Wednesday, April 18, 2007


Who wants to harp on anything? But the Duke and Imus matters are bringing a lot of usually in-house advocacy thinking out into the open. The fact that April is national sex-assault awareness month, or something to that effect, looks increasingly to not-be a coincidence.

The invaluable Truthout site reprints an article by Caryl Rivers that originally appeared on ‘Women’s eNews’ (‘Shock Jocks Wield Dangerous “Stereotype Threat”';

As best I can make it, the author is not pleased that the Duke bhoys “acted like victims” during a press conference with Imus on April 10. This to her is the equivalent, it would seem, of claim-jumping, and we sense clearly that some vital part of our national culture has indeed been regressed these past few years to the Old and Wild (I dassn’t say Wooly) West.

At first glance, it would seem that the boyos, unlovely as they and their ilk might be, do indeed – willy or nilly – occupy the ‘victim position’ in the matter at hand. In the case of their being accused of rape, it now appears clear that they were inaccurately and improperly targeted by both the media and – of vastly more import – the criminal law enforcement agencies.

But it is precisely this actual reality – the situation on the ground, as it were – that the author and this advocacy’s mindset and gameplan want us to ignore. As in the old Soviet revolutionary scheme of things, it is not the truth of the claims in any particular incident that is of primary importance. Rather, it is the usefulness of the particular incident – especially with the assistance of shrewd and relentless propagandizing – to ‘symbolize’ the plight and outrage and vengeance of ‘the people’ or ‘the masses’. An insistence upon factuality and accuracy constitutes a ‘bourgeois’ refusal to accept the verdict of ‘History’ and of the aforesaid ‘masses’, and brands one as an obstructionist and right-deviationist and a host of other arcane (but in their time deadly) monikers.

Thus, the politically correct way that matters should be presented is as follows: The male is an enemy class, unalterably boorish and sex-addled and sex-assaultive; the female is none of those things and is also thus inevitably the victim of this boorishness and assaultiveness. This is the fundamental class/group conflict, and thus in any particular incident it is this and only this aspect of the situation which deserves to be noted. It makes no difference whether in this particular instance, this particular member of the oppressor-class is ‘technically’ guilty or innocent, because by virtue of being a member of an oppressor-class each member of the class is always essentially guilty.

Any concerns not shaped by this reality are incorrect and counter-revolutionary (the modern term is ‘backlash’). And for a male-oppressor to dare to deem himself a member of the oppressed class, of the ‘victim’ class (to which all women by nature belong), is a monstrous perversion of the revolutionary order of being: men-oppressors/women-oppressed victims.

This is the web of assumptions hidden ‘under the table’ here. This web of assumptions is deeply similar to Soviet revolutionary praxis of 90 years ago. It is profoundly anti-Western and it is hell-and-gone from the Western concept of Justice. It is also – it has to be admitted – the guiding and grounding matrix for huge swaths of contemporary feminist thought and praxis, and insofar as the relevant advocacies have successfully insinuated this matrix into American jurisprudence and jurispraxis, this matrix is one of the more significant causes of the corrosion and corruption of our Law and the rule of Law.

My concern here is not that the boyos be considered angels; they are not – and no human is. My concern here is not that the boyos be recognized as the victims of this attempted miscarriage of justice; although they were the victims insofar as criminal charges were attempted to be brought against them for an act of which they were innocent. My concern is that We realize just what sort of monstrous thing We have welcomed into Our midst.

When feminist and advocacy commentators try to focus attention on the general and overall boorish unloveliness of the boyos, they are not simply trying to deploy the best available PR gambit to salvage the situation as best may be done. They are manipulatively trying to prioritize the conception that the boyos are members of a naturally-criminal class, and precisely not that they are individual and specific citizen-defendants in a criminal case based upon their individual and specific actions at a specific place and time against a specific claimant/complainant.

