Why Marbury v Madison is a BFD!

John Marshall
 Root for the guy on the left! 

Matt Whitaker

These days it's nearly impossible to discuss politics dispassionately. Trumpinistas have bunkered down, determined to defend their champion no matter the cost. It's a waste of breath to engage them; nothing will sway their blind faith. Yet it's no picnic talking to Democrats either, many of whom think Trump's removal is imminent. But here's something all Americans should discuss:

Acting Attorney General Matthew Whitaker thinks Marbury v Madison was a bad decision that should be overturned.

Not too many Americans will get juiced over an 1803 SCOUTS case, but a call to overturn Marbury v. Madison may be the single most dangerous idea to come out of the Trump administration. Marbury is the very foundation of the Supreme Court. It created the concept of judicial review. If it is overturned, the POTUS would be transformed into a veritable dictatorship.
Those who think all contentious matters can be resolved by determining the "original intent" of the Founders believe in a fairy tale. The U.S. Constitution is a remarkable document, but the Founders were not akin to Moses receiving divine laws from a Supreme Being. Pardon the wordplay jump, but the Supreme Court was one of thse areas where the Founders hid their lack of clarity behind unclear language. If you read Article III, you will immediately notice that the details of the Supreme Court's intended role are incredibly vague.

No one quite knew what the SCOTUS was supposed to do. The election of 1800 changed that. Our Founders didn't really believe in mass democracy. The first two presidents, George Washington and John Adams, were really chosen by an internal Congressional caucus. Thomas Jefferson, however, felt that he was shortchanged in 1796 and that he, not Adams, should have been appointed. (The two were friends, but political rivals.) In 1800, Jefferson stood for president against the caucus choice, Adams, and won a bitterly contested election. This caused a constitutional crisis. Could power actually be transferred from one faction to another without a revolution?

The answer was yes, but Adams wanted to make sure he left office with Federalists (his faction) in command of the federal bureaucracy. He made a series of late placements—nicknamed the Midnight Appointments—before he left office. Jefferson couldn't do much about that. Article II gave Adams that right and, pursuant to Article I, the Senate had approved each appointment.

All except that of poor William Marbury. Legend holds that his appointment as a justice of the peace got lost in Adams' desk. That may not have happened, but a JP did need an official commission to assume his duties, and Marbury's had not yet been delivered. Upon taking office, Jefferson refused—through new Secretary of State James Madison, the principal writer of the Constitution—to deliver Marbury's commission. Marbury promptly sued and his case ended up at the Supreme Court, where Marbury v. Madison was argued on February 11, 1803. There were essentially three issues: Should Marbury be appointed as a JP? Did the law give him an avenue to advance his right? Could the Supreme Court appoint him to his position over the president's objection?

Remember—no one knew what power the SCOTUS actually had. Had Chief Justice Marshall not been so canny, the SCOTUS you know would not exist. Marshall earned his fame in one of the most Solomon-like judgments in U.S. history. He ruled that it was very clear that President Adams intended that Marbury should become a JP; his signature and seal were on the appointment document. Marbury had both a moral right to the job and the right to sue.

Marshall then wrote that Marbury had availed himself of his legal recourse. He famously declared that the United States was "a government of laws," and that law was on Marbury's side. This also relieved Marshall of the task of handing Marbury his appointment. To simplify, Marshall took the view that the law gave Marbury his right, not any individual.

That was savvy, but it was nothing compared to what came next. Marshall referenced the Constitution's vague language and ruled that the SCOTUS could not be the body to decide Marbury's case. Today we might say that the Court refused to rule on the matter. But what Marshall really said was that though Marbury was morally and legally deserving of becoming a JP, the Supreme Court lacked authority to appoint him. Marshall recognized there was no way the SCOTUS could force Jefferson's hand, so he kicked the case back to Congress under Article I, not Article III.  

