Saturday, June 26, 2010


Well, here We go – the second in 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.

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.

There is a profound Constitutional problem with Nussbaum’s Capabilities and Preconditions approach: the government must deploy its sovereign power at a level so deep and so inchoate that the possibility of impossibly excessive overextension of that power is almost guaranteed to happen.

The 1787 Framing vision was that the government would limit itself to general activities common to all the States (foreign policy, defense and war, interstate commerce).

Further, there were significant restrictions placed upon the Federal government in the Bill of Rights, in regard to Citizens but also in regard to the several States (the Xth Amendment). And of course, within the text of the Constitution itself the Articles clearly separated the power of the Branches (Legislative, Executive, and Judicial).

The Framing concern was to prevent the overextension of government. The Framers saw that such overextension would destroy liberty and also create a monstrously engorged entity that would eventually wreck itself as well as the States and the people and the culture and society created over centuries.

While it has been a characteristic trope of the past 40 years that the Framing vision was ‘defective’, ‘quaint’, ‘tainted’ (by oppression in many forms) and therefore needed to be ‘updated’ or politely ignored, yet still the core original anxieties of the Framers remain as valid now as at the Founding.

One of the great confusions of the present day is that the Revolution of the Identities (spearheaded by Feminism as it has evolved within the Beltway) threatens to engorge and hyperextend the deployment of the Federal government power just as surely – though out of ‘sensitivity’ and the desire to ‘liberate’ – as any government would have done in the earlier days through a desire to ‘control’ and ‘oppress’.

Indeed, lost in the (very legitimate) approval of what the Federal government had done in the South prior to 1965 during the first explicit Civil Rights Era (1955-1965) was the awareness – not lost on the Old Southrons – that they were being to some extent assaulted by their own Federal government.

Of course, the Jim Crow culture and polity had continued the repression of Negro/Black civil rights that had theoretically been stamped out through the extraordinary method of Civil War, and the entire ‘North’ and the rest of the country supported the Feds’ long-overdue rectification of the situation.

But what started the Revolution of the Identities Era – although Feminism would soon overtake the Black Rights movement as the ‘prime revolution’ – was the follow-on Federal ‘solutions’, which did not enjoy such a wide public support: high on this list was ‘positive discrimination’ or, as it was quickly and shrewdly renamed, ‘affirmative action’.

Further, the Feds soon wound up trying to re-shape Southern ‘thinking’, using not so much criminal law but regulatory law: actionable misdeeds included verbal comments or even facial expressions, and then it was decreed that since Southrons could be ASSUMED TO BE RACIST, then if any ‘outcomes’ in hiring indicated fewer Black hires than should be proportionally and statistically predictable, then ‘racism’ would be presumed; which led in short order to the dynamics – if not the accurate naming – of Quota.

I say this not to embed a racist rant in this assessment, but just to point out the dynamics that began to take root in Federal praxis. Much public doubt and resistance may have been anchored in such misgivings about the effort to bring the battleship of Federal power so close inshore; at such close ranges, firing the big guns in well-intentioned defense of the village may well blow away the village itself simply by the force of discharge of the guns, though the shells were aimed somewhere else.

And feminism, adopting the Civil Rights paradigm, then quickly made the appropriate changes in the equation’s variables: a) women had been oppressed as much or even more than blacks, b) the ‘Southerners’ in this equation were now the entire male (and ‘male identified female’) population, and all the culture and tradition that such Citizens had tainted with their oppressive ‘patriarchy’, c) though in ways that were not quite so obvious as slavery and Jim Crow but which still ‘proved’ the ‘emergency’ that ‘patriarchy’ was just a huger and more ancient form of Jim Crow, and so d) whatever the Feds were doing against Jim Crow must now be expanded almost infinitely further to deploy against ‘patriarchy’ in thought, word, or deed.

Of course, the purported depth and width and height and length and breadth of ‘patriarchy’s oppression’ meant that the Feds were going to be getting verrrrrrrrry deeply involved in national life indeed. And in the lives of private citizens.

(You saw this in Domestic Violence law in the 1980s where, since the Jim Crow of male aggression and oppression extended into – and especially extended into – marriage and the family and the home itself – then the government coercive power MUST be extended into the home and the hearth of the Citizenry: precisely what the Framers wanted to avoid through their limited-government vision. The consequent acrobatics intended to effect this feminist demand while not overtly violating the Constitution resulted in the bizarre and embarrassing assertions that while police officers were doing the invading, they were doing it through a ‘civil law’ and not a ‘criminal law’ authority (sort of like rescuing a cat out of a tree) – although the defendant, since his male aggression was PRESUMED, lost through the police power access to home and property and assets and relationships. And you wonder where the Feds got the idea after 9-11 to come up with so many whackulent excuses to ‘prove’ they weren’t ‘torturing’ or, at the same time, that ‘torturing’ is sometimes necessary? Indeed, I’d say that in the Domestic Violence laws of the 1980s you can see the first run-out of what is now touted as “humanitarian intervention” in overseas military operations.)

