after all absentee ballots have been processed."

The Kentucky absentee voting pages says:  

"Mail ballots must be postmarked by Election Day, Nov. 3, and received by Nov. 6."

Since they can't can't count mail-in ballots until they are all processed, and they can't process them all until they are all in,  this would mean, following the rules of logic,  they can't count them until November 6 at the earliest.   

So, only Kentucky appears to have a system which could result in the bleaker scenario I'd originally feared - where Trump votes would pile up on election night, possibly leading Trump to declare victory before most votes were actually counted.  And since Kentucky is a red state, it isn't one that the rest of us will have to wait for to know the results of the presidential election.  If Kentucky goes blue, then most other states will have gone blue already.  Though McConnell's seat, if we are lucky, might take a while to be determined.  

So it looks like my initial concerns about early tallies giving Trump a big lead are unfounded.  States (except Kentucky) will be able to count mail-in ballots by election day.  In some cases starting early in the morning.  A quarter of the states will be able to count (but not disclose the results) prior to election day.  And with so many mail-in votes already arriving at election offices, it would appear there won't be a huge last minute deluge of absentee ballots.  

I just dropped off our ballots at the drop off box in front of the election office.

You Believe Climate Change Is Real, But Feel Fighting It Is Overwhelming - Well, This Is For You

 I bumped into CCL (Citizens Climate Change) about 10 years ago.  Someone at a table at an event.  He invited me to a monthly meeting.  I didn't realize we would be calling into a national meeting with an incredible guest speaker.  I was hooked.  

Since then I've participated in over 100 such meetings.  The technology has evolved from speaker phone to live video.  CCL has gone from 40-some US chapters to 476 and 602 international chapters since that first meeting.

Today's meeting featured Alex Posner, organizer of S4CD (Students for Carbon Dividend).  Alex first talks about the organization and who's involved - student body presidents from across the US, spanning the racial, gender, and ideological spectrums.  All supporting legislation to set up a carbon fee and dividend program as a major step to reducing carbon in the atmosphere.  It's the key focus of CCL as well.  

They're so well organized that the video of the meeting has been up a couple of hours already and so I've embedded it below.

The first 3:53 minutes of the video is CCL Executive Director Mark Reynolds introducing today's meeting and Alex Posner.

Then Alex talks about the S4CD and gives a great list of 10 Strategies and Techniques for organizing. Finally, a few questions.  This ends about 27 minutes in. Then Alex performs a magic trick with lots of relevant symbolism.  Then there is ten more minutes of meeting.  

After that the Alaska Chapter met in a different zoom call, with special guest Robin Ronen talking about environmental justice issues - particularly the climate change forced move of the village of Newtok.  

I do encourage you to watch/listen to the video.  Take your mind off of COVID and the elections and see that people are continuing their efforts, through all this, to fight climate change.  It could give you hope.  It's the most efficient and effective and decent organization I've ever encountered.  

If you want to see if there is a CCL chapter near you (there is) you can see the list of US and International chapters here.  I promise you that not only will you be able to help slow down climate change, but you'll meet some really interesting and warm folks.  (There are four chapters in Kentucky, nine in Iowa, over 20 in Ontario, CA, nine in Nigeria.)

My Alaska Mail In Ballot Has Seven Candidates For US President

 We got our mail in ballots the other day and when I opened mine I was surprised to see so many presidential candidates on the ballot.  

Ballotpedia lists six of these candidates.  James Janos, it turns out, was nominated by the Alaska Green Party.  Ballotopedia lists another Green Party candidate - someone nominated by the national Green Party.  

But since none of these candidates was invited to the presidential debates, I'll give Alaskans a bit of background on the lesser known candidates with links to more information.  

Roque De La Fuente

"De La Fuente was a 2018 Republican candidate who sought election to the U.S. Senate from California, Delaware, Florida, Hawaii, Minnesota, Rhode Island, Vermont, Washington, and Wyoming.[2][3][4] He was defeated in those states' primary elections. The United States Constitution does not establish specific residency requirements for United States senators, stipulating only that a senator must be an "inhabitant of the state for which he shall be chosen." Residency requirements vary by state."

