JUDICIAL EMPATHY

FEELINGS

I had Posted here recently about Obama’s exhortation for judges to have “empathy”. A week or so prior to that, I had Posted about the concerns arising with ‘women’ (as opposed to ‘females’) as candidates for the judiciary.

Ellen Goodman has now rung in with a column entitled “What’s bad about empathy?”.

I want to say something about that. And not because I’m over-focused on the issue, but because it is an issue close-in to the heart of the matrix of problems bethumping Us as a Constitutional polity; and in my view, if We lose the Constitution and the Republic, then whether or how We come out of the fiscal crisis and how things work out on the Eastern Front and in the Middle East and just how big a slice of the pie each of the Identities gets … these things will not matter. These things will not be the Matter upon which Our stewardship of the American Experiment will be judged. And judged by generations who will not so much be standing on Our era’s shoulders, as wading through the swamps that overflowed everything that We had inherited and were supposed to pass along.

Lady Justice, snarks Goodman, need not wear a blindfold, because she is programmed by patriarchy in her very core, and the blindfold changes things not a bit. Objectivity is a myth, We recall the feminists*saying; ‘facts don’t matter’, and reason and reasoning are merely patriarchal ploys to keep everybody else oppressed.

Men, We might recall, are from Mars and women are from Venus, as the catchy title has it. In a sleazy comparing of the best possible of one with the worst possible of the other, this works out to men being violent but also coldly heartless, rational oppressors, while women – the script goes – are warm, caring, intuitive, peace-loving ‘feelers’, everywhere oppressed but morally and humanly superior. It’s cartoonish, but the terms of Our national awareness (there is little deliberation or debate) have been debased by the feminists’ own ‘revolutionary’ methodology of simultaneously undermining the public’s capacity to think while stampeding public opinion with ‘emergencies’ and ‘epidemics’, vividly and almost and almost cartoonishly presented, and all caused – but of course – by ‘men’ and their patriarchy.

As if she had been elsewhere in the galaxy for the past several decades, she notes flatly that “We’ve already had preemptive strikes against three women on the media short list”. We, the lumpenvolk, are expected not to recall numerous prior instances where persons being considered for public office are examined as to their sensitivity to the correct concerns and agendas; scorecards and ratings are even provided by the correct watchdog groups.

Yet Goodman calls this a “scary radical” treatment.

But she has something there. As I said in a prior Post (linked above), while there is no problem with a female being on the Court, there is much more problem with a ‘woman’ being on the Court: she would either be a feminist cadre herself, or she would find herself sorely bethumped by feminists who expected her to avoid becoming a ‘gender-traitor’. (Yes, Goodman will piously intone that a ‘woman’ will be empathetic to all the oppressed, but beneath the sheepskin there is the fang of feminist correctness: she will be expected to further the revolution’s agenda.)

Goodman snarks on: “More bizarrely” (she really does want Us to think she’s been elsewhere for thirty-five years, and is honestly ‘shocked, shocked’ by what she’s just now discovering) "we have a full-throated campaign targeted against any candidate who might have a deep, dark secret buried in her resume. She may have, gasp, empathy.” Snark to the max. You go, Goody!

The main trouble here is that ‘empathy’ as it’s being deployed in all of this has a major drawback. It’s a code word. It is not what it appears to be. It’s a ‘portmanteau word’, a suitcase filled with all sort of things, and even with secret compartments to stuff darkling things where only the most persistent inspection has even a chance of discovering them.

It’s a code word for using a form of ‘feeling’ to undermine and override ‘patriarchal’ and ‘oppressive’ reason, which is that male thing. In the service of the ‘revolution’, those cadres and collaborators who ‘get it’ must use every weapon to destabilize and delegitimize the strengths of the target ethos. ‘Feeling’ will be deployed to undermine the male, patriarchal ‘Reason’ and ‘Thinking’. That’ll show the guys!

The crucial – profoundly and unutterably vital – problem here is that Reason, as Locke pointed out, is the heart of Law. Any ‘laws’ that are not based on well-reasoned thinking run a huge danger of creating vastly more problems than they solve, if they solve anything at all.

This is not at all to say that a Supreme Court and its Justices should be robotic thinking-machines, narrowly reasoning with no consideration for the wider world beyond their legal pads, law libraries and conference rooms. But it does mean that part of formulating law is to consider the integrity of the entire tradition. (You can see the problem here: the feminists are absolutely convinced that the entire American legal tradition – starting with the Constitution – is a product of patriarchy and thus needs to be – ummmmm – replaced. As your old Parris Island drill instructor might helpfully yell into your ear: Yooooooo-Hooooooooo!!??!!)

Can it be too much of a surprise that We are seeing so much dysfunction in Our polity nowadays? The entire rule-of-law is being undermined. Nor did Bush – that egregious frak – think this all up on his own. Nor did Darth Cheney and the other Sith lord-lets who until recently ruled in Washington City.

But another vital part of a Supreme-level analysis is to look at ‘consequences’ (especially since Congress, eager to keep its voting-blocs happy, has pretty much stopped doing it before it passes laws).

I have been reading such minutes as I can find online of the deliberations and Hearings leading up to the Violence Against Women Act of 1994. I get the strong impression that the legislators involved, and the attorneys and experts in favor of it, were simply looking for any ‘hooks’ or conceptual ‘cover’ that would support what they had made up their minds should be done. Potential problems, some of them large indeed, are raised by competent professionals – the national association of Chief Justices of States among them – but are pooh-poohed as stuff that can be ‘worked out’ later, after the law is passed.

The Supreme Court, deals not with trying and finding ‘fact’ but with judging laws that will introduce – individually and as part of a series of laws – sweeping policy changes, often by the acceptance of what seem to be ‘small’ and ‘reforming’ changes in legal practice. Consequences are something that need to be considered, since legislators are no longer doing that bit.
And by now, with decades of unexamined laws on the books, a reliably ‘correct’ Justice need only continue to assert ‘feelings’ as a way of short-circuiting further examination.

And there will be, I think, more cases coming up that will require careful analysis; more and more of the revolution’s ‘reforms’ have now been in place long enough for their baaad consequences to become clear.

Goodman herself gets a little ‘rational’: “Empathy”, she lectures, “is not sympathy”. True and well said. Empathy is the ability to stand in the shoes of others and see things from their point of view. True again.

“It doesn’t require that we take sides.” Well, this starts to shade into the shady. The ‘revolution’ has polarized matters by the very essence of its plan and methods; why else is a reliable Court required? A Justice must not be swayed by ‘abstractions’. A Justice must ‘hear’ the ‘stories’ (and ‘stories’ they indeed are, far more than We would like to think) and, ‘getting it’, go with the ‘story’ over the ‘abstraction’.

Given the vividly drawn now-‘classic’ narratives of victimization, and heaps of frightening ‘statistics’ that are so monstrous as to create an emotional stampede that will preclude a closer look at their dubious accuracy, a Justice must reliably allow him/herself to be suitably ‘empathetic’ and toss every other consideration out those tall, marble-framed windows.

Is it a good thing to “recognize another person’s reality”? Absolutely; a genuinely ‘liberal’ citizen should be doing that a dozen times a day. But it’s also essential, given the high stakes, to skeptically consider whether the ‘reality’ you’re being presented with is actually real.

And then on top of that, to consider whether that person’s reality – however vivid and moving – justifies whatever it is that the story is being put forth in support of.

Nor can it be forgotten that after decades now, there are Americans in their 30s and 40s who have been brought up with a very blurred conception of the boundaries between ‘my reality’ and ‘reality’ (let alone ‘Reality’).

Nor does ‘recognizing’ somebody’s reality mean that one must grant it primacy over all other considerations. This has been one of the great misfeasances of ‘victimism’: I am in pain and anything less than giving me what I want is simply to re-victimize me all over again. Recall – and most folks may not realize how profoundly biting a satiric comment it was – Cleavon Little’s black sheriff in Mel Brooks’s 1974 “Blazing Saddles”: he held his own gun to his throat and threatened the (threatening) townsfolk that if he didn’t get what he wanted, the sheriff would be shot then and there. And the townsfolk were stymied, stopping in their tracks.

Goodman tells a story: in a recent Supreme Court Hearing in the matter of a young female teen strip-searched in a search for drugs, “Justice Ruth Bader Ginsburg remarked that she was the only one on the bench who knew what it was like to be a 13-year-old girl”. Well yes, But no. So what? This is the type of ‘trump line’ that draws oohs and ahs at klatschy Chablis-soaked sharing sessions, but is it really necessary – or relevant – that a Justice have that experience? Where does that sort of thing stop? And, surely, an ‘empathetic’ Justice – and I fully support the competence for genuine empathy - can enter into the ‘reality’ of those whose cases wind up before the Court.

Goodman tells Us that “The truth is that we want judges who ‘get it’. The myth of justice as a matter of pure objective reasoning that could be meted out by a computer is just that, a myth.” No Justice can be, or should be a computer – we don’t want computers driving our buses and flying our planes.

But I think she gives the game away with that ‘get it’. That’s the codeword and byword for the feminist cadres: if you ‘get it’ then you are reliable because you accept that the revolution’s ‘truth’ and the revolution’s ‘reality’ are the only truth and reality. This a dark and dangerous and fatal road, and the modern world has been down it before. And in the 20th century, as the American experience demonstrates so chillingly, each time We recover from a trip along that revolutionary road, We come back a little less robustly a democracy and a Republic. We fought the Kaiser and became a bit more of an empire; fought the Nazis and became a bit more like a Reich; beat the Commies and became a whole lot more like a Leninist revolutionary state, replete with brassy and gimlet-eyed cadres, entrenched government apparatchiks, ‘evil classes’ that must be contained, and a government police-power that crunches ever more deeply into the lives of its citizens, their minds, hearts, hearths, and homes.