So now Nussbaum here has set the government to deploy its sovereign power against the Citizenry to ensure (and thus to ‘prevent’ the suppression of) an entire sub-surface world of ‘preconditions’ that are not and cannot be clearly defined and perceived, and which are so deeply embedded in human affairs that you have to ask if the government isn’t actually being seduced into taking the field against Life and Reality itself.

(In which case you might as well demand that the government build and maintain a retaining wall a half-mile out around the entire US coastline to protect beachfront summer property, in an embarassingly ‘American’ intensification of King Canute trying to command the tides. Or trying to turn the Afghan culture into a nice, up-to-date American one, which is the only Correct one because it knows itself to be, on the advice and assurance of visions such as Nussbaum’s.)

She THEN introduces an ominous image: people can be “like prisoners, unable to select modes of activity that are central to a life worthy of human dignity”. (3/6) It is in this type of imagery that Americans (or at least the elites in law schools and judges and legislators) are invited to see the Constitution and the Framing Vision as IMPRISONING the Citizens.

It has to be one of the great ironies of American history that the Democrats (eventually be followed by the Republicans when they morphed into the bipartisan ‘Beltway’), eager to make up for their purported failure to ‘defend America’ in Vietnam, whackulously overturned the Framing Vision by embracing this idea that the Constitution and its culture and ethos were the ENEMY and indeed JAILOR of the American Citizen.

In which scenario and in which script, the Federal government would be the ‘cavalry’ riding to the rescue of the civilians so hideously bethumped by the ‘Indians’ of the Constitutional ethos itself. In this script the government would thus clearly conduct offensive operations in the field against the Constitution. And against white, male culture.

And – of course, as everybody knows – in such an ‘emergency’ the ‘cavalry’ can do whatever it has to in order to ‘save’ the good citizens. And there goes any limit to ‘limited government’, swept away in the ‘emergency of rescue’ … kinda like a certain German Chancellor’s decree of the ‘Emergency Law For the Protection of Reich und Volk’ – not to put too fine a point on it.

Only here it’s not for the protection of the entire Volk – the entire People – but rather for the protection of this or that Identity against all the other Citizens. Who can wonder why politics and Constitutional democracy doesn’t seem to be working any longer?

And when you realize just what Nussbaum claims are the elements that go into such a ‘life worthy of human dignity’ you have to ask yourself if God Him/Herself isn’t the only power capable of providing such a list of demands. But then, by claiming that ‘religious’ stuff is purely private and should have no part in ‘public’ affairs, then the Federal Government becomes, by default, ‘God’. And that surely can’t end well for a Constitutional democracy.

Notice also the give-away phrase: “This happens most obviously when a regime REPRESSES CHOICE [caps mine] across the board, curtailing many of the entitlements that are traditionally thought central to such a life”. [3/6]

What I see in this is the give-away that Nussbaum is making up, stitching together, a ‘philosophy’ in order to reach the pre-ordained conclusion that what the Revolution wants is what must Be, or should be: ‘Choice’ is all. This is not philosophy: Philosophy is the open-ended pursuit of truth using your trained Reason to try to develop a working and accurate perception of unseen – but very real and Real – dynamics that operate in human life and history.

What Nussbaum is trying to do is to justify the Revolution by selectively stitching-together only those elements of previous thought that can be made to support – or at least look like they support – the goals of her Revolution.

But then she immediately starts to qualify what she has just said, trying to shape it toward where she wants things to go.

“Sometimes, however, imprisonment is only partial”. (3/6) Perhaps, she explains, it won’t cover the entire list of entitlements; or perhaps only partial in the sense that only certain groups (the several Identities of the Revolution) are unable to exercise the option of selecting valuable functions.

As for example, she specifically says, by the by, “when a hierarchical constitution accords basic entitlements to men and not to women, to whites and not to blacks, to the rich and not to the poor”. (3/6)

This is a verrrrrry shrewd list of examples. The whites-blacks example seeks to recall the first Civil Rights Era’s rectification of the Jim Crow deprivations – about which there was wide national consensus and for which the Civil Rights and Voting Rights Acts were passed precisely to address these clear deprivations. The Feminist-led Revolution of the Identities can claim much less clarity in its list of deprivations and much less popular consensus and support (which is why, I will say, there has been so little public debate and deliberation, and instead only the imposition of a stifling Political Correctness, a practice embraced by the early Soviet government: since the Revolution already knows what is right for you, then your ignorant blathering is irrelevant and a waste of time).