James G. “Jesse Ventura” Janos

"James G. “Jesse Ventura” Janos – United States President – Green Party Nominee

Other:

Jesse Ventura is a former professional wrestler, actor, political commentator, bestselling author, naval veteran, television host, and politician who served as the 38th governor of Minnesota from 1999 to 2003."

Jo Jorgensen

"Jo Jorgensen is the 2020 Libertarian Party presidential nominee. She was nominated at the Libertarian National Convention on May 23, 2020, becoming the first woman to lead the party's presidential ticket.[2][3] Her running mate is entrepeneur and podcaster Jeremy "Spike" Cohen.

Jorgensen framed her campaign as an alternative to Democratic and Republican policies she said created trillion-dollar deficits and led to involvement in expensive and deadly foreign wars. "Big government mandates and programs created these problems. To solve them, we need to make government smaller – much, much smaller," her campaign website said.[4]"

Brock Pierce 

"Brock Pierce is an independent candidate for president of the United States in 2020.

Pierce is an entrepreneur with experience in Blockchain technology and digital currency. He co-founded the cryptocurrency Tether. He also launched several philanthropic efforts, including the Brock Pierce Foundation and Integro Foundation.[1]"

 

Don Blankenship

"Don Blankenship – United States President – Alaska Constitution Nominee

Other:

Don Blankenship is a coal miner who rose to become CEO of Massey Energy Company. Blankenship said, 'I am running for President to let people know how dire the American situation is and what must be done to fix it. We cannot survive as a country if we do not stop the Republican and Democrat nonsense.'”

I have voted third party on occasion, knowing that my vote in Alaska would have no impact because I live in a red state.  But this year, it doesn't matter.  Every vote counts, even if it isn't reflected in the electoral college.  

The Guitar Center And New Sagaya - Two Very Different COVID-19 Strategies

First, we've taken COVID seriously.  Shopping has only been by online ordering with home delivery or (mostly)  curbside pickup.  Until we went to Denali in early September and had to go into the campground store to pickup our reservation, I hadn't been inside anywhere except our house and car since March. 

The Guitar Center Gets An A

So it was with great reluctance that I agreed to go the Guitar Center to pick up an electronic keyboard for my wife for her birthday.  It's something she's wanted since watching our granddaughter learning piano and  learning a bit with her.  The Guitar Center said they only allow five customers in at a time, one per section of the shop.  Masks were required.  I had tried to order it online and get curbside pickup - but they charged about $70 for that.  They had what I wanted in stock and if I came in to pick it up there was no charge.  

Lots of friends have been shopping with masks and they haven't contracted the virus.  I've been reading that wearing masks greatly reduces the spread.  It sounded like the conditions were ideal.  I parked in the lot.  There's a sign outside where people are to line up.  (No one was in line.)  The door was locked.  Someone let me in.  They had my stuff at the counter.  I paid.  Someone carried the keyboard out to the car.  It's a large store with lots of room.  One other customer came while I was there.  They unlocked the door and let him in.  

New Sagaya Gets an D-

On my wife's actual birthday, I was getting curbside pickup at Carr's.  But I hadn't ordered any kind of birthday cake and they said they couldn't add to the order.  So, given my good experience at the Guitar Center, I decided to go to New Sagaya and pick up something tasty at the bakery.  You just walk in.  The bakery was ok, the employees were masked, and he put on gloves to get the pastries and put them in a box.  Since I was already in the store, I figured I could pick up a few things we haven't had for a long time - like sushi, and a veggie wrap.  There were a lot of people in the store.  You could not pass through and maintain any kind of distance.  I only saw one customer without a mask covering his face.  

But then I got to the checkout.  There are four, but only two on one end were open.  They're close together.  At best, in my row (not the one on the end) I would be back to back with the cashier in the end row probably less than two feet separation.  But there was a second employee standing next to that other cashier talking to my cashier (casually, not about business) with her mask below her chin.  

I was surprised.  I would have to be less than a foot from her if I passed through.  I was next in line, but about three feet back.  I asked her to put on her mask.  She turned and faced the other way.  I quickly got my stuff and left.  

I called the store and asked to speak to the manager.  I told him my tale.  He said he knew who I was talking about and would take care of it.  

