Sunday, May 30, 2010


Well, here’s the Post on the SO-relevant aspects of Martha Nussbaum’s vision of American Constitutional principles.

The document I’m discussing is here. It is a Fall 2007 ‘Harvard Law Review’ article that runs to 94 pages. She covers a great deal of ground and on this site I’m only going into the SO-relevant aspects; I’ll be putting up a Post on other aspects of her thought on my other site in a few days.
The article is long but it’s not boring.

The reason I looked at it is that I think we should all be aware of how the elite thinkers are talking to each other. And a major article in a prestigious law review is a good place to find out just what they’re telling each other.

And that ‘they’ includes not just other law professors but also judges of all ranks, attorneys (prosecutors and government attorneys especially), and any law student who hopes to take advantage of the prevailing waves to surf to success. Plus legislators and legislative aides who are sent position papers full of ‘serious’ and ‘cutting edge’ thinking.

Because this Sex Offense Mania, as I’ve said before, is not simply some momentary aberration occasioned by a temporary flight of national insanity; it is an instance of a theory of law and Constitutional rights that has been put together as the blueprint for a massive and profound shift (to use a nice word for it) in the most vital elements of the Constitutional ethos.

I am not talking ‘conspiracy’ here, as if it were some short-term tactical gambit to gain advantage. Or as if there were just a few folks rather purposefully plotting the legal derangements.

Rather, there has been a comprehensive effort to effect a strategic shift at the deepest, almost tectonic-plate level, of the entire American vision. With the result that large swaths of the judiciary, as well as legislators, commentators, and – for God knows how long – law students have been acting on the assumption (I’d say under the illusion) that they are implementing the new Great and Good Thing, the latest in cutting-edge Constitutional theory, but which Great and Good Thing is also perfectly compatible with American Constitutional thought and praxis. And I don’t see it as being fundamentally compatible at all.

They don’t talk about it like this – that would be, and from the beginning would have been, wayyyy too much to reveal to the citizenry. Instead this change has been spun as just some ‘tweaking’, some ‘reform’, some ‘victories’ for this or that smallish oppressed group. (And I am no fan of oppression.)

But Nussbaum here reveals just how complex and complete a vision underlies all of this.

And the vision leads to – indeed requires – much of what we may have imagined were some sort of hugely unfortunate temporary aberrations in law and jurisprudence as well as in legislation.
As in previous Posts where the link is to a PDF in the Adobe format, there are two sets of page numbers: the page numbers assigned by the Adobe browser, and the page numbers of the original document. In this Post, the numbers will look like this: 10-13. The first number is the page number assigned by the Adobe browser; the second number is the page number of the original document.

Her vision starts with the assumption – which she took over from sources as far back as Aristotle and the Stoics – that the unique capabilities of humans are the source of their dignity. (This doesn’t go as far as, say, Christianity’s assertion that God’s creation of the soul is the source of human dignity, but she’s trying to achieve a philosophical rather than a religious grounding for human dignity here.)

Therefore, logically, it is a primary element of human flourishing and therefore an essential goal of human development that humans achieve a working competence in these capabilities.

So far so good.

But Nussbaum is trying to put a solid theoretical grounding under ‘liberal’ social policy here so she’s going to give it a particular (though unstated) twist. Whereas you could easily proceed to the assertion that individuals must take such achievement as their primary personal and societal purpose and objective, Nussbaum – acting under the currently popular victimist thinking (where you never ‘blame the victim’ or suggest that ‘personal responsibility’ is important) and structuralist thinking (where individuals are mostly powerless against large and deep and ‘traditional’ assumptions woven into the ‘structure’ of society) – claims that it is the government’s responsibility to make sure that these vital human capabilities are given free play.
Once you’ve started down that road, the scope for government activity – including regulatory and legislative and judicial pressure and ‘intervention’ – is hugely expanded.

Take a look at her list of those core capabilities (see Note 15 at the bottom of page 12-15, continued at the bottom of page 12-16: 1) being able to live a full life-span and not dying prematurely or having your life circumstances so reduced that life is not worth living; 2) being able to enjoy bodily health, including reproductive health and to be adequately nourished and sheltered; 3) being able to enjoy bodily integrity, which includes freedom of movement and mobility, not having your body subject to violent assault including sexual assault and domestic violence, and having choice in sexual satisfaction and choice in matters of reproduction; 4) being able to use your senses to imagine, think and reason – and to do these things in a “truly human way” (as she defines that) by having an adequate education and by being able to both have pleasurable experiences and avoid nonbeneficial pain; 5) being able to love and have emotional attachments without those relationships being blighted by fear and anxiety; 6) being able to deploy your practical reason to come to your own determination of what constitutes the good in life and for yourself and to be able to plan your life; 7) being able to have freedom of association and of expression and being able to have the social bases for self-respect and non-humiliation, which includes not being discriminated against on the basis of race, sex, sexual orientation, ethnicity, caste, religion and national origin; 8) being able to live in concerned communion with nature and other species; 9) being able to play, laugh, and enjoy recreational activities; 10) being able to effectively participate in the political activities that shape one’s environment and being able to personally and individually own property securely so that you have a material basis to conduct all the activities that you have decided are good for your life.