This Sovietish gambit results in the most virulent and lethal consequence of the Advocacies’ and the Identities’ long march: it reduces criminal law to the subordinate status of being ‘the teeth of the revolution’; to the status of being merely the Good Housekeeping seal of dis-approval on an already presumptively rotten product (i.e. the class called ‘men’).

In the Western and the American Constitutional system the deployment of the monopolized violence of the criminal law against a citizen is considered the most dangerous capacity of the State, and the one that must be most carefully circumscribed through due process, independent adversarial proceedings, and rules of evidence. The advocacies’ essentially Soviet conception of the role of criminal law is not only different from Western and American Constitutional Justice; it is not only divergent from Western and American Constitutional Justice; rather, the advocacies’ essentially Soviet conception of the role of the criminal law is utterly antithetical to Western and American Constitutional Justice.

The Soviet conception (regardless of whatever name with which it is re-badged) cannot in any way co-exist with the Founders’ conception of the role of criminal justice. The two approaches – the Soviet and the Founders’ – are mutually exclusive. No amount of PR spin or elite manipulation or coercion can make them otherwise.

Thus We can see the root cause of the monstrous derangement of Law over the past four decades. What was touted in the 1970s as ‘revolutionary’ in the sense of ‘new’ and thus packaged attractively for a youth-besotted American society obsessed with ‘newness’, was actually revolutionary in a very old sense, the Soviet sense.

And on top of that fundamental disconnect, it was not permitted to consider the ‘revolution’ from that perspective; to do so, to try to question, to kick some tire, to look more closely, to think things through, was considered ‘backlash’ and a sure sign that the skeptic ‘just doesn’t get it’ – the old Soviet-era equivalent terminology being ‘counter-revolutionary activity’ and ‘intransigent bourgeois’ (and they constituted, inevitably, a death sentence).

From a Western point of view, the unlovely boyos are indeed the victims in the Duke matter; from a feminist/advocacy/Soviet point of view, the boyos could never be victims because their class is by definition the oppressor, regardless of ‘facts’ or ‘specifics’ or other ‘mere technicalities’.

Before the fundamentalistic patrioteering of the Bushist Imperium and the profoundly cynical kabuki pretensions of military-style jurisprudence, American Constitutional law and jurisprudence had been consistently under attack for decades by the (domestically-camouflaged) revolutionary-soviet manipulation of Law. And nobody was supposed to notice it; and nobody who was anybody (or wanted to be anybody) was allowed to really talk about it.

It is the rock-solid wisdom of the Founders that no societal change, no matter how desirable, possesses in virtue of its virtues the authority to subvert the careful and precise fencing of the monstrous power of the State to deploy the criminal law. Weimar was not the first subsequent republic to find itself undermined when an ‘emergency’ and ‘outrage’ and ‘the need for protection’ were allowed to override its constitutional ethos; but it is the most vivid example of what happens when such stampedes are permitted.

In recent decades, the American ethos has suffered both civic and a legal corruption. Public discourse was not permitted to deliberate about huge, multivalent and numerous societal changes, and the criminal law was deployed as a mere adjunct to impress upon the citizenry this and that particular ‘revolutionary’ (they called themselves that, loudly and proudly) agenda.

We were well on the way to becoming a banana republic long before the Bushist Imperium. Worse, We had actually been under the impression – to listen to elite opinion – that We were on the cutting edge of a world revolution in ‘rights’. And that was true, actually. But it was not an ‘American-style’ 1776 revolution; it was that ‘other’ style of revolution, born of the fiery pure abstractions of France in 1789 and of the bloody-minded and remorseless determination of Russia in 1917 – both fortified by the purest of intentions and purpose. *

Ms. Rivers would like us to focus on that recent demonic evil: stereotypes. They have the power “to get in people’s head without their knowing it”; they are “insidious”, and can infect us “like microbes” and “powerful germs”. Stereotypes can victimize people (although oppressors by definition cannot be victims). Thus ‘stereotypes’ can exist unrealized, unperceived, “in the back” of our mind. (And this starts to sound like the now-standard boilerplate definition of the arch-evil 'Sex Offender'.)

