Monthly Archives: July 2014

WTF…Supreme Court to sue Obama

                                WTF…Supreme Court to Sue Obama

 In a rare public statement, Chief Justice Roberts announced today that the Supreme Court voted 5 to 4 to sue President Obama. Under the rarely used doctrine of Nolo disclosum, Roberts declined to say what the exact nature of the lawsuit would be, what relief would be sought, or even if the papers, when filed, would be made public. “What Americans fail to understand”, said Roberts, “is that we are in charge of the Constitution. Five of our members had sincere religious beliefs that the President was wrong about something, and we felt it was our duty to step in.” When a reporter suggested that the Supreme Court’s action seemed to be siding with the House of Representatives on the legality of one (half) branch suing another Robert’s said, “…virtually every legal scholar in the country thinks the House of Representatives was wrong to contemplate filing a law suit against the President and we just wanted to let them know that we got their back…” When noted that that House’s proposed suit was about Obamacare, a law that the Supreme Court found to be constitutional, Roberts indicated that…”we all thought that was going to be a big mess. Now that it seems to be working alright we realized that it was time to revisit the issue.” When asked about which court would hear the case, Roberts indicated “I don’t think there is any problem with the Supreme Court hearing its own case. If we were not impartial, we would not be here”.

Justice Ginsburg, who wrote a 148 page dissent in the recent Hobby Lobby case, wrote a three letter dissenting statement, joined in by Justices Kagen, Sotomayor, and Breyer, which read “WTF…?”

Encouraging American Genius

Encouraging American Genius

                                                                                                                By Jerry Leibowitz

 We are stardust, billion year old carbon We are golden, caught in the devil’s bargain And we’ve got to get ourselves back to the garden.

Joni Mitchell

 I have been thinking about what it means to “encourage American Genius” since I wrote my last piece on the Corcoran Gallery of Art (See  ). William Corcoran used the phrase in the deed donating what became the first independent Art Gallery in America in 1869, stating that his gift was:

“…in the execution of a long cherished desire to establish an institution in Washington city, to be “dedicated to Art,” and solely used for the purpose of encouraging American genius, in the production and preservation of works pertaining to the “Fine Arts,” and kindred objects…”

The phrase and the words “Dedicated to Art”, which is displayed on the façade of both the original and the present Corcoran Gallery acquired in 1897, has popped up in the controversy about the future of the present Corcoran Gallery of Art, which seeks to terminate many of its operations. In using the phrase, I see Corcoran as reiterating a strand of American thought that went back at least to 1760, the year that Benjamin West left Pennsylvania to view the great art of Italy, never to return. Despite, or because of, our view of our founding as something inspired by divine intervention, we often fail to see the America that was born of a brutal and barbarous nature, where much of its wealth was extracted from the enslaved to the utter disregard if not the benefit of its founders. Early America was a cultural wasteland which many of the best minds of our early generations chose to leave to pursue their craft. While the civil war did not solve America’s problems, after the war William Corcoran was among those calling for the next America to be better than the last; through art, through culture and through the development and encouragement of American genius.