Now the feminists want to continue their ‘revolution’, and claim that they’re simply stepping up to the plate for ‘feeling’ as opposed to robotic ‘thought’. If I thought that We could get the best of the feminist vision by simply eradicating the worstly-conceived ‘male’ tradition, then I’d sign on.
But that’s an illusion. A delusion. A lethal and, to a Republic, a fatal delusion. It’s a delusion that is a necessary delusion for the adherents of the feminist ‘vision’ and ‘plan’.

I can empathize with them, even step into their shoes. But I can’t walk down their road.

I want a Justice who is both empathetic and capable of thinking deeply and widely. And I want a genuine empathy: just as I don’t want a shill for the corporations who hides behind ‘empathy’ for them, I don’t want a cadre for a revolution that has already wrought so much wrack.

NOTES

*There are, you recall, ‘equality feminists’ and ‘gender feminists’ or ‘ideological feminists’. The equality-feminists are closest to an ‘American’ way of proceeding: they have some excellent insights and legitimate concerns, and they can explain them, and they want to get their ideas ‘out there’ so that We might hear them and see what might be done.

The ‘gender (or ideological) feminists’, far more indentured to the more radical feministical illuminations, are ‘revolutionary’ not only in the content of their agendas, but also in the method of getting them established. They believe that a) men are by nature violent and evil; that b) ‘women’ are always victims and ever in-danger because of them; and that c) neither ‘men’ nor the benighted women who love them should be given the space for playing-out their sorry lives.

Worse, in terms of method, they are committed to the Leninist ‘revolutionary’ concept of ‘elite cadres’ who ‘get it’, organizing for the purpose of imposing their visions on an essentially brutish lumpen-citizenry, by-passing public deliberation using manipulative ‘information’ to create ‘emergencies’, and using ‘reliable’ judges and vote-desperate pols for their purposes.

In this Post, I will use ‘feminists’ to refer to ‘gender-ideological feminists’; if I refer to the more moderate feminists I will use the term ‘equality feminists’. Additionally, I remind you that I do not presume that ‘feminists’ actually represent all of the females in America, or even the majority of them.

TRAVELLING BACKWARDS

I just finished “The Salem Witchcraft Trials: A Legal History”, by the University of Georgia professor Peter Charles Hoffer, published – interestingly – by the University Press of Kansas in 1997.

I have on occasion noted the similarity in dynamics between the witchcraft trials and certain modern American legal ‘reforms’ of the past few decades – those related to domestic violence and ‘sex offenses’ being only the most notorious.

I have also noted the dangerous revolutionary tendency to see the Law as being ‘at war’, and that its ‘truth’ is somewhat fungible, the integrity of its means and processes being at the service of whatever ‘end’ is politically useful. And in that regard, I have noted in passing the Rawlsian maxims that no law (let alone Law) should be allowed to stand in the way of (his concept of) ‘justice’ and ‘rights’, and that courts, under the best-and-brightest guidance of (Rawlsian) academics, should without further ado demonstrate their superior wisdom by vigorously inserting themselves into matters far too important to be left to the lumpen citizenry and their too-often lumpen elected representatives.

At some point, I have to spend more time with the thought that Rawls created a generation of ‘whiz kids’ who have done for America domestically what JFK’s and LBJ’s ‘whiz kids’ did for the country with their long and enthusiastic support for the disastrous adventure in Vietnam. When you come right down to it, I’d say that Rawls – his minions still active in academia, the law and the law schools, and even on the Bench in state and federal courts – should be far more feared than Robert McNamara, the brothers Bundy, Rostow and the rest of that gang.

While even the most prudent citizen often feels incompetent (and not inappropriately so) to make a judgment as to matters historical, very few citizens feel similarly about matters that have been draped in the sacred and mysterious veils of ‘philosophy’ , which – through a collective trahison that still has not received its condign deserts – was precisely what was done for the Rawlsian mélange.

Whereby We are most grievously bethumpt even unto the present day.

But that’s for another Post. On to this book, which has prompted a few thoughts.

Hoffer notes that the Salem trials were comprised of both ‘modern’ and ‘premodern’ legal elements. By ‘modern’, he meant certain procedures such as juries and the government – as opposed, say, to the complainants – being in charge of the prosecution. “But”, he notes, “there were no lawyers for the defendants, and the ideal of a fair trial was overwhelmed by superstition and rumor”. Thus the ‘premodern’ legal elements.

Worse, “throughout [the proceedings], the Salem cases were dominated not by book law, that is, written rules scrupulously followed by professional officials of the court, but by folk beliefs shared by the judges, the witnesses, and even the accused”. The results of such infestations within the operating precincts of the legal amphitheatre are plain for all to see nowadays, and actually were clear to some hardy and insightful minds even as the trials were being conducted.

So much for Our self-indulgent tendency to hope that We will be judged as an ‘age’ that did the best according to its lights; there are always those who speak the truth in any age – but the age refuses to look where they are pointing.

Partly as a result of the frightening example of what can happen when an entire community actually stampedes in such a way as to break down its own legal principles, and the judges stampede as well, American justice learned from the blood that was shed by numerous women and men on the authority of Salem death-warrants and consequently instituted “highly technical rules of evidence”.

This was a clear example of vital progress being purchased at the price of lethal and bloody miscarriages of justice; miscarriages, that – unlike crimes themselves – were clearly recognized for what they were even before they brought forth their noxious fruits, and which might well have been prevented by the very citizenry and state authorities that held themselves sufficiently knowledgeable and mature to wield the solemn power of high justice.

But that didn’t happen. “It seemed the thing to do at the time” might be the defense of those who either participated significantly or who looked on and approved, or those who held their tongues for fear of being labeled a ‘witch’ themselves simply for trying to point out what was actually going on. But who in the dock at Nuremberg could not have attempted the same defense? As many of them did. Or tried to do.

The fatal legal step was the judicial decision to admit ‘spectral evidence’ – evidence that could not be seen by the jury as finder of fact or by the judge, or indeed by anybody else except the accusers (and of course by the alleged ‘witch’, whose assertion that s/he could not see it was considered to be merely demonic lying). This was not in 1692 a necessary outcome. By that time English law had developed somewhat beyond medieval practices and assumptions , progressing to a requirement for and a reliance on observable facts that could be considered by a jury.

But witchcraft cases constituted an unusual sort of ‘crime’: they were by definition un-see-able. Witches and witchery (male as well as female) operated on a level beyond the material world of perceptible actions. Less than 30 years before, in 1664 at Bury St. Edmunds, Chief Justice Hale had permitted spectral evidence in light of the gravity of the threat that witchcraft posed to the citizens and the realm.

So, given the gravity of the threat – the ‘emergency’, one might say – the fundamental anchor that grounded the trials in any semblance of palpable and provable reality, or truth, was pulled away, and by the very guardians of the law themselves.

Once that was done, “there was no way to limit credulity”, or incredibility, and “the door was opened to all manner of evidence”. And since spectral evidence was evidence that “only the victim” could see, the possibility for grievous legal mischief was dangerously enlarged.

Nor – the whole dynamic feeding on and off the fears of the citizenry and the judges – were any clearly illogical complications allowed to be noticed. So, for example, although the ‘specters’ which (only) the accuser/victims could allegedly see were by definition “sent by the devil”, who was universally acknowledged as a trickster and a deceiver, yet these specters – when they purportedly established the relationship of the accused witch to the demonic realm – were instantly and fully credited as irrefutable evidence of the accused’s guilt.

And why on earth would a witch – so given to secrecy and darkness – reveal him/herself by tormenting the accuser/victims spectrally at precisely the moment when accused, accuser(s), and judges were all present in the courtroom, in the bright light of day, specifically for the purpose of unmasking the suspected witch? Nobody in the room would venture to think up an answer to that.

In light of the ‘emergency’, that was not only thinking-too-much, but it was also liable to get you accused yourself.

But a few hardy souls, and not of low estate, saw and stood up.

After the special court erected by the governor to try the cases rapidly executed an elderly and disliked crone by the name of Bridget Bishop, in a manner so legally repugnant that one of the judges – Saltonstall – resigned from the court, a junior Boston minister – Samuel Willard – spoke out against the regression to medieval forms of proof, the suspiciously uniform and over-the-top behavior of the accusers, the absurd performance of a clearly demented ‘witness’, and the absence of even a modicum of due process (already established in English law).

Willard did not know at the time that the second most important minister in Boston – Cotton Mather, son of the even more renowned senior minister Increase Mather – had sent a secret letter to the judges prior to the trial approving their zeal and their practices; as has been seen in far too many instances since then, professionals and academics and ministers just cannot seem to resist the opportunity to get out on the field and be a real ‘player’ – and not by courageously speaking truth to the stampede, so to speak, but rather prostituting their authority and their education to the purpose of surfing the waves of public emotion for their own benefit and purposes. I’d like to place the name of Rawls in nomination.

Willard even took to his pulpit, to exhort his own parishioners to restrain their passions and consider matters carefully. As minister in the town of Groton 20 years before he had been confronted with a similar situation – a child accusing somebody of witchcraft – and by exercising restraint and urging his congregants to do the same, had prevented the type of stampede which now held the Salem townsfolk and the judges in a death-grip.