One shudders to imagine what solution the Advocacy will propose on the basis of this diagnosis. Mind-probes enforced by the power of the criminal law? Security checks for thought-crimes? Some form of ‘Precog’ identification that will enable ‘pre-emptive arrest’ for sexually assaultive thoughts? Or ‘potentially’ sexually assaultive thoughts? We are well on the way to worse than a banana republic. A banana republic is grossly unjust, but there is a practicality to its purposes; a revolutionary paranoia-dise is impractical, indeed impossible, in its very essence, and can only wind up consuming its own citizens, as did both the French and Russian revolutions.

So it seems to me that in this month of national awareness, and under the helpful – if not totally coincidental – impetus of the Duke and the Imus affairs, We most certainly do need to look at this whole sexual-offensive thing.

Raise consciousness? Certainly. Educate? Certainly. Exhort? Certainly. But the subordination of the criminal law and Justice to any ‘agenda’ or programme, especially one that has not been widely deliberated by The People, is utterly and absolutely to be rejected. And when all of such hijacking’s attendant evils are considered – the erosion of Truth and honesty and integrity, the subversion of language, the suppression of civic discourse and the weakening of civic bonds among the citizenry, the derangement of the media’s indispensable role as reporters of fact – then such subornation of the criminal law must be resisted with all the vigor that a free society (however weakened) can muster.

We are not primarily victims or oppressors; Our identity is that We are Americans; that We are a free People, and that the world and the future are greatly in need of the legacy that We have been entrusted to preserve. Against this rock may neither the Bushist Imperium nor the Viktimist revolution prevail. Allons, enfants de la patrie …

* - I can't help but noticing the many similiarities between early Soviet practices and 'Advocacy' praxis. Beyond the Emergencyism and Overriding Justification of Good Intentions and the designation of a class of 'objective enemies' who are effectively both eternally and absolutely 'guilty' and interchangeable for the purposes of 'show trials' and other propaganda uses, there is also, inter alia: the profoundly paranoiac dynamic exemplified by Vyshinsky as the show trials of the later 1930s consumed the old Bolsheviks themselves. "The masks have been ripped away" he crowed, and those accused have been forced to show their "real faces". This abiding suspicion that even among 'us' there are those who although they appear to be among our 'best', are really enemies of the revolution seeking (the monsters!) to destroy the revolution ... seems precisely echoed not only in the "paranoid style" of American politics noted by Richard Hofstadter in the 1950s but also in the strategies and scenarios deployed by the several domestic Advocacies here since the 1970s, most especially the 'raping Man' and the 'sex offender' and the evil evil subset of the 'sex offender': the Stranger (though as we now know, well over half of all these cases involve familiar persons, not 'strangers'). Surely the eerie attractiveness of the Roman Catholic priest sex-abuse scandals of recent years has been not so much the description of what the accused were purported to have done (there is oddly and suspiciously little prurient revelation, suggesting that the purported 'horrors' were actually considered too thin to sustain the stampede) but rather this ur-theme of 'unmasking the hidden enemy in our midst', which consumed the attentions of the Soviet state from its birth almost to its end. The revolutionary 'theatre' surrounding the act of 'denunciation' - especially when it is a child who denounces an adult, such as the 'hero-child' Pavlik Marozov - figures largely in early Soviet praxis and also in Mao's Cultural Revolution of the 1960s and 1970s (eerily contemporaneous with the rise of the Advocacies here) and the antics of the Red Guard youths who lustily denounced adults who had been 'hiding' their 'counter-revolutionary' 'true natures'.


Stuff keeps coming out. Today up in Boston, Wendy Murphy the lawyer/law school prof/victimiste advocate goes on record in the "Boston Herald" as opposing a $700,000 incease in state funding for public defenders at the expense of the hugely tangled sex-offender registry board and district attorneys.