By not ruling, Marshall asserted the Court's very right to judicial review. That is, his decision clarified that the Court's very reason for existence was to determine whether certain actions or lower court rulings were or were not "constitutional." Marshall accused Jefferson of violating the Constitution, but also implied that it was the job of Congress to initiate any legal action against the president; Article I, Section 2 clearly states it is up to the House of Representatives to determine whether the president should be impeached and that under Section 3, the Senate was the sole court with the power to try articles of impeachment.

There was no way that a divided Congress—Federalists and Jeffersonian Democratic-Republicans, two parties that no longer exist—was going to impeach Jefferson and remove him from office over a justice of the peace appointment. William Marbury never became a JP, but he did subsequently have a lucrative career in banking. Today we recall his name as the plaintiff in the case that made—and that's not too strong a word—the Supreme Court. We should rightly think of SCOTUS as having been created in 1803, not 1789.

Footnote, those Democratic supporters who think last week's victory in the House of Representatives will usher in President Trump's impeachment are likely to be as disappointed as William Marbury. Unless there is a smoking gun somewhere—highly imaginable given Trump's propensity for lying—today's Congress is even more divided than that of 1803 and impeachment efforts will nowhere .  Article II, Section 4 reads: "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." If you think Marbury is complex, try figuring out what this means!

No matter your politics, though, you should pray that Whitaker does not prevail. His is the path for creating a dictatorship.

Rob Weir


Three Identical Strangers a Manipulative Documentary

Three Identical Strangers (2018)
Directed by Tim Wardle
Neon Films, 96 minutes, PG-13

In the 1980s, TV schlock journalist Geraldo Rivera hosted several sensationalist "news" specials, most infamously the opening of Al Capone's safe and a purser's safe salvaged from the Titanic before international laws were passed to forbid such desecrations. In each case, Rivera oversaw a breathless vicarious strip tease that went on for two hours and revealed: nothing! Rivera soon became a national joke and those shows are now considered mindless detritus.

I mention this because watching Three Identical Strangers is much the same in feel. It has been praised to the skies, but don't believe a word of the hype; this is a failed documentary that manipulates subjects, viewers, and history.

Director Tim Wardle has intriguing material, but ultimately he misses the real story by miles. He follows the saga of Eddy Galland, Robert Shafron, and David Kellerman, three young men on the cusp of 20 trying to figure out what to do with their lives. Individual plans are interrupted when Robert ("Bobby") shows up for his first day of classes at Sullivan Community College and everyone seems to know him. Bobby knew that he was adopted, but this was his first inkling that he had a twin (Eddy)—or so he thought. Newspaper coverage reached David Kellerman, who also turned out to be a blood brother. The triplets united and became instant media sensations. Soon the lads dressed alike, were guest on talk shows, and were seldom out of camera range. They were, in journalistic terms, human-interest stories. In psychological terms, though, their individuality was sacrificed for an orchestrated collective mind.

All of this satisfied public longing for heartwarming tales. The boys hammed it up for the salivating masses and played the part of living carbon copies. Under the public gaze they moved alike, had similar likes, similar experiences, the same haircuts, and similar dislikes. They finished each other's sentences and enjoyed confounding those who tried to tell them apart. But then—if we are to believe this documentary's arc—the tale turned darker. Who was their mother? Why were the boys separated at birth? Why were they never told they were triplets? Why was each placed in a home that had, two years earlier, adopted daughters? Most intriguing, why were their adoptive families so different? One was raised in a blue-collar home, one in a middle-class family, and one in a professional household of substantial means.

Wardle—working from revelations unearthed by New Yorker writer Lawrence Wright in 1995—takes us down what we are intended to see as a dark cave. The boys were all placed by the Louise Wise Agency, a Jewish adoption network, shortly after their births in 1961. The placement families were not random; they were arranged by a team headed by Dr. Peter Neubauer (1913-2008), a famed Austrian-born Freudian psychiatrist. Neubauer hoped to crack psychology's toughest nut: nature versus nurture. He also hoped to shed light on what is sometimes shorthanded as the life chances conundrum: the degree to which social class determines a child's future. Queue some horrendous stereotypical music that's heavy on ominous tones. Were the lads in fact lab rats? Was any of this ethical? Is this, as one of triplets says, "Nazi shit?"

