Two weeks ago, Bob Dylan won the Nobel Prize in Literature, becoming the first musician to claim that award. Yesterday morning, I heard him tell a knock-knock joke:
Knockin’ on the door, I say, “Who is it and where are you from?”
Man says, “Freddy!” I say, “Freddy who?” He says, “Freddy or not here I come.”
Bob Dylan, Po’ Boy, on Love and Theft (Columbia Records 2001).
While the Grateful Dead last appeared on stage twenty years ago this summer, capping a thirty-year run that began in 1965, they remain popular and influential today. That remaining band members continue to perform and, to a lesser extent, record music certainly helps them remain relevant, as does their reverently cited influence by many other performers and music fans and their iconic merchandising. They are one of only five groups or individuals– along with Elvis, Bruce Springsteen, Neil Diamond, and Pearl Jam– to have a dedicated satellite radio channel. All of the living core members– Mickey Hart, Bill Kreutzmann, Phil Lesh, and Bob Weir– will, along with part-time member Bruce Hornsby and other subsequently affiliated and related friends, acknowledge their fiftieth anniversary by reuniting this summer for three performances at Soldier Field, the site of the band’s final concert.
Based on the sheer volume of the band’s output and the size of its audience across a three-decade lifespan, the Grateful Dead certainly is among the most important musical outfits of the twentieth century. Without a conscious effort to do so (and without any real hit songs), but instead through the sheer force that accords and abides massive bodies, they permeated the broader culture, whether as a talisman of psychedelia or through their members’ appearances in educational videos screened in public middle schools, which was the vehicle for my first direct encounter with a Dead band member, drummer Hart, who was talking about the importance of caring for and preserving musical recordings and archives (I think).
Beyond Hart, I certainly was aware of Jerry Garcia at that time, having inherited from my father some of Garcia’s neckties, which confirmed that he (Garcia) had recently died by reading a tag attached to one of them. Later, Lesh and Weir came into view as I discovered record albums in the basement– first Dead Set and later Europe ’72— with centerfolds, sleeves, and inserts covered in photographs. The two-drummer lineup caught my eye, but it would be a while longer before I really got a read on Kreutzmann, perhaps because I already knew about his percussive counterpart Hart, perhaps because Kreutzmann’s appearance allowed him to fade into the background behind his more dynamically featured bandmates, and perhaps because I simply did not know much about drumming.
I eventually gained an appreciation for Kreutzmann’s playing when I heard him backing Garcia on Garcia’s 1972 solo album. The first track, “Deal,” has remained one of my favorite entries in the Garcia/Dead songbook largely because of Kreutzmann’s playing. (See, e.g., this stripped-down session outtake.) No one ever will confuse Kreutzmann for power drummers like Keith Moon or John Bonham or more dynamic drummers like Mitch Mitchell or Jon Fishman, but I enjoyed his ability to create complimentary feels that contributed to the grit and depth of the songs.
In light of the breadth and depth of interest in the Dead, it makes sense that people would want a fly-on-the-wall perspective of the band’s inner happenings in backstage dressing rooms, recording studios, tour buses, and hotels. A fly in that environment would be subject to the sounds, sights, and smells– or, say, vapors– of the psychedelic juggernaut. The fly would become intoxicated, is the suggestion, and while it might have fun as an immediate result, it might not be the best reporter of what it observed from its on-the-wall vantage point after the fact.
Of course, musical autobiographies come in various styles. Some, like Bob Dylan’s Chronicles, Volume I, trade precision, accuracy, and transparency for feeling, atmosphere, and emotion. Others, like Keith Richards’ Life, offer detailed clarity and genuine reflection seemingly in spite of hard living throughout most of the relevant periods.
I found myself revisiting my thoughts on and memories of Richards’ book as I finished reading Kreutzmann’s autobiography, which was published earlier this month. The drummer, it seems, combined the lifestyle of Richards with the shrouded delivery and reserved personality of Dylan. Kreutzmann is our fly on the wall, and the wall was papered with blotter paper.