The cornerstone of the Second America arguably was laid in England in 1791 with a painting by Benjamin West entitled “Expulsion of Adam and Eve from Eden”.  As if by my design, the painting now hangs in the National Gallery of Art in Washington D. C. Obviously, this was a subject that had been covered numerous times before; it is one of the most familiar and iconic images in western thought. Yet, as the NGA website points out…”West’s Expulsion contains two motifs not found in Genesis or any traditional pictures of the theme: an eagle swoops upon a helpless bird, and a lion chases frightened horses. In general terms, such beasts of prey imply the destruction of harmony that resulted from Original Sin.” The eagle became the bird emblem of the United States of America in 1782. Its placement in the work calls to the viewer the America that Benjamin West had left over thirty years before. Perhaps the lion represents the slaveholders and the horses represent their slaves.[i] West, who was a Quaker and was adamantly anti-slavery, had left America as a British citizen and ended up in England where he rose to the highest level of his craft, a friend and Court painter to King George lll. West was not the only American artist who left his native land; he was soon followed by John Singleton Copley, Gilbert Stuart, and John Trumbull all of whom sat out the Revolutionary War in England. They were eventually followed to Europe by virtually every great American artist of the 19th and early 20th century, each of whom studied or lived in Europe for a considerable period of their artistic development. We know a little of why these early American artists left America; Copley called his native country barbarous and limiting to his craft; Trumbull may have been a spy for America, having served as aide-de-camp for George Washington for a short time early in the War; Stuart was a bit scattered and was perhaps looking for some stability abroad. I suggest that Benjamin West invited this community of artists to England to “encourage American genius” in a place removed from America’s original sin, its toleration of slavery. When the smoke from the American Revolution had cleared, Trumbull and Stuart returned to America fully formed as artists giving America its first artistic life, one couched in love for the new country. It was as if Benjamin West sent out these emissaries of art to go forth and multiply and breed American genius. It is likely that Gilbert Stuart, having lived among those who were a part of the antislavery movement while in England[ii], returned to America as an emissary for that movement, often discussing political subjects with those who sat for him. Trumbull went on to document America’s founding, and established the first University Art Gallery at Yale largely to collect his own works. West and Copley stayed in England and continued their artistic pursuits. West’s views against slavery were quite well known and clearly contributed to his historic and religious themed works. Copley explored the humanity of the slavery issue in his works including Watson and the Shark (1778; also at the NGA!, The Head of a Negro (1777-1778;  and The Death of Major Peirson (1783, In retrospect then, Benjamin West put out the first call to “encourage American genius” just at the time that the founding fathers were beginning their experiment with self-government but were unable or unwilling to recognize that the flaws in their work would render America spiritually damaged and eventually hurl the country towards self-destruction and civil war.

I have written previously of the bequest of James Smithson, and how that gift was intended to propel America out of its barbarous nature (See Follow the Money- the Legacy Perhaps of James Smithson, Under Smithson’s will of 1826, his money was given “to the united states of America to found at Washington, under the name of the Smithsonian Institution, an Establishment for the increase and diffusion of knowledge among men.” Arguably, as I suggest in Legacy, it was the knowledge diffused by that institution that made the end of slavery inevitable, since knowledge is the ultimate cure for ignorance and indifference. While the cure for America turned out to be unbelievably painful, it must be recognized that by 1860 the disease was quite severe. All of the compromises which let slavery continue and expand in America, going back to compromises made in 1775, had rendered the country spiritually depraved. Despite all the progress being made in the Arts and the Sciences, the use of forced labor to create wealth had rendered the country unholy, and that evil was a limiting restraint on the creation of true American genius. The end of slavery through the civil war gave America a new chance, and men with foresight were not about to let the moment slip by doing nothing.

William Corcoran was intimately familiar with the Smithson bequest, having worked with Congress on establishing the Smithsonian Institution. He provided expertise on the building of the Castle which housed the entire Institution. As a Southern sympathizer who helped foster the compromises in the 1840’s and 1850’s that made the civil war inevitable, Corcoran had some fault to bear in the ugly matter. His fortune had been made in banking largely by funding the Mexican American War in 1846, which provided for the expansion of the country deemed necessary for the continuation of slavery.  While many in the south were devastated by their loss of autonomy through the Civil War, Corcoran came to recognize that without the burden of the slavery issue which could only divide America, the great days of America lay ahead. In 1869, he found himself on the other side of the civil war with a ton of money, a passion for art, and a new blank canvas to create the Second America as a far better place than the first. His gift of the Corcoran Gallery of Art reflects that hope. Where Smithson used the word “knowledge”, a word which connotes something quantifiable and exact, Corcoran’s vision was for “Art” and for “Genius”, concepts which are exquisite and unquantifiable. The Civil War provided redemption from America’s original sin and perhaps Corcoran’s own sins, and now it was time for grace and return to the garden.

