ANTONIN SCALIA: A JURISPRUDENCE OF FUNDAMENTALISM AND DISCORD

By Paul M. Lewis

Much of the praise so recently heaped upon now deceased Supreme Court Justice Antonin Scalia has come as something of a surprise to me. Even President Obama eulogized him as having “given extraordinary service to our nation.” I get it that people do not want to speak ill of the dead. That, at least, is the polite take we have all been taught, as if the mere fact of a person’s mortality ought to make us somehow more forgiving of who that individual was in life. But sometimes the truth will out, regardless of conventional views on etiquette and protocol, because what a person did and said while alive, and how that individual treated others, should mean something.

Scalia’s fundamentalism, his so-called originalism in the reading of the Constitution, has to appear at the top of the list in terms of what I see as his faults. This is especially so because it has the potential of influencing others to follow the same rigid and overly literal attempt to understand a given text, in the same way as Christian fundamentalists read a passage from the Bible. In its essence, this is exactly what Scalia did with his reading of the Constitution, adding that it must be understood and interpreted exactly as its framers understood and interpreted it. We were, in other words, somehow supposed to ferret out their “intent.” The obvious fallacy of this position is that it’s hard enough for us to understand what even those close to us are thinking, let alone someone whom we do not actually know but who is still a contemporary. How, therefore, are we ever to fathom the thoughts and feelings, indeed the intent, of people who lived hundreds of years earlier, those who led vastly different lives in terms of the historical moment and culture of the day, their comprehension of what was important in human life, as well as what shaped that world’s values, needs, interests, technology, to say nothing of its ill treatment of whole classes of people? This would have included, by the way, all women, indigenous peoples, most foreigners (except those from Great Britain), anyone whose religion was not protestant, in addition to people of different races, ethnicities, and it goes without saying, sexual identities. How an otherwise intelligent individual, such as Scalia clearly was, could ever have come up with such a theory, and use it as a guiding principle of interpretation in case after case, remains a mystery to me.

But let us suppose that—against all odds—Justice Scalia had actually been able to somehow enter into the heads of Jefferson and Madison and the others. Let’s accept the fact, at least for argument’s sake, that he could have known, really known, exactly what these men were thinking, what their intent was. Even then, should we accept that originalism is a good way to interpret the Constitution?

We ought to begin by remembering, first of all, that these individuals were all white men. And not just any white men. They were of the upper class, wealthy landowners, to the manor born, as their British ancestors might have said. They were mostly protestants, they came from the same class, the same cultural background, went to the same colleges (Harvard, Princeton, William and Mary), knew many of the same people, and of course many of them owned slaves.

I am in no way attempting to denigrate these men, but they were men of their time. That doesn’t mean they also didn’t do marvelous things. To the contrary, they formed a new country that came to be the envy of all those who loved free thought, and they created a representative democracy that has lasted, more or less intact, for well over two hundred years. As such, they were in many ways remarkable men, albeit not perfect ones. And as grand a document as the Constitution they created was, and is, it failed to resolve one major division among the people who created it, and among all who have lived under it ever since, namely, the terrible tension between centralized federal power and states rights. In simplified form perhaps, but in essence, this is what led to the Civil War only some 80 years after its enactment, and it continues to haunt us to this day.

The point I am attempting to make is that reasonable people might well think that the Constitution has to be an evolving document, one that ought to be continually construed, interpreted, and understood according to the lights of those who are living under it at any given time. It’s worth noting that even its resonant opening phrase, “We the people,” at the time would have referred only to free, white men. And it is clear that not even an Antonin Scalia would hold to that in today’s world.

It is also true that Justice Scalia did not act alone, that he had the support of the other conservatives on the bench. But most Court observers recognize him as perhaps the leader of this faction; and certainly he often acted as its mouthpiece. Employing his strictly orthodox fundamentalism, his reactionary approach to interpreting the Constitution, Scalia did much harm to the living, breathing people of this country. Perhaps first and foremost among such decisions was the disgraceful overreach of Bush v. Gore, which landed us with an almost equally reactionary president for the next 8 years. In addition to that can be added the gutting of the Voting Rights Act, the overturn of McCain-Feingold and other campaign-finance rules, the infamous Citizens United, which miraculously turned corporations into people, and Scalia’s leadership in blocking much of Pres. Obama’s climate-change regulations. In the course of doing all this, he claimed that he attacked ideas, not people, but that is hardly how his scathing and vituperative dessents often came off. He seemed to reserve a special degree of toxic, hate-filled language for gay people, in fact. He spoke, for example, of the so-called gay agenda, which according to him was “promoted by homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Opprobrium, for those who may not know—but a thing which Scalia, with his Catholic education, probably knew well—has its etymology in the Latin word opprobrium, unchanged in form, and meaning scandal, dishonor, or reproach. It refers to harsh criticism meant to bring about censure and public disgrace. In this same heinous rant, he went on to say: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a life style that they believe to be immoral and destructive.” Does this sound like attacking an idea, or is more of an all-out frontal assault on a whole class of people?