And in regard to the rich and the poor, she is seeking to tie in her Revolution’s agenda with the century-and-a-half long American struggle of rich against poor. Since not long after the huge industrial – and corporate – development birthed in the Civil War, there has been a political struggle to a) prevent the concentration of all that money from wrecking the democratic balance of one-man/one-vote by allowing the wealthy to purchase the votes of Congress Members and b) to ensure that the WORKERS who were providing the sweat that did all the producing would not be deprived of a share of all the wealth that their labor, in the factories of the corporations, was creating.

A long and wide tradition – Populists (for the farmers), union organizers, Progressives – sought to ensure jobs and job-security and workers’ rights and respectable pay for the product and labor provided by workers, who would then provide for their families.

The struggle against ‘concentrated wealth’ and its deforming tendencies to buy influence and refuse to acknowledge the efforts of the sweaty laborer … this is an age-old struggle well-known to human history. And it must continue.

But ‘wealth’ and ‘jobs’ are tangible things.

And they are sited in the locus of workers and families.

The current Revolution is trying something hell-and-gone from the old Progressive agenda. It is seeking government ensurance of ‘preconditions’, which are in no way as obvious or tangible (or generally accepted as legitimate or even workable goals for a limited government).

Further the Revolution has already demanded the Deconstruction of ‘family’ and has denounced the male productive worker as an aggressive, lumpen-perp, a gender-version of Jim Crow.
The ‘family’ and man-as-provider has been the traditional arrangement for millennia. While I am not saying that ‘God’ wants it that way, it surely is the way that the human species has figured it best to proceed since the beginning of human societies.

To overturn all of that, and not say that you are actually doing it, and to sidestep careful and serious public deliberation among the society and people upon whom you wish to impose such a ‘revolution’ in the most core social arrangements … I can’t see this as wise or prudent. And that’s just in the matter of the Method of introducing the changes.

There’s still the matter of whether the Content of the changes is actually accurate or whether it is inaccurate and – not to put too fine a point on it – wrong.

But it cannot be just an ironic coincidence that in the same 40 years that Nussbaum’s Revolution has held sway in this country, not only ‘family’ but ‘worker’ and ‘production’ and ‘jobs’ have all gone by the board. All the stuff that the Populists and Progressives and union organizers fought for … gone.

Yet the wealth remains, and in far more powerful forms of concentration than We ever thought would be seen again in this country. And the poor remain.

Many impoverished by being assured that if they came to America there would be ‘jobs’ and money.

Many more impoverished by being assured that they could exercise their choice and have sex and then have kids and hold it all together without having the help of a husband (who, neatly, won’t have a job anyway now).

And many, many, many more impoverished by growing up thinking that ‘the government’ owed them their entitlements and they wouldn’t need to worry about anything else.

And – not only economically but spiritually – many, many, many, many more who were assured that ‘success’ is just a matter of ‘moral luck’ (John Rawls) and so Character, and Maturity, and self-discipline don’t matter because you’re either already born ‘unlucky’ or ‘lucky’ – as stunningly and frakkingly passive and anomic an approach to conducting a human life as any Flower Child could have come up with on a dope-addled San Francisco summer afternoon.

I read recently an author who recounts the comment of one (female) college student who plaints that she getting out of her major because “it’s too competitive: the Asians have an unfair advantage – they work too hard”. So the Asians work too hard and this is a) an unfair advantage and b) in Rawls’s vision an example of the Asians having nothing more than “moral luck” and therefore the government’s role in all of this is to … ? You see where all this can go.

Nussbaum continues that some ‘imprisonment’ is “subtle”, almost hidden”. (3/6) So We are back in the realm of ‘spectral evidence’ – you can see it but nobody else can, but you have to be believed and on your word the sovereign power of the government deployed (the term in American history dates to the Salem Witch Trials of 1692).

She continues in that vein: “… the words in a nation’s constitution may be promising, extending basic entitlements to all citizens on a basis of equality, but the interpretation of those entitlements is so narrow that groups of citizens are not really able [italics Nussbaum’s] to select some crucial activities. In name they are free, but not in actuality.” (3/6-7)

So once again, as if the responsibility for an earthly government to provide the basic and clear freedoms of the Constitution weren’t enough, Nussbaum wants the government to profoundly assault its own polity and ethos, its own civilization and culture and society, in order to provide ‘entitlements’ the justification of which either nobody else can see or nobody else can be trusted to see (because, of course, ‘they just don’t get it’).

