JANET HALLEY: TAKE A BREAK FROM FEMINISM

(I Posted this on my other site, but here I’ll make a few more SO-specific comments. My comments here will be in italics.)

I just read the 2006 book “Split Decisions” by Janet Halley, a professor at Harvard Law School.

I try to keep up with feminist thinking, as you can tell from prior Posts. Feminism has been one of the most substantial influences on the way things have gone in the country these past few decades (the Biblical 40 years and heading toward half-a-century, now) and since it mostly receives a very Politically Correct kid-glove treatment in the mainstream media, it seems to me that it needs a much more careful and not so cream-puffy an examination.

The subtitle caught my eye: ‘How and Why to Take a Break from Feminism’. Now that, I thought, is something you don’t see every day. Especially from an established and prestigiously placed feminist and female author.

It’s never been my position that women (not to be equated with feminists, nor vice versa) should be considered nothing more than the docile herd in the deerpark of male sexual conquests, nor do I hold any brief for males who define themselves, their lives, and their ‘success’ in terms of sexual conquests, especially violent ones. Such a habitus does no good for the maturational prospects of any male, as well as harming any female who comes within range.

So I read the book last night and have a few thoughts. This is not a formal review, of course, so I’m only covering the thoughts that strike me. I’ll give page numbers from the text* when I quote a major point.

She quotes a couple of feminist slogans: “I’ll see it when I believe it” and “I’ll see it when I can theorize it” (p3). These seem to refer to the valid enough epistemological insight that if you don’t have a category for something, you may well not even notice it.

It’s not a bad insight. I recall when I first heard an electronic siren (the whoo-whoo, woop-woop) that began to replace the old mechanical sirens (that sounded like smaller versions of the air-raid sirens of World War 2): I didn’t hear it at first, but rather I felt it – I realized after a bit that my eardrums seemed to be vibrating. Focusing on that odd sensation, it was only then that I realized that something was making a noise, and it turned out to be the local fire chief, whose 1960 Pontiac was coming up the street with its red bubble revolving and this strange contraption on the roof apparently making the noise. The chief was having a hard time moving along, since most drivers didn’t seem to realize what his cutting-edge, state of the art, new-fangled siren was (long before the end of the decade, all Americans who watched the TV news came to know the sound very well).

I didn’t have a mental file for that sound, so I actually didn’t hear it – I only felt its effects (on my poor eardrums). But after that I had a file and I heard them for what they were. That’s epistemology for you.

At the same time, though, I hadn’t studied meteorology and knew what thunder was, so some stuff seems to come almost pre-loaded in the human brain, or it’s learned so early – before the capacity for self-awareness is fully operational – that it seems like you’ve known it all along.

But that part about ‘theorizing’ adds an extra layer of complication: it’s one thing to encounter a strange new machine and put together for yourself what the thing does. It’s a different level of life’s Vulcan chess game to interpret for yourself what an idea or a ‘concept’ is and what it’s all about and what it does. And then to assume that your take on that idea or concept (not physically real like the machine) is the full and accurate take to be had about the thing. And then another step to assume that other folks should agree with you. And then another step to assume that if they don’t, then they just don’t get it and need to made to agree with you.

You see where these things can go. As Bilbo tells Frodo there in Bag End, taking a single step outside your door is a momentous and freighted thing: you never can tell where the Road will take you. (Did you think it was just a movie or just a fiction?)

Halley mentions “the thrill of liberation from the self”, which I think she is defining when she goes on to say “the complexly constituted erotic self”. I can’t be comfortable with any implication that the self – the marvelous human self – can be reduced to its (admittedly complex) sexual aspects and potentials. If for no other reason, I think that the Framers imagined a Constitution that would provide a framework for the political affairs of a citizenry who were indeed individuals who were – according to their individual gifts and lights – efficaciously committed to maturing the self that each of them possessed, thus then coming together to deliberate about their public affairs, thus both grounding and holding accountable the government that the Framers were oh-so-carefully limiting and structuring through the actual Constitution.

If no complex, dynamically maturing Citizens, then no way that the Constitutional machine itself could keep going; like a Ferris wheel (not invented, I agree, at the time of the Framers) that required struts to keep it solidly and stably anchored if it were to perform its marvelous movement.