As you can see, these are all worthwhile goals as they are set down. Vital goals.

But it should be clear that once you have invited - or demanded - government's presence into this extensive and deep agenda, you have created a huge change (I'd say 'imbalance' as well) in the dynamics of government.

But she goes further.

She claims that these must be enshrined in American official thought and praxis as ‘rights’ – as in Constitutional rights.

Now things get dicey, as far as I can see.

Because if you are going to have a government exercising its power to ensure – and enforce – these for all individuals, you aren’t going to have a limited government at all. To use a trope I’ve used before in my Posts, you’ve put out a blueprint for a complex and huge project that would require the power formerly ascribed to God, and THAT is precisely NOT what the Framers wanted in a government.

This is NOT to say that the Framers intended that the government power should ‘oppress’anybody.

And I doubt many of the Framers – if any at all – would have been unfamiliar with the desirability of these goals of Nussbaum's.

Rather, they were familiar with the huge discrepancy between the ideal human development and such development as humans manage to achieve in this Vale of Tears, and no doubt they would have agreed with the Roman poet Virgil that such a gap between human ideals and human actualities constitutes the lacrimae rerum – the ‘sadness of things’ in this human existence.

BUT they would also have realized that no earthly government could ever be trusted with the wisdom to use the type of power that would be necessary to achieve all of these goals, or even work vigorously toward them.

Thus a limited government was – given the long and sad record of governments in human history – the best that could be achieved.

But this is not to say that they were happy with that.

Or that they were willing to let it go at that.

They would have expected that the American people, as individuals and as a society that developed a culture and an ethos, would take upon themselves – and rightly so – the responsibility for working toward the achievement of these ideals in their own personal lives and among themselves (in his profound Second Inaugural Address, Lincoln used the marvelous phrase “to achieve a just and a lasting peace among ourselves, and with all nations”).

But that’s not where modern ‘liberals’ – and Nussbaum is aiming to be one of their chief theorists – want to go. They want the power of the government to deploy all its awesome force to make sure that all this happens. And that force includes regulatory authority, legislative authority, and – especially of concern – the sovereign police power and the authority of the criminal law.

You can quickly see where Number 2 of her capabilities list heads toward the Constitutionally dangerous deformities of Domestic Violence law and toward the deformities of the sex-offense law regime.

What becomes evident as well here is that if you assume that these are Constitutional ‘rights’, then violations are not ‘mere’ crimes, but rather rise to the level of the most serious of Federal concerns: the deprivation of Constitutional rights. And once you’ve granted her assumptions that a) these are Constitutional rights and that therefore b) government must do everything possible not only to enforce them but to do it utterly and immediately … then you are into deep and dark waters indeed.

But it gets worse.

In her envisioning, it is not sufficient simply to be granted a ‘right’. Because if you are so positioned through law or tradition that you don’t really have a chance to exercise that right, then for all practical purposes you don’t have the right.

So, for example, blacks (Negroes, as the term then was) formally and procedurally had the right to vote in the Jim Crow South, but the weight of local law, custom, and culture was such that they could rarely exercise that right. Therefore the Federal government was bound to change the circumstances of the Negro in the States of the South such that s/he would indeed have an actual ability to exercise the right to vote. And if that meant the Federal government changing what had to be changed in Southern law, custom, tradition, and culture – well then, the Federal government had to do that.

Well and good. The right to vote is a key right and the Jim Crow South had effectively (de facto - ‘in fact’ – was the term at the time) taken that right away.

But of course it was a huge and wrenching experience for the South as a society and a culture.

And it got the government into a baaaad habit of thinking that it could just reach down and start changing culture and society and tradition anywhere, anytime.

Which is precisely what happened when in the early 1970s other groups claimed to be equally if not more deprived and oppressed than the blacks in the Jim Crow South had been. And consequently raised a myriad of demands and 'reform' agendas that were expected to be implemented everywhere, all the time.

