Well, here We go – the series on Martha Nussbaum’s 2007 Harvard Law Review article (94 pages), entitled “Constitutions and Capabilities: ‘Perception’ Against Lofty Formalism”. The link to the text of her article is here.
Why do this? It is clear to me – as I don’t think has ever been made clear before – that the ‘reforms’ demanded in and incorporated into ‘feminist law’ or in the ‘governance feminism’ agenda are really far more significant and substantial than most Americans have been led to believe.
And on top of that, they are not only large but hostile to any traditionally understood concept of Constitutional praxis and the role of government in the vision of 1787.
And that a great deal of all of it has already found its way into major chunks of American law and legislation and regulations and regulatory law.
And that it has all been presented as being quite reasonable through the philosophical visions and systems of such professors as Nussbaum (she is one of the most prominent legal professors in the country and has been for a while).
And that her ideas have been widely propagated not only through feminist advocacy channels but even more significantly through several cohorts of law professors, whose students – or who themselves – have gone on to important positions as government or prosecuting attorneys, judges at all levels, and even as legislators at State or Federal level.
So this is important stuff if We want to grasp the dynamics underlying what has been happening – and what has happened – to the Constitution and the Republic and to a deliberative and democratic politics.
Let’s get to it. In this short series of Posts I’m going to go through the article sequentially, commenting on elements that strike me as significant.
As with all texts that are available in Adobe, there are two sets of page numbers: the page number assigned by the Adobe browser, and the actual page number of the document as it was written. In this case there is a 3 page difference, so when I make a reference to the text of the article it will look like this: page 13-16. The first number is the Adobe browser pagination, and the second is the actual text’s pagination.
When I discuss a particular point, I’ll try to quote the actual text on that point, so that you won’t have to do too much shifting from my Post to the Linked text.
Nussbaum starts by quoting Aristotle (2/5): “It is evident that the best political order is that arrangement in accordance with which anyone whatsoever might do very well and live a flourishing life”.
It’s a great thought. It represents a wonderful ideal. Western society has sustained a long struggle toward it.
Of course, you can’t just ‘quote’ a great thought from an acknowledged master and figure that you’ve done all work that needs to be done.
Aristotle, for example, would not have included women and slaves (and Greek slavery was not based on race – which was much more a European phase dating from the discovery of the New World) in his “anyone whatsoever”. He did mean, however, any adult male – and not just the ones in his particular City-State, which was quite a broadening thought in its time. He might even have meant ‘Persians’ and non-Greeks, which would have truly blown a few minds.
But there’s the second question about that “flourishing life”: you can’t know if a life is flourishing or not unless you know what it’s ideally supposed to look like. And that means you have to figure out what the Nature of the human being is, what the purpose of the human being is – in order to judge whether any individual’s life is actually conforming to the ideal.
(Nussbaum will depart from Aristotle here: in order to maximize its base and justify its deconstructive agenda, feminist law would claim – and the Supreme Court would echo in such cases as Casey – that while everybody has a right to ‘flourish’ YET nobody has the right to say what the ideal human being, or ideal human behavior, is or can be. In other words, the human being is totally ‘autonomous’, meaning that no power on earth can judge whether an individual human being is conforming to any ideal human-ness.
But she likes that ‘flourishing’ bit, so she’ll slyly keep it and let you think that she and Aristotle are of one mind and that her ‘thinking’ is just a continuation of Master Aristotle’s thinking, and equally as solid and reliable. Her bottom line – as you will see – is that the government has the responsibility to clear a path so that everyone can ‘flourish’, which means that they can do whatever they want to do and the government has to help them do it and keep everybody else from ‘judging’ it. Neat – a teenager’s dampdream.)
So she focuses on the question: “What are people able to do and to be?” (2/5) NOT ideally, but in terms of whatever they think it is that they want “to do and to be”. There can be no ‘ideals’ in Nussbaum’s (and feminist law’s) world: if there is an ideal, then somebody could ‘judge’ somebody else, and that’s a no-no.
But then you realize that this whole article deals with Constitutional law and thought, and thus with the role of the government, and especially in what ways the government MUST (because these are ‘Constitutional’ and ‘rights’ issues) aggressively and assertively shape national culture and deploy its sovereign authority to keep the field clear for all that ‘autonomy’.
