Finally! "The Greening of America" is out on Kindle.

Got it!

[CAVEAT: The Kindle version is newly abridged, "compressing the original 125,000 words to an Internet-friendly 24,000 words and eliminating most of the sections on "Consciousness III." Updated? Charles Reich wrote a new preface and final chapter." Damn. As you see below, I'm most interested in the stuff that is outdated and embarrassing!]

[From the first link:]

In 1970, The New Yorker Magazine ran a 39,000-word excerpt of ‘The Greening of America' -- the longest in its history. Then the book was published. It caused a firestorm. Written by Charles Reich, a distinguished professor at Yale Law, it showed how a once-free America had become a Corporate State that made no one happy. And then it suggested a remedy.

The way out? It wasn't political change — for Reich, politics came last. The first and most important thing: Consciousness. As he saw it, America had outgrown "Consciousness I," which had helped form a nation of free individuals. It had outgrown "Consciousness II," which was corporate and heartless. Now it was time for "Consciousness III," in which people would turn away from the quest for traditional success and forge a new, personal path to satisfaction.

In short: Change the way you think, help others do the same, and soon the system has to change.

Ah, soon the system has to change. Hope and change, baby. It's 42 years later and look at all this change. It's change as far as the eye can see.

I love reading these pop culture books of the past, that is, my past. Especially circa 1970.

I also got the Kindle version of Roger Kimball's "The Long March: How the Cultural Revolution of the 1960s Changed America," which I have already read and enjoyed, because I wanted to be able to cut and paste a little something of what Kimball says about "The Greening of America," which he memorably savages:

Rick Santorum — in a 2006 interview — said birth control is "harmful to women."

Jennifer Rubin wants you to know:

Now, he qualifies his religious views by saying he doesn’t vote against contraception “because it’s not the taking of a human life” (in other contexts he has emphasized that as a legal matter he has no problem with contraception). But how does that square with his professed belief that a candidate’s values are essential to understanding and predicting his behavior? Perhaps that’s an abortion-only rule.

Watch the video at the link. Santorum says:

"I vote and have supported birth control because it is not the taking of a human life. But I’m not a believer in birth control and — artificial birth control — again, I think it goes down the line of being able to do whatever you want to do without having the responsibility that comes with that.... I think it breaks that … this is from a personal point of view. From a governmental point of view, I support Title 10 (I guess it is) and have voted for contraception — although I don’t think it works. I think it’s harmful to women. I think it’s harmful to our society to have a society that says that sex outside of marriage is something that should be encouraged or tolerated, particularly among the young. And I think it has  it has — and we’ve seen — very, very harmful long-term consequences to a society. So, birth control — to me — enables that and I don’t think it’s a healthy thing for our country.”

I'd like to see the whole transcript — and I will check his 2005 book, which I presume he was talking about. It's pretty clear just from that quote that he wasn't saying what he would do with governmental power. He was speaking "from a personal point of view," expressing the opinion something that people are now free to do isn't good for them and isn't good for society. It's a separate question whether he would deny us this freedom. He would deny us the freedom to have abortions, presumably, because that is "the taking of a human life" and thus important to him "from a governmental point of view."

Should voters worry about what Santorum might do with his personal beliefs if he gets into power? Note that the issue today isn't about banning birth control. It's about subsidies.  What behavior are we incentivizing with government spending? The Obama administration wants to nudge people into using birth control, on the theory that's good policy. Santorum represents the opposite policy position, and not merely because he wants much less government spending. From his book ("It Takes a Family"):

[I]n this country, we continue to pour millions more dollars into comprehensive sex ed, which “protects” against the “effects” of unhealthy behavior, rather than promoting virtue, which will lead to healthy behavior. In 2002, the federal and state governments spent an estimated $1.73 billion on a wide variety of contraception promotion and pregnancy prevention programs. More than a third of that money—$653 million—was spent specifically to fund contraceptive programs for teens. In contrast, programs teaching teens to abstain from sexual activity received only an estimated $144.1 million in 2002. Overall, the government spent 12 dollars to promote contraception for every dollar spent to encourage abstinence. When I have attempted to increase abstinence funding at the expense of contraceptive funding, I have been scolded for “trying to impose religious values on children.” As if telling children to go ahead and have sex all they want as long as they use a condom is not a value statement. It may not be held by many formal religions, but it is certainly held by the materialist philosophy of the left that defends free-sex-and-condoms with religious zeal. If you ever wondered what moral message was being delivered to your children from Uncle Sam—or should I say Uncle Sigmund?—now you know.