In the Constitutional vision, The People is/are the struts that hold the great machine up and also anchor it against the various momentums of its own movements. Otherwise you get the vivid result so neatly imagined by Steven Spielberg in his 1978 film “1941”, where the Ferris wheel, shot free from its struts, rolls drunkenly along a pier and over the edge into the sea. You might have realized the same sensation yourself in recent years, watching national policy and the Beltway careen ever more drunkenly. There is an edge out there, ahead of Us, somewhere.

In order to be credibly feminist, any approach has to accept the following stipulations, says Halley: a) that there is a distinction between male and female; b) that the female is subordinated to the male; c) that opposition to that subordination is required (p17).

I can see that and I can accept it as an approach to construing American civic life. I would be verrry uncomfortable if the primary unity, the core identity, of Americans as Americans, was subordinated to that, however. If for no other reason than the threat posed to the integrity of The People in the vital role of holding up and holding steady the great machine of the Constitutional arrangement.

Once ‘gender’ (or any other aspect of anyone’s complex identity) functionally replaces ‘American’ as the most important definition, then for the most fundamental political purposes at least, We in a heepa trubble.

And if a theory insists that “subordinated sexuality” is the most important and immediate aspect of fully one-half of the Citizenry’s identity, then not only as individuals but as a Citizenry We are taking a mighty limited view of Ourselves, as human beings and as a People. And there will be consequences, just as surely as deconstructing the struts on a Ferris wheel will yield rather inevitable consequences.

And you can see here how the almost complete reduction of civic matters to one of ‘sex’ starts a trajectory toward the SO-mania and its matrix of laws.

Haley muses that by the early 1980s much feminist theorizing – not all of it congruent and easily meshed – had already been done. But then three things happened: a) AIDS; b) ‘power feminism’s’** determination to focus on domestic violence and sexual violence; c) postmodernism (p28).

About (a) I simply note that a thoroughly ‘liberated’ (which is to say unlimited and un-Shaped) sexual range can have profound, even if unintended consequences – although the effects on the maturity and genuine human development of the individual are, though less obvious, even worse than the disease itself.

About (b) I would note that in that same decade of the 1990s that Halley will call “the decade par excellence of governance feminism”*** (p32) this country adopted a host of police-state tactics, including registries (domestic violence and sex offense), arrest without warrant on the simple say-so of another citizen (domestic violence), special courts (domestic violence), and the widespread government-sponsored certification of an entire group of citizens as incorrigible and recidivist monstrosities (sex offense) that allegedly required not only extensive police monitoring but widespread public notification (sex offense).

I would also note that the Constitutional difficulties with the sex-offense laws have increased exponentially, rather than declined, in the two decades since their inception and now include traditionally conservative elements such as the Cato Institute and the actual State governments and police agencies themselves.

This can hardly be an unintended consequence when so much of feminist thought considers “male sexuality to be a vast social problem” (p27). Or, as Lacanian linguistic theory would put it: all of a sudden, almost one-half of the Citizenry of this nation were, in the blink of an eye, and with the politicos' eager support, 'problematized'. Now that is something you haven't seen too often in human history, and that's probably not just coincidence: governments and nations who embark on such a path aren't going to last too long. Or, as one dead white male has put it, echoing some other dead white male: "a house divided against itself cannot stand".

It is also a recipe for profound public, civic, political damage, when – especially with the connivance of the elected officials of the government – almost one half of the nation’s citizens are conceived of as a vast social problem almost overnight. It reminds one of the sudden Soviet attitude and policy toward the Kulaks; but more relevantly to a democracy, it clearly promises to rend the polity jaggedly and profoundly.

You find yourself asking: what democratic government in its right mind would undertake to support such a program? And so enthusiastically? And, of course, having once fractured The People so profoundly, the limits on overweening government built into the Constitutional ethos are themselves effectively fractured as well. As We have been seeing of late.

The idea of governance feminism, it seems to me, was that feminist Theory had to be taken out of the classroom and chatroom and organized into a political pressure that would insist on Theory-friendly changes to American law and jurisprudence. The Democrats were the first to get on-board, since the whole thing had started out as a matter of ‘liberation’ and ‘empowerment’ and as far back as the late Sixties the Democrats had – in a certain amount of desperation (Vietnam, the unexpectedly rackety turn of the post-1966 black civil rights movement) – realized the voter-demographic potential of ‘women’. And of course by ‘women’ I mean and the feminists meant ‘the advocacy of feminist Theory’ as applied through vigorous political pressure on the elected officials.

About (c) Halley herself describes postmodernism’s “anti-foundational, libertine, irrationalist, anti-moralistic” elements (p29). How could it escape anybody that such a caustic dissolvent would most likely corrode much of the machinery and the struts of the Constitution? Would most likely corrode and even corrupt the maturity and civic competence of the individual Citizens themselves?

