Month: February 2020

2/28/1966: Miranda v. Arizona argued.

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The original, 1933 version of The Invisible Man was the fourth of Universal’s classic monster movies. (It had been preceded by Dracula, Frankenstein, and The Mummy.) Its star, mostly hidden behind bandages and black sun goggles, was Claude Rains; the director, still hot from helming the wildly successful Frankenstein, was James Whale. But forget all that. A new Invisible Man now moves among us, and he’s much, much scarier.

Some years back, the present-day Universal Pictures decided to unite all of its old monsters in a fake franchise called the Dark Universe. This ill-conceived project was strangled in its dark cradle by a disastrous 2017 remake of The Mummy, starring Tom Cruise. So resounding was this bomb that Uni execs decided to deep-six the Dark Universe concept and just turn its next monster reboot over to people who knew what they were doing. This turned out to be, quite wisely, Blumhouse producer Jason Blum and the Australian writer-director Leigh Whannell, who’d had a long involvement with the Saw and Insidious movies, and, more pertinently, had also scripted and directed an excellent 2018 sci-fi film called Upgrade.

As you’d expect, Whannell’s take on The Invisible Man bears only a glancing resemblance to the long-ago James Whale version. Now the title entity is basically a supporting character in a story focused on his wife—a sort of Bride of Invisible Man, you might say. The wife, Cecilia, is played by Elisabeth Moss, and she’s in every scene, borne along on a storm cloud of paranoia and raging fury. This is not a MeToo movie, exactly—it’s a full-on horror flick—but it’s thoughtful and clever and it resonates with the current ascendancy of female concerns.

Cecilia is a onetime architect who has relinquished her career to attend to the batty demands of her husband Adrian (Oliver Jackson-Cohen), who is ultra-controlling. They live in San Francisco, in an icily modern house with a basement laboratory where Adrian—a wealthy tech entrepreneur—pursues his experiments in the field of optics. After several years of marriage, Cecilia hates Adrian with a deep and unflagging passion, and as the movie opens we see her fleeing their home and being spirited away in a car by her sister, Alice (Harriet Dyer). This is a tense sequence, and it’s punctuated by a really jolting, out-of-nowhere shock. Happily, things get much worse very quickly.

Two weeks later, we find Cecilia sheltering with an old friend named James (Aldis Hodge) and his daughter Sydney (Storm Reid). Then she learns that Adrian has committed suicide, and is informed by his creepy brother, Tom (Michael Dorman), that her late husband has left her $5-million, tax-free, to be dispensed in regular installments. Great. (Later, though, we learn there’s a stipulation that the money spigot will be turned off if Cecilia ever loses her mind.)

Strange things start happening—small-scale at first: Cecilia leaves a frying pan on a burner when she walks out of the kitchen for a minute and we see that something is turning up the flame dangerously high in her absence. In the middle of the night, we see the blanket on the bed where she’s sleeping being slowly pulled down. She hears a phone ringing—up in the attic. Cecilia tells James about these incidents and he tells her to stop acting weird.

The gaslighting continues, and Cecilia soon realizes that Adrian is responsible—he’s somehow still alive. No one else believes this, of course, and the unseen husband proves devilishly clever at isolating her from everyone who might provide support.

I’ll go no further into what transpires, apart from noting that the director’s camera style—showing us widescreen views of spaces where nothing seems to be happening—has the effect of cranking up our anxiety as we wait for something awful to do so. There’s also an excellent score, by Benjamin Wallfisch, which deploys steely, post-Hitchcock strings and what sounds like a host of metal locusts in an enveloping Dolby Atmos aural environment.

Best of all, there are no simpleminded jump scares in this movie—no cheap-thrill boo! effects. There are plenty of scares, and they’ll likely make you jump (two of them are brilliantly horrific), but they arise naturally out of Whannell’s story, which is constructed with a series of ingenious twists that keep coming at you right up to the end. For those who may have been waiting for a horror movie that really works you over, this is it.

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In 2018, my colleague James Phillips and I published a post on the Harvard Law Review Blog. We offered some tentative findings about the linguistic claims made by the majority and dissent in D.C. v. Heller. Since then, James was hired as an associate professor at the Chapman University Fowler School of Law. As James transitions to academia, we plan to submit for publication a much more detailed version of our research. In the interim, we published an essay in The Atlantic that previews our work. We show that both Justice Scalia and Justice Stevens erred.

Here is a segment that focuses on the phrase “keep arms”

Next, we turn to Justice Stevens’s dissent. He wrote that the Second Amendment protected a right to have and use firearms only in the context of serving in a state militia. Stevens appears to have determined—though his exact conclusion is somewhat unclear—that the phrase keep and bear arms was a unitary term of art. Such single linguistic units, called binomials or multinomials, are common in legal writing. Think of cease and desist or lock, stock, and barrel. As a result, Stevens concluded, there was no need to consider whether keep arms had a different meaning from bear arms. Therefore, he had no reason to determine whether keep arms, by itself, could refer to an individual right.

