Friday, March 20, 2009

POLICE STATES, LAW SCHOOLS

Marjorie Cohn, always worth the read, discusses the stream of Bush-era Memoranda now coming to light. From a legal point of view, she observes, their contents form what is effectively “the definition of a police state”.

Yes, they do. And she is right as rain when she asserts, with refreshing candor, that the attorneys who produced them – one still on the faculty of a law school, another a Federal judge – should be “investigated, prosecuted, and disbarred” and the Federal judge “impeached”. From her lips to God’s ear.

But in that same pile of reading I came across a review of a book by the aged public intellectual, John Lukacs. In his book Lukacs complains – with justification – of “the rise of a militaristic political conservatism in the United States”.

And they both get me to thinking.

First, no genuine American conservative can be militaristic. Nobody who is seeking to ‘conserve’ the spirit and fundament of the Constitution can at the same time embrace militarism. The present American Right is indeed militaristic. But then again the present American Right is not in any useful sense of the word ‘conservative’. It is a Rightist nationalist politics more aptly described as akin to the early-20th century European Rightist parties.

But then again too, the American Left cannot be described with any accuracy as ‘Liberal’. Especially as it indentured itself to the revolutionary, Marx-tinged, ideological feminism of the day and to the Rawlsian approval of “elites” who would be justified in doing an end-run around a democratic politics, then the American Left ceased to be ‘Liberal’ and became ‘revolutionary’ – and ‘revolution’ is not in any way, shape, or form ‘Liberal’.

Chris Floyd courageously enough points out that Bill Clinton’s “triage” strategy consisted of “adopting a slew of right-wing policies and simply calling them ‘progressive’”. And he’s accurate in that, as far as he goes.

But again: Clinton – the toxicity of whose Administration to Law and Constitution has yet to be fully plumbed – was seeking not only to placate the Right. He was also politically in thrall to that ideological feminism whose revolutionary agenda and methods, shrewdly draped in the home-grown ‘philosophy’ of John Rawls, sought quick and unquestioned imposition of its demands upon the whole of American society and culture. Law and Constitution – so tainted by patriarchy – could take the hindmost.

So then the question again: what are they teaching in American law schools now? And for the past twenty or even thirty years?

Communitarianism? The assertion that the rights of the individual must always give way to the rights of the community, or to the demands of the community? How well will that prepare an attorney to appreciate the Constitution?

Critical Legal Studies? This general approach that holds a) that there is no Law to which all laws must conform; b) that all laws are merely the expression of a power-play in which those with power institutionalize their oppression of those without power; c) that the sole aim of all laws is to empower those without power; d) that this empowerment is an overriding goal of law; e) that in any situation where there are powerless elements in a citizenry, such lack constitutes sufficient ‘emergency’ so as to override any other legal or philosophical or prudential consideration, and thus also such ‘emergency’ precludes the dubious and time-consuming procedures of a deliberative, democratic politics.

Social Constructionism? That there are no lasting or essential actual differences in any categories that a society or culture employs when making its laws, and thus that no such non-existent ‘differences’ can be used as a justification (or really ‘pretext’ and ‘excuse’) for laws that result in different (read: unequal) outcomes for anybody. Thus ‘race’ and ‘age’ and ‘gender’ are all the same: merely mental constructs embraced by a citizenry, and which may be ‘changed’ – and quickly, through the impositions of those elites who ‘get it’ and can ‘see’ beyond such illusions.

Victimism? The general approach holds a) that persons who believe themselves victimized in any way are therefore incontestably victims and that therefore their claims cannot be doubted; b) that victims by definition cannot lie or be mistaken about their victimization; c) that victims by definition cannot victimize anybody else by not-telling the truth; d) that the role of legislation is to give such persons the greatest relief possible without the delay of deliberation, which – because of the ‘illusions’ of social construction (see immediately above) – would be tainted and useless anyway; e) that the role of the courts is simply to provide a conduit for such legislation as required in (d) to bestow its gifts upon the victims, with no regard for ‘quaint’ concerns about established procedures, legal tradition, or any other pretexts for delay in providing the relief prescribed; f) that the role of the government through the court is not to be a ‘trier of fact’ but rather to be merely a referee according to the assumptions (a) through (d) above; g) that the ‘job’ of the victim is to ‘get even’, and that this is a right the fulfillment of which no court has the right to obstruct on any pretext whatsoever.

Rawlsianism? The essence of the approach is a) that certain types of ‘justice’ cannot be delayed even by democratic or constitutional principles and procedures; b) that because of the importance of the need, it is justifiable that those ‘elites’ who do see the need may dispense with ‘usual’ democratic and constitutional practices, principles, and procedures in order to meet the need; c) that in order to achieve (b) the use of the court system rather than the legislative system or any appeal to public deliberation is not only justifiable but necessary; d) that the most effective deployment of this ‘philosophy’ would be in law schools where not only future attorneys – defense or prosecutor or civil litigator – but also future judges and government appointees receive their training and education in the practice of law.

If this is what’s been going on in law schools for the past decades, then a couple of things follow.

First, it’s no surprise that the Bushist Imperium figured that the Constitution was now ‘quaint’ and that such developments opened up whole new ‘vistas’ in government power (which alas, have yielded so much government mischief and misadventure).

Second, that the spate of baddish law which now cumulatively bethumps Us has not been the result of a particularly sustained negative alignment of the planets but is rather the perfectly predictable consequence of generations of attorneys, judges, government advisers, and even legislators being trained in some form of the above ‘legal thought’.

Third, that the enhanced power of the Unitary Executive amassed by the Bushist Imperium in order to realize its own goals has not so much upset or surprised the purportedly ‘liberal’ elements of the political spectrum (as it did not upset or surprise the purportedly ‘conservative’ elements of the political spectrum). Rather, such a powerball lump of amassed authority has simply whetted the appetite of the purported ‘liberals’ to get their hands on it in order to wield it for their own purposes. So We shouldn’t expect the Democratic power-establishment to be seriously disassembling the Bushist bomb any time soon. They didn’t want to get elected in order to destroy it; they wanted to get elected in order to use it themselves.

If only a fraction of these ideas – or all of them though not fully (yet) realized – are in serious play in the syllabus of the nation’s law schools, and have been for a dozen or two dozen years, then there are an awful lot of very important public officials and officers of courts who are working on a verrrry different game-plan from what most citizens imagine and assume. It’s like the town invaded by the pods in the 1950s movie, with increasing numbers of folks being replaced by their reprogrammed alien replicas.

Boy, are We in trouble now.

But it’s pretty much what ‘the revolution’ was going for all along. Hey, they’re revolutionaries … and that’s how they roll.

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