Such a ‘deconstruction’ of the fundamental principles and ethos of Constitutional and traditional American social, cultural, and even legal practice cleared the path for the flood of sex-offense laws (although the path was already forged by much of the domestic-violence matrix as well). It’s as if they set a wildfire which destroyed the trees, and thus left the ground open for huge mudslides because there were not trees to inhibit the flow of water when the rains came.

Halley reports herself “happy” that governance feminism made certain problems “visible” and showed “reality” while “making life better, even if marginally – for women” (p32). About the Constitutional ramifications, and the ramifications for many individuals – most of them males - ever more intensely coming to light, Halley has nothing to say, nor is there even an entry for ‘Constitution’ in a comprehensive Index at the back of the book. Which, as I have been saying recently, is one of the gravest problems with the entire feminist enterprise as it has been embraced and fulfilled by government policy, regulation, and – oy – criminal law.

It sort of stuns that there are very sizable and influential groups in this country who see the 1990s (the domestic violence laws and then the sex-offense mania and its laws) as pretty much a ‘success’ as well – even more disturbingly – as a ‘victory’ and a ‘vanquishing’. We are talking about American citizens here. Aya Gruber’s article reviewed in one of my recent Posts speaks to this as well: the feminists deciding for political tactical reasons to cast in their lot with the law-and-order, criminalize-everything interests who were no more ‘conservative’ than the governance feminists were ‘liberal’.

She quotes admiringly Catharine MacKinnon, early theorizer and icon of in-your-face feminism (although Halley quickly notes that MacKinnon has a mellower later phase as well): “My consciousness is true, yours is false, never mind why”(p44). This is quickly followed by a second bon mot: “I know I’m right because it feels right to me, never mind why”.

This sort of assertion became acceptable as ‘evidence’, and worse, as ‘evidence’ that could not be questioned without ‘re-injuring’ the person who made the assertion. In a way too, I think this goes some way toward explaining what Wayne Logan has observed to be the SO mania’s imperviousness to the true and actual facts about such myths as ‘sex offender recidivism’ and ‘stranger-danger’ (you can see a nice list of myths on the Constitutional Fights site by the new group WAR (Women Against the Registry). The legislators who passed these things hold the radical feminist position ‘Never Mind Why’ – which is, I would say, a powerful reason to question the conceptual integrity of the legislators and jurists who continue, even in the face of mounting evidence, to support them.

As the Brits would say: So there it is then. In the proverbial nutshell. Never mind why. How carry on a democratic politics, how conduct any sort of civil or civic discussion at all? Nor is it enough to say that this is from her ‘early’ period and perhaps later disowned, modified, or de-emphasized; this was the type of stuff that overran such conceptual and intellectual defenses as the Beltway in the Reagan era might have mustered.

It’s a sign of precisely the approach – Never Mind Why – that has resulted in the destruction of a politics (or political class) based on deliberation and gravitas, and the erection (as it were) of a politics (and political class) of emotional assertion and thorough-going anti-intellectualism. Let’s not think that Rush Limbaugh is purely a product of the Right; the launch skids were greased for that behemoth by MacKinnon and her brassy and cocky (as it were) sistern (male and female).

The media lapped it up like catnip.

And this goes a great way toward explaining that jaw-dropping media moment in the now infamous Duke Lacrosse gang-rape when, as the prosecutor's case started to cave in by the chunkful, almost one hundred of the faculty stated officially to the media that "facts don't matter". The Theory had convicted these 'males', these 'men', and - as Goebbels was fond of telling the German people, "that's all you need to know".

It was MacKinnon’s insight to “use the law to resist male domination” (p56). Now male domination, except in the most overt cases of rape, is something that – in feminism’s own schematic – you have to believe in and theorize in order to ‘see’. Something so deep – if it is, and subtle – as it apparently is, and long-lived – as it is claimed to be … something that complex is not something against which any rational government deploys the short, sharp, blunt-edged tool of the criminal law. But again … the Beltway did. And is still doing.

Which is not to say that ‘male domination’ doesn’t exist. But granted that it does, in some form, and to some extent rather short of ‘total’, then it was going to take some careful and extensive deliberation to get to work on it. Which is neither the European revolutionary way, nor the impatient attention-challenged American way – and the feminists had drunk deeply from both tainted wells. Enter then the vote-addled Democrats, certain that the female demographic was too frakking big to lose and that the ‘white industrial male’ demographic was most certainly going the way of the dodo, courtesy of the corporate biggies who were paying handsomely into the Beltway’s PACs for the privilege of ‘outsourcing’ as fast as they could line up cheap labor in the paddies, fields, and backstreets of the Third World. Those were the days.

