As I like to do from time to time, I read books or court cases from a while ago in order to get a fresh take on what’s happened and is happening now.
I have just finished a 1994 book: Philip K. Howard’s “The Death of Common Sense: How Law Is Suffocating America”.*
Howard at the time was a practicing lawyer and family man, active in public affairs, teaching and lecturing and writing.
I’m not reviewing the book here, but rather selecting some of his points – made in 1994 – to look at where We are now, 15 eventful and event-stuffed years later.
If you are of sufficient years, you might want to take a moment to imagine what the country was like back then in what now seems a vanished age, yet one whose missteps – I think it will become clear – still bethump Us. And lethally so.
His main concern is the massive growth of federal regulations and regulatory law. I’d add that the government has also slid into attempting to widely and deeply extend its criminal law power as well, intervening into the lives of Citizens and the prerogatives reserved Constitutionally to the States; the most vivid example of this is an ongoing spate of sex-offender laws (built upon prior car-jacking and drug and domestic violence laws) where under the guise of unilaterally proclaiming itself a “partner” of the States the Congress has been attempting to expand its police power, under the various guises and pretexts of its Spending power, and its purported powers under the Commerce Clause and the Necessary and Proper Clause in the Constitution.
His particular observation is that the huge growth in regulations and regulatory law clearly seek to preclude any use of judgment and any subjectivity in the application of the regulations: the bureaucrat (and, increasingly, the jurist) is expected merely to enforce the regulation “objectively”, with no intrusion of personal expertise and judgment whatsoever.
He rightly sees the beginning of this approach not simply in the expansion of government regulations that date back at least to the New Deal and World War 2 but also and more importantly in this ominous insistence upon “objectivity” and the obliteration of any judgment by any human actors in the process of hewing to and enforcing regulations.
He’s on to something here. And it’s verrrry verrrry big.
He rightly locates the postwar explosion of this phenomenon in the federal approach to the South in the days of Civil Rights, now almost 50 years ago. I would say that the presumption at the time, in the later-1960s after the great achievements of the Voting Rights and Civil Rights Acts of 1964 and 1965 respectively, was that Southerners, sunk and raised in the culture of segregation and Jim Crow, could reliably be presumed to fight the huge changes from the depths of their hearts.
They could be presumed to harbor the spirit of segregation and Jim Crow in their hearts and to resist the entire thrust and spirit of Negro civil rights. And if they were no longer going to fight through overt acts and clear acts of resistance (police and citizens and officials blocking entrance to schools, riot police and fire-hoses turned upon civil rights activists and Negroes), then they would resist subtly, subverting the laws and the spirit that the federal government sought to impose upon them.
They could, therefore, be presumed to harbor the old and bad motivations in the depths of their hearts, such that whatever they did could be presumed to be suspect; even their efforts to conform to the law and spirit of civil rights were always to be skeptically examined for any possible bad-motivation whereby they would merely seek to appear to be conforming, while really trying to subvert the laws and spirit of civil rights and preserving their segregationist and Jim Crow ways.
Thus, as early as 1966, federal regulations and laws began to reflect that assumption: they were to be made on the presumptions that a) they would be received in bad-faith and b) would be resisted and c) that such resistance would be slyly and secretly clothed in the appearance of good-faith, and d) that such resistance was grounded most fundamentally in bad motivation from the get-go.
And for a while back there in the South of that era, those presumptions were probably correct.
But the challenge posed by ‘the South’ in those days was far more complex than that. What happens when the government – especially the national government – starts making laws and regulations on the presumption that those affected will resist vigorously but also ‘secretly’, in the depths of their hearts, in their private selves and in the privacy of their local communal groups and deliberations? The dangers posed to the Constitutional ethos are profound.
Worse, what happens when the government – especially the national government – begins to take upon itself the task of making and sustaining a deep assault upon the presumed ‘bad motivations’ of a sizable chunk of the Citizenry? What happens when the government – especially the national government – starts to presume that the Citizenry will be hostile to its laws and regulations? And that the Citizenry harbor ‘bad motivations’ in the depths of their heart and their local communities? How does the government – especially the national government – go about rooting that out? Especially if it intends to use law and regulation? The dangers posed to the Constitutional ethos are, again, profound.