She tries to trump this thought by spinning the closing image: they are equal “in name”, but not in “actuality”. In other words, the Constitution’s rights and guarantees are only ‘appearances’; the “actuality” belies those appearances.

You could suggest, in the alternative, that the Constitution merely provides the procedural guarantees of equality, but can’t – since it is not God – guarantee the outcome. But no revolution can allow ‘God’ to exist because that takes the fulcrum-point of action out of this earthly dimension and puts it Somewhere Else, and thus the Revolution would be out of a job, so to speak. (The current solution: make the Government, for all practical purposes, into ‘God’.)

You could suggest that there’s only so much a limited government can do, but that there’s no ‘limit’ on what The People – the governors of that government – can do when the Citizens come together as The People, deliberate to common purpose, and then exert The People’s collective will upon those employees of The People, the elected representatives. But Nussbaum can’t trust The People because so many Citizens are tainted by (pick one or several: race, gender, ethnic) bias and ‘just don’t’ get it’.

Neither the Citizens who ‘just don’t get it’ nor the oppressed themselves can really be trusted with the vision of the Revolution – only those cadres who ‘get it’ can be trusted with it. And since they are the only ones who can ‘see’, then they must have the right to impose the Right and True Knowledge that only they have and nobody else can see …would you buy a used car from this Dealer?

But of course, on top of all that, in all of this vision of hers, The People (the white male bunch and the ‘male-identified’ women, anyway) are not only cast as just the gender-variants of Jim Crow ‘oppressors’. The People – most of them – are ALSO being cast as the Big Money, Robber-Baron-Rich against whom the historical Progressives of the late 1800s and early 1900s struggled, in that age-old human struggle over wealth and its distribution.

If you somehow, according to the theory of the Revolution, were ‘lucky’ enough to be born with those ‘preconditions’ then you are ‘rich’, in the sense that the Robber-Baron Rich were rich: you have something, you’ve taken it unjustly off the backs of most of the rest of the country, and the Government has to take it from you and give it to them. Which did and does make some sense when you get to Robber-Baron levels of wealth, but is quite a stretch when you have declared hostilities against the entire middle class.

What I find primarily alarming here is the idea that not only the Constitution, but now also the majority of The People, are being cast as ‘the problem’, and – public discourse being what is here these days – therefore ‘evil’ and ‘the enemy’. As Abe Lincoln said, quoting that Other, Earlier Authority: “A house divided against itself cannot stand”.

And this whole vision and theory of Nussbaum’s and of the Revolution of the Identities has pretty much required such a division of the country, of the polity, of the common weal, of The People … AND they want the Federal Government to intensify that division.

This cannot end well for the United States. And it should be clear even now that it cannot end well because it is a frakkulously wrong-headed approach to making things better, to the extent that things can be made better. Especially now that the economy is teetering over an abyss and hanging by a thread.

But there is a second Question: it’s not just a matter of whether such shortcomings exist in this country. It’s also a question as to just what the Government can do to address them WITHOUT overstepping its Constitutional limits and wrecking constitutional democracy.

And the past 40 years have not been encouraging in that regard.

Because – no doubt based in great part on the twin arguments of ‘emergency’ and ‘most folks just won’t get this anyway – the Beltway has pretty much struck its own bargain with the Revolution and joined wholeheartedly in side-stepping or hoodwinking The People.

And The People – lumps though they are who ‘just don’t get it’ – realize it.

And now Nussbaum – as you will see in this article of hers – is trying to erect this side-stepping into a Philosophy, claiming that since not enough of The People can be trusted to ‘get it’, then government has to impose it on them (through Legislation or the Courts, though she’s kinda leaning toward the Courts).

And again, there is more than a small element of this arrogant confidence that the Citizenry just don’t know what’s good for them and the Beltway does so just impose all this and let the Citizenry ‘get used to it’. Legislators who have had this type of smoke blown at them for decades will be far less receptive to any input from a Citizenry that ‘just doesn’t get it’ in the first place.

(And thus, just as nobody listened to the Southerners in the Civil Rights Era since they were so ‘tainted’ to begin with, the Feds aren’t going to feel they need to listen to any ‘input’ from the Citizenry – which is a fatal dynamic to set loose in a democratic republic.)

And if after 40 years and so many of The People still don’t ‘get it’, is it possible that there is something in the whole Scheme that The People don’t trust? That The People don’t think is a wise or perhaps a prudent idea?

Nussbaum – like the Revolution and just like any Revolution (especially one that’s read wayyyyy tooooo much Lenin and Mao) – doesn’t trust The People.

And if THAT is what is becoming ‘the new normal’ in law schools and among attorneys and government officials and legislators and judges … then We are in a heepa trubble.



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