In short, MacKinnon’s plan – espoused by the vote-addled politicos – was to “use law to undo gender” (p56). Once again, it may seem strange that a democratic and Constitutionally-limited government would seek to deploy its carefully constrained authority in order to undo with Law what millennia of human history, tradition, and experience indicated might be a substantial human reality, but as it worked its way through the Looking-Glass the Beltway lost track of just what ‘strange’ might be. Which was the plan; it was Incorrect to be judgmental and categorize things, especially in an insensitive and negative way. Those were the days.

Cultural feminism holds, in Halley’s taxonomy, that “women have a distinct consciousness and/or culture”, although then this consciousness might derive either from their biological situation or from “their historical oppression by men” (p58). Which leaves a lot of blank space to be filled in on the map.

Halley uses an interesting and useful example: imagine that women make good mothers. An ‘essentialist’ analysis would say that women are naturally maternal, while a ‘social constructivist’ analysis would say that men made women do all the mothering so they just sort of got good at it. When last I got a memo on the subject, you could lose your job or wind up in front of some sort of adjudication if you proposed that the former might well be the case (although one never gets all the memos in an ongoing revolution that bids fair to become permanent … sort of like wars that are forecast to last generations – although I don’t think that anybody planned the Hundred Years War with that particular timeframe in mind).

As I’ve said before, from everything known about Evolution, its Modus Operandi – verrry well established – is to provide deeply for the most important purposes. So, in something as primary as the reproductive survival of the species, and in a species that has the largest relative brain of all the animal kingdom and takes the longest time to mature to full brain potency, then the big E would probably want to ensure steady and reliable care. It would ensure that by preparing the child-bearer as deeply and complexly as possible. And perhaps the lumpish Fred Flintstones of the earliest hominid communities realized exactly what Wilma seemed to be able to do with kids; perhaps they weren’t such cartoon characters as they have been made out to be.

To imagine Evolution looking at both the male and the female adults of the species and merely dismissively waving its hand in a Yeah, Whatevvvvverrrrrr sorta way … I don’t think so. Evolution, unlike Americans nowadays, doesn’t just wave its hand dismissively and leave it up to Whaaateverrrr. It takes steps – verrrry specific steps. I’m jus’ sayin’.

Halley quotes Robin West, author if 1997’s “Caring for Justice” and, Halley opines, “one of the legal academy’s most articulate and theoretically astute cultural feminists”: “There is such a thing as patriarchy - ‘the social system when men’s interests trump women’s whenever they conflict’ – … [and] no society is utterly free of it, even this one ” (p60).

Which says a lot less than it looks like it’s saying. No society is utterly free of anything, and surely the contention that America is one of the most horribly patriarchal of them all has become gospel (you should pardon the expression) among American elites and among all those kiddies whose parents have recently shelled out two-hundred and fifty large for a first-rate education.

But according to this theory, feminism is also “an irrepressible human reality” – which kind of jars since the last memo I saw was to the effect that the afore-mentioned patriarchy had repressed it all since just a few minutes after the beginning of recorded human history. So it leaves you wondering how an irrepressible human reality was so repressible for so long and more or less so thoroughly. I’m jus’ sayin’. Is it at all possible that it was so repressible from the get-go since even the most benighted cave-folk got the impression that to the best of their observation that’s the way things worked best for the species?

Which is not to say that therefore the world should go back to the cave (although you could say that most of it has never left Plato’s Cave, but let me not digress). But it is to say that if something has been chugging along since about the beginning of human history then you might not want to just haul off and rip it out by the roots on the basis of the most trendy theories, no matter how forcefully asserted. Some serious deliberative thought might be in order. It’s not as if it were as clear as, say, the blatant injustice of the old Jim Crow laws.

Further, for MacKinnon – who was riding pretty high in elite circles during the 1980s – male domination was not a “moral” issue (p61). I take this to mean that it was not a matter of individual males acting illegally or immorally; rather, the thing should be seen as a deep-seated gender-wide issue that required the hammer and sickle of the Law, as hefty and robust as the Beltway could wield them. The hammer and sickle, that is to say, to be struck at the roots of the male sex as a class – which has more than a vaguely Commie ring to it. (Funny, that as the Soviets and their ideas and their political system were lurching toward utter implosion and dissolution ‘over there’ their illuminations were being taken up as the new gospel ‘over here’ – funny, funny, funny).