And especially if it all must be done quickly? And in the 1960s, a full century after the Civil War and Reconstruction-era national legislation were supposed to have fixed the problem for good?
It seemed, and hardly illogically, that the fixing was loooong overdue and had to be accomplished Right Now. And this impulse blended with the Boomer-era’s youthful impatience and callow (but so natural to ‘youth’) disregard of consequences and complications.
Oy. It should have been clear that there were going to be monstrous difficulties. But the Democrats had gone wayyyy out on a limb by supporting LBJ’s civil rights agenda, having to shatter their New Deal coalition of Northern industrial workers and Southerners who could not forgive or forget the Republicans who sent the Yankee armies against them in the period 1861-1865. The Democrats were in dire and urgent need of some fresh demographics to keep their electoral viability, and especially in light of the increasingly obvious failure of ‘their’ war in Vietnam, they needed it damned quick.
Politicians in that state of agitation are even less tolerant of deep and complex thought than under calmer circumstances.
Nor was this a problem that remained localized in ‘the South’. Almost immediately, the civil rights sensibility spread to the black populations of the North and Upper Midwest, where they had migrated for jobs during World War 2. And those populations contained large numbers of radicalized blacks who had picked up the old organized-labor sensibility that had been alive and kicking since the 1880s and – far worse – the old 1930s Communist as well as socialist revolutionary sensibility and theory.
So all of a sudden, the national government was no longer battling the ‘bad faith’ of the white Citizenry of the old South but also of the North and Upper Mid-west and – let’s face it – the entire country. So all the Constitutional dangers mentioned above spread in scope over the entire country and – of course – theoretically against the entire white population.
That itself constituted a huge and lethal problem for the nation and the Constitutional ethos, and indeed for the very unity of the Citizenry and the integrity of the polity. It was a second and far more extensive problem layered over the original ‘old South’ problem.
But then other groups almost immediately began to assert their own ‘revolutions’, hoping to cast themselves as sort of another group as deeply beset as the Negroes or blacks and as deeply in need of – and entitled to – ‘civil rights’ and – as had already now been developed for the blacks as early as 1966 and 1967, the affirmative action type of racial distinguishing.
And all of them also asserting that just as the whites of the old South harbored in their inmost hearts the most evil of motives and the baddest of faith, so too each groups particular ‘enemy’ do so: the gays named ‘straight people’ as that enemy, and the feminists – so hugely influential since ‘women’ offered in theory a 51% of the population voting demographic – named ‘men’.
So by the early 1970s, the entire dynamic of law and regulation based on the presumption of public ‘bad faith’, had metastasized to include all ‘straight’ folks and ‘men’ generally.
Just on paper this should have given clear warning of a truly awful synergy. The government, seeking under the aura of ‘liberation’ and ‘empowerment’ to satisfy its burgeoning new demographics (I call them Identities), was committed to doing to the entire straight or the entire male population what it had originally hoped to get away with only to the white citizens of that ‘old South’.
This was not only a hell-hot irony, but had the makings of a national catastrophe: the government was now committed to supporting the presumption-of-bad-faith against almost half of the Citizenry. (As Howard will get around to noting, by 1994 the sum of Americans entitled under assorted preferences as minorities equaled 70% of the population, and to treat each ground-of-preference as if it were possessed by an individual added up to 370% of the American population.)
And feminism ratcheted everything up a dozen notches: on the basis of assorted academic theories, it asserted that the source of ‘bad faith’ among ‘men’ was not simply a specific complex of attitudes such as obtained among the whites of the old South toward ‘desegregation’ and ‘integration’, which those whites willingly embraced. Rather, ‘men’ – and, neatly, many women and any women, really, who didn’t agree with the feminists – were so immersed in ‘patriarchy’ that they didn’t even know that they were thoroughly sunk in ‘bad faith’. Come to think of it, said the feminists, the whole of Western civilization was tainted to its very core with ‘patriarchy’. And therefore in its approach to ‘women’ Western civilization was – in my terms here – no better than the Jim Crow culture of the old South.