But it's more than the one employee.  They have four registers.  Only two were being used.  They really should only use every other checkout line.  They shouldn't have so many people in the store that you have to pass within a foot or two of other customers.  They should monitor the doors and limit how many people are in the store.  

And an employee who is that close to customers without a mask should be fired.  Sorry.  They have less control of customers and masks, but for employees, this should be unacceptable behavior.  

We did enjoy the pastries, one with a candle in it.  I don't know what it's like inside other stores, but that was my experience.  And I only went in because it was my wife's birthday.  

We have to decide if we're going inside for flu shots.  We went to the Alaska Regional Hospital drive through flu shot event last week.  We called first to see if they had the stronger version for seniors.  The lady said they did.  She also said it was really crowded (at 6pm - they opened at 5:30) and we should come closer to 8 (when they close).  We got there at 7:10 and the line wasn't too bad.  There were actually several lines.  But they had run out of forms to fill out.  When we got to people holding needles, they gave us a form.  We said we wanted the stronger version.  They didn't have any left.  If we took this one could we get a stronger one later?  No, you shouldn't get the other one if you get this one.  So we left.  

We'll try again this evening.  We'll go earlier.  If it doesn't work, we'll probably go to Walgreen.  Not something I want to do.  [UPDATED October 6, 2020 10pm:  There was a very long line when the drive thru flu shots opened up at Regional, but they had five open lines and things went much faster than I expected:  maybe 40 minutes.  Arm's not too sore either.]

But I did hit 600 kilometers on my bike this week, and that's only from when I got the odometer working, early June I think.  

Hope you're all staying well.  We're being a little extreme, waiting as doctors and researchers learn more about the habits of this virus.  And there's no guarantee that it won't mutate and learn different behaviors.  

So, There's This Virus. It Needs A Human Host. If It Can't Find One It Dies.

There's been lots written about how the virus spreads.  And as I started writing this post, I googled questions to make sure I was right.  But I couldn't figure out the questions that would lead to the kind of answers I was looking for. (Not ones that supported my beliefs, but ones that factual detailed how the virus spreads.)  Most of the posts about how the virus spreads are dated March or April of this year.  Others have no date whatsoever.   This was the closest I could find and is dated September 18.  It's from the CDC:

"The virus that causes COVID-19 is thought to spread mainly from person to person, mainly through respiratory droplets produced when an infected person coughs, sneezes, or talks. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Spread is more likely when people are in close contact with one another (within about 6 feet)."

 

The point I'm trying to make is this:

• Humans are the host for the COVID-19 virus.
• If the virus can't get to another host (another human) from the original host, the virus can't spread.
• People (whether they know they host the virus or not) can prevent the virus from spreading to another human by:
• Staying home alone until the virus is out of their system (until they are better, basically)
• If they must have contact with other people:
• Not broadcasting droplets or aerosol sprays containing the virus (by breathing, talking, coughing, singing, etc.)  on or near other human beings 
• People around them wear protective gear - masks minimally, and for first responders, other appropriate protective gear.
• The infected person wears a mask

If the virus can't find a new host, it dies.  If all infected people prevent the virus from finding another host, the pandemic will end.  It's that easy.  It might take a month or two for most of the viruses to die because of lack of a new host.  

Instead, fear about the economy caused many politicians to open places where spreading happens.  Many politicians refused to require masks. Or wear one themselves. The economy would take a hit if things were shut down for two months.  But then it could open.  Fear of the virus is keeping the economy down as much as, if not more, than government restrictions on businesses.

That doesn't mean, after we starve most of the viruses out there, everything will be perfect.  There will be people in whom the virus keeps thriving longer than normal.  There will be people traveling from other places carrying the virus.  But just wearing masks would radically slow down the spread of the virus.  

Instead the virus is finding millions of hosts.  Why?

• Lack of understanding these basics.
• Lack of concern for other people. ("I'm young, it won't hurt me if I get it.")
• Lack of self-discipline. (People who need to go to weddings or bars before this is over.)
• Underlying personal issues individual humans have that make them defy the obvious. ("Wearing a mask infringes on my freedom.")
• Mixed messages from science on one side and religious leaders and the Trump cult on the other side

That's all.  It's not that hard to understand.  