MacKinnon is here engaging in the old Soviet gambit of raising up a ‘class enemy’ against whom the State, in its righteous defense of ‘the masses’ may deploy whatever hostile actions it wishes to. The Kulaks – successful farmers, though no doubt some individuals engaged in some sharp practice against the peasants – were not considered individually as criminals, but rather as a criminal class and an ‘enemy of the people’.

Of course there are radical branches of feminist Theory that do indeed see ‘men’ and ‘male sexuality’ and ‘male dominance’ as conceptually wrong and oppressive, such that any and every male and all males together can always be assumed to be ‘enemies’ of women’s interests and freedom. They hew even more closely to the Soviet playbook.

In which case the domestic-violence and sex-offense laws are the righteous war of the ‘people’ and their government against the ‘class’ (in this case sex or gender) enemy’. And as always, such revolutionary ideology has never been susceptible to any sort of proof to the contrary or even any evidence. It is the Theory itself that has convicted the ‘class enemy’ and facts would merely get in the way. So from a Soviet point of view, Never Mind Why is not only acceptable but even required. And to allow yourself to be distracted by facts makes you yourself an enemy of the revolution.

Women, it was said – and I am not in complete disagreement with this – were not simply discriminated against but were “subordinated” and “undervalued” (p62).

Personally, I think – and this is hardly original, I agree – that one of the greatest candidates for the term ‘original sinfulness’ is the perennial human tendency to undervalue the human species in all its powerful and marvelous potential. This is truly a profound and abiding human tragedy, and the seedbed of catastrophes great and small; nor is each small or individual instance of it any less significant merely because of its ‘small’, ‘individual’ site. A human being, truly, is a terrible thing to waste. And, I believe, the entire species pays for such losses.

There are, it is said – and no doubt this was impressed upon the less-then-profound politicos – two diametric sexes, and they are set against each other, and that is absolutely the fundamental human (and political) reality; there are “gendered harms” (p63) that women suffer and men, precisely, do not. And it is the government’s responsibility – the politicos were told in season and out of season – to fix that.

About harms males may suffer for being male, and the trials and tribulations of being a ‘man’ in this world, nothing is said. Which is in a way as it should be – feminism is an advocacy after all, and you expect an advocacy to speak highly and vividly about its clients’ concerns. But all of this has been presented – over the past few decades – not as an advocacy position looking for some purchase on the political ground, but rather as the hugest and most awful discovery ever to be made in the history of the species. Intellectual hubris or P.T. Barnum exaggeration or a shrewd Goebbelsian shot in the air that will spark a public stampede (and a stampede among the halls of the government) … you can take your pick as to the relative proportions of each in the recipe.

And of course, following the Soviet playbook, this is an advocacy that needs ‘an enemy’ in order to establish itself and mobilize its supporters. The Movement itself, like the Red Revolution (at least until Stalin got rid of all the dissenting revolutionaries who disagreed with his interpretation of the revolution) needed ‘enemies’ in order to distract people from the incoherence and incompatibility of its many assertions and claims.

West is continued: “Virtuous sexuality is feminine sexuality and it has a decidedly infantile, lesbian, and caring shape” (p64). This foregoing is asserted proudly. The theory, it seems, is that young girls develop a deep love for older women in their lives (their mothers, one imagines, first of all) but are too soon ripped away from that caring and nurturing experience in order to define themselves by and conform themselves to their roles in the domination-subordination script imposed by patriarchy as an established concept and by sex-crazed, thoughtlessly assertive and violently aggressive ‘men’.

And once again, one wonders: sure, it’s a theory and deserves a careful look, but would any democratic government in its right mind simply throw the weight of its authority, prestige, and the consensus of its very legitimacy behind such a vision? No wonder that even after Bush the Egregious frakked up the economy and started two losing wars, the Democrats were just able to squeak by in the last presidential election.

There are a lot of people in the country, I think, who are not happy with the sex-offense situation as it is evolving, just as there were many who probably voted Republican not because they are imperialist running-dogs and jingo-crazed super-patriots but simply because they are deeply uneasy with where the Democrats are taking things.