The government – now not only Democrats but Republicans – thoughtlessly or helplessly extended its ‘war’ in an effort to please. (And does that sound kinda familiar?)
Howard observes acutely that the regulatory urge was to reduce any ‘judgment’, any ‘subjective’ input, even by those officials and bureaucrats charged with enforcing the metastasizing welter of laws and regulations. After all, if one presumes that almost anybody could harbor ‘bad faith’ in their heart, and if so many newly-erected Identities suspected that most ‘others’ did not fully agree with their demands (that would be an interesting study in itself), then the only solution was to ensure that nobody would be able to change the desired working of the law or regulation by imposing his/her own expertise or view or considered opinion (which by presumption was nothing more than a prettied-up form of discrimination and prejudice anyway).
The regulations were hoped to be ‘self-executing’: they only needed ‘human agents’ to officially match and tally the demander and the ‘rights’, and officially sign the order or issue the check or add the name to this or that preference list. Those ‘human agents’ were not to try to match the spirit of the regulation to a specific situation; they were merely human machines for toting, tallying, and officially endorsing demands.
There was to be no ‘subjectivity’; the regulations and the process of granting entitlements and ‘rights’ was to be ‘objective’, the theory hoped. But subjectivity is what humans do; it’s what humans are, and to conduct a society, let alone a government, without the judgment and subjectivity of those who have trained themselves in the law and the regulations is pretty much a rum business from the get-go.
But since ‘subjective’ input could harbor such ‘bad faith’ as ‘favoritism’ or ‘discrimination’ or other such possible human weaknesses, then ‘subjectivity’ could not be permitted. The laws and regulations were to work like mathematical or physical laws, which ‘execute themselves’ without any help from humans, thank you very much.
Somewhere in here, officially endorsed by the mavens of academic theory and Identity Politics, the government left the path of Reason, went off the rails, and slid down the slippery slope, through the Looking Glass, and into the midst of the Mad Hatter’s Tea Party – and took the common weal and perhaps the viability of the polity with it.
Not enough national commentators and writers have given thought to using “Alice in Wonderland” as a measuring text against which Our present condition might be usefully examined.
Nor is it at all demonstrably wise for a government to a) seek to transform culture primarily by the workings of law and regulation, and b) seek to judge – and preemptively and preventively – such a deeply private and immaterial quantum as ‘motive’ through the workings of law; and c) to do it all Right Now; and d) across a wide and complex grid of Identities’ demands, each of which generates its own axis of potential discrimination’. This is not a recipe for wide-ranging reform but rather for self-consuming implosion.
I say this not to imply that ‘things were perfect in the old days’, but rather to assert that the ‘cure’, as it has evolved, is quite probably more lethal than the disease. And that the several ‘cures’ required, each for its own Identity’s problems and demands, work cumulatively to interfere with each other and altogether weaken the strength of the polity, the society, and the nation itself (can you say ‘national security’ and ‘national integrity’?)
And it didn’t stop there. As bureaucrats, those humans professionally committed to administering the vastly increasing corpus of laws and regulations, realized that they weren’t really expected – or permitted – to do more than rubber-stamp forms and function as machines, they became less committed to their tasks and more cynical. That can’t be good.
And they became more risk-averse. Does an individual have a reasonable ground for an exception to this or that regulation? Well, why risk job and benefits by going out on a limb and exercising any authority or initiative? Why risk compassion when you know you’re going to have to enforce ‘the process’ ‘objectively’ anyway? Impersonality is the way to go: you’re just a machine and they’re just sheep in a pen to be processed, for or against as the text of the regulation dictates.
This bodes ill not only for government service but also for the relationship of the government administrative apparatus to the Citizens it theoretically serves. As it bodes ill for the government regulatory authority that makes the rules that govern the apparatus. And – yooooo hooooo – as it does for the government legislators who authorize all this frakkery with assorted laws designed to root out ‘bad faith’, and presume bad-faith among the majority of the Citizenry.