Spoiler: the answers are yes, yes, and no. Shame on Wardle for making a Geraldo Rivera-like film that seeks to villainize Neubauer and wrench cheap emotions from viewers that hide the fact that his inferences are a combination of anachronism and manufactured drama. As in the case of several current movements, Wardle condemns the past through the values of the present. None of what Neubauer did would be approved today—a major reason why his study was not published and his research notes are closed—but his inquiry was cutting edge stuff in 1961. Indeed, Freudian psychiatry was all the rage then, but is now decidedly out of fashion. Still, none of what he did was Josef Mengele stuff; Neubauer was also Jewish and he and his family fled Austria when the Germans invaded it. Ethics should not be viewed as on par with the laws of gravity; they are infinitely more malleable and changeable.

Again, Wardle missed the real stories. There's a great tale to tell about how coverage of the triplets presaged reality TV. There's another to be told about how post-Watergate journalistic practices declined by blurring the line between news reporting and paparazzi stalking. He even misses the fact that his subjects didn't fit the life chances mold! Toward the end of the film we learn that both differences and darker back stories were undersold for the sake of mirror-like sameness and easy-to-digest uplift, but Wardle's treatment of this is the film coda equivalent of a drive by shooting. Nature or nurture? Wardle makes an attempt to resolve this, but it feels like Geraldo opening a safe. Think of the multiple meanings of "safe," because this is a film for 2018 that imposes itself upon 196os and 1980s.

Rob Weir


Samite and the Music of Reslience


Samite Mulondo has touched hearts and souls since he came to the United States as a Ugandan refugee in 1987. In his earlier career he was a vocalist first and an instrumentalist second. These days he largely reverses that formula. Samite still has a voice that's like buttery caramel, but he has also mastered various types of flutes, the kalimba, hand percussion, and the litungu, a handheld harp that looks as if it's crossed with a banjo and a kora.

Samite's latest album is titled Resilience. It is the soundtrack to a one-man show he has launched in which he tells his personal story as a way of advancing the organization he founded with his late wife: Musicians for World Harmony. He believes that music is a balm for a troubled world filled with war, poverty, and preventable diseases such as AIDS, hence he devotes much of his time to working with school groups and building community.

All of this is deeply admirable, but for now the central question is how the project stands up musically. That question is a bit tricky and often depends on how you feel about the overall vibe of Samite's current sound. It is a blend of World Beat, folk, Afro pop, and New Age. The latter is a problematic term. It is generally viewed as easy listening that's a relaxing sound that's not quite pop and not quite light jazz. At its best, new Age is soothing and meditative; at its worst, critics trash it as California-style elevator music. No fear of the latter from Samite, but the new album is far more interesting when it is at its most African in feel. The title track, for instance, opens with Samite playing a resonant metal flute. The melody invokes mystical Celtic New Age until Samite begins to sing, accompanied by looped vocals. In other words, this track is a musical hybrid. The same is true of the 7-minute "The Search," which is quiet and contemplative. Both are lovely tracks, but I prefer the pastoral feel of "Mayengo," which is cut from similar cloth, but is bolstered by ringing flute notes and African-style guitar rhythms.

Samite switches to the litungu on "Waterfall." It provides us with cascading notes, but he uses a heavy thumb to provide a thrum that frames his voice and makes the composition flow. "In the Moment" is in the same vein. In each case, the composition could be labeled New Age, but the guitars render problematic such a designation. "Space" sounds as if it must be New Age, but Samite's skillful use of the flute—including chopped notes in the transitions—takes us to new places. Ditto the use of the litungu on "In the Moment." "Ntinda" employs a cappella call-and-response vocal that cuts away to joyous guitar and flute. Ultimately, though, resilience is indeed the album's theme. Samite challenges us to remember that change often comes through quiet determination—the velvet glove, not the iron fist. 