In at least one respect, Kreutzmann is not shy: he likes acid and marijuana, and he combined plenty of both with intense periods of cocaine, alcohol, and heroin use during the life of the Dead. He generally demarcates the period from 1965-1995 by band album or tour; wife or girlfriend; residence occupied; and predominant narcotic of use or abuse. On the surface, Kreutzmann is not unlike anyone else in this regard– most people are likely to organize their memories and events in some way according to their professional, personal, and geographic relationships. The trouble for Kreutzmann, and for his book, though, is that his drug use either wiped out his memories of happenings in his life or rendered him unable to form them by participating in the moment. While coauthor Benjy Eisen promises to deliver something other than a mere band retrospective (“Lots of people can tell you about the Grateful Dead, and all of them will allow that there are many sides to that tale. This is Bill Kreutzmann’s side. This is Bill Kreutzmann’s story.”), the final product reads like a loose history of the Dead as told by someone who was there and not there. Bill Kreutzmann & Benjy Eisen, Deal: My Three Decades of Drumming, Dreams, and Drugs with the Grateful Dead 4 (St. Martin’s Press 2015).
While Kreutzmann– who has lead a variety of bands since the demise of the Grateful Dead and has both criticized and performed with his former bandmates during the last twenty years– has his wits about him today, he admits both that he does not remember a number of events significant enough to bear mention in a book like this or withdrew from them at the time due to some combination of drug use and what appears to be a generally reserved personality. While Eisen fills in the historical blanks with facts and statistics, readers are here for Kreutzmann’s observations and opinions. Too often, unfortunately, the inside scoop dips shallow.
The book does check some basic boxes. We learn which short-lived associates Kreutzmann considers true members of the band (yes for Hornsby, no for Vince Welnick and Tom Constanten); that he was mad when Hart made his initial return to the band after a personal leave of absence following Hart’s father’s theft from the band in his capacity as manager; which songwriting duo he preferred (Garcia-Hunter to Weir-Barlow, like most, possibly including Weir and John Perry Barlow); and that he often found better social company with the band’s roadies and staff than with his fellow musicians. Interesting trivia disclosed, though not here for the first time, includes that Kreutzmann’s grandfather was Clark Shaughnessy, who successfully coached various football teams at the collegiate and professional levels during a five-decade career, and that the Dead’s most commercially successful album, In the Dark, derived its title from a recording session conducted with the lights off in order to facilitate musical collaboration. One episode Kreutzmann did delve into at some length was the band’s 1978 performance in front of the Great Pyramids in Egypt, a visit that included Bedouins observing the concert happenings from afar and a midnight horse ride to a mysterious desert drum site.
What is missing, however, is any palatable expression of emotion with respect to Kreutzmann’s relationships with the people in his life. I have no reason to doubt that Kreutzmann loves his family members and friends, but that love largely does not translate to the pages of his book. His wives, partners, and children, like his bandmates and friends, appear as sometimes indiscriminate placeholders, simple trail markers along the book’s historical path, which is occasionally littered with throwaway quotations of song lyrics and the non-contextual talking points of a social liberal (e.g., marijuana good, genetically modified food bad).
Whether that is a reflection of a shy personality, Eisen’s failure to draw him out, or memories forgotten or never made, is impossible to say. But when he says a death saddened him (“darn it,” he almost always writes), the reader sometimes feels moved to ask, “really?”, not out of any doubt that the emotion is or was real, but because the expressed development of the relationship that naturally would precede a sensation and expression of sadness upon death is missing. Authors can tell or they can show, and, many times, there seems to be too little of the latter in this book. (On the other hand, perhaps I should have better appreciated these simple expressions of feelings, as other reviewers have, particularly in the case of Garcia, as telling contrasts to the bands well-noted excesses.)
Deal was an easy and enjoyable read. Although I have been listening to the Grateful Dead’s music, watching their movies an video footage, and reading magazine and internet articles about them for years, this was the first full-length book I have read by or about them. That it left me wanting more, in a sense, probably puts me in good company with the still-insatiable legion of Dead fans from Golden Gate Park to Giza.
One yearTwoThreeFourFive years ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten.
My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. With
nearly 3,500over 9,700nearly 141719,000 views in the first yeartwothreefourfive years, I still think we’re off to a good start.
Thank you for your readership and feedback.