Howard also sees the ‘rights revolution’ for the dangers that it poses. A ‘right’ means that you never have to explain your demands or your desires, or the assumptions underlying them. And in its addled effort to feed all of its new demographic Identities the particular menu they desired, the Congress led the way, like an addled and overburdened mother-bird, in passing out ‘rights’ that would squelch any time-consuming and unpredictable public deliberation; after all, genuine grass-roots democratic politics was too slow and unpredictable and the ‘chicks’ were demanding to be given their imagined due Right Now.
It is here that Carol Gilligan’s 1982 theory of ‘the female ethic of care’ came to justify a truly dangerous dynamic: as Gilligan’s image of a mother soothing and placating emotionally agitated kids around a breakfast table was taken to be a better approach to life than ‘the male ethic of justice’, so the government began to apply it to the conduct of large national affairs, simply passing out ‘rights’ to whomever was making the most noise and leaving the ‘abstractions’ of public deliberation and ‘justice’ literally for the birds. The Constitutional ramifications and the most ‘political’ consequences in the most profound and vital sense of that word … were ignored in the rush.
This theory also served to provide some benefit of philosophy – as it were – to a huge slab of ‘bad faith’ on the part of the government and the Identities: not only was it certain that public deliberation would take a long path to accepting the vast panoply of demands being put forth for immediate satisfaction and redress, but it was also highly uncertain that the public would even agree. The government – mother hen to its many new Identities – needed to circumvent the democratic process in order to get all these many demands met quickly.
But to circumvent the democratic process entails – unavoidably – subverting it. And so, on top of presuming that the majority of ‘traditional’ Americans were acting and could only act in ‘bad faith’, the government also saw itself - ‘logically’ it assured itself – justified in subverting the democratic process and willy-nilly the very Constitutional ethos that it was sworn to ‘protect, defend, preserve, and uphold’. (And so I say again, what Bush the Egregious did after 9-11 was not so much a change as it was simply a Rightist enlargement of what the Beltway had been doing for decades on the domestic scene. Treacherous it may have been, but ‘novel’ it most certainly was not.)
But this was built into the theories espoused and amplified by the feminists: ‘patriarchy’ itself was the original and quintessential ‘bad faith’ – source of all manner of ‘oppression’ and ‘discrimination’. And those drenched in it for so long that it now seemed ‘normal’ and ‘common sense’ and ‘tradition’ did not deserve the right to object; and the very Western civilization and even Constitution that were the fruits of such poisonous fruit did not enjoy legitimacy and deserved not to live. Oy.
Curiously – or maybe not so much – the feminists, leading the other Identities in theoretical justifications for this whole thing , were probably right that the panoply of demands would not gain public acceptance easily and perhaps could not even stand up to sustained scrutiny and analysis. One noted feminist writer in ‘The New Yorker’ magazine noted just last month how odd it was that while many ‘women’ were enjoying the ‘fruits of feminism’ yet very few wished to identify themselves as ‘feminists’ – and I think that speaks precisely to this.
As Lenin saw, in the beginning the revolution could harbor no dissent; perhaps after it was ‘accepted’ that would come (although Lenin was contradicting himself here: since the revolution was bringing ‘truth’ and ‘reality’ to the masses, then why tolerate dissent which could, in his theory, only serve un-truth and un-reality?). Stalin, far more ruthlessly practical, saw all that clearly and simply would not accept dissent. And I imagine that deep down he realized that the ‘masses’ could not ever be trusted to ‘get it’, to embrace the revolution; hell, he even had to purge the Party itself in the show trials of 1937-8 just to get rid of dissent within the ranks of the cadres themselves. And when Gorbachev finally decided that he had to ‘open the windows’ a bit and let in some fresh air, the whole revolution collapsed, quietly and quickly. We have just celebrated the 20th anniversary of the fall of the Berlin Wall and the Velvet Revolution, and in 2011 will celebrate the 20th anniversary of the self-dissolution of the USSR itself.