And in an act of very dubious legality, monstrously similar to the expropriation of Japanese-American property on the West Coast after Pearl Harbor, the court seized the personal goods of executed witches; an act (formally known as ‘escheat’) which, even at the time, was acknowledged as contrary to the spirit of English law as it was by then evolving.

In the second half of September, 1692, the court was stopped cold when one of the accused refused to ‘say his lines’. Eighty year-old Giles Corey, accused with his elderly wife of being witches, refused to plead, considering the entire matter incomprehensibly unreal. The court resorted to a medieval practice at that time no longer permitted in English law, and had him pressed beneath stones until he agreed to enter a plea. He chose to die instead, un-pled and un-convicted. Even more than those of the ‘witches’ who had behaved on the gallows with a becoming Christian self-possession, Corey’s recalcitrant death – and he having survived until 80 in the 17th century and in the New World! – was a sharp splash of water (blood, actually) that started to call the crowd to its senses.

With that, Samuel Willard, many of whose brother ministers from Boston had joined him in observing the Salem trials first-hand (while Cotton Mather remained in Boston, supporting the judges with theory and sermon, while refusing to see how matters stood ‘on the ground’), took pen in hand and wrote the pamphlet “Some Miscellany Observations”. There, he joins with the opinion of many English writers that “satisfactory proof of witchcraft was almost impossible to obtain”.

It is interesting to note that the conclusion drawn by that age was that if by the very nature of a situation, satisfactory evidence is impossible to obtain, then ‘court’ was not the solution to the problem. In Our own time, much affected by revolutionary zeal, the conclusion is that ‘the courts’ must be changed so as to be able to call something – anything necessary – ‘evidence’ and so deliver a decision that will justify a desired action. This does not seem to be progress.

Willard went on that “conviction by mere suspicion … is contrary to the mind of God”, and then goes further to say that “the more horrid the crime is, the more cautious we ought to be in making any guilty of it”.

At this point, even Increase Mather, who had stayed on the sidelines as his more impetuous son led the support for the trials, realized he would have to speak his mind, cognizant that as senior minister of the colony even the governor would listen carefully. Remarkably, in October 1692 he came forth with what was to be one of the most famous, and the earliest, American treatises on evidence and rules of evidence, entitled “Cases of Conscience”. While fully acknowledging that there was a Devil who reveled in the success of his witches, Increase also asserted forthrightly that “Christian charity and legal wisdom demanded close adherence to the rules of evidence in cases of witchcraft”.

Of course, you can’t nowadays use ‘Christian wisdom’, let alone ‘charity’ as the basis of any legal reasoning.

He went on to warn that reliance on medievalisms such as spectral evidence and trial by touch (eerily echoed in the current era’s ‘victim confrontation’ rituals) would only serve to “subvert this government and disband, yea ruine, Humane Society”. Which, for legal insight, is not only progress but – compared to the quality of legal insight nowadays as to the legal system’s subversion of its own evidentiary rules – constitutes a wisdom now lost in what must be construed as a massive and sustained professional regression.

The governor needed little prodding once he had read it. He stayed the executions of five persons already convicted, ordered the special court to disregard spectral evidence, and then on further consideration, disbanded the special court altogether. ‘Special’ courts apparently have a tendency to think that they are verrrry speshull indeed, neither needing to take the usual and classic precautions in adjudication nor to consider themselves erected for any purpose except the conviction of those accused of this or that ‘special’ crime.

The legislature met and outlawed spectral evidence, but authorized the witchcraft trials to continue, which they did in early 1693.

The first thing that the re-authorized court did was to order five convicted witches whose execution had been suspended because they had been pregnant at the time of their conviction, prepared for execution. It was a shrewd move, to re-establish their authority as judges and create another firewall against eventual prosecution themselves. The governor, already a little worried about how all of this hanging was going to look back in London, stayed the court’s order while he sought instructions from the Crown.

Desperate now, the original judges, especially their chief – William Stoughton – accused the governor of being soft on witchcraft, and – eerily reminiscent of the Army generals in the Vietnam era – Stoughton claimed that he was just on the verge of “clearing the land of witches” when the governor stopped him. Real men, apparently, kill witches first and ask questions later.

In such cases (or ‘battles’?) the law is simply the tool that the truly consummate professional macher prefer, being far less messy than a mob with pitchforks and flaming torches. How positively ‘Beltway’ a philosophy. How tasteful and ‘elite’ yet ‘manly’ – a decision for all seasons, one might say.

“Without the use of spectral evidence, the cases of all but three of the thirty-one brought before the court that January ended in acquittal.”

And word came from London and the governor quashed the convictions. In May, 1693, he stopped all the trials and sent anyone convicted home. It would take the next 20 years for the legislature to grant their petitions for redress and repudiate the trials utterly.

Cotton Mather (who had been quietly supporting Stoughton in the trials all along) continued to insist that “witches can take the form of specters and specters can hurt people”; he also insisted, though nobody doubted it, that the Devil existed (so perhaps to doubt Mather was to doubt the existence of the Devil … ?). He began then to focus only on his good intentions, and felt unfairly put upon when interlocutors started to stray into questions of fact and logic in the matter of his support of the trials.

Nor, it would seem, have We progressed very far beyond such poltroonish dodging of consequences, if the Great and General Beltway be any indicator.

The Salem villagers never managed to reconcile. There were powerful clans of families on either side of the trials, and indeed – typical of clan feuds – the clan from which the accusers mostly came from did not want to face the clan from which the majority of victims came from. The original minister, one Parris, who had helped get the whole fire going and had been loyally supported by the ‘accusing’ clan, refused to acknowledge any mistakes. He left town after a few years and went into business as a merchant.

The minister of the neighboring village of Beverly, one Hale, who watched the whole thing start but refused to try to put it out, wrote up his own thoughts which he surreptitiously left with a neighboring minister to be published after he’d died (and, so to speak, ‘gotten out of town’). He concluded that “false witness and natural causes were responsible for some of the prosecutions, as well as malice and ignorance among the accusers”. Since the ‘accusers’, in modern-day scripting, would be considered the ‘victims’, Hale was an insensitive minister as well as a cowardly one; ‘getting out of town’ can be no surprise, when you look at his track record. As for what modern-day legal parlance would make of the executed ‘witches’, We might be guided by Justice Scalia’s remark about persons wrongly convicted: “Waaaal, they probably did something else wrong anyway”. I’m not feelin’ the progress here.

William Stoughton, the fire-breathing judge, eventually replaced the governor, Phips, whom he had consistently tried to undermine in order to prevent himself from being considered a malfeasant hanging judge. He never apologized and never looked back, merely repeating that he thought “the Devil had come to Massachusetts and the witches were hell-bent on doing evil all around”. There is a town in Massachusetts named Stoughton now; I wonder if there will be a Cheney-ville in whatever state spawned that spawn of the unholy.

But there were no trials of the judges themselves. Right after Giles Corey died, they had quietly held a meeting and decided that they might indeed one day be held responsible for this whole thing. They gave their supportive preacher, Cotton Mather, a summary of the trials (he would be writing a history to ‘spin’ the events); and then they ‘lost’ the original trial records.

History is not only not dead; it is repeating itself. The trials were held in 1692, the book was written in 1997 – and yet it is all so contemporary, so 2008 – if I may.

Of course, it is the human species that is repeating itself. True to its nature. And true to its tendency to what was once conveniently and hardly inaccurately called ‘original sin’.

But We are much too modern and postmodern, have progressed way too far, to be burdened with such old and outmoded concepts. We are the age of Rawls, and ‘repressed memories’ that only the rememberer can access, and preventive wars based on ‘spectral evidence’, and high officials who spin and destroy records and claim that they can only be judged on their intentions although they will simultaneously assert that their actions were not ‘actionable’ in any event. But We are not to think that We might have lost ground; that We have regressed to a more primitive level of societal and even personal functioning.

Ask yourself: are We better off today than We were 316 years ago?

BANANA REPUBLIC

Here’s a straw in the wind: Recently, a local court of an un-named, fiscally dissolute country, indicted the 2nd-in-command of the national government and the country’s top law enforcement officer for torturing citizens imprisoned in some of the privately-run prisons run – at great public cost – by newly erected private corporations who were awarded contracts by the government – corporations in which the 2nd-in-command held shares of stock; the indictment is for engaging in organized criminal activity.

The state prosecutor refused to show up in court and was being sought – on order of the court – by territorial police. He and other local prosecutors are named as defendants in the charges that they colluded in the whole thing. The missing prosecutor’s official secretary said she doesn’t know where he is. The top law enforcement officer of the nation is accused of attempting to stop investigations into the whole thing.

Attorneys for the high government officials insist – apparently with a straight face – that the local judge should turn the whole matter over to the nation’s top law enforcement agency for investigation.

A local politician is also indicted because he ‘consulted’ for the corporation and received handsome remuneration.

The judge is hobbled because the Clerk of that Court is also under indictment. When the judge asked him whom the Court should appoint as a temporary replacement to handle the cases, the Clerk stated that his deputy is a witness in the trial and the next in line is – spoken presumably with a straight face – ‘out of town’.

The judge gave the task to the Clerk from the next-over jurisdiction, whose chief judge is also under indictment. Charges against some of the other officials include “official abuse of official capacity” and “official oppression”.