Earlier this year, a friend sent me a copy of Surely You’re Joking Mr. Feynman! (Adventures of a Curious Character), the oral memoir of Nobel Prize-winning physicist Richard P. Feynman. Upon completion, as the title implicitly promises, the reader is left with a strong sense of Feynman’s character: extremely self-confident, but never taking things too terribly seriously. While he credits the latter– a sort of everyman approach to life’s puzzles and adventures– for allowing him to take creative approaches to problem solving in physics and otherwise, it may be something of an outer surface he projects on top of his self-assured and extremely intelligent individuality. He doesn’t not remind me of Randy Pausch, late author of The Last Lecture. Still, Feynman is able to illustrate his developing personality over time, and stories about his time in Los Alamos, Brazil, and Las Vegas are fun and show readers a very well-rounded individual who could do plenty more than model nuclear physics.
Ninety-five percent of the book is Feynman telling stories, but he steps back at the end to offer some broader, more philosophical observations on the world after relating his time attempting to hallucinate with Dr. John C. Lily. Feynman expressed concern that, despite all of the scientific advances of the twentieth century, he was not living in a truly scientific age writ large because people continued to adhere to beliefs and take actions even though these approaches wouldn’t stand up to logical examination. Simply, Feynman wanted to apply the scientific method to everything and ask, for example, what educators were thinking about their new models for teaching reading when literacy and reading test scores were not improving as a result of these new approaches.
Another example is how to treat criminals. We obviously have made no progress– lots of theory, but no progress– in decreasing the amount of crime by the method that we use to handle criminals.
Richard P. Feynman, Surely You’re Joking Mr. Feynman! (Adventures of a Curious Character) 340 (W. W. Norton & Company 1985).
There’s a lot to be said about our criminal justice system and its failures, with particular comment on incarceration rates, racial prejudices, narcotics policy, and the death penalty, among other topics, but the semi-stated assumption in Feynman’s observation, that the goal of the criminal justice system is to reduce crime, seems worth examining in the first instance.
In discussing the theories that guide our criminal justice system, two apparently competing approaches are most prominent. One is the rehabilitative theory, which argues that the purpose of the system is to limit recidivism by teaching convicts how to become functional, productive members of society. The retributive theory, by contrast, is focused on punishment, attempting to balance the scales for the wrong done to the victims of the crime by exacting punishment on the convicted criminal.
Notably, both of these theories look at how we should treat a person following conviction. While Feynman may be making indirect reference to the rehabilitative approach– by processing all criminals through a rehabilitative program we build up the particularly (legally) depraved among us and thereby reduce recidivism and thus decrease crime rates– I read him as criticizing the failure to reduce crime in the first instance, which is the reading that gave me pause. That’s because the “science” of criminal justice does not appear to address reducing crime in the first instance.
There probably are a few reasons for the preference for an ex post approach over an ex ante one. First, there is a fear in criminal justice about the possibility of prosecuting “thought crime” that causes many to put on the brakes when it looks like things are moving toward punishing a person who is contemplating but has not actually begun to physically commit a crime. Second, there’s the possibly more monumental task that would be reforming the conditions of society generally such that fewer people committed fewer crimes, recognizing that there are a variety of individual and societal factors that drive criminal behavior.
Feynman’s criticism, and its incorporated assumption, therefore probably is slightly misguided. His broader point nevertheless is well-taken. For all the resources we expend on the criminal justice system, things don’t seem to be improving. While critics have identified numerous possible points of causation and adverse consequences, meaningful reform does not appear forthcoming.
The Constitution’s Commerce Clause, Article I, § 8, has been in the news this week, but it’s the Clause’s negative implication– known as the Dormant Commerce Clause– that provides the conceptual starting point for this post and its ultimate conclusion about the full meaning of First Amendment speech rights. If the Commerce Clause is an express grant of authority to Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” the Dormant Commerce Clause is an implied restriction on state authority over a regulatory area– interstate commerce– that belongs to Congress. State regulation that affects interstate commerce must bear a rational relationship to a legitimate state concern and the benefit the regulation affords to the state’s interest must outweigh the burden on interstate commerce. This (implied) proscription applies even in the absence of affirmative federal regulation of the precise subject matter the state sought to regulate. It is enough that Congress could regulate the aspect of interstate commerce; it need not actually have done so.