Was Stevens’s linguistic intuition correct? No. The phrase keep and bear arms was a novel term. It does not appear anywhere in COEME—more than 1 billion words of British English stretching across three centuries. And prior to 1789, when the Second Amendment was introduced, the phrase was used only twice in COFEA: First in the 1780 Massachusetts Declaration of Rights, and then in a proposal for a constitutional amendment by the Virginia Ratifying Convention. In short, keep and bear arms was not a term of art with a fixed meaning. Indeed, the meaning of this phrase was quite unsettled then, as it had barely been used in other governmental documents. Ultimately, a careful study of the Second Amendment would have to treat keep arms and bear arms as two separate linguistic units, and thus two separate rights.

We performed another search in COFEA, about the meaning of keep arms, looking for documents in which keep and arms (and their variants) appear within six words of each other. The results here were somewhat inconclusive. In about 40 percent of the hits, a person would keep arms for a collective, military purpose; these documents support Justice Stevens’s reading. And roughly 30 percent of the hits reference a person who keeps arms for individual uses; these documents support Justice Scalia’s analysis. The remainder of the hits did not support either reading.

We could not find a dominant usage for what keep arms meant at the founding. Thus, even if Scalia was wrong about the most common meaning of bear arms, he may still have been right about keep arms. Based on our findings, an average citizen of the founding era would likely have understood the phrase keep arms to refer to possessing arms for both military and personal uses.

James and I were also cited in a recent New York Times Magazine profile on originalism.

For originalists, the new tool is “a paradigm-shifting technology,” two members of the Federalist Society, the law professor Josh Blackman and the Stanford law fellow James C. Phillips, wrote in The Harvard Law Review’s blog in August 2018. It also means that cherry-picking the historical record to establish a dubious “original” meaning would be harder to conceal. “We can do empirics,” says Alison LaCroix, a historian and law professor at the University of Chicago. “There’s a data set.”

Blackman and Phillips conducted a review of the database and found that the dominant use of “bear arms” at the time of the country’s founding related to the militia. (Even so, they didn’t conclude that Scalia got Heller wrong.) LaCroix and three linguists submitted a brief to the court last fall, in the New York case, with studies they had each done. One found that references in the database “to hunting or personal self-defense” for the phrase “bear arms” were “not just rare, they are almost nonexistent.” The phrase “keep arms,” the brief stated, was also used “almost exclusively in a military context.”

The findings confirm what Rakove and his fellow historians showed about the era’s political history. But this time, the analysis played by the rules of the game as Scalia defined them, by looking narrowly at the original public meaning of the text. “I don’t care how big a fan of Justice Scalia you are,” Phillips told me. “At some point, you run up against the data.”

Our goal here is not simply to beat up on Justice Scalia. Linguistic analysis formed only a small part of Scalia’s originalist opus. And the bulk of that historical analysis, based on the history of the common-law right to own a firearm, is undisturbed by our new findings. But originalists should still be able to assess, critically where Justice Scalia faltered. And Heller critics should likewise acknowledge where Justice Stevens faltered.

Finally, we offer this observation in our essay:

Corpus linguistics, like any tool, is more useful in some cases than in others. The Second Amendment in particular poses distinct problems for data searches, because it has multiple clauses layered in a complicated grammatical structure.

Our ultimate conclusion highlights some of the limits of corpus linguistics, at least with respect to the Second Amendment.

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New York Times columnist Thomas Friedman, who admires what a single-party autocracy such as China’s can accomplish when it is “led by a reasonably enlightened group of people,” praised that country’s “one child” policy in a 2008 book, saying it “probably saved China from a population calamity.”

In the Amazon Prime Video documentary One Child Nation, the Chinese-American filmmaker Nanfu Wang lays bare the brutal reality of the oppressive regime that was so glibly endorsed by rich Westerners who take their own reproductive freedom for granted. She shows that the one-child policy, in force from 1979 to 2015, routinely relied on extortion, assault, kidnapping, and infanticide.

Returning to the farming village in Jiangxi province where she was born and raised, Wang talks to an uncle and an aunt who mournfully remember the infant daughters they felt compelled to abandon. Wang’s grandfather says he had to dissuade local officials from sterilizing her mother after Wang was born.

One of those village leaders tells Wang “the one-child policy was very difficult to implement” because “people resisted.” If they couldn’t be persuaded by propaganda, they would be punished by confiscation of their possessions or demolition of their homes. Recalcitrant women were physically forced to undergo sterilization. “It was really fucked up,” the former official says. “We below didn’t want to do this, but we had no choice.”

A local midwife estimates that she performed 50,000 to 60,000 sterilizations and abortions. “Many I induced alive and killed,” she says. “My hand trembled doing it.”

A former family planning official recalls that “sometimes pregnant women tried to run away” from forced abortions, often performed at eight or nine months, and “we had to chase after them.” Unlike the midwife, she is proud of her work, agreeing with Thomas Friedman that “the policy was absolutely correct.”

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