Halley will quote the feminist writer Adrienne Rich who posits “a redemptive, feminist, intrinsically lesbian sexuality”, even “infinitely redemptive” (p64). And another feminist writer, Ellen Bass, who posits the “redeemed sexuality of the original desire” (meaning the original attraction of the young girl to the older female). Is it just me or am I right in thinking that if this statement were about males, then such an assertion would bring you dangerously close to the NAMBLA position?

And I’m still not in agreement that ‘sex’ and the having of it somehow constitutes the essence of being human and the epitome of human achievement, self-awareness and self-definition. Where would We be if Homer and Dante and Michelangelo and Theresa of Avila and Elizabeth I**** followed such a philosophy of self and of the human? Of course there was Catherine the Great (the empress, not the feminist philosopher) … but her mark on history was not as great as the possibilities of her position might have provided, and there was that stuff about the Guardsmen … and something about a horse.

Sex in and of itself doesn’t and can’t ‘redeem’ a life. It has its occasional highs and its pleasures, of course, but except in a kid's idea of the world you can’t build and conduct a life – and a self – on such a narrow and limited basis.

But now Halley gets to some material that I think contains crucial information, relevant to the situation the country faces today.

In 1982 the psychologist Carol Gilligan wrote the book “In a Different Voice”. She asserted that the moral development of females and males differed. The boys developed an “ethic of justice, predicated on the understanding of human beings as individuated and separate, and on the rule of logic and the rule of law”.

The girls, however, “saw that the world is not made up of separated, self-seeking individuals but rather of interrelations, connections webbing everyone together in communities of concern”; further, that “they made moral decisions not through abstract reasoning from rules but by balancing the infinitesimal and acute needs of everybody concerned” (p69). (Italics mine) This, Gilligan said, is an ‘ethic of caring’.

The boys’ “ethic of justice” was contrasted to the girls’ “ethic of caring”.

THIS, as the kids would say, is HUGE.

If you think you can hear oblique echoes of the Sotomayor confirmation hearings, I think what you have here is the American start of it all.

But more fundamentally, I think what you have here is the dark beating heart of the intensifying Constitutional corrosion that has been going on for decades, for which the Bush Era skullduggery is not a cause or source, but merely a symptom and a result.

If you look at what the boys are doing, you will see the essential philosophy underlying the Constitutional ethos: individual persons, responsible for themselves and their development, responsible as well for their actions, but they will be judged – if such be required – according to the logic of cause and effect and according to the rules of the applicable laws. The government, of course, is as contained in its powers and the responsible use of them as the individual citizens are contained by their responsibilities under the laws.

The girls – in Gilligan’s schematic – entertain a vision that is hell and gone from that. It’s a more maternal (!) approach: whichever baby is crying is to be helped along and soothed, regardless of whether there is a ‘reason’ for it to be crying. It’s a fine approach for dealing with still undeveloped infants still helplessly subject to the waves of their passions and emotions’ they can’t be expected to use their ‘reason’ to self-modulate their emotions.

But a nation is comprised of adults who are responsible. Or should be. Or perhaps must be.

The ‘ethic of caring’ works perfectly well for infants. But the ‘ethic of justice’ is what works for adults. If you’re going to have a Constitutionally envisioned limited government, grounded by a Constitutionally envisioned mature Citizenry.

Any government that is going to appoint itself as the Fixer of All Pain is going to be taking on the role of God and the angels – and will demand that much authority (it can never attain that much wisdom). Bill Clinton’s nifty soundbite – I feel your pain – stems ultimately from this schematic of Gilligan’s, I think.

I think it’s clear here how the ‘ethic of caring’ – when raised to the level of national policy on the highest and most profound levels – is a perfect vehicle to justify the sex-offense laws: the government must ‘protect’ and the best way to do that is to ‘prevent’ – and, bingo, the sex-offense Registration and Notification schemes and the civil-commitment schemes and the residency-restriction schemes and all the rest.

And I hope I don’t have to say it too loudly: I am not ‘un-caring’ and I think that ‘care’ is a profoundly valuable and indeed a vital element in the quality of personal and societal life. Indeed, for anyone who does find him/herself engaging in sex-offenses, this may be an excellent starting point for self-repair: to inflict a genuine sex-offense is clear indication that the offender doesn’t care enough about him/herself as a human being, nor about the victim as a human being.

It seems to me that Bush the Egregious merely took advantage of the Constitutional deformities already enshrined by the Left’s reputedly liberal emotionalism, applied it to the emotional situation created by 9-11, and the rest is history – although a history still bursting even now.

