June 30, 2005
Clementine in the Kitchen, by Samuel Chaberlain, (aka Phineas Beck)
A few months ago I was disappointed by the otherwise great Richard Olney's Lulu's Provencal Kitchen. Reading Samuel Chamberlain's slim but poignant volume, I figured out why - Olney had meant to write Clementine in the Kitchen (I wonder why it wasn't entitled Clementine en Cuisine for the fun alliteration, but maybe they thought people should understand the title), but had fallen short.
Both books are meant to be fond memoirs of beloved cooks. Olney wrote about Lulu, the provencal grandmother and winemaker who so enlivened the author's years in southern France. And Chamberlain also writes about a provencal woman - his family's French cook Clementine, first discovered in the Chamberlain's short time in France before World War II, and then brought back to America during that dark time. But Chamberlain writes with none of the sometimes haughty grandeur of Mr. Olney. He was simply a hungry spectator of Clementine's genius - he is not the cook. And as such, the resulting product is a cleaner, neater memoir as well asone of the most pleasant books I've read in months. My favorite passage follows:
"And for the first time in her life Clementine gazed upon a basket of blueberries. She tasted one with interest and asked for the name, which proved too much for her untutored ear. She promptly thought up the terms les petits machins bleus, which remains the official name for them in the Beck household".
Les petits machins bleu means "little blue things". I've adopted it myself.
2808
There's an interesting little interview with the President in the Times (London). But putting aside the substance, I found this passage funny
"We’ll make some more commitments. First of all, the way I like to describe our relationship with Africa is one of partnership. That’s different than a relationship of cheque-writer"
Of course, Bush said check writer, not cheque writer. I suppose it's silly to use American spelling when merely writing about Americans, but there does seem to be something wrong, or at least funny, about quoting the American president in British english. And even if it's not grammatically incorrect, I still enjoy the chuckle. Our president! Saying things like "colour" and "humour".
2807
With regard to Noah Feldman's New York Times piece proposing his theory of the Establishment Clause (coercion bad, endorsement all right, money bad), I am in agreement with Professor Balkin.
Like Professor Balkin, I confess that I do not understand how Feldman intends to tell the Federal Constitutional Difference between (1) offering $1000 to every school child to attend a private school of his choice (which I think Feldman thinks is unconstitutional) and (2) offering free use of the public roads to every school child to attend a private school of his choice (which I think Feldman thinks is constitutional) and (3) providing property tax exemptions to all charitable organizations, religious or secular (about which I have no idea what Feldman thinks) and (4) offering federally-subsidized student loans or scholarships (tuition vouchers) to all eligible college students, regardless of whether they attend UConn or Chicago or Georgetown or Ave Maria (I assume that our current system of federal financial aid is unconstitutional under the Feldman doctrine, but maybe not).
This isn't to say that Feldman doesn't have ways to resolve these questions-- I am quite sure he does, and will be able to turn out a series of widely-read articles explaining how (or perhaps will do so in his forthcoming book). Indeed, my girlfriend took his church-state class last spring and affirms that he is very smart, and during my one brief chat with him walking out of Koffee 2 he had many insightful and persuasive things to say about the etymological and theological origins of the place of real property in the statute of frauds, so it is quite likely that his resolutions will be quite persuasive to many, but as of yet, the theory is so underdetermined that I don't know what to make of it. Surely when the church burns, the government may put out the fire. Or at the very least, when the church has a civil suit against the arsonist, it can bring it in the subsidized federal courts. [I write "surely" but I am not actually sure what Feldman thinks here.]
I will add another layer to my skepticism. From what I can tell, Feldman's no-money-to-religious-groups rule is premised on some theory of divisiveness-- that money matters and if religious groups are permitted to squabble over cash, even in neutral programs, chaos or religious unrest or Something Else That Is Constitutionally Bad will ensue. I wonder whether there is any actual evidence about the world that would indicate this is so. I assume that Feldman doesn't mean to suggest that the no-money rule dates back to the founding, so hopefully he has a convincing story with (ideally) convincing evidence about interest group politics and legislation showing why the availability of $2,250 student scholarships is more likely to cause the relevant sort of divisiveness than, say, theologically-motivated arguments about the desirability or undesirability of same-sex marriage, gay adoption, abortions (on demand or otherwise), middle-east politics, and any other programs that various organized and unorganized religions stump for in state and national legislatures.
Finally: If Feldman's account for the Establishment Clause will be that it is about protecting society at large from certain kinds of religious squabbling over public cash, and not about protecting individual members of society from offense, it will be interesting to see how (and whether!) he can justify incorporating it, since the vehicle for incorporation usually relies on the argument that the things in Amendments 1-8 are "liberty" or "privileges" or "immunities" in the relevant sense of Amendment 14. But if the Establishment Clause becomes a structural provision like this, it is very hard to see why the 14th Amendment would apply to it. So far, Feldman's program sounds to me more like a suggestion for Democratic Party or ACLU-litigation reform (i.e., stop sweating school prayer and hit "them" in their pocketbooks!) than a method of adjudicating Constitutional cases and controversies.
The post below about Establishment jurisprudence and political preferences calls me to make an observation. It seems to me as if Establishment jurisprudence (and legal scholarship) is far more infested than most Con Law areas I know with the infusion of personal preference and Constitutional argument.
Two be clear, there are two relevant preferences-- there are the writer's actual religious beliefs, and then the writer's belief about how the relationship between church and state ought to be structured; my claims are about the latter, not the former. Religious people can and do believe in antiestablishment, and atheists in free exercise.
Anyway, I'm not familiar with any major legal scholars or S.C. Justices whose view of desirable church-state state relations and constitutional church-state relations are much different. Maybe this points up my ignorance more than anything else, but it seems more likely that this is because the Establishment clause is particularly afflicted by the points that Jack Balkin makes in critiquing the underdeterminism of originalism. Both sides can point to inconsistent practices, dicta in letters by various founders and framers, and then extract from these to make long arguments about, well, all sorts of things.
I think one should be very skeptical of legal-realist arguments that judges (and professors) are just a bunch of unprincipled Caesars, but it does seem to me rather odd how much of the debate about the Ten Commandments decisions is about the desirability or undesirability of government religious speech. And why September 11th or the opinions of "like-minded foreigners" should be of any relevance in a Supreme Court Justice's (dissenting) opinion about a 200-year-old legal provision, I confess that I do not understand.
[This post was brought to mind by PG's "rant" on the Ten Commandments. I, like her, think that government officials should not make religious proclamations, even monotheistic ones, and wish that Jefferson's view had carried the day. But unlike her, and unlike almost every other Jefferson-sympathizer that I have seen blogging about the Ten Commandments, I am far from convinced that Jefferson's view did carry the day, which is surely the relevant question, if it can be answered.]
