an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
"Even while understanding that friendship includes a great number of important advantages, it must be said that it excels all other things in this respect: that it projects a bright ray of hope into the future, and upholds the spirit which otherwise might falter or grow faint. He who looks upon a true friend, looks, as it were, upon a better image of himself. For this is what we mean by friends: even when they are absent, yet they are with us; even when they lack some things, still they have an abundance of others; even when they are weak, in truth they are strong; and hardest of all to say, but also most deeply felt: even when they are dead, in truth they are alive with us, for so great is the esteem of a true friend, the tender recollection and the deep longing that still abide with them."
- Marcus Tullius Cicero, De amicitia, lib. vii (ca. 45 BCE)(my transl.)(in the Loeb edition of the works of Cicero, vol. 20, p. 132).
A season of celebration is here and with it more time than we ordinarily accord ourselves for a communion of friendship. Underneath the crass commercialism of this season and the current demeaning bickering over the correct salutations, this is what I find a reason to rejoice and relish. In the past year and a half, I have added the blogging team that Jack established and that Sandy Levinson, Marty Lederman and so many others have enlivened, to my own friends, and beyond them, a circle of readers - some crotchety, some exasperating, and others who offer essential moral support (and even a keen editorial eye and blue pencil, which must be what every poster hopes for). I am adventurous enough to call them all friends, though for some the ties are deep and for others the ties of friendship are testy. Nevertheless, the blog concept has proven its usefulness, and I think the writings of Jack, Marty and Sandy in particular have made solid contributions to a national debate focused on the question of torture and the use of Executive authority to sustain it. This has been a vital question to our country and to legal scholarship, but a question which the mainstream was also painfully slow to understand. The blog medium, with Balkinization in the lead, bridged the gap and proved itself. I feel accomplishment just in being on the periphery of this effort.
Our bloggers have differing approaches to their writing, but in general their work is marked by sharp insight, spontaneity and an eagerness for dialogue. I ask if this isn't the best use for the blog? It seems to me it is well suited as a stepping stone for more serious research, allowing individual problems to be tossed out and thought through. Blogging is a process after all.
This requires of our readers some indulgence. So I ask them to view me as a friend and to treat whatever I write in that sense – in the sense in which Emerson writes, in his journal, that one of the comforts of friendship is that one can afford at least occasionally to be a bit foolish in a friend's presence. Looking back at the index that Jack just posted I see several things I would not have written today, or would have written differently. But then if we approached the process with too much caution, we would never have managed the 800-plus pages on the torture memoranda that our team collectively mustered. There are mistakes in those pages, but they contributed enormously to our understanding of the subject matter, and they did it in real time. Emerson would say, I believe, that it was worth being a bit foolish to achieve this.
We come to the end of the year, a time when it behooves us all to think not only of our friends who are about us but also those who have passed before us and who may in some way have added to our lives. This is one of the ways that we recognize in humanity not a collection of people now in being, but a continuum of life which reaches deep into the past and projects forward into the future, and with it the fundamental principle of hope which is essential to our continuation and happiness. The greater whole is an enrichment and nourishment for us all. And this is the message of the seventh book of De amicitia which I have retranslated above. A few weeks ago, my friend Andrew Sullivan flagged this for me, and after reading his impressive essay on friendship (the third section of Love Undetectable) – I came back to it at the end of a particularly disquieting week. I took the Loeb translation by Falconer, which has been reworked twice, but is still I think too far from the key meanings. My translation here takes some admitted liberties (so that this translation may in candor be a mixture of the great orator and an obscure New York lawyer), though none beyond what is necessary to fully unfold the meaning, but I am confident of the accuracy of its sentiments.
To all readers of Balkinization I wish warmth not from a furnace or a fireplace, but from friendship, and good cheer as this year ends and the next begins. Posted
by Scott Horton [link]