Joel Jacobsen

On the day that the President informed the world that the suspicions of conspiracy theorists were true, and that the United States not only holds suspects indefinitely without charges, officially encourages torture but also runs secret prisons abroad, Law.com informed us that our judicial system took a brave stand to stop the government from trampling our precious constitutional rights: the Second Circuit ruled that a school principal could not ask a seventh grader to cover up drawings of cocaine and a martini glass on his t-shirt.

It's good to know we haven't lost our perspective on what's important.

The Second Circuit's ruling is that the the parents who send their children to public schools in Williamstown, Vermont have no right to impose their consensus view of minimally-acceptable behavior on a group of 12- and 13-year-olds, even with regard to the most trivial details of daily life.  That authority cannot be exercised by the community, but only by three judges based in New York City.  It says so, right there in the first amendment.

Eric Voegelin's concept of the Gnostic dreamworld goes far to explain the ruling.  (See post 158.)  Voegelin traced what he termed the Gnostic mode of thinking back to Joachim of Flora (or Fiore), but the same medieval style is on display in the Second Circuit's wordy fantasy that the first amendment actually contains an intricate set of conflicting provisions dealing with t-shirts, and again in its refusal to view the t-shirt as a piece of cloth with images that any reasonable parent would believe are inappropriate in a classroom full of children entering adolescence. 

Rather, the judges viewed the shirt as a symbol, to be dealt with symbolically, in order to make a symbolic point in a universe that exists only in the abstract.  Unfortunately, the Second Circuit judges got so caught up in their elaborate system of symbols that they appear not to have noticed that they were requiring school districts to make content-based distinctions - that is, to discriminate based on the ideas conveyed by t-shirts.  And, with crushing irony, such discrimination is required by a case that purports to defend first amendment values.   "[N]onrecognition of reality is the first principle."

The nonrecognition works both ways.  Not only are judges, trained in "a type of thinking that claims absolute cognitive mastery of reality", unwilling to recognize that sometimes a t-shirt is just a t-shirt, but judges are equally unwilling to permit the thought to enter their heads that that their actions might combine triviality with contempt for democracy.  Even as news of secret prisons fills the front pages, the judges of the Second Circuit can feel smug about their role in ensuring that Vermont's small-town junior highs don't become "enclaves of totalitarianism."