But not so much for some right as clear as the right to vote, which was obstructed by something as clear as poll taxes and voter literacy tests and police roadblocks to hinder access to voting places on election day. National legislation did away with the taxes, the tests, and the roadblocks.

Rather – and you can see this in Nussbaum’s list here – groups began claiming far more nebulous and complex oppressions. And those would require a far more complex and intrusive expansion of the government power.

Including the police power and the criminal law authority.

Thus, to stay relevant to SO concerns, the ‘right’ to not be sexually offended against (and almost all current sex crimes were crimes before the Mania began) drew the government police power into a much deeper (and un-traditional and, I would say, anti-Constitutional) role: sweeping away traditional concerns for the rights of the defendant (evidentiary integrity, the right to confront one’s accuser, the presumption of innocence).

There was a theoretical basis for this: if the ‘sexual integrity’ was indeed a ‘right’, then the ‘defendant’ was suddenly assigned the role of the Jim Crow Southerner who deprived the Negro of the right to vote. Thus the defendant in a ‘sexual integrity rights’ case becomes not a criminal defendant in the classic Framing vision of adversarial justice to determine innocence or guilt, but becomes rather the clear rights-depriver who has already deprived the victim of a Constitutional right.

Thus the ‘defendant’ becomes – as did the Jim Crow Southerners – the ‘perp who already committed the act’, an act that was moreover a deprivation of a Constitutional right. Thus then the government becomes not the seeker and trier of fact seeking to determine innocence or guilt through a procedure of jurisprudence, but rather the avenger and enforcer of the ‘right’ already violated.

You can see where this can verrrry quickly go.

Once you’ve assumed that the ‘right’ is already violated, then – as in the case of the notorious and long-known civil rights violations of the Jim Crow South – government is there not to ‘find’ justice but to enforce it. There is no need to ‘find’ anything because ‘everybody knows’ that the right was violated; the government’s role is to deploy its power to stop and vindicate ('avenge' would not be an inappropriate term) the already-assumed rights-violation.

This is reflected with stunning clarity in Nussbaum’s text. In matters pertaining to her listed rights, courts must NOT view cases with “detachment” or “impartiality”; they must NOT simply abide by formal procedures and rules (see page 23-26). Instead, they must indeed deploy the proper “emotion”and "sensitivity" and "imagination" and develop an appreciation for the “context” of the victim’s situation.

In a general way, this is clearly a regression to the emotionalism and partiality of Medieval era, before Western law developed its classic techniques for ensuring that the sovereign power (especially in matters of the police power) was not deployed against an innocent person. But of course in the classic era of forming post-Medieval, modern (that is, up to 1970 or so) jurisprudence, the goal was to protect the individual from the State’s interference.

The whole thrust of 'modern' and thus now 'classical' Western law was to remove partiality and emotionality from the adjudication process; they would be replaced with rationality, detachment, and a bias toward applying the law equally to each and all.

But precisely here Nussbaum says that since 'minority' interests are always going to be unequal to 'majority' interests (the original historical American reference point would be the Negro of the Jim Crow South) then the Law must most definitely be 'partial' because in their capabilities the 'minority' interests are not at all equal. In other words, in Law now the government (the sovereign power of the government) must indeed by verrrry partial in order to compensate for the 'deep' inequality of the 'minority' interests.

It's a very interesting thought. But given the monstrous dangers that would have to be un-caged (emotionalism and irrationality, the abolition of any sense of 'fairness' as it is generally understood), then this legal approach should have been given a verrrry wide and thorought airing in public deliberation and debate, and - most surely - a public consensus reached.

And if that consensus were not, at a given point in time, everything that the vision would call for, well ... that's the only way it can work in a democracy; otherwise you wind up with the government as Despot (yes, I know, Benevolent ... for the moment but never for long), imposing upon the country and the citizenry whatever it has decided is best.

But by deploying along the path of 'pre-existing constitutional-level rights' Nussbaum seeks to sidestep all that by asserting that, just as with the Negro in the Jim Crow South, the 'minority' must be protected from the 'majority'.

Thie wisdom of this use of the 'rights' path, and the general example of the Jim Crow South in the Civil Rights Era, is highly doubtful. There was a wide consensus in the country that the Jim Crow Era and its impositions on the Negro was not only clearly un-Constitutional but was also a treacherous betrayal of what had been - everyone had hoped - achieved through the awesome effort of the Civil War.