So it gets your whiskers twitching when she immediately asks a follow-on question: “And are they really able to do or be these things … ?” (2/5) [italics Nussbaum’s] What she is introducing here is the queasy distinction between what things actually are when subjected to common objective examination, and what things really are [italics Nussbaum’s] … which means that only those with a certain special knowledge will be able to ‘see’ what’s ‘really there’. And you can see where she is going to be moving us into the realm of ‘special knowing’ (like Lenin’s idea that only the truly committed cadres, the ‘vanguard elite’, can really see and really know what’s good for Russia and for the Russian people).
So here at the outset Nussbaum is creating a slippery, shadowy field upon which national life and Constitutional issues are to be examined: there are things going on which aren’t going to be visible (or provable) to just-anybody, but instead will require special-knowledge (sorta like ‘you just have to get it’).
And this is on top of the fact that since these are Constitutional issues, then hugely fundamental matters are at stake, and the follow-on matter of how government might or must deploy its sovereign authority without obstruction or objection. So brace yourself.
About people, she continues asking, “Are there impediments, evident or hidden, to their real and substantial freedom? Are they able to unfold themselves or are their lives, in significant respects, pinched and starved?” (2/5) This is a flower-image – of the lovely flower unfolding as it blossoms, which recalls Flower Children, nicely enough. But it also implies that anything that keeps a flower from blossoming is bad (which it is, assuming the plant isn’t poisonous) and starts to grease the skids toward the follow-on connection that anything that keeps her ‘totally autonomous’ person from ‘blossoming’ is anti-natural and verrrry baaaaad.
And, with an eye toward anybody who will object to her vision: what sort of baaaad person would want to keep a flower from blossoming? Which greases the skids towards her conclusion that nobody can object because this is a matter of Constitutional Rights and so the government must impose it, and immediately and fully, without being slowed-down by deliberation, discussion, or the tolerance of any ‘intolerant’ dissent. Heeeeere we goooooo! You can see where all this might quickly lead.
She continues with the image: “What about their environment – material, social, political?” (3/6)
So you can see how quickly we’re out of the gardening and into the running of a nation and a culture.
“Has it helped them develop their capacities to be active in important areas of life? If people are like Pindar’s vine tree, is their environment more like a rich soil tended by wise and just gardeners, or more like an arid soil tended by indifferent gardeners, or gardeners with a restricted conception of their task?” (3/6)
So right off, you see where she’s going here. Assuming that the garden-tree image is valid, then it has to have a “rich soil” – and government has to make it so, and is Constitutionally required to do so.
AND if there are “gardeners” (the government) that either don’t care or don’t really ‘get’ just how much they’re supposed to be doing … then they are BAAAAD. As are, of course, any Citizens who might object to whatever she’s going to ‘discover’ with her ‘special knowledge’ that not everybody else can see; although they wouldn’t have the ‘right’ to ‘judge’ it anyway, and if they can’t see it, then clearly ‘they just don’t get it’. Can you get a sense of how Nussbaum is weaving a remarkably dense feministical web here? And laying the groundwork for a very anti-democratic, special-knowledge elite that nobody else has the right to argue with because nobody else ‘gets it’?
She cuts right to the chase: “How have the basic constitutional principles of a nation, and their interpretation, promoted or impeded people’s abilities to function in some central areas of life?” (3/6) Not a bad question, although from what you’ve already seen, she’s going down the garden path and we are all supposed to go along – and may well not have a Constitutional right to object.
Because she’s into Constitutional principles and interpretations here, and in matters that can be established to be relevant to fundamental Constitutional principles and interpretations, then the government in all its Branches can’t allow itself any delay in ‘fixing’ whatever is wrong.
This, you may recognize, is the application of the argument made in the First phase of the Civil Rights Era (up to July, 1965): because Negro/black rights to vote and influence public policy and live a life unhindered by race prejudice have so thoroughly been stifled by Jim Crow, then the Federal government, in the face of such clear, profound, and long-standing abuses has no right to delay in fixing things in the South right away, doing whatever it takes to clear away Jim Crow from Southern law (but also from Southern mind and heart and culture and society).
Which got the government verrry quickly into huge expansions of its power.
And in two ways.
First, the Federal government now took on the task not only of clearing away unjust laws, but also of literally Deconstructing Jim Crow in the minds and hearts and culture of the South and its Citizens, but also of Reconstructing those minds and hearts and that culture. Which is a huge expansion indeed.