The feminists embraced ‘Deconstruction’ as the handy philosophical pretext for disallowing and undermining ‘common sense’ and ‘tradition’ and even ‘reason’ (let alone ‘Reason’). And Political Correctness was the strategy for stifling and squelching any dissent and objection. And as a buttress to that Correctness, the cult of the ‘Victim’ tainted any objections to the Correct laws and regulations with the lethal accusation of ‘insensitivity’ and ‘blaming the victim’ and ‘re-victimizing’ ; like the telegenic and sympathy-grabbing baby fur-seals in the 1970s’ commercials, ‘victims’ were put forth as the ‘human face’ of all this frakkery, and the justification for it.
Howard notes that in the decades following the Sixties, this country began to rely on statute law and regulatory law, and moved away from Common Law. The Common Law tradition, that evolved over the course of a millennium in England, stemmed from the practical and gimlet-eyed efforts of jurists and legislators to provide ‘law’ without burdening the limited resources of the legal system – itself evolving slowly – with ‘cases’ inspired by those wishing to manipulate it with false or unnecessary complaints. Practical local jurisprudence and legislation was aimed at preserving a law that followed the contours of the human ‘geography’ on which it was built.
The ‘revolutionary’ tradition of law was hell and gone from that: the revolution possessed Truth, the people needed to be brought or dragged to that Truth, and Law served that purpose. The feministical ‘deconstruction’ did not really help matters, and offered no genuine ‘progress’ or ‘reform’, when it merely asserted that there was no such thing as Truth and everything was up for grabs, the spoils to go to the Party that wrested political control by whatever means necessary and could then impose its excited and agitated visions on everybody else.
The Congress, probably ‘in a fit of absence of mind’ (though that is a huge indictment in itself) lost the Constitutional ethos as Great Britain lost its empire. But I say that the loss of the Constitutional ethos (if it cannot be restored) will prove a far worse catastrophe for humanity than the loss of the British Empire.
The Bill of Rights, Howard notes, was precisely devised to keep government away from the Citizenry, to keep it out of their lives and certainly to keep it from claiming juridical sovereignty over their minds and hearts. The ‘regulatory’ state, the government that presumed the ‘bad faith’ of its Citizens and determined to ‘fix that’, that set itself up as the grantor and guarantor of whatever ‘rights’ it chose to bestow upon whomever it chose to bestow them, regardless of the consequences to other Citizens or to the integrity and even viability of the common weal and of the polity itself, is hell and gone from that.
Such a ‘regulatory’ state is a direct heir of the revolutionary state of Jacobin France and the revolutions of Lenin and Stalin and Mao.
And such a trajectory embraced by a government grounded in the Constitution cannot end up in a good place for the country nor – in consequence – for the government itself. As We have perhaps recently begun to notice.
Howard wrote this book in 1994. Things have not gotten better. Indeed they have gotten worse domestically.** Worse, the hugely weakened Constitutionality and ‘common sense’ within the government lured it after 9-11 into the most un-traditional and ill-considered (or outright un-considered) foreign wars, whose hugely predictable bad consequences have wrought and are wreaking havoc across a broad spectrum of possibility: fiscal, military, diplomatic, and even moral, while simultaneously weakening not only the nation’s position among the people and governments of the world but also the nation’s very ability to sustain itself in the manner to which it has become accustomed since 1945.
The country’s capabilities are coming down around the ears of a Citizenry who have allowed the government to mutate into an anti-Constitutional regulatory and preventive state.
How this lethal synergy of The People’s weakness, the individual citizen’s loss of civic competence, a failing economy whose frightening challenges serve only to distract and terrify the public, and a chain-reaction of international doubt as to the country’s military and economic and even moral capacity, all at a time when the nation’s lack of vital natural resources and essential productivity have declined precipitously … well, I’d say that New Year’s eve is no time to be popping any corks.
More serious amusements – not excluding prayer, fasting, and serious thinking, alone and with other Citizens – are called for. Urgently.
And don't worry. If you do so, you won't be missing all that much. The good times have stopped rolling.
*New York: Random House.
**Although, reflecting the tactical political considerations that drive the now-merged Republocrat Party of the Beltway, ‘regulation’ and the presumption of ‘bad faith’ was intensified when deployed against the ‘enemies’ of the newly-erected Identities, while it was abandoned at the behest of the PAC-paying corporate and financial interests, who were presumed to be ‘reliable’ and ‘able to regulate themselves’ because they had ‘good faith’. Oy gevalt and frak.