No such consensus existed in the 1960s (or - forty and more years later - nowadays) as to whether the numerous follow-on rights-claims that followed the 'civil rights' gameplan were actually as valid. Indeed, no consensus exists even today on the 'affirmative action' schemes that marked the 'second', post-1865 phase of the civil-rights movement.

The regime envisioned by Nussbaum – and the theory that is now much more popular among the elites of law and politics than they’d want to admit – is concerned instead with protecting certain designated select groups of individuals from other members of the same society, AND using the sovereign police power to do it!

And THIS, I think, is what is going on deep beneath the surfaces of the Sex Offense Mania regime (and to some extent the Domestic Violence law regime that is its sibling).

So these legislators and judges are perhaps not simply being mulish when they refuse to look at the actual facts and studies that now undermine their original Findings; rather, they have been assured all along that they are on a new “frontier of justice” (Nussbaum’s term on page 15-18) and are engaged in a vast program to ‘expand’ and ‘reform’ the constitutional vision. Oy.

This is not progress but rather a huge regression to pre-modern, semi-Medieval law.

It gets even worse.

Because since you already know that the ‘right’ has been violated because the victim is a member of a select designated class that has traditionally had its rights violated, and therefore the ‘defendant’ is actually already a ‘perpetrator’, THEN what matters in the court case is not the procedure; simply following the procedure may not fully reach the plaintiff-victim’s rights and situation. And anyway, because of the ‘traditional’ and ‘historic’ deprivation of rights, then you already ‘know’ what evil and harm was done.

No, what matters is the OUTCOME – the plaintiff-victim’s rights must be vindicated and upheld (and the deprivation of rights avenged). So away with all of the ‘quaint’ concerns for rules of evidence, statutes of limitations, and presumption of innocence; those reflect the ‘quaint’ concern for innocence-or-guilt of individuals; behind those formal procedural structures much historic deprivation of ‘rights’ – by definition an oppression – has hidden. Instead, use the trial to ‘understand’ the deprivation and vindicate the oppressee.

You might recognize this as ‘revolutionary justice’ as practiced in the Soviet Union: the purpose of a trial was to ‘show’ everybody just how the Revolution and the State (and by distant extension ‘the masses’) have been sinned against by this person who would not be a defendant before the revolutionary court if he were not already guilty. The procedures aren’t what matters; the ‘show’ of the State’s vindication of this crime is what matters, the outcome thus pre-determined because the crime was already presumed to have been committed in the first place. That was why Felix Dzherzinski, head of the Cheka (the earliest form of the Soviet Secret Police) boasted: “The Cheka does not investigate; the Cheka strikes!”. The purpose of the police is not to ‘investigate’, but to ‘strike’ at the already-active enemies of the State’s policies.

(And you can see here why the ‘special courts’ erected in some States to enforce the Domestic Violence regime have been uniformly ‘anti-defendant’: they and their officials are acting on the presumption of the guilt of the ‘perpetrator’ because everybody already knows that domestic violence exists; and thus these officials see themselves as there merely to ensure that the ‘perp’ does not ‘escape’ the punishment deserved by 'hiding behind' the Constitution. And you can imagine what ‘special sex offense courts’ would do.)

And this concept of ‘justice’ is thus not cutting edge and not new. And it is a regression. To an age as dark and horrible as the Medieval era’s heresy trials and the Reformation era’s witchcraft trials.

THIS is where American law (and legislation) has been heading for decades now, not sliding through inadvertence or temporary insanity but rather goaded on by a ‘new’, cutting-edge, ‘reforming’ theory that is actually – in its dynamics, whether it seeks to be or not – a throwback to something that not only the Framers but the entire tradition of Western law has (or had) grown beyond and formally rejected as a jurisprudential and legislative approach and as a theory of government.

The Mania in Sex Offense law is only on the surface; it is a lubricant to make the stampeding of public opinion easier. But in its theoretical core this new regime of legislation and jurisprudence is a throwback to dark and primitive times. And as such – whatever its good intentions – constitutes a lethal threat to the Constitution.

And it gets worse.

Nussbaum asserts that you cannot have a ‘right’ unless the government works “aggressively” to prevent the frustration of the capabilities that enable you to exercise that right (page 19-22).

This will be deep intrusion indeed; the government’s coercive power will have to cut verrrry deeply indeed into society, culture and tradition, and into the minds and hearts of the citizenry in order to prevent (as in ‘preventive law’, as in ‘preventive war’) not simply the violation of the right, but even the frustration of the capabilities required to enable an individual to exercise the right.

And so you get the ‘preventive’ element that has played so key a role in the Sex Offense law regime.