Rob Weir


Less is Funny and Poignant

Less (2017)
By Andrew Sean Greer
Little, Brown, and Company, 263 pages.

Arthur Less is about to turn 50. He has seen so many friends die of AIDS that he thinks maybe he's "the first homosexual ever to grow old."

Less was once the lover of Robert Brownburn, a poet who won every literary award under the sun, but Arthur hasn't made literary waves since his first novel induced a few soggy feet, and his publisher rejected the first draft of his new book. For years he's been puttering about in writers' limbo: writing reviews, conducting interviews, and publishing in obscure journals. When his name comes up in literature circles, the descriptor "minor figure" is usually attached. To make matters worse, the circle has just been completed. In his halcyon youth, Less was Robert's younger partner, but Arthur has just found out that his own junior part-time lover, Freddy, is getting married to an even younger man. Less is invited to the wedding, but the very thought induces existential dread. To top it off, Robert is dying.

So how does the first gay man to grow old manage a midlife crisis? Arthur is looking for a way to back out of Freddy's wedding when he learns that he's up for a writing prize he's never heard of—in Italy. That sparks a bigger idea. Arthur looks over all of the conference invitations and offers he's had in the past few years and decides to accept all of them! What better way to avoid Freddy's wedding than to plead that you're out of town and out of the country? Thus begins a sojourn that will take Arthur Less to New York, Mexico, Paris, Italy, Berlin, Morocco, India, and Japan.

Andrew Sean Greer's Pulitzer Prize-winning novel is at turns, funny, poignant, sad, and reflective. Everywhere Arthur goes he's asked to comment upon the excitement of having lived with a literary giant like Robert. The truth is that Robert was often a huge pain in the ass, but Less can't shake the question posed by a Mexico City panelist: "What is it like to go on, knowing you are not a genius?"  As it happens, this is exactly the question that torments Arthur. Later in the novel he describes himself as "like a person with no skin."

Greer's novel is essentially that of a gay man who runs away from home and goes to conferences instead of joining the circus. In all such set ups, the central question is whether one is running from or to something. That's also a fine device for mixing humor and poignancy. For instance, Less arrives in Italy to find himself competing for a prize with several other authors he thinks are much more serious and accomplished than he. One, in fact, tells Less that his first novel was an uneven but promising effort, but that he's among those who denounce Arthur as "an assimilationist," which seems to mean he has lived a relatively conventional life. Arthur is told, "It's not that you're a bad writer, it's that you're a bad gay." Against all odds, Less wins the prize—only to find out it was conferred by a jury of high school students!

To the degree Arthur's world tour has a high point, it occurs in the short course he teaches to university students in Berlin. It's a riot to read. Arthur fancies himself fluent in German, but in truth he's good enough to be a male version of Mrs. Malaprop.* His students dub him Peter Pan. That's not because Less is fey, but because his students are utterly charmed by his manic energy, his mangling of German, and his creative teaching methods. He leads them through a course titled "Read Like a Vampire," whose major aim is to make students fall in love with words. (One exercise involves taking scissors to passages from James Joyce and reassembling them into new ones.)

The thing about midlife crises, though, is that are usually about acceptance, not unearthing a hidden self or new vocation. Greer hews to that path and it's among the things he does very well. He is to be congratulated for writing something more than a gay novel; it's a clever story with a central character who simply happens to be gay. Greer is under no illusion that his book will reverse the Othering of homosexuals. Some, in fact, might find Greer to be a "bad gay." His characters are not soapbox activists, bathhouse cruisers, clothes horses—the fate of Arthur's one suit is another amusing side story—or any other fill-in-the-blank stereotype of gay men. They are mostly like Arthur Less: individuals wrestling with the same anxiety, self-esteem, and reputational issues as the rest of humanity.  