Santorum goes on to criticize the Supreme Court for finding a constitutional right to use contraception (even though, he says, if he'd been a legislator, he wouldn't have voted for the law). 

The dissenting justices [in Griswold v. Connecticut] mocked the reasoning of the majority, which in some cases based itself not on the Constitution's text, but rather on the “traditions and [collective] conscience of our people.” How, asked the dissenters, could the Court know the conscience of the people better than legislators? Did not such reliance lead only to the substitution of judges' “personal and private notions” for the decisions of legislatures?...

See? There's that idea of personal beliefs. Santorum doesn't like judges using "personal" views in the development of constitutional law. Of course, the judges — when they talk about the meaning of "liberty" in the Due Process Clause — say that they are finding a "principle of justice... rooted in the traditions and conscience of our people." Justice Black simply didn't think judges could do that.

Santorum's not running for judge, and the Justice Black approach leaves these things to the political branches of government. So, if Black was right, and personal views are going to affect decisions, then we can't get away from the reality that Santorum's personal views will affect his decisionmaking — including whom he will appoint to the Supreme Court, which has the power to reshape our due process rights, perhaps giving a lot more leeway to the political branches of government where Santorum's personal views will affect decisionmaking.

Should psychiatrists offer opinions about the mental conditions of various characters in the news?

The official rule of the American Psychiatric Association is that they can speak generally but it's unethical to give a professional opinion about an individual. The rule grew out of a case involving Barry Goldwater:

Just before the 1964 election, a muckraking magazine called Fact decided to survey members of the American Psychiatric Association for their professional assessment of Senator Barry Goldwater of Arizona, the Republican nominee against President Lyndon B. Johnson....

The survey, highly unscientific even by the standards of the time, was sent to 12,356 psychiatrists, of whom 2,417 responded. ... Half of the respondents judged Mr. Goldwater psychologically unfit to be president. They used terms like “megalomaniac,” “paranoid” and “grossly psychotic,” and some even offered specific diagnoses, including schizophrenia and narcissistic personality disorder....

There were several attempts at a psychodynamic formulation of Mr. Goldwater’s character. One unsigned comment called the candidate “inwardly a frightened person who sees himself as weak and threatened by strong virile power around him,” and added that “his call for aggressiveness and the need for individual strength and prerogatives is an attempt to defend himself against and to deny his feelings of weakness.”...

Goldwater sued for libel and won, which led to the APA rule barring opinions. Obviously, it brings psychiatry into disrepute when ordinary people can see it used dishonestly to promote a political goal. But I don't see why it's so bad for psychiatric experts to speculate and opine about public figures. We the people need to think about the events in the news, and some expert opinion is helpful. Let us decide which experts are worth hearing from. The political hacks will be enjoyed or condemned as we see fit. But some analysis is going to be good. Frame it as speculation and hedge appropriately: I would need to meet with the individual to make a professional diagnosis, but here's what I can say....

If the experts don't do it, the pseudoexperts will. As for the fear of lawsuits, libel law is constrained by free speech values. Mere opinion in not libel. And public figures have to meet a high standard to prove libel.

Why then did Goldwater win his lawsuit? The linked article, by psychiatry professor Richard A. Friedman and published in the Science section of today's New York Times, says:

The Supreme Court awarded the senator $1 in compensatory damages and $75,000 in punitive damages — and, more important, set a legal precedent that helped change medical ethics for good.