It is with all this in mind that I contemplate again the status of the present Corcoran Gallery of Art and specifically what it means to “encourage American Genius”. As I noted in my last piece, I am quite certain that the art from the Gallery will be fine under the care of the National Gallery of Art. The building which houses the Gallery is of no moment here, since it was constructed after the death of William Corcoran and could not have been a part of his vision. But the concept of “Encouraging American Genius” remains to me as important and elusive as ever. We still live in the Second America. We have had our share of genius yet we remain far from the garden. So how do we now encourage American genius?  Arguably “genius” is not developed at all it just happens from time to time. Maybe the MacArthur Foundation has it right…wait for someone to do something great…call it “genius” and throw money at it. But I am not sure that works either, since if I won a MacArthur grant I would probably change the name of my website to and never be heard from again. (Note to MacArthur Trustees: That last comment was just literary license. If I were to receive a grant I would churn out the genius stuff like you wouldn’t believe!). William Corcoran may have had a reasonable notion as to what it meant to “Encourage American Genius“ as shown by his help establishing artists of the Hudson River School, but it is also true that much of what he collected were secondary works. That is not a knock on his talent or ideals, but more a statement on the elusive nature of encouraging genius.

An Art School, a Museum, a studio…whatever. The chance of anyone finding and encouraging true American artistic genius remains slim. The job of the artist is to turn out the work; whether it is genius or not is usually judged by posterity which sometimes takes an awfully long time to answer. For every Michelangelo there is a Van Gogh. William Corcoran must have known all this when he gave his gift. Perhaps with his gift he was trying to follow the mold set by Benjamin West in the 1770’s. The modest building he gave may have been well suited to the task of encouraging American genius in 1869. Perhaps the biggest mistake made by the Trustees of the Corcoran Gallery of Art was when they moved to larger quarters in the late 19th century and are now burdened by something large and unwieldy. But then again, the late 19th century was a time of big ideas, and Corcoran liked living large and probably would have blessed the expansion. But 19th century ideas may not be relevant to our times and our William Corcorans should not be tied to them. How we encourage our 21st century American geniuses is a mystery to me. Still, like the accurate compass which gives direction to this website, William Corcoran pointed the country in the right direction. Hopefully his legacy will continue to lead us back to the Garden.


[i] In the Zong decision (1783) slaves were thrown off a ship in peril and later claimed as a loss under an insurance policy. Lord Mansfield was called to decide if the jury was correct in ruling for the slaveholders… “that the Case of Slaves was the same as if horses had been thrown overboard.” Lord Mansfield reversed, ruling against the slave holders. History has (incorrectly, in my opinion) somehow attributed the analogy of slaves to horses to Lord Mansfield, which is unlikely given his ruling in Somersett’s case (1772) declaring slavery to be odious and therefore unsupportable on English soil. See my piece on Lord Mansfield at and the recent biography by Professor Norman Poser entitled Lord Mansfield, Justice in the Age of Reason (McGill-Queen’s University Press, Canada 2013). The facts of the Zong Case were so horrible that the analogy resonated throughout the antislavery movement in England, leading to British withdrawal from the slave trade in 1807. In 1780, John Trumbull painted George Washington with his slave on a horse, equating the two as servants to their master,

[ii] See Follow the Money- The Legacy Perhaps of James Smithson,

Hobby Lobby Two

I have a joke for you:

A guy walks into his lawyer’s office and tells the lawyer that he wants to open a business. The lawyer explains the various forms of ownership and then asks the guy “Do you have any sincere religious beliefs?” “Well”, the guy says, “I go to Church on Christmas”. The lawyer asks him if his belief is sincere. “Would that be good or bad?”, asks the guy. “Well” the lawyer continues, “if your beliefs are sincere I can save you money on any health insurance you provide to your workers.” “You bet they’re sincere”, says the guy…”and they’re getting sincerer as we speak”.
Get it?
Whaddaya mean its not funny?