This is a skillfully written book. Those who read this blog know that I am often critical of projects that seek but fail to blend comedy and seriousness. Greer succeeds by going small rather than resorting to forced weightiness or contrived drama. To reiterate an earlier point, Arthur Less isn't defined by being gay; he simply is gay. Why load down something as serious as midlife crisis with faux mitigating circumstances when it is universal and sufficiently burdensome no matter who is shouldering it?

I really liked this book. Is it Pulitzer Prize worthy? I think I might have gravitated to either George Saunders or Jesmyn Ward, but that may be the wrong way to look at it. It's ironic that Greer won the Pulitzer, as Less lampoons literature prizes. In fact, one character advises Arthur to "never win" such a prize because he will end up spending his time speaking about that book rather than writing the next one. Let's hope Greer takes his own advice. We can debate whether Less deserved a Pulitzer, but there's no debating the fact that Andrew Sean Greer is worth reading.

Rob Weir

* The term malaprop derives from Mrs. Malaprop, a vocabulary-challenged character in Richard Sheridan's 1775 play The Rivals.


Mink's Miracle Medicine is Melissa Wright's Voice!

Mink’s Miracle Medicine, House of Candles; Pyramid Theories

Mink’s Miracle Medicine (M3) is the unlikely Harper’s Ferry-based duo of Melissa Wright and Daniel Zezeski, unlikely because it’s a pairing of a guitarist and a drummer—not your usual touring ensemble. M3’s music gets labeled folk rock, folk, country, punk, and indie. If you asked me which one, I’d just say “yes” and make sure to add retro to the list. But before I go any further, let me tell you that if you’ve not heard Melissa Wright, you are missing one of the great young singers of our time.

Mink’s Miracle Medicine—the name derives from a patent medicine—has two EPs to date. House of Candles was released in 2017, and we can hear that this duo hit the ground running. Wright, whom some might know from her work with the Bumper Jacksons, might just be Patsy Cline’s lost granddaughter. “The Nashville Song” is a cut-the-glitz-and-bring-on-the-tears country song about a young woman who dreams of being an Opry star and sets out for Nashville with just one dress, pocket change, and the “car her daddy gave her just for being born.” That won’t go well, but Ms Wright sings the hell out of this song. If you want another weepy, try “Somebody Else By Your Name.” The title says it all, and it even has a walking bass line. Wright’s robust voice makes even a potentially corny/old school country breakup song like “I’m Keeping Your Shirt” sound as if there’s a rip in the time continuum and the late 1950s walked in. “Graves Street” is another in the way-back vein—back before the Grand Ole Opry got slicker than a flattop haircut.

Their new album, Pyramid Theories, is equally wonderful, though it has a slightly different feel. As well it might, given its odd genesis. The duo’s van broke down in Pittsburgh and stranded them for a few days. The road often induces conversations that are more riff than structure, and being stuck with nothing but time on your hands ratchets the weirdness bolt. The title track began in discussions of Erich von Daniken’s aliens-built-the-pyramids theory, ventured into Roman architecture, and mutated into a quasi-hippie folk rock/country song about concentric time. Huh? Give it a listen. Some critics have compared M3 to Fleetwood Mac, a parallel I think is a stretch, but I can sort of hear it in Matt Schmelfenig’s fuzzy bass, a faintly 80s’ melody, and the way in which the vocals sometimes break into a rapid 1-2-3-4 staccato. “Page of Me” returns to more C &W themes, this one a relationship on the cusp of disintegration and the clarity that comes when “… I understand I’ve got to write my own damn book.” You might hear echoes of Jackson Brown in the folk rock “Now I Understand the Blues,” though it has another great country line: “I only need myself/When I’m crying alone in my bedroom.” And despite the fact that some hipsters claim M3 mines 90s grrl groups, I hear the ‘40s and ‘50s in “Born Again,” which has the out-on-the-trail riffs—but not the melody—of an old Roy Rogers chestnut. By the way, the song has nothing to do with evangelical preaching; it’s about trying to find a place so remote you reset and reinvent. Mink’s Miracle Medicine delights in keeping us on our toes and confounding categories.  ★★★★★