Shaggy Manes - Late September/Early October Gift From Nature

 On my bike ride Saturday, I noticed a patch of lawn where shaggy mane mushrooms had just pushed up out of the ground. 

Shaggy manes turn black when they're past their prime and become inky.  So I was concerned about all the black.  But it turned out to be dirt they'd pushed up as the erupted into the world from underground.  There were probably a couple of dozen in this area.  And it was public land so when I chose a few good ones, I wasn't poaching.  In the pictures above and below here, you can see why they are called shaggy.  

So I continued my bike ride and stopped back to get some mushrooms.  

Here they are, ready to be cleaned. 

Cut up.

And then cooking.  

With a little garlic and onion in butter (a rare treat in our house), they're delicious.  With the second batch I scrambled some eggs in with them.  

To me, these mushrooms are like a free gift from nature.  You just have to come across them at the right time, and they're yours to pick and enjoy.  

Los Angeles Times Mea Culpa

This is from a long confessional apology by the editorial board of the Los Angeles Times: 

"For at least its first 80 years, the Los Angeles Times was an institution deeply rooted in white supremacy and committed to promoting the interests of the city’s industrialists and landowners. No one embodied this aggressive, conservative ideology more than Harrison Gray Otis, the walrus-mustachioed Civil War veteran who controlled The Times from 1882 until his death in 1917. The modern notion that journalism’s core precepts include uncovering hard truths and exposing inequity would have been foreign to Otis and other press barons of the last Gilded Age. Far from a mission of “comforting the afflicted and afflicting the comfortable,” his newspaper stood for the raw exercise of power, and he used it to further a naked agenda of score settling, regional boosterism, economic aggrandizement and union busting.

Otis was a Lincoln Republican who had fought on the side of the Union and opposed slavery. But his Times was a newspaper aimed at the mostly Protestant white settlers who migrated to California from the Midwest and the Plains in the decades after it was seized from Mexico in 1848 and admitted to the Union in 1850."

Do you think the fact that the owner of the LA Times (he bought it two years ago) is a person of color has anything to do with this statement?  From the Guardian:

"Patrick Soon-Shiong has spent decades trying to cure cancer and made a biotech fortune in the process, making him one of California’s most successful, enigmatic billionaires.

Born in South Africa to Chinese parents, he rose from humble origins and ended up in Los Angeles where he has thrived as a surgeon, scientist and entrepreneur. “The richest doctor in the history of the world,” Forbes magazine declared in 2014."

The apology goes on to spell out examples of the paper's own institutional racism:

"It was not just that The Times saw fit to hire white men almost exclusively for its newsroom; the stories it told were largely for and about white people, which meant Angelenos weren’t getting an accurate account of their city, region and state at a time of rapid change.

Typical of the paper’s attitude was a 1978 interview in which Otis Chandler airily dismissed Black and Latino readers: “It’s not their kind of newspaper. It’s too big, it’s too stuffy. If you will, it’s too complicated.”

Chandler later stepped back from that, saying the paper was looking for readers in the “broad middle class” and “upper classes” regardless of race or ethnicity. “We are not a paper that’s sought after in the lower-class areas,” he said."

I would like to think this would have been written even if this hadn't been the year of BLM becoming mainstream.  But the apology itself acknowledges the influence of George Floyd's murder.  

The brutal death of a Black man, George Floyd, on May 25 while in the custody of police in Minneapolis shocked the world. It also prompted news organizations like The Times to reflect on how they cover, frame and promote stories at a time when the 24/7 news cycle moves faster than ever. Amid nationwide demonstrations over racial injustice, members of the Los Angeles Times Guild established caucuses for Black and Latino employees. The caucuses have called for improvements in coverage, hiring and career development, a public apology for The Times’ poor record on race, and equal pay. They have insisted, rightly, on reframing and recentering our coverage of communities of color.