And his puppet Attorney General, Gonzales, surely was not intelligent enough or observant enough to declare the Constitution “quaint”. I would say that the Constitution was rendered unworkable the moment a quarter century or so ago when Gilligan’s ‘ethics of care’ began to gain traction inside the Beltway and in the law schools (whence prosecutors, US Attorneys, politicians, and judges of all ranks have now sprung).

Halley doesn’t go into the downsides. She does mention the “dark side” of feminism, and that there is – and of necessity – “blood on its hands” from where things had to be done (though she doesn’t go so far as to repeat the old Communist saw about the eggs that have to be broken to make an omlette). More on that in a moment.

Surely one of the dark sides is this creation of an ‘enemy’ and then the waging of ‘war’ upon that enemy, which is what we see in the sex-offense mania and its matrix of laws. ‘Men’ were the eggs that had to be broken to make the omlette of the feminist ‘revolution’ – and that is wrong on soooo many levels.

When she gets to the gist of her main point, fully expounding it towards the end of the book, she does remarkable work. Without rancor, supportively and yet firmly, she suggests that it’s time to Take A Break From Feminism (pp.341-ff).

And then she unpacks that.

Feminists need to stop repeating the “subordination mantra”, that women are subordinated (thus oppressed) by men. She calls it the “politics of injury” (I would call it ‘victimism’, but I can see where she’s trying not to be too inflammatory and, following the best advice of Gilbert and Sullivan, seeks to “gild the philosophic pill”.) She bravely adverts, nonetheless, to the follow-up phase in the Politics of Injury: questioning an assertion made by one of the injured is tantamount to re-injuring her.

Feminists have to stop seeing the “brain drain as a good thing”. Here she refers to something you don’t often see discussed in the media: that women who in their reflections and thoughts and observations come up with conclusions unacceptable to feminist orthodoxy are hounded or frozen out of the feminist ranks. She herself shares the feeling that when she wondered about the damage that available prostitutes might do to men she immediately felt that “it seems somehow not-feminist to suggest it”.

Feminists need to resist bad faith. The wide and frequent deployment of the Injury Triad (female injury plus female innocence plus male immunity) has to be acknowledged for what it does. It does not eliminate consequences and costs simply by removing those costs and consequences from women; it merely shifts those consequences and costs to others. And feminists who claim that they can exercise broad and deep political power without causing injury to – she dares to say it – men must stop such posturing, stop operating in such bad faith.

Feminists need to minimize moral perfectionism and their magical-realism style of thinking. They cannot claim that women, being oppressed and victims, can never themselves oppress and victimize others once they exercise power. Feminism, especially in the exercise of long-sought power, cannot hold itself as “morally immaculate” (p344).

Feminists need to deconstitute women’s suffering. Might it not harm a woman – she suggests – to insist that if she has been raped she is now so traumatized that she may well never recover? Is it always ‘blaming the victim’ to inquire whether in a particular case any activity of the female might have been contributory? Does it do women any good to dogmatically remove them from any responsibility for their experiences at all? Is the standard and required feminist “rape discourse” (subject-verb-object, man-raped-woman) sufficient to all situations and does it respect the complexity and integrity of human experience? Is it possible that in affirming and identifying with female “injury” feminism is actually intensifying it?

These are splendid questions. I’d have to say that they should have been asked long ago, but that is not the particular fault of Halley, whose book – with full and due regard for feminism’s acute sensibilities – asks questions that must be considered.

In fact, this whole concept of Theory needs to be looked at. It’s all very well for a bunch of humanities and literature types to think up ways they can play with a text like kids’ play-clay, but an actual living nation is not a ‘text’, nor is a society, and while the Constitution is a document, it’s a hell of a lot more than simply another piece of fiction to be parsed and cut-pasted.

In that regard, I recall what Frederick Crews said; he was speaking about Freudian theories, but it could apply to all this material here as well: “Freudian concepts retain some currency in popular lore, the arts, and the academic humanities, three arenas in which flawed but once modish ideas, secure from the menace of rigorous testing, can be kept indefinitely in play”.*****

Many of the foundational assumptions and assertions of feminist theory – in all the dense and indeed jungle-like tangle of its diversity – are very much still “in play”. For that matter, the entire country, the entire nation, the entire society, the entire culture, the entire ethos of Western civilization is very much a playing board, for games political as well as Theoretical. Which does not, for all its brash and frizzy excitements, bespeak a becoming gravitas about just what an amazing but fragile construction has been bequeathed to Us. We may well improve upon it; but We are fools to ‘deconstruct’ it.