Antonin Scalia may have had a flair for the dramatic in his writing. And many have noted his geniality among colleagues, including his friendship with liberal Justice Ruth Bader Ginsburg. But an ability to turn a phrase, or crack a joke, or even to befriend someone whom he disagreed with politically, philosophically, and legally do not in my view make up for the tremendous harm this man has caused to so many. We can only hope that President Obama will nominate a fairer and more even-minded replacement to him on the Supreme Court, and that somehow the Republican-controlled Senate will give that individual an open and honest hearing. Granted that, given the intransigence and obstructionism in evidence in Congress these days, it may be only a fool’s hope; but even so, it’s worth a try.

If not, it is clear that we will be at the mercy of the next president, whoever he or she may be, in conjunction with, or opposition to, the Congress. And given the current depth of division and discord evidenced in the country, a rift reflected so glaringly, so alarmingly in the discordant and uncompromising jurisprudence of this Supreme Court justice, we can only hope against hope that we will be better served by a new appointee than ever we were by Antonin Scalia.

 

“RED,” A PLAY ABOUT MARK ROTHKO BY JOHN LOGAN

By Paul M. Lewis

When the curtain goes up on John Logan’s play “Red,” we see Abstract Expressionist artist, Mark Rothko, sitting in a chair in his studio, smoking a cigarette. He is facing the audience, staring at something in front of him. We come to realize soon enough that this is one of his paintings (another is actually visible to the audience directly behind him). For anyone not familiar with Rothko’s later paintings—and the play mainly deals with these works of the 1950’s—they are iconically large canvasses consisting of juxtaposed floating colored rectangles on a darker background. Those referenced in this play are exclusively red and black.

Rothko’s newly hired young assistant, Ken, enters and stands behind him, ignored by the painter. After a few moments, we realize that Rothko does know Ken is there. Without even a glance in his direction, the painter asks him: “What do you see?” Ken, who is clearly in awe of the great man, much his senior both in years and in experience, replies innocently enough: “Red.” And the play is off and running.

The production my partner and I went to see recently took place at South Coast Repertory in Costa Mesa, CA, although we had already seen another version at the Mark Taper Forum in Los Angeles a few years ago. Both productions were very well done, with the actors in each playing off their individual strengths and idiosyncrasies—greater forcefulness or anger in one portrayal of Rothko, more subtlety and intellectuality in another; youthful energy and verve in the part of Ken in one iteration, while more of an emphasis on innocence, morphing into maturation, in the other.

There is much discussion of the concept of red in this drama. Logan portrays Rothko as challenging his new helper to understand more deeply what is meant by the color, both in terms of its physical manifestations, as well as its psychological implications. Is there even any such a thing as red—simple red? Or is it, as Rothko points out, better thought of as: “plum-mulberry-magenta-burgundy-salmon-carmine-carnelian-coral?” I suppose he could have added crimson, lobster, ruby, cherry, vermilion, cardinal, cuprite, and so on, as well. The point being that, to an artist, the über-category of red is of little use as an honest, visual description of the almost endless possibilities of physical reality.

Rothko and Ken then go back and forth in naming other categories of red that relate more directly to the feelings and emotions that the color can represent: passion, wine, lipstick, apples, rust on the bike on the lawn, an albino’s eyes, atomic flash, the Russian flag, the Chinese flag, the Nazi flag, red light district, red tape, rouge, viscera, flame, Santa Claus, blood, slash your wrists, and on and on. Slowly, Ken—to an extent our stand-in as audience members—begins to get the feeling of what Rothko means when he paints with “red.”