Given that the ‘regulatory -preventive’ state was initially introduced in order to ‘liberate’ and ‘empower’ not simply the black community from Jim Crow (the original premise almost 50 years ago) but also to deeply and widely change the warp and woof of American culture, society and tradition Right Now for the purported ‘empowerment’ of all sorts of other tag-along Identities, We have now reached the Orwellian point where many activists can claim that ‘more government means more liberty’.
That mantra may seem harmless and ‘liberal’ enough in its intentions, but once you a) put it in those few words as I just did, and b) remind yourself that this is a ‘regulatory-preventive’ government hell-and-gone from the Constitutionally envisioned American government, you can see how things have left the rails, if not also the path of Constitutional wisdom and – a good case could be made – the path of prudence and reason altogether.
Nor is this only a problem from the Left, as it were. The Rightist law-and-order crowd, fueled by the deep disorder or lack of ‘order’ created by – and intended by – the assorted ‘revolutions’ from the Left, have embraced a police-state ethos under the name of ‘conservative’ and ‘traditional’ American praxis.
Neither the regulatory-preventive state nor its equally deforming twin, the police state, are in any way hospitable to the Constitutional vision. Indeed, they are and must be by their very nature hostile to the Constitutional state.
I also point out the connection between all this and the dynamics underlying the Bill entitled the International Violence Against Women and Girls Act, about which I Posted earlier this month on both this and my other site.
If ‘more government means more liberation’, then naturally – in Lenin’s sense: we have the absolute Truth, so naturally we want to see the whole world accept it – the Identity advocacies want to see that other peoples and cultures ‘get it’ just the way they do and just the way they have (however imperfectly) gotten the government to impose it here.
As always, I point out one of the politically most lethal ramifications of Identity Politics, and especially of the subset called Gender Politics: one’s selected ‘identity’ – in this case ‘gender’ – overrides all other roles and identities that an individual might have. This includes being ‘human’ – which fractures the sense of common humanity, and being a Citizen of one’s country – which fractures the sense of the polity.
You can see how quickly lethal trouble would arise for any society whose government for whatever reasons embraced full-blown Identity and Gender Politics.
I also mentioned that the ‘progressive’ and Left desire to impose the ‘liberation’ of Gender Politics upon developing nations by piggy-backing the plan on the authority of the US government would dovetail with the intensifying US tendency to expand its control over as much of the under-developed world as possible in order to maintain a place at the Great Table and remain a player in the Great Game.
And that in this regard, the quite possibly destabilizing effects upon any under-developed government that tried to comply with the US vision (as the Bill would have it): a revolt by its own people who would see, far more clearly than Americans have, just how much of an assault on the warp and woof of their culture such a vision constitutes. You know, in a way we’re back to the late 1800s: this is Great Power politics and Great Power imperialism all over again. Except that where in the 19th century such imperialistic impositions were done under the auspices of a superior Truth as embodied in religion (Christianity, most often) now in the early 21st the superior Truth is purportedly embodied in the theories of Identity and Gender Politics and those adherents and cadres who ‘get it’.
But also as in the 19th century, there are more material and murkier objectives: back then it was ‘resources and markets’, and now it’s ‘resources’ more than markets. America is running out of resources and out of the productive capabilities and even the productive ethos that forms the work force that can sustain the massive efforts necessary to utilize those resources.
The imposition of Superior Truth works for the purposes of state whether it fails or succeeds. Even if it fails and is rejected by the target culture and population, and even if the target government is destabilized or even delegitimized, it works because then the US can step in with its increasingly imperial-gendarme military – which affords secure access to whatever resources (oil and natural gas especially, but also something as simple as geographic location on the Board of the Great Game) that ‘country’ controlled.
And all under the guise of bringing to those who ‘just don’t get it’ the light of Progress and Truth. Just as imperial gambits of earlier centuries were secure in their good-intention of bringing the benefits of ‘civilization’ to the ‘benighted natives’.
You can see how these Perfect Storms and monster wildfires form.