After police conducted a raid on his official office earlier in the month, the now-missing prosecutor “camped outside the courthouse in a borrowed camper with a horse, three goats, and a rooster.” He was threatening to dismiss literally hundreds of cases in his purview because “local law enforcement had aided in the investigation against him” – which seems to be what local law enforcement in civilized countries is supposed to do, but not, apparently, in his opinion. We are reminded of the Scooter-Libby defense (no doubt We’ll be hearing it again): criminal law is for ‘criminals’ and is not appropriately deployed against members of the government or law enforcement (remarkably similar to the military justice rule-of-thumb that courtsmartial are for little people and not for the generals).

The world is confronted with this spectacle as a reminder that lawlessness is still rife, and that the cause of true justice is not yet established in this darkling and darkening world.

The jurisdiction is Willacy County, Texas, and the matter is ongoing.

What has happened to Us?

For reference, the AP article is on Truthout, written by AP correspondent Christopher Sherman under date of Thursday, November 20, “Cheney’s Indictment in South Texas Moves Forward”, http://www.truthout.org/112008K )

DEGRADED

I came across an article from more than half-a-century ago: “Conditions of Successful Degradation Ceremonies”. It was written by one Harold Garfinkel, and published in a scholarly professional journal. It’s available, among other places, at http://www.jstor.org/stable/2773484.
Judging from the date, I’d say that watching the McCarthy hearings and all of the dark looniness surrounding it had something to do with inspiring the author as to the need for the article. And further back, he must have watched the increasing pattern of demeaning Jewish people during the Third Reich of only twenty years before. And perhaps the Leninist and Stalinist “denunciations” and “classifications” that took place without let-up from 1918 right up through the show trials of 1938.

Yet it’s a piece that doesn’t discuss any then-current or then-recent events. It’s careful, dry, clear, precise, and – well – ‘scholarly’, but in a crisp social science way (social science, at least, the way it was done back then).

But still you read it and you can’t help thinking about the McCarthy trials and perhaps Germany in the 1930s. And no doubt folks who read it in 1956 did just that. It held many rewards for folks trying to get a grasp on what those events meant for Americans and for human beings generally, for Us and for Our future.

I am reading it now. The McCarthy hearings are – thankfully – back in the past, as is the Third Reich and – after much tribulation – the blood-feverish visions of Communism. Forgotten … but not gone, I think. Because when you read the article, you get the eerie and disturbing sense that it’s very contemporary. You get the sense that it’s all very familiar. Too familiar to just be about something so far in the past. You get the eerie sense that Garfinkel is describing something in the present world, the world of contemporary America, Our world.

And that can only mean that whatever demonry he describes from his own world has now come into Our world. And hasn’t much changed.

The ‘degradation’ is aimed at “transforming an individual’s total identity into an identity lower in the group’s scheme of social types”; thus it is a “status degradation”. The “denouncer” has the goal of getting the onlookers “to appreciate the perpetrator and the blameworthy event as instances of an extraordinary uniformity”. To accomplish this the denouncer “must name the perpetrator an ‘outsider’”.

I could think of the Manichean denunciation and classification of those who are “goats” in the world, in their very essence beyond the rights of human beings and liable to human degradation and violence utterly justified as being God’s will – such is the fond, fierce practice of fundamentalisms everywhere.

We see it, from a distance, deployed against other people and peoples even now.
But I want to focus on how it is done much closer to home, and not spontaneously, but erected into law and incised into the popular mood among Us to such a degree that it comes to assume an aura of inevitability, as if it had been with Us all along and enjoys the status of a ‘good’ and ‘logical’ thing to do.

Garfinkel observes that whenever such a new ‘identity’ is to be imposed on a person or a group, “the identity must be ‘total’, meaning that the ‘identity’ “must refer to persons as ‘motivational’ types rather than as ‘behavioral’ types”. In other words, it’s not what they do, it’s what their ‘motivations’ are; it presumes that there is a ‘motivation’ common to the entire target group, and that this ‘motivation’ is somehow essential to the persons, predictably expectable from them. This dynamic was used to describe ‘Kulaks’ by the early Soviets, to describe ‘Jews’ by the Nazis, to describe ‘pinkos’ by McCarthy.

It is contrary to the spirit and practice of Western law, that with a due humility does not seek to divine motives or predispositions, but rather limits itself to judging acts. An act is all that is extended into actual events, such that an observer other than the act-or can see it, or discover irrefutable traces of it. This is all a human court can do. It’s all that humans, not possessed of supernatural powers of insight and knowledge, can with any reasonable certainty discover by the flickering lamp of human reason.

In the history of this country, the Salem witch trials were not a precedent but a throw-back, a revenant from a prior age, where certain believers felt that they could discern with certainty the causes and sources of certain suspect acts; causes that included supernatural beings, active in this world. The ‘mind’ of a suspected witch or warlock, one who cooperated with dark powers and dark beings, could be clearly discerned, if the right methods were used and the right assumptions were made by the investigators. And in the end, the suspect could be declared for what she or he ‘really’ was, a cooperator with the demonic and the infernal, and thus the accused could be ‘degraded’ in status, from member of the community to ‘evil other’; death would often be the result, as it was for many in Salem.

Western justice, freeing itself from theological entanglements with the immaterial and the unseen and the un-provable, limited itself. And was justly proud of the fact.
But in doing so it set itself a difficult task, although one that proves vital to a free society. Because there is a natural and not unhealthy capacity for “moral indignation” in all human societies: it is this capacity that enables a society to inculcate in its members what is acceptable and not-acceptable to it on a fundamental level. Deployed wisely, this capacity can foster a sense of identity and unity among the members of a society. Deployed otherwise, it can create unjustifiable divisions, excessive wounds – physical or emotional, and even inaccurate judgments that eventually undermine the commonality itself. In the Western system of justice, the court – through its careful investigation and deliberation - is there to not only to protect the community from malefactors, but to protect the community from itself. Because in the long run, the community can harm itself far more grievously than any individual or individuals among it.

“The paradigm of moral indignation is public denunciation. We publicly deliver the curse: ‘I call upon all men to bear witness that he is not what he appears to be but is otherwise and in essence of a lower species.’” It’s not simply that the person is other than he appears; saints are not so often what they appear to be to their contemporaries, and angels famously disguise themselves; you could make a case that Jesus did it. But it’s that this ‘appearance’ is with absolute certainty indicative of ‘inferior’ status. In a West influenced by Christendom, no human being has the authority to reduce the status accorded to a human being by the Creator.

Not acknowledging a God, the Soviets arrogated His powers to the State. Acknowledging a God but presuming utterly that He was on their side, the Nazis also arrogated unto themselves that power. Dispensing with God with a refreshing (and almost surprising) candor, the Italian Fascist, Mussolini, simply and flatly declared: ‘Nothing outside the State, nothing above the State, nothing against the State.” The State which, not coincidentally, he and his Party ran. But all of these instances were departures from the ideals of the West; and unless We wish to condemn every entity that fails to live up fully to its ideals, then We cannot condemn the West for what these vigorous monstrosities concocted in their rebellion against it.

“Moral indignation serves to effect the ritual destruction of the person[s] denounced.” Now that is a powerful concept: ‘destruction’. Human beings in their more deliberative moments have always considered themselves well-advised to employ it sparingly; it has proven itself to have a nasty boomerang capability, especially if wrongly inflicted.

Courts in the West have thus had to contend with this delicate but vital balancing act: to inflict some ‘partial destruction’ – almost never the total destruction of death – sufficient to the crime but proportional to it as well. The job had previously been left to the wronged himself, or if he was incapacitated, to the relatives of the wronged; among advanced tribal peoples this sometimes resulted in elaborate schedules of payment – ‘wergild’ is one instance – which the wrong-doer had to pay to the wronged or his family members. A more primitive alternative was simply to let the wronged, or his relatives, go after the (hopefully correctly identified) wrong-doer to extract or inflict whatever they could or whatever they felt was due. When the State assumed a monopoly on violence, then it assumed responsibility for correctly identifying the wrong-doer and assigning a sufficient punishment. The wronged had a way of going a bit overboard with a distressing frequency; a society could be torn apart in short order.

Transforming a person in his very essence is accomplished by “substituting another socially validated motivational scheme for that previously used to name and order the performances of the denounced.” By the denouncer somehow inducing the community to look upon the person through the lenses of the substitute system, the denounced person becomes [in their eyes] a different person”. Where yesterday in the village a man was simply a fellow-peasant with a few more cows and a larger hut, today he is a “Kulak”, and the only fate for the parasitical Kulak is to be put up against the nearest wall. And through the working of the new ‘lenses’, not many folks feel bad. Although, as the Soviets eventually discovered to their dismay, a lot of folks started wondering if tomorrow they themselves might not be declared a Kulak, especially if the definition of Kulak kept changing to expand the class of potential targets. A society with too many folks thus preoccupied and distracted is not going to get a lot of stuff done. And shooting even more folks turns out not to work so well in the long run.

In order for the whole thing to work, a couple of things must be made to happen.

First, “both event and perpetrator must be removed from the realm of their everyday character and be made to stand as ‘out of the ordinary’”. The denounced person or perpetrator must be seen to be ‘extraordinary’, and not in a good way. After all, if whatever he had done was ‘ordinary’, then there would be no reason for ‘destruction’ and the usual justicial workings of the community would apply. And if he was ordinary, then folks would not feel right about inflicting ‘destruction’; and their guilt, if overridden long enough to approve the ‘destruction’, might well boomerang, sooner or later, onto the denouncer. (This is one big reason why when this type of thing gets started, it’s hard to stop: the ‘denouncers’ and their collaborators – official as well as unofficial – don’t want the lenses to come off the people and the people’s guilt, now transmuted into anger, to be inflicted upon them.)