But there is also black. Big blocks of color that are again not merely of one hue, but are composed of browns and umbers, endless underpinnings of multifarious earth tones. We see coal and we see night; we see darkness and the symbolism of race, prejudice, bigotry and bias; the absence of light, the Stygian world, mourning, and of course death itself. But we also see the Cosmos, filled with light and only seemingly black because it reflects off of nothing, or nothing that registers with us at least.

And what happens when red and black are juxtaposed? There is an immediate play of one off the other, such that our eyes see what both is and what is not there. Logan has Rothko expound on the concept: “Look at the tension between the blocks of color: the dark and the light, the red and the black and the brown. They exist in a state of flux—of movement. They abut each other on the actual canvas, so too do they abut each other in your eye. They ebb and flow and shift, gently pulsating. The more you look at them the more they move…They float in space, they breathe..Movement, communication, gesture, flux, interaction; let them work…They’re not dead because they’re not static. They move through space if you let them, this movement takes time, so they’re temporal. They require time.”

Of course time is needed. Because we are talking about physical manifestation, about the world as it appears to us, as we live in it in our bodies, and this cannot be experienced except temporally. It’s there for now, but gone in another moment. We are here for a second, and then disappear again into the endlessness of Cosmic energy, only to come together once more in some other form. Matter cannot be created; neither can it be destroyed. It simply is, and can be perceived only by those whose very form has been cobbled together by its own seemingly random interaction. The subject matter of the play has to do with the nature of art. But if art is both a reflection and an enhancement of nature, a highly idiosyncratic while at the same time universalized vision thereof, then it is in that sense also a play more generally about the full panoply of the human experience.

Rothko, the man, was not without his flaws. He was arrogant, bombastic, argumentative, contentious, prideful, jealous, domineering, and conceited. He was so full of himself and lived so hermetically, so much in his own head, that he eschewed nature as being too messy. But he was also highly sensitive, energetic, insightful, intellectual, emotional, fearful, depressed, and of course ultra-talented. Given all this, the play may not be for everyone. If you don’t like long discourses on art, or contentious dialogue between master and apprentice, or Abstract Expressionism for that matter, this may not be what you might choose to spend your hard earned money on.

But if you are interested in exploring what art is, that elusive, fragile, delicate, phantasmagorical mix of the real world—whether it be paint, or canvas, or light, or clay, or physical movement, or words, or sound, or whatever the medium—and something else, some ultimately indefinable ethos of the human spirit, something pointing beyond humanity to another level altogether even more subtle, exquisite, elegant, refined, eternal, spiritual, if you will, then “Red” was written for you.

Also thrown front and center into the mix are questions of Rothko’s politics. We are reminded in the play of his social-revolutionary youth. His anti-establishment leanings did not sit well with gallery owners, museum curators, or even some of the rich who ultimately bought his paintings. One of the major turning points in the play, in fact, has to do with his struggle over the commission he received to paint murals for the famous—and famously rich and exclusive—Four Seasons Restaurant located in the new Seagram Building in New York City, for which he was paid handsomely (more, we are told, than any other commission in the history of modern art). In that sense, we are back once again with the conflict between light and dark, between artistic integrity and commercialism, idealism and money; we might even say, between red and black.

The family of Marcus Yokovlevitch Rothkowitz (his original name) moved to Portland, Oregon in 1913, when Rothko was only 10 years old, having fled the Cossacks and the pogroms of the old Russian Empire. Logan has him describe the neighborhood as a ghetto, filled with “thinky, talky Jews.” He was, of course, also himself in life both “thinky” and “talky.” He understood what it was to be the outsider, and he knew fear, tension, and the everlasting interplay of the opposites. Logan portrays how Rothko saw that movement was essential to growth, that the son succeeds the father, the apprentice takes over from the master, and that one art movement must kill off its predecessor (as much as he hated it, and railed against it, when Pop Art came to displace Abstract Expressionism).

Rothko will be remembered as a master of this tension, of strain and stress and the push-and-pull that so utterly enthralled and mystified him. I will not reveal how the play ends, except to say that it does so with an answer to a question. Although my own preference might have been to allow that question to hang in the air, unanswered, for us all to contemplate.

Rothko is famous for having said: “If you are moved by color relationships, you are missing the point. I am expressing the big emotions—tragedy, ecstasy, doom.” Who can fully plumb such questions? Can art, or even a great artist like Mark Rothko, ever reveal to us what is, in the end, indefinable, unfathomable, and ultimately unanswerable?