Rob Weir


The Great Alone a Page-Turning Thrill

The Great Alone  (2018)
By Kristin Hannah
St. Martin’s Press, 440 pages

Did you ever contemplate dropping out of the rat race? Maybe move somewhere remote where politics, creed, and race don’t matter? A place where you survive by your wits and the occasional help of the handful of neighbors who live nearby, but not too close? And wouldn’t be nice if there were eagles and orcas, plus all the moose, halibut, and salmon you can cram into your larder? Be careful what you wish for!

Kristin Hanna’s latest novel, The Great Alone, is set in exactly such a place; her fictional town of Kaneq, Alaska, is based on the Kenai Peninsula town of Seldovia, population 30. We first meet her fictional pivots, the Albright family, in Seattle, where daughter Leonora ("Leni”) is 13. The year is 1974; Leni’s mother, Cora, is an attractive chain-smoking semi-hippie with few skills other than packing up the household on a regular basis to move on. That's not hard; the Albrights are poor as church mice because paterfamilias Ernt can’t keep a job. He’s both a Vietnam vet and a former POW suffering from PTSD at a time in which the condition is barely discussed, let alone understood. Ernt is a powder keg with a short fuse, one prone to anger and bad choices that make life tough on everyone.

Cora and Leni hold out hope that a windfall will help Ernt; he inherits a piece of land in Alaska when a Vietnam War buddy dies. If you’re really not fit for society, Kaneq is the place to be. If you need an "urban" experience, you’d have to take a boat across Kachemak Bay to Homer (population 3,900) because it would nearly impossible to drive there. The Albrights pack their Salvation Army castoff possessions into a beat-up VW van and commence to homesteading. That’s the right word; neighbors will give you a leg up to get you started, but they’ll also remind you that there are a thousand ways to die in Alaska, among them carnivorous bears, falling into frigid waters, disappearing under winter ice, exposure, and injuring yourself in a place where no help is available. And there’s always danger from going whacko during the long winter when perpetual darkness can last more than two months. If you need more details, read the Robert Service (1874-1958) poem “The Shooting of Dan McGrew” from whence Hannah borrowed his description of Alaska: the Great Alone.

Hannah’s Alaska is alone, but not quite. There aren’t a lot of people in Kaneq, but it’s a colorful and diverse lot. With the exception of Tom Walker and his clan, whose Alaska roots are generations deep, most of them are refugees from civilization just like Ernt. The town matriarch is Large Marge, a plus-sized African American woman who chucked her life as a lawyer in Chicago to run what can charitably called the general store. The other extreme is Mad Earl, a survivalist whose conspiracy theories would make a schizophrenic blush. His Kaneq is where the resistance will begin when society collapses, which he and devotee Ernt reference with the shorthand WTSHTF (When The Shit Hits The Fan). And it looks to them like Tom Walker’s plans to fix up the town and attract more summer tourists is exactly the thing that will start the blades to rotate.

Hannah’s novel is astonishing in its sprawl. She makes us feel both Alaska’s lure and its terrors. Along the way she probes topics such as madness, paranoia, class envy, blinding jealousy, forbidden love, enabling behavior, domestic violence, reinvention, and kindness. Her tale is one of life stripped to its basics. It unfolds in two and a half acts: 1974, 1978, and a 1986 addendum. Hannah isn’t always a great stylist and, frankly, her resolution seems schmaltzy and contrived. She is, however, a fantastic storyteller.

This book has already been optioned for a film, but you should read it now, as I’m pretty certain Hollywood will strip some of the nuances and quiet terrors that emerge in the book. This is a 440-page novel, but I zipped through it in just three sittings. Call it a page-turner, but it’s certainly not one cut from ordinary cloth.

Rob Weir