And this is where ‘emergency’ comes in. The ‘extraordinary’ nature of the act or the denounced person justifies the change in ‘lenses’ by which the people view the denounced person. Released from the cage of ‘ordinary process’, emotions can be loosed among the people which can overwhelm reason. Dictators and revolutionaries don’t cotton to ‘emergencies’ out of boredom or lack of imagination; they grasp the usefulness of ‘emergency’s’ power. And so often, the people don’t realize the painful truth of just how primitive or emotional they can be; the fragility of ‘civilization’ is not something most folks like to think about, in relation to themselves. As the Greeks famously assumed, ‘barbarians’ – by definition – lived somewhere else.

A sturdy court system, like a system of levees, will be able to handle such a tidal surge. But if it is driven by too big and well-orchestrated a storm, then – like the courts in Germany by 1934 – then they too will bend, and become deformed. And then, not wishing to admit the fact, the courts themselves become part of the inertia preventing recovery from the flood of emotions and what was done under their influence.

Second, both the act and the denounced perpetrator must be seen to have a preference not simply for the act, but for the type of act. Thus, this type of person will inevitably commit this type of act because it is in his essence to do so. Thus a Kulak must be killed not simply for what he purportedly has done in the past (be a parasite on the people) but because he will always try to do it in the future; and thus all Kulaks must be identified and destroyed, because there is no rehabilitating them – they are what they are and can never change.

And “event and perpetrator must be treated as a uniformity throughout the work of denunciation”. The Kulak and the parasitical theft and the essence of being a parasitical thief – it’s all of a piece, and there’s no breaking that chain. You will never be able to separate the essence of the man from the act, not under any circumstances.

And the people “must appreciate the characteristics of the typed person and event by referring to a dialectical counterpart”. Thus a Kulak should always be accompanied, even if only in the viewer’s mind, by a ‘good communist’ whose shining example throws the Kulak’s dark evil into even more vivid relief, the shadow appearing darker when contrasted with light. The curious American variant – more passive – is the ‘victim’, who is, in the lenses, innocent and deeply damaged.

Further, the denouncer must get himself to be seen by the people as not-personally interested in the outcome of the denunciation, as merely a heroic upholder of the ‘common values’, who can speak in the name of those values to the people, and who can speak in the name of the people to effect the destruction of the denounced person. Again, curiously, the American variant requires that the ‘victim’ be very ‘interested’, but under the influence of a certain feminist valorization of ‘feeling’, it is this ‘feeling’ and the sympathy that any ‘correct’ onlooker will deploy that actually launches the designated ‘victim’ over the hurdle of having a very significant stake in the outcome of the process.

It’s not hard to see how terribly fraught with emotion this type of dynamic is. Especially in the setting of a court, this can exercise a baleful influence. In a hundred or a thousand courts, the consequences to a society can be profound.

And since “not only must the denouncer fix his distance from the person being denounced, but the witnesses must be made to experience their distance from him also”, then this depersonalization introduces a toxic element not only into the court and its personnel (the judges especially), but among the people in whose name – theoretically – the denunciation is being carried out.

And finally, “the denounced person must be ritually separated from a place in the legitimate order, i.e. he must be defined as standing at a place opposed to it. He must be placed ‘outside’, he must be made ‘strange’.” The people must see – through the lenses – that this irretrievable perpetrator is also opposed to the order and well-being of their society, is an active and deliberate and purposeful enemy of it, and is no ‘member’ of it, but is rather some ‘stranger’. At times, the Soviets and the more tactful Chinese, augmented the ‘otherness’ of an enemy-of-the-people with a psychiatric label to reinforce the ‘strangeness’ (in their ‘science’, opposing or questioning the communist system was of itself a clear indication of insanity).

But it is of paramount importance that the people do not see the denounced as one of themselves. And this is also dangerously narcotic to the people, since they are lulled into the sense that what is happening to the denounced – since it only happens to ‘others’ and to ‘strangers’ whose attitude has been deliberately chosen and embraced – will never happen to them; they are ‘good’ communists, Nazis, Germans, fill-in-the-blank. Martin Niemoller, the former German naval officer turned pastor and preacher, noted that he took no notice when ‘they’ came for this or that group and did not speak up for the accused, until ‘they’ came for him and there was nobody left to speak up. Most people, when ‘they’ come for them, do not even achieve the consolation – stern as it is – of that much self-insight.

(Come to think of it – most Americans nowadays aren’t really going to grasp the concept of a ‘stern consolation’, are they?)

Thus Garfinkel. He was writing about what he detected in his times. I sense that it is among Us now. And that it is a product of two fundamentalisms: the fundamentalisms of a politically-ascendant if not mainstream Protestantism that reinforces its own identity by identifying and hunting ‘strangeness and otherness’ and of a feminist (of the Second Wave) hostility to ‘men’ and to ‘reason’ that seeks to gain leverage over ‘male domination’ by continually tapping into that inexhaustible font of powerful emotional grievance, sex. And the whole brew carefully blended by a government police power that has found that what authority it cannot expand on its own behalf, it can expand by cloaking itself behind the cover of ‘the victim’, on behalf of whose pain and outrage all manner of constitutional encroachment can be effected. And in the 1990s it all came together.

The fact that so much of what Garfinkel observed among Red-baiters (and tellingly among the genuine Reds themselves) and – I think – among the Nazis who copied much of the Soviet playbook in these matters is traceable to the tremendous borrowing that America made from the Nazis and the Soviets after the war. From the Nazis we not only got military tactics like ‘blitzkrieg’ and rockets and jets and ‘preventive’ war (and eventually the shape of their helmets), but also the masterfully developed propaganda trade-craft of the darkly brilliant Goebbels (who himself got some of his best ideas from the 1920s American pathfinder of ‘shaping’ (manipulating) public opinion, Edward Bernays). From the Soviets, especially through certain feminist theorists of the second-wave who borrowed heavily from Marx’s analysis and Lenin’s and Stalin’s praxis, and from advanced level ‘advocacy’ specialists, came orchestrated campaigns against targeted groups and imposition upon the public and the court system of ‘sex offenses’, packaged so as to be irresistible to an increasingly shallow and sensationalist mass media, and show trials, and dubious ‘science’ that is not accepted by any of the most reputable practitioners and institutions.

Why keep bringing this up? Because all of this is still operative through laws that even now continue to become more and more oppressive, and are passed without any serious justification or grounding in fact or science, and systems of registration that continually demonize large swaths of citizens.

As an example, the Supreme Court has stated that the whole system would raise constitutional issues if it weren’t for the fact that it is ‘rehabilitative’ and that it is not ‘punitive’. Yet no practitioners or researchers can point to a rehabilitation program that works, nor even a diagnostic system or etiological explanation that is viable. And Hitler – seeking the German people’s donations to his assorted schemes for assisting the needy – refused to legislatively mandate such donations; he simply published in schools and places of employment the names of those who did not contribute: harmless public notification?

And what does it do to the sense of community and the community’s sense of justice when such derangements are embedded in the public mind – and conscience? What does it do eventually to the legitimacy of Law itself?

We are operating Our constitutional system, having introduced great chunks of communist, fascist, and authoritarian praxis. Do We assume that since these chunks have been ‘baptized’ by being put into the service of ‘American’ society that somehow they will thereby automatically lose their noxiousness and toxicity?

We allowed Our economy to operate in the hands of those so ‘interested’ in it that they enriched themselves by all manner of schemes, and where has that led Us?

We allowed Our foreign policy to fall into the hands of unripes who deluded themselves into thinking that what failed for the aggressive governments of the early and mid-20th century would work for Us, and where has that led Us?

This can’t go on forever. It probably can’t go on much longer. If We don’t stop all of this, it will stop Us. That will be stern, but it won’t be a consolation. History doesn’t like being ignored on such a scale; neither does Reason.

FEMINISM, VICTIMISM, AND LAW?

This is another follow-up on the Massachusetts legislation whereby the Attorney General of the Commonwealth seeks the power of ‘administrative subpoenas’ (equivalent to federal ‘national security letters’) under the guise of combating sex-offenses.

I’ll start off by doing a thumbnail review of what I’ve been working on throughout previous Posts. Fresh discussion will follow that.