Second, since Negro/black Americans lived all over the country – and were Citizens – then this entire project had immediately to be applied to the entire country, including the minds and hearts of its Citizens and the national culture. Which was even more huge.
When, shortly thereafter, the Feminist Revolution got itself going, the Feminists basically deployed the same scenario and the same argument (though never clearly and concisely stated): Males have done and have been doing to females exactly what the Whites of the South did to the Blacks through Jim Crow. Indeed, they said, the entire American culture and all its males and all its male-identified females are basically oppressing women with a gender-version of Jim Crow.
So then, ‘logically’, the government must Deconstruct and Reconstruct American ‘male’ society and culture and all the Citizens (male and female) who support it. And it has to be done NOW without any delay (or public discussion or deliberation – which is useless since most folks are gender-Jim-Crow types anyway) and if you can’t ‘see’ that, then ‘you just don’t get it’.
And that’s what drove so much of the wrack of the past 40 Biblical years. And – who could be surprised? – a Constitution that couldn’t be respected because it was Jim Crow in a gender as well as a race way, was in the Bush-Cheney era considered to be a Constitution that didn’t have to be respected when it came to government waging wars and doing all sorts of other stuff without wasting time on ‘ public deliberation’. "And the toe-bone is connected to the foot-bone, and the foot-bone is connected to the ankle-bone, and the ankle-bone is connected to the leg-bone", and … you know the rest.
And immediately she sets the script and the plot: “Does the interpretation of constitutional entitlements yield real abilities to choose and act, or are the constitution’s promises more like hollow verbal gestures?” (3/6)
Bang. What the country has now, she intends to show, are merely ‘hollow verbal gestures’. And that what she (and feminism) wants are not ‘new’ things that are ‘changes’ (which could be argued about and deliberated upon) but instead are “constitutional entitlements” – so no delay or dissent can be permitted. See where she’s going?
Naturally, what in current ‘everyday’ political talk is called ‘patriarchal oppression’ or some such, is – on Nussbaum’s much deeper Constitutional level – an ongoing Constitutional deprivation which must be addressed without delay or dissent. This is the old culture-war feminism now not claiming to be a ‘new way of thinking about things’ but rather now claiming to be a long-standing Constitutional issue of rights-and-entitlements-denied. And so there need be no more public debate or concern: it’s all Constitutional.
She’s going for government imposition of the whole old culture-war agenda, not simply out of political expediency (as it had been decades ago) but now out of Constitutional responsibility.
Of course, if a pol can do something politically expedient while being told that s/he’s doing it out of Constitutional responsibility – well, that’s real catnip.
And this thought of Nussbaum’s is not ‘new’ in 2007 when she wrote this article. She’s been teaching it and writing about it in law schools and other venues for decades, so generations of lawyers, judges, and pols are now not only familiar with it but also – I’m going to bet – were taught in law school that this was the True and Only Way to look at things. And you wonder why democracy and the Constitution don’t seem to be working so well recently?
But this is her plan and she’s sticking with it. “The idea that all citizens in a nation are equally entitled to a set of substantial preconditions for a dignified human life has had a lasting appeal over the centuries in Western political and legal thought – less because intellectuals have favored it than because it has great resonance in the lives of real people”. (3/6)
Notice what she’s doing here.
Suddenly it’s not a matter of the political rights of 1787, many of which limited the government’s ability to interfere not only with individual Citizens’ lives but also with the much wider civil society and culture. NOW she’s changed the field of concern to “a set of substantial PRECONDITIONS” … which means that government is not only going to simply referee a Game – so to speak – whose laws and bounds are already drawn (and refs have to follow the rules just like anybody else). Instead, government is now going to be mussing around in ‘preconditions’ – the refs are going to say where the field is built, the composition of the soil, the drawing of the lines, the whole enchilada.
And the government as uber-ref is now also going to be ‘interpreting’ just what those “preconditions” are (and of course, the more and deeper the preconditions, the more room for government authority). And what earthly government is going to say No to such a free-buffet of power?