 I hope it sets an example for other organizations to reflect on their pasts and redesign their futures.  And the future of the United States.  Here's what the Times pledges:

The Times will redouble and refocus its efforts to become an inclusive and inspiring voice of California — a sentinel that employs investigative and accountability reporting to help protect our fragile democracy and chronicles the stories of the Golden State, including stories that historically were neglected by the mainstream press. Being careful stewards of this new company, privately owned but operated for the benefit of the public, is our first obligation. But that stewardship will also require bold and decisive change. If we are to survive as a business, it will be by tapping into a digital, multicultural, multigenerational audience in a way The Times has never fully done.

 

Jerusalema - Take A Happy Break

The LA Times has a story today:

"Singer Zikode said she is thrilled to see so many people around the world dancing to the song.

“When I saw the president [Cyril Ramaphosa] announcing that everyone should celebrate today’s Heritage Day by dancing to ‘Jerusalema,’ I quickly jumped up, raised my hands and shouted!” Zikode said in Zulu.

“I was so happy,” she said. 'God has lifted me up because of the success of this song, and everyone is dancing to my voice.'” 

Just take a break and enjoy the music and enthusiasm.  Better yet, get up and join.  

Below is a video with the composer talking about how amazed he is that this song has taken off like this.  

Sorry about the ads on these, but when you get something going this viral, YouTube encourages you too monetize.  

Two Netflix Series - Borgen and Away - Feature Mothers In Critically Important Jobs. Plus Rached

I'll try to keep this short.  Trying to write on something a little lighter than the elections. Think of it as notes to readers about Netflix offerings they might want to watch or avoid.  

BORGEN and AWAY

The ten year old Danish series BORGEN features a woman propelled into the position of prime minister of Denmark.  The new Netflix series AWAY features a woman as the commander of a mission to Mars.  

Both have to deal with sexism in the job (though not all that much) along with the work demands that make  it hard to pay adequate attention to their children - each has a teenage daughter, the Danish prime minister also has a younger son.  

Birgitte Nyborg's constant task is keeping together a coalition of parties with different priorities.  Emma Green, Captain of the Atlas, has an astronaut from India, China (the other woman and mother), England/Ghana, and Russia to keep together.  But there's also her former astronaut husband who has a stroke after liftoff and anxious daughter back on earth to distract her.  

I was struck by how we were watching these two series at the same time and how each treated the difficulties of a married woman in a traditionally male position.   BORGEN flows quickly from crisis to crisis fairly organically while with AWAY the crises - both technical and interpersonal - seem more contrived, and like Indiana Jones, Emma always seems to narrowly escape disaster.   

BORGEN has three seasons and we're near the end of season two.  I thought in the trip to negotiate between the northern Islamic area and the Christian south of a fictional African country, Brigitta's preparation for such a difficult diplomatic trip seemed woefully inadequate.  We only saw the first part of this adventure and if the upcoming summit in Copenhagen falls apart, I won't be surprised.  But the show has a way of giving Brigitta lots of narrow victories.

I think BORGAN is well worth watching.  AWAY is certainly not must see tv, but not a total waste of time.  

RATCHED  

This Netflix series is like the most exquisite and decadent dessert in the bakery display case.  The colors are rich, the costumes and sets delicious, the actors arch,  and the camera makes love to it all.    It's noir in technicolor with the appropriate campy creepy music.  There's very little nutrition in this evil concoction. And there's lots of gratuitous gore.  But it's visually pretty spectacular.

It's the back story of Nurse Ratchet from One Flew Over the Cuckoo's Nest (which Netflix is also pushing right now.)  

That Cuckoo's Nest connection is probably what made me watch the first episode.  I read Cuckoo's Nest at the end of my Peace Corps time in Thailand and was possessed with the question "Who wrote this?  Why?  How did he know all this stuff?"  And soon after I was working at a Peace Corps training program in Hilo when a new trainee had the book Electric Kool-Aid Acid Test.  I read the blurb on the back that said it was about the author of Cuckoo's Nest.  It's not cool to use your position to get favors, but I was so obsessed I asked the trainee if I could borrow the book right then.  I consumed it that night and gave the book back the next day with my curiosity satisfied.  

RACHED really has nothing to do with Cuckoo's Nest.  It's just a gimmick to play off the name recognition of Nurse Rached to produce a highly stylized and visually beautiful, but empty, confection of a series.  It's a wicked distraction from today's COVID and Trump nightmare.