The money, she wails, "should hardly go to give even more money to the people causing some of the problems." Here, I say again, is an example of the Soviet-era roots of this particularly American lawlessness: An attorney and law professor shows no appreciation for, maybe no awareness of, the overriding Constitutional concern for ensuring the individual citizen some level of protection from the arbitrary imposition of the criminal law and the government power.

For Murphy and her ilk (and their name may be not simply Legion but Official Legion) the 'defendant' - being a 'man' and a 'sex-offender' - is a member of an objective-enemy class and is thus guilty as well as beyond redemption even before the trial that - with whatever integrity is left to trials in these matters - will declare his guilt or innocence. This is a soviet attitude; it is not an American attitude; it is an un-American attitude; it is an anti-American, anti-Constitutional attitude. And it is a firebell in the night warning us of just how profound and pervasive (from the Left as well as the Right) is the damage done to Our sense of the rule of law.

And again: who can be suprised that Cheney and Rove, ever alert to possibilities and far far more vigilant than the children of light, saw their way clear to embarking on the war in Iraq? The USSR went away in 1991. Eerily, its praxis and its philosophy had by then just reached the point of breaking into the bigtime in American legislation ... We are not haunted by the spirit of sovietism. We are infected by it.

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Blogger David said...

For a while there, you were sounding like Capitaine Louis Renault collecting his winnings at Rick's. You're not really "Shocked! shocked! to learn that" criminal (& constitutional) law have been, from the outset, instruments of 'politics' and - dare we say it? - class war since 1789.

It was indeed one of those Post Rev. Frenchies (Anatole France) who boasted ironically in 1894: "The law, in its majestic equality, forbids both the rich and the poor alike to sleep under bridges, beg in the streets and steal a loaf of bread."

Newsweek's Quotes of the Week p. 23
(4-23-07) serves up this comment from the Florida Corrections Department on five convicted former 'sex offenders' who were all sleeping under the same bridge together due to laws restricting them from living within 2,500 feet of schools. "It's not an ideal situation for anybody but at this point we don't have any other options." but what? re-arrest for vagrancy?

You are correct we can't blame Bush for race conscious penalties for class specific styles of drug abuse. These came into vogue under liberal Republicans like Rockefeller in NY.

The sweetener to get the South's consent to the federal constitution was to enshrine the concept of a disenfranchised slave as three-fifths of a man for the purposes of state population calculations in the rigged electoral college which thus gave rural southern voters the power to dominate american politics right up through the urban riots to present day 'values politics' of red state christianists.

American jurisprudence strikes philosophical poses from time to time but it's real foundational principles are two: one positive (Follow the money) and one interrogative (Who benefits?)

The poor, the marginalized and now even the eroding middle classes do not benefit from association in our society. Whatever, then, do they have to lose by its disintegration?

3:06 PM  
Blogger publion said...

You reference the Frnech Revolution, and as I said, it is precisely the French and Russian revolutionary praxis that is incompatible with the American revolutionary ideals and the Constitutional boundaries erected around the government's deploying of the criminal law.

It was precisely to avoid the mistakes that the French and Russian revolutions later would make that the Framers built the walls (so much more constitutionally 'real' than the 'wall of separation' and yet the erosion of these walls has been largely eclipsed by the distracting brouhaha over religion).

And again, the great challenge to this generation especially - and to the political parties, especially the Democrats - is to figure out how to make the government strong enough to be responsive to the requirements of security and well-being of the citizenry without simultaneously creating a government that will slip its constitutional moorings and abolish the Republic. A larger government, I have said, requires a more robust People and more robust Peopling. But such civic and individual maturity appears to be precisely what is disappearing now. That trend must be reversed.

6:05 AM  
Blogger David said...

The system works.

What could be more just than getting the government we deserve?

7:37 AM  

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