I’ll list here several of the points that I made in the pieces:
- The sex-offense mania (SOM) is a disturbing and dangerous example of how due-process can be subverted in the service of an ‘emergency’
- The SOM is particularly slippery to grasp because it began from the Left, so to speak, rather than from the Right where so many Constitutional dangers of over-reaching government are nowadays considered (and not without cause) to originate. The National Security State (NSS) has always given cause for concern, seeking as it does to regiment the citizenry and expand government police power at the expense of civil liberties. But in the late ‘60s, the Democrats, desperate to replace voters lost through the passage of the Civil Rights and Voting Rights Acts of ’64 and ’65, sought to raise up ‘Identities’, voting blocks, and each one of those Identities had its own ‘emergency’ that required immediate action to redress an outrageous wrong that needed to be righted immediately.
- By definition, each of those ‘emergencies’ (and we all know what a bad record government-by-emergency-decree has had in the past 75 or so years) could not wait for the ‘slow’ and the ‘unresponsive’ processes of democracy and democratic politics: citizen deliberation, thorough public discussion and examination, the building of consensus.
- Also, each of those Identities had an agenda and an underlying set of assumptions about American society and culture that was ‘given’, such that ‘discussion’ was claimed to be not necessary, and indeed was a definite interference with the urgent and direct government efforts reputedly required to solve the ‘crisis’. As Goebbels used to say, it’s not a matter of the people needing to think, it’s a matter of the people needing to become aroused and to obey. This is, if you think about it, a fundamental dynamic not of a democratic politics but of a revolutionary politics. (So I call these developments, that have been going on now since about 1968, the Revolution of the Identities. And so, you might say, the country’s democratic politics have been under assault by a revolutionary politics for 40 years).
- So in addition to the dangers of a National Security State that have been budding since World War 1 and that definitely got a huge boost after World War 2, American democratic politics and culture have also been under attack by a very undemocratic politics (although spun as a vigorous effort to expand democracy) embodied in a National Nanny State (NNS).
- One of those Identities was Feminism. I define it with a capital F: I do not mean a movement to encourage and expand the respect for and rights of women, but a strrategized, adversarial, zero-sum revolutionary-type programme to crowbar open a wider role for ‘women’ by reducing the social and cultural and political influence of ‘men’. This is not a wise or healthy path that would support a democratic politics, and as is now widely noted, it resulted in a ‘balkanization’ of the American people, such that one’s identity as an American was subordinated – or even denigrated – in favor of being a member of a particular Identity, in this case a member of a gender, and more specifically, a gender that was ‘victimized’.
- At some point in the later ‘80s, law enforcement began to see that this ‘woman-as-victim’ dynamic was more than just a soft, goo-goo femmy concern trying to intrude itself into the macho mano-a-mano of cop-vs.-perp. Rather, if properly orchestrated, it could become a powerful vehicle for expanding government police power ever more deeply into the lives of the American people.
- As the USSR went away and it looked like the USA was going to be Number One for a long long time, both political parties turned their attention to domestic politics and saw how they could deepen their appeal to ‘the women’s vote’ and look like they were ‘tough on crime’.
- The Feminists (I’m drawing with a broad brush here, I know) assessed the greatest weakness of ‘men’ to be a tendency toward physical violence and a deep-seated propensity for sex. They had been working along these lines since the early ‘70s, but in the mood of the early ‘90s, especially as the Clinton era dawned, they sensed that the government itself (legislative, executive, law enforcement) was receptive to actually enlisting and even bending criminal law to Feminist desires.
- There was something in it for everyone: pols got to look both ‘sensitive’ and ‘tough’, and in all cases busy and effective; prosecutors got to fatten their resumes and burnish their reputations on sensational cases; cops got federal grants; the media got made-for-tv dramas that increasingly required almost no investigative reporting and offered ‘great stories’ just about ready-made; advocates who once were simply concerned citizens trying to fix problems locally were replaced by professional advocacy groups that became indistinguishable from professional lobbyists; and – as you noted – all sorts of follow-on ‘industries’ developed, making money off the thing.
- Even more disturbingly, a highly dubious ‘science’ was created overnight, not often supported by mainline universities or medical/psychological organizations but rather represented by scads of ‘think tanks’ and ‘experts’ who assured us that this was a terrible and weird and horrible malady for which there was no known cure, although that didn’t stop them from supporting draconian laws and sentences.
- ‘Spectral evidence’, that stunning dark-ages practice of a court accepting as fact the unsupported – indeed invisible – assertions of a complaining party, was costumed in scientific garb and introduced as the cutting-edge discovery of ‘repressed memory’. According to its proponents, it is not only possible but probable, that a memory of a personally traumatizing experience can be buried beneath consciousness, for years or even decades, and can then emerge suddenly into consciousness, even more vivid and more clear and more pristine than any ‘normal’ memories.
- Worse, as it came out in the aftermath of the profoundly disturbing Duke University gang-rape case, one feminist academic asserted in genuine revolutionary form that “facts don’t matter”. You can’t conduct legitimate justicial process on an assumption like that. And to grant the government, any government, ‘freedom from facts’ is surely not a road any citizenry should want to take.
- Legally, even more ominous developments took place: the Violence Against Women Act of ’94 introduced into American justice the nasty European practice of ‘denouncement’, whereby police could deprive a citizen of liberty and property merely on the unsupported word of another (and hardly disinterested) citizen; the government police power was invited – in fact, its presence was demanded by advocates – into the bedrooms of the nation. ‘Date rape’ demanded that courts accept the word of one party (however, a party anointed as ‘the victim’) without any further evidence, to the great detriment of the accused.
- With the specifically ‘sex offense’ laws, beginning about ’96, evidentiary rules were eased (thus those ‘memories’ could be introduced), leading to the weakening of the ancient legal wisdom of ‘statutes of limitations’, established in response to the common-sense awareness that after a certain period of time has passed, witnesses die or their memories fade, corroborating evidence – for either party - would be lost, and consequently it would be almost impossible for any human court to reasonably assert the validity of any finding it might make or any sentence it might pass.
- Worse, the ‘sex offender’, a term which no professional mainstream medical or psychiatric organization authorizes as a legitimate diagnostic category, was subjected to another totalitarian or authoritarian government ploy, ‘civil commitment’. And not only civil commitment in lieu of criminal conviction and imprisonment, but civil commitment added on after the imprisonment. Since it is ‘therapeutic’, the Supreme Court has opined, then it’s not a ‘punishment’; the Court, however, did not care to figure how ‘therapeutic’ any such commitment could be since there is no known therapy for what – as the serious medical and psychiatric professionals have indicated – is not actually a medical or psychiatric diagnosis. It’s a ‘preventive’ detention, designed to prevent ‘pain’ and ‘outrage’. This begins to pervert the traditional Western concept that criminal justice can and must only be applied to an ‘act’ after it is committed; if the government wants to ‘prevent’ something today, what else will it decide to ‘prevent’ tomorrow? And what if it decides that sex-offenses contribute to the weakening of ‘national security’? That they constitute an American form of ‘Wehrkraftsversetzung’ (a ‘disintegration of defensive capability’ in the original Nazi)? After all, so much of the legal and publicity machinery of these stampedes of the 1990s seem to have come from the Third Reich or the USSR. To the victors belong the spoils, perhaps.
- Worse, the hue and cry was raised for ’special courts’. For the ostensible purpose of bringing more expertise and efficiency to certain types of cases, special courts were erected for Domestic Violence cases and are being demanded for Sex-Offense cases. One New Jersey judge was overheard declaiming that the purpose of the court was to bring swift relief and justice and closure to the wife, and that this was to be done at the expense of the husband. So much for determining the truth from the facts. The concept was not new; it was called ‘Volksgerichtshof’ in the original Nazi; it was very successful as a vessel for applying the Nazi concept of ‘blood justice’ (which, it appears, has raised its awful head here renamed ‘gender justice’).
- Worse, the old Communist/Fascist ploy of ‘registration’ was introduced, and not simply one’s information kept on a file card in some KGB or Gestapo office, but publicly available on the Internet. Additionally, a series of restrictions on where one could move, on travel, and on where one could live function as the equivalent of ‘internal passports’, restricting not only movement but employment possibilities. Again, the Supreme Court opined that this isn’t ‘punishment’ since one’s conviction is a matter of public record, and even if it is punishment for all practical purposes, the public safety – the old ‘emergency’ ploy – justifies it.
- And just to top it off, almost all of these laws include a provision that police may arrest without further ado anybody they have ‘reasonable’ suspicion is either a sex-offender or an unregistered sex-offender. And worse: a provision that no police officer can be held liable for false arrest or for any damages should his/her zeal be misapplied, no matter how much trouble caused for the individual arrested. It’s also vague whether the various post-9/11 databases meant to identify potential terrorists are also tied into State databases (rumor is some congressman from upstate New York now wants a separate federal database) for sex offenders: can you fly? Can you get a passport? Can you get your license renewed?
- Within the dismayingly short time of a couple of years in the later ‘90s, the whole web of laws, judicial practice, police and prosecutorial practice, media ‘reporting’ that simply played-up the ‘horror’ and didn’t investigate the validity of any incidents, were all working so smoothly that the jury-pool of almost any court in the country could reliably be assumed to be confident and determined in its mission to convict.
- This was the result of an almost Goebbelsian predictability to the ‘reporting’ designed to arouse the passions and distort the judgment of the citizenry: terrible thing done, ‘man’ is sex-offender, victims outraged, heroic cops nab him; ‘experts’ shocked; pols determined to pass even more laws.
- And an even more disturbing pattern of ‘reasoning’ designed to undermine public discourse and deliberation: if you don’t believe the (self-declared) victim, then you must support rape/child abuse/pedophilia/fill-in-the-blank; to ask questions is to ‘revictimize’ the ‘victim’; to take time for careful due process and deliberation is to be insensitive to the victim’s ‘pain’ and even to indicate that you yourself must be a victimizer/rapist/pedophile/ fill-in-the-blank. You can’t conduct justicial process like this.
- Worse, you can’t conduct the affairs of a democracy like this; there is no room for public discourse and deliberation. Granted, some of those Norman Rockwell paintings of town meetings were a little idealized, but he was on the right track.
- And so this whole sex-offense thing has contributed to a massive degradation of democratic discourse and politics in this country. As well as lethally – and possibly irretrievably – damaged Constitutionally grounded law. As well as poisoned many many citizens’ ability to grasp the real nature of the American ‘genius’ passed on to us from the Framers.
- And it is very hard to avoid the conclusion that the Revolution of the Identities, at least in its Feminist and Victimist variant, has created – with the assistance of Congress and the courts and the connivance of the media – a class of persons within the country who are guilty by their very existence. The Revolution has created here in the US a class of ‘kulaks’; they are called ‘men’. You can’t run a democratic politics like this, when half the citizenry sees and defines itself primarily as a victimized and outraged gender, and the other half sees itself as a hunted class of proscribed targets. And no government that tolerates such a divisive situation, let alone abets it, can long last.
- And all of this was in place before 9/11.
- And lastly, I think that what we’ve seen since 9/11 – especially in Iraq and maybe soon in Iran - is an application of the ‘sex offense’ play not on the domestic field, but on the field of foreign affairs. If we look again at the run-up to this monstrous wreck of a war we started in Iraq, weren’t all the old sex-offense ‘moves’ made: demonization of a targeted individual, false ‘science’ by fake ‘experts’, prosecutorial misconduct reaching even beyond dirty tricks and outright lies to the most reprehensible forms of illegal abuse, selective media reporting that refused to inform the citizens of all the facts but instead just parroted what the government wanted the spin to be. In a dark moment, you might wonder if the government didn’t look at how well the sex-offense gambit worked, and figured it could be used to start preventive wars overseas. And that it figured that the American people would approve.