Well, the government put together by the Framers of 1787 said No, but – Nussbaum and others are convinced – they were ‘defective’ and their Constitution and their Vision was ‘defective’, ‘incomplete’, and altogether “quaint” (as the feculent Alberto Gonzales said with waayyyyy too much candor in the service of the Bush-Cheney imperium … and his era of Beltway biggies had simply concluded that if the Left can re-arrange the Constitution for its own purposes, so can the Right).
And this approach of Nussbaum’s isn’t going to be on the visible spectrum, as say the great struggle from the 1870s to the 1930s was; Teddy Roosevelt and FDR and LaGuardia and the Progressives of the 1890s to the 1920s were trying to deal with concrete issues like wages and social insurance and the role of the government as being the only power in the country that could stand up FOR Citizens against the huge new agglomerated power of the industrial corporations and corporate combines.
No, this approach of Nussbaum’s is going to be along an invisible spectrum that only those who ‘get it’ can see. And this itself mirrors the attack – spearheaded by the Feminist Revolution and its cadres – upon the entire foundation of assumptions and beliefs and structures that not only have grounded world cultures since the beginning of human history but also ground the Constitutional Vision of 1787.
I’m not saying thereby that all of the Revolution’s agenda is ‘wrong’ – I’m saying that some change THIS big and THIS profound has to be looked at verrrrry carefully. And certainly has to be given more and more thorough public deliberation and airing than has been the case up to now. For 40 years the government simply imposed the Correct changes, with the cheer-leading connivance of a ‘free press’ that is supposed to be the watch-dog, not the cheerleader, of government activity.
BUT THIS IS PRECISELY what Nussbaum is trying to sidestep by saying that all of this is a matter of Constitutional rights and therefore you can have no delay and no discussion and there’s nothing to be deliberated anyway. Neat. Dangerous. Treacherous, even, maybe.
It’s a verrrry iffy thing – just what those “substantial preconditions” are. And also just what “a dignified human life” is – although we already know that Nussbaum, true to feminism’s agenda, is going to say that no government and no culture has the right to ‘judge’ what behaviors or characteristics constitute such a “dignified human life”; no, rather a human life is “dignified” simply by virtue of the fact that a human being says that this is what she wants to do and nobody can say No and the government has to make it all work out well.
And Nussbaum is writing in a cultural context where feminism has already ‘deconstructed’ any sense of the ‘moral’ and of the Beyond or of any standard or criterion in which a culture or a society or a civilization can say or choose just what characteristics and what Vision will Ground it. For political purposes, America exists in a flattened, two-dimensional world where there is only politics as a determinant of what does (or should) happen – which, come to think of it, closely resembles the Materialistic reductionism that ultimately made Marxism (from the Left) and Fascism (from the Right) so utterly inadequate to the task of addressing the reality of human beings who are – notoriously – so stubborn in their yearning for a Beyond-the-Material dimension to their daily existence.
Shrewdly, she is spinning her plan as not simply ‘good’ because “intellectuals have favored” it (the academic and Beltway elites of today) but rather because it has “great resonance in the lives of real people”.
That last bit sounds nice, but her (and feminism’s) view of “real people” is two-dimensional and Flat (as Marxism’s was). And as I have observed, “real people” are and since the dawn of the species have always been desperately and implacably concerned for a Beyond, for a Real that is more than the ‘real’.
It will be this actuality that will prompt her to give up, later in the article, on any democratic and deliberative process to get her vision accepted: because so many of those “real people” for 40 Biblical years have been stubbornly resistant to being Flattened. It’s not ‘backlash’; it’s more like the horse’s sense, after putting one hoof on it, that a bridge it’s supposed to walk over is wayyyyy too rickety and won’t hold up.
Nussbaum, just to give you a sense of where she’s going to be going, will argue that since most people in the country can’t be trusted to ‘get’ her ideas, then the acceptance of her (and feminism’s) vision and scheme can’t be left up to them and instead has to be imposed by the Courts (she doesn’t even trust Congress any longer). Thus this ‘Constitutional’ approach – since it sidesteps any public debate and deliberation.
Well, that’s enough for this Post. Let me just say that it’s not going to be necessary to go through every page of her 94 pages the way I have had to move through this first couple of pages here. In these early pages she is pretty much outlining her approach and so I have to spend more time on them.
(Please note: the site dates a piece by when it was first put up; I put this piece up in Draft form on Monday, June 21, but I didn't actually publish it until Thursday, June 24.)