On Hobby Lobby

“Sincerity, yea, I tried to throw a lot of that in there…”

Approximate response of Alex P. Keaton to the Princeton admission officer who told him that his application to Princeton seemed sincere.  (Family Ties…a sitcom)


SUCKERS! Of the many choice words that come to mind to describe the five members of the Supreme Court who supported the majority view in the Hobby Lobby case that is the word that most often comes to my mind. SUCKERS, one and all.

In Hobby Lobby, the Supreme Court enabled companies to gain tactical advantages in the marketplace based on their so-called “sincere” religious beliefs. Before this decision, these companies had to compete based on efficiency or innovation. The cruel free market was at the bedrock of core conservative thought and the courts were the arbiters of keeping the markets fair and free. Forget that. Corporations have been given a new tool by this Supreme Court…Sincerity.

For-profit companies like Hobby Lobby and every other company in America are in business to make money. They often need to distinguish their products and services in a very crowded and brutal retail marketplace. One way to do that is by establishing a corporate personality. These companies hope that they figure out a way to encourage some shoppers by developing a personality that does not alienate too many others, thereby defeating the purpose. It is a calculation. Take gun stores, for example. One would be hard pressed to find a gun store owner who does not have a broad view of the second amendment. They are not constitutional scholars, it is a necessity for their business.

So the managers at Hobby Lobby made their calculations to be an entity espousing Christian values. The fact that I may disagree with those values and boycott the stores means little to them since they hope to more than compensate for me with their target shoppers. Of course, I have never been to Hobby Lobby anyway, so their calculation is probably correct. That analysis is OK in the normal rules of a free marketplace.

The calculation is beautiful; take a stand and advertise it with a trip to the Supreme Court. Those that agree with your views will beat a path to your door. Those that disagree were largely not a part of your target audience anyway. And when the Supreme Court actually tells the world that your religious beliefs are sincere…BINGO. Those shoppers who share those beliefs are now incentivized to shop at Hobby Lobby. Either the justices purposely wanted to increase the business of certain companies AS AGAINST THEIR BUSINESS RIVALS, or they were suckered by a calculated corporate strategy into using the case to achieve other ends. I’m going with the latter.

These justices gave an actual economic advantage to one company over its competitors based on its “sincere” religious beliefs. Perhaps the costs involved will be the difference between success and failure for these competing business entities. That is not fair, contrary to the First Amendment, and frankly it is Un-American.

The good news is that business conditions change. The current market conditions favor management, as employees are happy to have jobs. In these argumentative times shoppers seem happier spending their discretionary cash at places that agree with their life philosophies. But these are difficult times and that is when bad managers do a lot of stupid things, especially for short term profit. Withholding certain health care benefits is one of those things. Maybe the managers at Hobby Lobby are business geniuses and when market conditions change they will rethink the policy. Maybe they will refuse to change and go out of business. Either way, the day will come when nobody will care about Hobby Lobby’s sincere religious beliefs.

In wartime some Quakers refused to pay their some of their taxes due to their religious beliefs. I understand that they would put the withheld amount of money into some kind of trust. Some Quakers went to jail over the issue. No high court ever supported them. While I do not agree with this form of protest because I see the issue as a slippery slope, I do not doubt the sincerity of those who practiced it. That is religious sincerity, when one takes actions against their own interests because of faith. This smells to me of something else. It seems like a calculation bought hook, line and sinker by five members of the Supreme Court so eager to prevent women from exercising constitutional rights that they personally disagree with, that they would blow past precedent, then logic, then common sense, and into situational comedy. To show their support for a business decision of Hobby Lobby, these guys were willing to break the constitution. I’m going to Michael’s today to see if they sell a kit that will put the constitution back together. This mess is going to take more than just a little super glue.