I’m wondering if ‘feminist’ law and the ‘victimist’ focus are compatible with any actual Constitutional – American – legal praxis at all.

Now before I go any further, let me make something clear here: I am not ‘against’ ‘women’; I do not wish to ‘turn the clock back’ on ‘women’. But I do believe that the core thrust of ‘feminist’ law, especially as evidenced in Domestic Violence legislation and the sex-offense mania has essentially subverted and derailed not only American law but American politics – democratic politics – and that if We don’t get the ship of state back on course in this regard then We are heading for the iceberg, the rocks, and the edge of the abyss itself.

It was back there in the Patriot Act: that ominous phrase that the Act was intended to be used against ‘terrorism’ but also ‘other crimes’: this effectively meant that the whole panoply of dark powers legalized by the Act could without further ado be turned against any citizens for any reason whatsoever. And should that happen, then anyone protesting could be gently but forcefully advised that it’s all legal because it’s right there in the law. Ja – pervektly legal, Kamerade. Berleen inzists on alles being legal. Ja. Yah.

Individual congresspersons have already had occasion to express surprise – if not often open regret – that they voted for some ‘power’ in the Act; they had – now they tell us! – not really read the thing (and I wonder if anybody in Congress thinks that it’s their responsibility to read laws before voting for them any more). But, in spite of their ‘feelings’, the Act stands.

In a ballsy move, the Attorney-General and the District Attorneys of Massachusetts are trying to sneak some of the same Patriot Act powers into the Massachusetts statutes. Of course, they didn’t try to introduce a ‘Massachusetts Version of the Patriot Act’ for the public’s consideration. Noooooo. The heroic protectors of the citizenry tried to sneak it by the people of the Commonwealth quietly stashed aboard the ‘emergency’ vehicle of ‘protect the children’; isn’t this sorta like trying to sneak weapons over guarded frontiers in ambulances and stuff?. It’s a method of proceeding that’s disturbingly similar to the ‘terrorist’ tactics of … less developed parts of the world. That’s a coincidence. Golly.

How did we get to a police state? I think that if – theoretically – ‘women’ were indeed all this oppressed 24/7, then it stands to reason that they would be fearful and – who could deny their humanity? – a tad desirous of revenge after all these ages and ages of oppression. And (courtesy of the vote-addled Dems) having the entire police power of the US government at one’s disposal to – ummmm – bring some closure … well that would be quite the thing. So, conceptually speaking at least, one half the population once lived in fear of ‘rape’ and now lives on revenge and a fancied ‘payback’ while the other half lives in fear of being labeled a ‘batterer’ or a ‘sex offender’, and maybe for stuff suddenly just ‘remembered’ from decades ago.

This is not the recipe for a mature People able to focus on the monster challenges that have been facing this country for 40 years: industrial base slipping into obsolescence, new economic competitors arising, economy slipping and unable to provide decent employment, the dollar becoming ‘symbolic’, the military becoming the only ‘solution’ to every problem in foreign affairs; just as – by most curious coincidence – the police power is the ‘solution’ to every problem domestically. If you tried this in a soap opera you’d be laughed out of the office of every suit in Hollywood.

And I think it was conceptually within, even demanded by, ‘feminism’ – at least that ‘feminism’ of the period of the 1970s that formed the ‘justification’ for all the legal derangements that have followed. After all, if ‘men’ are defined primarily as rape-machines and sex-maniacs by nature, and if the goal is to eradicate a ‘rape culture’ by inserting the police power of the state and federal governments into every possible venue where men might try to perpetrate ‘sex’, then a police state was pretty much the only way to go in order to accomplish the vision. And if all law – according to the deconstructionist and feminist theory – is merely an expression of whoever can get power over making law, then Constitutional process and praxis is going to have to go too.

And, it would appear, so it has. Going, going … almost gone.

And do we think that a Democratic victory in November is going to solve this frakker of a problem? Not a Republican victory certainly – or rather, not a Rightist/Nationalist victory. But the days when Democratic = Liberal = for-the-Constitution are gone, baby, gone.

And how hard would it be to get folks to accept that ‘terrorists’ (however widely defined) are ‘evil’ when ‘sex offenders’ (verrrry widely defined) are ‘evil’ because – well – because ‘men’ are evil. And dangerous. 24/7 and 365. That’s half-the-world that formed an axis of evil 40 years ago (and I’m not talkin’ about the Commies here). Hell, you could almost say that everything since 2001 is just ‘Act 2’ … or, ‘just the next logical step’.

Democrats don’t want to talk about the ‘conceptual’ problems with their decades-long support of feminist-victimist law. After all, there’s no way of escaping the logical consequences: they embraced a philosophy – such as it was – that virtually guaranteed a police state and a conceptual and emotional civil war of one half the country’s population against the other.

And now what can they do? Admit that they didn’t think things through back then? Admit that they lost control of the whole thing decades ago and now can’t figure out how to stop it and are hoping that – like Mr. Micawber – ‘something will turn up’ to save their and the Republic’s future? Admit that they’ve decided to just keep stringing things along, getting re-elected and set for cushy jobs after ‘retirement from public service’ until … well, until. Most not-impressive. But such – as Gore Vidal put it, borrowing from the wry Soviet citizenry – is ‘our modern American reality’.

And what are We gonnna do about it?

WHEN VICTIMS GO BAD

I’d like to move beyond this matter, but things keep developing, and the whole thing is important not only for itself but as a template for other and even larger national policies – foreign as well as domestic – and as a source of reflection as to how We came to be infected in the first place .

In “Commonweal” magazine, Mark Sargent has a piece entitled “When Abuse Victims Squander Their Moral Authority”, which tells us so very much more than it intended to (http://www.commonwealmagazine.org/article.php3?id_article=1915).

Apparently there are now flying squads of members of an organization called SNAP (Survivors Network of Those Abused by Priests). These units have taken it upon themselves to target those “about whom the diocese [of Wilmington, Delaware] found ‘credible or substantial complaints of sexual abuse of minors”. That diocese had contributed to the tribulation by releasing the names of twenty or so former priests in that category. Most of them were ‘former’ by means of having died (thus facing a Court without SNAP input and quite possibly therefore the self-declared victimery would not accept Its findings).

At least one of the twenty was still above-ground, although he had ceased serving as a priest 20 years ago or so, and lived now in another state. Apprised of his residence within their ‘jurisdiction’, that local chapter of SNAP “went door to door in his neighborhood distributing a file of documents with the title ‘Community Notification Project: Protect your children from a credibly accused sex offender’”. This last despite the fact that the gentleman has never been charged with, let alone convicted of, a sexual-abuse crime. A similar deployment in another state resulted in a priest whom the FBI and local police had investigated and declined to charge being “hounded” into resigning his pastoral duties and leaving the state.

There’s as much to say about the magazine as there is about the SNAP-squads. But first it has to be noted that nobody who lived through the era of Mao’s Cultural Revolution (the immediate progenitor of Our own unruly brood) can be surprised except by the queasy realization that “it” is most definitely happening here.

The magazine is to be commended for sticking its head up out of the media formation and actually addressing (however delicately) the heretofore sacrosanct and unask-able question of the behavior of some of these groups. Still and all, no reader aware of our modern American reality can read the article without making the necessary mental bracketing: Who has declared any member of these groups a “survivor”? On what demonstrable authority is the privilege claimed? For, after all, to ask such a question is not merely to be flint-hearted in the distribution of sympathy; these ‘victims’ apparently consider themselves above the law or beyond it – perhaps because the ‘emergency’ of priestly sexual-abuse has over-ridden the rule of law for quite a few years now.

The SNAP-pers apparently feel that ‘sexual abuse’ is such a pressing and outrageous emergency that any scruples about slander or libel are irrelevant, that concerns for ‘accuracy’ are indications of “sympathy for a devil” (to borrow a phrase), and that no DA in his/her right mind would dare to bring charges against them anyway. No doubt behind this thinking lies the old soviet presumption that members of the class of oppressors and ‘objective enemies’ by definition cannot be ‘victims’, and conversely that no class of ‘victims’ can victimize. You can’t say that the soviet system really had an appreciation of the unsleeping duality of human nature. Now the Catholic Church did and – buried beneath a few decades of smiley-faced goo-goo fluff – still does.