A related concept is that of implied preemption. In general, implied preemption is a decision to resolve conflicts between federal and state law by choosing the federal law in most every instance. One application of implied preemption comes where Congress so occupies a regulatory field– immigration might be an example, Arizona and Alabama notwithstanding– that any state regulation in that area is preempted, even if Congress hasn’t passed a statute addressing the particular issue.
There is a concept at work both with the Dormant Commerce Clause and implied field preemption that has to do with the virtue and authority of silence. Both doctrines place silence on authoritative par with sound, inaction equal to action. They recognize and protect the full scope of the grant of authority, even if the authorized body never exercises the authority to the fullest extent.
Calvin College is one of the nation’s leading Christian Reformed colleges, and while it has a reputation for social conservatism, it also has a reputation for hosting progressive, secular music concerts. About a year and a half ago, these two interests clashed, however, when the school cancelled a scheduled performance by indie act The New Pornographers on the sole basis of the band’s name, and even in full recognition of the fact that the band does not “endorse pornography.” There’s no legal question that the private college may host or not host whatever entertainment it chooses, but the story still took on a community discussion that proceeded along free expression lines.
We usually talk about First Amendment speech in terms of things actually said, and the legal and political questions usually have to do with whether the First Amendment protects words actually spoken or actions actually taken. But maybe the First Amendment is about more than fostering a broad cacophony of speaking and a mess of expressive acting. Maybe there’s a negative implication of the First Amendment and its protected rights, a Dormant First Amendment.
The Dormant First Amendment might recognize that, just as someone has a right to say something, he also has a right (or at least a strong interest) in not hearing something. For example, we might see Calvin College not as restricting someone else’s speech in cancelling the concert but as preserving its own interest in not hearing something it found distasteful. The former formulation carries a negative connotation, but the latter should carry a positive one. Rather than the First Amendment (conceptually, not mechanically– although I do appreciate that that statement may impair the impending metaphor) being a one-way ratchet that directs only more and more speech-volume, why not a multifaceted approach that values discernment, distillation, refinement, taste?
It may be true that the First Amendment was meant to create a marketplace of ideas, as courts have said. Marketplaces are loud, noisy places, and the merchant who hawks her wares the loudest may be more likely to survive there, but not everyone survives in a market because customers don’t do everything sellers’ advertisements tell them to do. Perhaps people would make better decisions if they patiently heard every pitch from every market participant, but at the very least, the First Amendment is about a right to speak, not a right to be heard. Moreover, if the First Amendment is about everybody being able to say whatever they want, is it really so offensive to that principle to say that people ought to be able to use their discretion to decide when to step to the side of the spray of the verbal fire hose?
As for how the idea of the Dormant First Amendment would work practically I’m far from sure, and if there are any readers who aren’t practically dormant at this point, comments, as always, are welcome below. The real thrust of this post is to suggest the possibility that, like the Dormant Commerce Clause and implied preemption doctrines place Congress’ inaction on authoritative par with its action, the First Amendment might also have a negative implication that places an individual’s desire to avoid speech on protective par with his or her desire to engage in speech.
I have written before about compassion, see, e.g., here and here, and while a simple example sometimes can serve as a basic way of illuminating a concept that requires little additional commentary, a second-level example almost always will. Such an example was buried in USA Today’s coverage this week of a story that started when someone went to a Kmart store in Grand Rapids for the purpose of anonymously paying off shoppers’ layaway accounts and others around the country began to follow suit. The following part of the story appeared in the final paragraph of the print edition’s version of the article and is tucked in the middle of the online version:
Lori Stearnes thought it was a joke when a Kmart in Omaha called to tell her that someone had paid the $58 balance on her account, which included toys for her youngest grandchildren. “It was a shock, of course, and then it just made me feel warm and fuzzy,” she says. Stearnes went back to Kmart and used the money she had set aside for the gifts to pay off two other layaway accounts.
Judy Keen, “Mystery donors paying off layaway accounts for needy,” USA Today (Dec. 21, 2011). Compassion in action requires little elaboration; repetition is welcome, however, and it doesn’t take an angel to do so.