Of course, any lawyer knows that the Supreme Court doesn't award damages. It only affirms the lower court's decision. But what is this Supreme Court case and how did it deal with the free speech issue? Hello? New York Times? Don't you wonder how this case would square with New York Times v. Sullivan (second link, above)? So did Justices Black and Douglas, dissenting from the denial of certiorari in Ginzburg v. Goldwater! Justice Black wrote:

This case perhaps more than any I have seen in this area convinces me that the New York Times constitutional rule is wholly inadequate to assure the 'uninhibited, robust, and wide-open' public debate which the majority in that case thought it was guaranteeing....

This suit was brought by a man who was then the nominee of his party for the Presidency of the United States. In our times, the person who holds that high office has an almost unbounded power for good or evil. The public has an unqualified right to have the character and fitness of anyone who aspires to the Presidency held up for the closest scrutiny. Extravagant, reckless statements and even claims which may not be true seem to me an inevitable and perhaps essential part of the process by which the voting public informs itself of the qualities of a man who would be President. The decisions of the District Court and the Court of Appeals in this case can only have the effect of dampening political debate by making fearful and timid those who should under our Constitution feel totally free openly to criticize Presidential candidates. Doubtless, the jury was justified in this case in finding that the Fact articles on Senator Goldwater were prepared with a reckless disregard of the truth, as many campaign articles unquestionably are. But, even if I believed in a balancing process to determine scope of the First Amendment, which I do not, the grave dangers of prohibiting or penalizing the publication of even the most inaccurate and misleading information seem to me to more than outweigh any gain, personal or social, that might result from permitting libel awards such as the one before the Court today. I firmly believe it is precisely because of these considerations that the First Amendment bars in absolute, unequivocal terms any abridgment by the Government of freedom of speech and press.

So the jury found that the New York Times standard was met, and the Court of Appeals affirmed. The Supreme Court declined the case, with Justices Black and Douglas arguing for greater free-speech protection.

And when I say "the New York Times standard was met," I mean the legal standard from the case New York Times v. Sullivan. I do not think the New York Times standard of journalism was met for this article!

The Senate must seat Roland Burris.

Says Walter Dellinger, who was a Supreme Court law clerk (for Hugo Black) when the Supreme Court decided the Adam Clayton Powell Jr. case (Powell v. McCormack):

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.

Dellinger notes that Blagojevich is the governor, he has the appointment power, and he has exercised it:

The charges that he sought bribes to appoint certain candidates to the Senate do not automatically render illegal other official acts of his office like signing laws or pardoning criminals. And because there is no evidence that a bribe was solicited from, or proffered by, Mr. Burris, his appointment is presumptively lawful.

Nor do the other arguments against Mr. Burris’s appointment hold up. The contention by the Democratic leadership that Mr. Burris can be denied a seat because the Illinois secretary of state refuses to sign his appointment papers is without merit — it would confer upon secretaries of state absolute veto power over governors’ appointments.

The idea of delaying and giving the Illinois legislature a chance to impeach Blagojevich makes no sense, because Burris has been validly appointed, so he's in until the term is up in 2010.

There is still a separate question whether Burris can get into court (as I noted last Thursday). Dellinger says:

The Supreme Court decision in the Powell case did leave open the possibility that a Congressional decision finding that a member was not properly elected — in this case, appointed — might be a “political question” immune from judicial review.

But that some reasons for denying Mr. Burris this seat might not be subject to review by the courts means that the Senate should take more care, not less.

Exactly. When the court finds a case nonjusticiable under the political question doctrine, it is because it reads the Constitution as committing a particular constitutional question to one of the political branches of government. It is decidedly different from rejecting a Constitution-based claim on the merits. It is saying that some other branch of government is the final authority on the meaning of a part of the Constitution, and that indeed means that the nonjudicial branch that has this responsibility must look at the Constitution and figure out what it means and then follow it.

It absolutely does not mean that the other branch can simply carry out its political will.... something you'd never guess from watching Harry Reid.