And of course, what is the definition of ‘sexual abuse’? This question does not represent a ploy of ‘denial’ or ‘minimization’, such as would get you a sound verbal and emotional thrashing if you raised it in group-therapy. This is the urgent and grave question of what precisely is it that is being targeted by the criminal law and its penalties, in order to assure a just and accurate conviction and a punishment proportionate to the act(s) proven to have been committed. Thoughts? Words? Deeds? What sort of deeds? How old is the ‘child’? (The ‘child’ could be a day or two from starting military recruit training).

There is a price to be paid for a lascivious use of the criminal power. For one thing, society is deprived of whatever contribution the convicted might have made or might make (especially nowadays, when having paid one’s debt to society or even having been adjudged as not having a debt to pay is no guarantee that a flying-squad of ‘victims’ will not appear to wreak a ‘service’ that in an earlier and more candid time was called ‘vigilante justice’. Further, society creates enemies for itself if it becomes lascivious in its deployment of the violence of criminal justice; and if in addition that society were to dispense with Truth, with accuracy, with Justice itself, then such Enemies thus raised up would be formidable and relentless indeed. Has that not become rather clear from Our experience on the Eastern front?

The magazine has also failed – though it is hardly alone in this – by accepting the essential premises of the Maoist script: when a bunch of Red Guards/Victims show up on its doorstep muttering and wailing, the magazine instantly adopts the submissive posture of the ‘discovered’ or ‘uncovered’ (so to speak) counter-revolutionary or ‘revisionist’ who is respectful of his heroic discoverers and now wishes only to be allowed to apologize to ‘the people’ for his errors of (fill-in-the-blank) and will gratefully accept any re-education that the heroic vanguard of the suffering masses might choose to impose.

Or – at least – the magazine is willing to accept that ‘the priests’ are guilty and join the baying chorus. Which is not quite so courageous.

This is a trahison, no matter how thickly cloaked in ‘sensitivity’, ‘contrition’ (justified or not), and ‘open-ness’. Certainly, a priest who has been proven to have had sexual relations with a child is responsible for great criminal and moral and – let’s not mince words - supernatural consequences. But in the criminal law there is no legally usable ‘class’ of such priests whose ‘members’ are instantly and indubitably certifiable by their very nature as criminally guilty. Perhaps this is why the victimists harbor a barely-hidden resentment toward any of those keepers of the criminal law who still insist on the traditional stringencies of evidence and proof to determine guilt in each individual case.

For the victimists, the civil law is an easier nut to crack in theory and has proven hugely useful in practice. Once they permitted actions to be presented as a ‘class’ action, then the courts instantly created two ‘classes’ in the public mind: the class of ‘victims’-before-the-proof and the class of perpetrators-before-the-proof. With such a boundary crossed, the conceptual possibilities of monetary remuneration increase exponentially, and if somehow the ‘class’ can be determined to have a common and large asset, then attorneys of a certain sub-specialty will join the cause.

Once the media have joined in, responding to your PR spin of an ‘outrage’, an ‘emergency’ and ‘a hidden conspiracy unmasked among us’, and with sex thrown in on top of all that … once you’ve got those conditions going, then a good old southern California wildfire and firestorm are inevitable. Nobody who has seen those tornado funnels of dark hot fire up close rising up hundreds of feet in a spiral of ferocious destructiveness can fail to appreciate the tremendous energies unleashed by the properly nurtured combination of elements properly set alight.

If then the courts yield their ancient trust and loosen up rules of evidence, statutes of limitation, and the presumption of innocence until proven guilty, if indeed the courts or – worse – the legislators, grant an initial characterization of a claimant as a ‘victim’ or a ‘survivor’ before any adjudication or verification of such a claim has taken place, then several more of society’s defensive firebreaks are overrun – abandoned, actually.

And by the time all of that is ‘going good’, then only the hardiest bishop would want to risk the monstrous and dubious expense of defending each civil claim. But each such acceptance of a ‘class settlement’, though well-advised from a purely legal point of view, reinforces the completely undemonstrable assumption that each ‘claim’ thus settled was real and accurate. And it is that intensifying public misperception which thus toxifies the atmosphere for the (relatively very few) cases that come to the probing test of a criminal trial.

Not surprisingly, numbers given out by media – based on numbers given to the media by advocates and ‘experts’ – don’t seem to add up or don’t add up to percentages that stand out from the norm. This point, of course, is countered by the dual claims that a) in a church that claims its priests are so ‘good’ then any deviation at all is ‘horrific’ and b) if we base our expectations on ‘zero tolerance’ then it’s worth it if ‘only just one’ potential victim is saved. But should we invade a foreign country because the government has declared ‘zero tolerance’ for (fill in the blank)? Should we invade a foreign country in order to ‘save only one’ victim of (fill in the blank)?

And while the Church has high expectations of its priests, the Church has never lost sight of the fact that human beings can fail to live up to their calling.

Indeed, it is precisely the Church’s patience and tolerance of weakness that have been seized upon voraciously by the victimists as proof that there is a ‘cover-up’ massive in proportion and sacralegious in nature.

The bishops have not responded well, indicating that John Paul II’s great purge of the episcopacy that brought in dozens of ‘doctrinally strong’ prelates did not bring in particularly strong men. The Maoist ballet – the performance of which requires two – was greatly abetted by the cravenness of the American episcopacy, the ecclesiatchiki who yielded their priests to the victimist furor as easily as they betrayed their pope to the war-mongering of the Bushist Imperium.

The heavy burden of the Church, that She bears through the ages and will ever continue to do so, is to bear witness to Sin and Grace, sinfulness and redemption, the crooked lines with which God writes the history of humankind. For every one bishop who ‘covered up’ a monster, there were a half-a-dozen who tried – ineptly as often as not – to maintain some decent connection to a struggling soul.

Certainly, priests who err must accept the consequences. But those consequences must be proportional to the crime that has been proven to be committed. The Church owes that to Herself – to betray that is to betray Herself and Her mission. And if it is the instant retort of the victimists that the Church has clearly betrayed Her nature and mission in these sex scandals, then the Church would be the first to admit the imperfectness of Her efforts.

But in the modern Moment in which Americans consider the failures of the Church (whatever their actual proportions), We can hardly ignore the monstrous betrayals of nature and mission, of character and of integrity, that have gut-shot the whole Iraq effort, undermined the economy, and de-centered the government’s administration of Justice and Law and its adherence to Truth and Integrity of Character. We must soon face up to the fact that enacting mass-media autos-da-fe does not build the moral strength and integrity – individually or societally – that enables Us better to People the Republic and its government. In fact, the indulgence of such sustained demonstrations may well have contributed to the massive erosion of Our seriousness and competence, Our ‘gravitas’, as a People.

In the matter of all of these accused priests I would propose the following questions? Was his guilt determined by a trial and finding by a jury? What specifically was the act with which he was charged? (‘Abuse’ or ‘molestation’, those revolutionary buzzwords, therefore are not sufficient). If he was simply lumped together in some sort of civil ‘settlement’, then I would refrain from coming to any conclusion until fact was clearly established If I saw ‘numbers’ I’d pull out a pencil and do a little math for myself.

And if I found out that my priest was indeed ‘guilty’, I’d want to know whether it was of child-rape or something else altogether. On the basis of a laudable and visceral public rejection of sex with children it seems that a lot of other things have been tossed into the net to fatten up the final figures touted to the press.

It was the old soviet ploy to recoil from the foregoing type of proposal like a vampire from holy water, effecting a pose of righteous indignance and braying that such requirements would interfere with the administration of ‘justice’ against these class enemies of the people. That ploy cannot be indulged. We cannot afford it: legally, culturally, morally.

The Catholic Church in this country, it seems to me, has been the target of a Cultural Revolution masquerading as A Hundred Flowers Blooming. Its hierarchy has not performed well, its ‘elites’ are divided and fractious, and – so American – none of those involved are able to take the Long View (‘Long’ in Catholic time, not Bush-Pentagon time). Nor for that matter – again, so American – are those involved able to take the High, the Wide, and the Deep View. And there are other forces in contemporary society that do not favor a robust Catholic presence.

And yet the world and even We are in great need of a wisdom that can sustain through times of genuine mass privation and horror. The biblical lean years are coming, and will no doubt arrive long before the far more adolescent-friendly End Times. As adults or adults-to-be, each American needs all the help s/he can get to sustain a mature and robust humanity and civic competence.

The search – relentless and squinty – for ‘purity’ is, historically, not a ‘Catholic’ obsession at all, but rather a Protestant one. Just as the Catholic Inquisition was begun as an intellectual inquiry into heresy, and it was only at the time of the Reformation that witchcraft became an overriding subject of inquiry (not improbably because the Protestant Reformers simultaneously needed to maintain a usable ‘enemy’ to bolster religious fervor while avoiding too deep a concern for ‘heresy’ since they were all, pretty much by definition, liable to that charge). The Catholic ethos became the ‘primitive’ earth-besotted, emotionally and materially besotted archaic miasm out of the darkness of which the pure and dedicated Reformers and their flocks created themselves from an act of focused will in response to a new Exodus and a refined Covenant.

The Church, though male-dominated, remained committed to and rooted in a Vision of human existence that is robustly Incarnational, respecting the blending of Spirit and Matter that reflects the human reality as Created, that is patient with the human instability that etches those myriad crooked lines – some so stunningly bloody and deep – that mark our history as a species. I will not reduce matters to the current specious conundrum of ‘masculine’ or ‘feminine’; the Church’s Vision seems profoundly human. The world as We know it, the world as it will or might or must become, cannot afford to lose It.

STEREO STEREOTYPES

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”'; www.truthout.org/issues_06/041707WB.shtml).

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'.

UPDATE

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.