Still and all, Professor Halley has done a great and worthwhile service here. And I don’t know if anybody outside the charmed circle of feminist true-believers could do it with any chance of being heard. I am reminded of the observation that “only Nixon could go to China”, although I mean thereby no disrespect to Professor Halley.

I’d conclude this, however, by connecting another dot from beyond her book. An article by Joshua Kurlantzick, examining the curious and surprising persistence of the Communist Party in China despite the formation of a respectably endowed urban middle class, comes to the conclusion that – contrary to the conventional wisdom that the emergence of a middle class facilitates a move toward democracy – the Chinese urban middle classes are actually rather supportive of authoritarian government … because it seems a more reliable protector of their gains.

It seems to me that this is somewhat of the same problem that Obama is facing here, and one of the main reasons that he has been unable to fulfill so many of his campaign promises and – I believe – his own goals: too many who have gained much from the Identity Politics regime of the past forty years do not want to see too much change. And in that, for all practical purposes, such groups are natural (if silent) allies of the wealthy who also do not want to see what they have placed at risk of redistribution.

How Obama can overcome resistance from both sides – as it were – of the current political spectrum, from both remaining sources of the Beltway’s power (Identity Politics and corporate PAC contributions), is a very sobering question indeed.

In that sense, finally, I think Obama is in the same position as the Constitutional ethos itself: it’s under fire from both sides. The Identity Politics advocacies want to see it ‘reformed’ in order to remove its obstacles to their politically useful ‘politics and ethics of caring’ while the law-and-order Rightists want to see it diluted so as to ensure more ‘order’ than the traditional American vision allows the government police power to impose.

And surely, if the feminist visions of slavering male sex-addicts and the wealthy’s visions of a demanding and enraged and suddenly impoverished citizenry are allowed to run free, then they will both converge in an engorged police state, the better to regulate and control their respective bugbears and nightmares.

And if the Sixties insisted that there were no limits and no bounds and no Shapes to which any individual must conform – either in order to accept an external obligation or to fulfill an interior nature – then after several generations, such an unripened and immature citizenry must be both incapable of governing its government and in need of that government’s police power in order to enforce whatever civil order remains possible.

These are dark trajectories indeed. And the sex-offense mania is one of the darkest trajectories that We have seen … to date. And the government, hiding behind its role as righteous avenger of the ‘victims’ of the ‘enemies’, continues to try to expand itself, using any pretext that it thinks will get by the courts. And of course, a government – and legislators – whose primary justification for laws is ‘we feel it’s a good idea to have this law – Never Mind Why’ … well, that’s not any government that corresponds to the Constitutional vision.

Halley’s suggestions are certainly an excellent place to begin a desperately needed change of course.

NOTES

*My copy of the book is the Princeton University Press edition of 2006.

**With no disrespect to Halley, it’s like reviewing old Soviet history to read her enlightening list of assorted feminisms: power feminism, governance feminism, cultural feminism, liberal feminism, difference feminism, postcolonial feminism, sex-positive feminism, structuralist feminism, essentialist feminism, social constructivist feminism, convergentist hybrid feminism, divergentist hybrid feminism … one can’t help but think of Mensheviks, Bolsheviks, Old Bolsheviks, Trotskyites, Zinovievists, Narodniks, legal Marxists, primitive accumulationists, polycentrics, Titoists, permanent revolutionists, right deviationists, left deviationists, and a ghostly host of others including, of course, that greatest creator of ghosts, Stalinism. I suppose you could, if you were so inclined, describe this all this as “intense, theoretical productivity”.

***Who may be said to have abandoned the outsider-revolutionary approach, and instead concentrated on changing things from within the government and the major institutions (law schools, the judiciary, universities, and such).

****At one point in this book, Halley refers to Elizabeth – the queen who ruled England in the 1600s … or words to that effect. My immediate thought was that she could simply have said “Elizabeth I” or “Elizabeth I of England” but then it occurred to me that at this point in elite academic history, a substantial amount of her readers (even the Harvard ones) might not be able to place “Elizabeth I” either as to timeframe or place. I am not referring to the Ivy frosh who were recently discovered to reach the hallowed halls secure in the knowledge that Lincoln beat Hitler or the Kaiser and Kennedy followed Roosevelt. But then, they were all men, and dead white men at that.

*****Crews, Frederick. “Follies of the Wise”: Shoemaker-Hoard, Emeryville, CA; 2006. Page 16.