I’m going to add something, in conclusion, that indicates just where matters stand at this point.

Nussbaum asserts that since government has a duty to enforce these ‘rights’ and the capabilities to exercise them, and since these deprivations are most likely to exist among ‘minorities’ (which at this point, if you tote them all up, includes most of the population) because of the ‘majority’ (not much of the population) then these ‘rights’, including the rights-to-capabilities-to-exercise-rights must be “protected” from “the whims of the majority’ and from “being held hostage to the vicissitudes of politics (page 53-56).

In other words, this is not a matter for democratic deliberation or the forging of a consensus. Once again, we are seeing here the ‘elite’ and ‘professional call for an end-run around the entire process of a democratic politics in a Constitutional republic.

Again, the mistake was to imagine that all the rights-claims by assorted designated or self-designated 'minority' interests were simply the same sort of situation that the nation had faced in the first phase of the Civil Rights Era, in the Jim Crow South. There was a pre-existing national consensus (except among the most die-hard Southerners) that the Federal correction in favor of the basic rights of the Negro was long overdue, and historically justified since the promises made by the Civil War itself and in the Amendments and legislation that followed the War.

And worse is Nussbaum's assertion here that instead of national consensus and the legislation arrived at through the working of the politcial process, “judicial interpretation” must become the bulwark of these ‘rights’ and ‘capabilities’ (page 54-57).

Her approach has even given up on Congress and now seeks to ensure its survival by relying on the courts. And while this surely means the higher Federal courts, yet it also holds consequences for the performance of the lower courts, where defendants are tried and adjudications made.

She also wants to see her scheme formally adopted in the Constitution itself, since in its present form the Constitution is “incomplete” (page 55-58).

The only good I can see in this is that this type of thinking realizes that it is not going to have an easy time getting itself accepted in any genuine national political consensus and that therefore it will need to be imposed upon the country.

Well, that’s Nussbaum, at least the parts relevant to matters sex-offensual.

As you may already have figured, her list of ‘capabilities’ is heartening and I can’t imagine anyone of goodwill who wouldn’t be impressed with the ideal they try to embody. (Which is not to say that everyone would agree on the actual definition of what each of them entails.)

And it’s an impressive conceptual effort.

But I still have to ask just how far a limited government can go in living up to the expectations she has for it. in her schema. And I surely don’t see how a government can satisfy her vision and remain limited.

And indeed, she herself at the end seems to indicate that neither a limited nor even a democratic government is the government she needs for this job.

And THAT should give everybody some serious food for thought.

Because she is one of the most influential and well-known law professors and ‘legal thinkers’ in the country and she has been discussing these ideas for a long time (several of her earlier books are listed in the text of her article). So these ideas have been floating around law schools and courts and legislative offices and no doubt the many university and government cocktail parties (where far too much ‘work’ gets done, if you ask me) for a long time.

And the SO community, I’d say, has been living with the consequences.

But so have, whether they realize it or not, the entire American people.

And to the extent that that people still seeks to be The People, then they need to take note. Because whereas only Southern California really has to worry about imminent geological earthquakes, everybody has to worry about this human-made tectonic jiggering that is deliberately and energetically trying to move the tectonic plates upon which the entire American polity is grounded.

If there’s one thing I notice about the plan, it’s the underlying attitude of the infinite plasticity of society and culture and – frankly – people. It’s as if this type of ‘reformer’ assumes that everything is up for grabs, and can be changed to something better, and without significant cost or consequence.

As if you could simply tack ‘better’ jet engines onto a propeller plane and figure you’ve done a good day’s work. And while the craft is airborne and loaded with passengers.

It’s not enough to focus ‘optimistically’ on how much more ‘efficient’ and ‘better’ things will be for everybody with jet engines. It’s a matter of doing the math and asking the hard questions: Can the airframe take the increased strain? Are the wings properly shaped for jet-powered flight? Can the available technical crews do the job? Will the aircraft’s control and navigation systems be able to handle it? Will the crew? Will the passengers?

After all, the SO community has been directly impacted by just such a method of trying to ‘change things’: for 20 years now (15 since Megan’s Law) the governments of the States and the Congress have been getting deeper and deeper into the Vietnam of sex-offense legislation and jurisprudence. Each time it becomes clear that the most recent ‘fix’ or ‘initiative’ hasn’t worked, or has made things even worse, they just keep digging in deeper – as if, like in Vietnam, it will all ‘work’ if just a few more restrictions or a few more shrewd tactical improvements are made.

But it didn’t work in Vietnam and I very much doubt it will work here and now.

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