SO SERIES ON NUSSBAUM 3

Well, here We go – the third in the series on Martha Nussbaum’s 2007 Harvard Law Review article (94 pages), entitled “Constitutions and Capabilities: ‘Perception’ Against Lofty Formalism”. The link to the text of her article is here.

As with all texts that are available in Adobe, there are two sets of page numbers: the page number assigned by the Adobe browser, and the actual page number of the document as it was written. In this case there is a 3 page difference, so when I make a reference to the text of the article it will look like this: page 13-16. The first number is the Adobe browser pagination, and the second is the actual text’s pagination.

Looking over her menu of Capabilities, Nussbaum blithely notes approvingly that nations such as India have been “creatively extending them” recently. (4/7, note) She had done a 70-page article on that in 1999 (“In Defense of Universal Values”) where she described this at length.

India is a relatively new and hugely divided country (religiously, economically, tribally, caste-wise). As such they are literally starting from scratch in a country that has had little prior history of constitutionalism and – as evidenced by the many types of deep and traditional divisions – there are glaring differences between India and the United States.

Yet the Capabilities Approach that Nussbaum has adopted as applicable to the United States was originally put forth by the economist Amartya Sen several decades ago as a paradigm or a template for India and other developing, formerly Third World nations. It remains to be seen if any government can ever actually sustain such an ambitious and intrusive program, although you can make the case that in India things are SO out of sync with the developments in Western modernity that any progress is better than none.

So, for example, there are so many peasants – as they would be termed in a Western frame of reference – that there is tremendous room for, say, women to enter into the workforce and entrepreneurial activity: there is, comparatively speaking, no established tradition of a ‘male dominated’ economy widely grounded in the polity or in Indian experience. In that sense, India is rather a blank slate, upon which little pre-existing actuality stands in the way of new templates.

But as I said, it’s anybody’s guess whether the applications of Sen – and of Nussbaum as specifically applied to women – are going to work. Because if there is – and the concept of ‘patriarchy’ would clearly seem to suggest it – ‘male domination’ is a universal human phenomenon. And thus you can’t just introduce a simple ‘reform’ without ripping into the fabric of Indian (or any similar polity’s) cultural and social fabric.

And you can’t introduce such a profound change in somewhat the same way as Shylock expected to collect his pound of flesh: with no consequences to the surrounding tissue and fabric and structure of the body. So there is a monster question of consequences in all this.

And while in India (although all of her writing either predates or takes no notice of the huge Western economic collapse of the past 2 years) there may be or may have been an overriding excitement among Indian elites and a developing middle class for Western types of and levels of wealth-creating policies, at whatever cost, yet I don’t know if the specter of Western-style economic collapse or the actual reduction in national wealth to implement all this have had some slowing (and perhaps sobering) effect there.

And there remains the huge political problem of so alienating vast swaths of the admittedly un-modern Indian citizens out in the vast ‘backwoods’ of that nation, that they will resist such ‘reform’ and ‘progress’ not (primarily) because they are willfully or witlessly ‘oppressive’ of women but rather – in a canny ‘peasant’ way – because they realize that these new introductions will introduce a profound ‘deconstructive’ and even destructive dynamic into their culture.

Such consequences of ‘deconstruction’ have always been of little interest to the cadres of the West’s assorted recent Revolutions. And the United States, primary site of the whole thing, is only now experiencing that ‘resistance’ (cheeribly and scornfully dismissed as ‘backlash’ but actually representing something far more profoundly motivated and grounded). Indeed, by the end of this 94 pages Nussbaum herself will make proposals clearly based on her awareness that the ‘majority’ of the American Citizenry, and even Congress, can no longer be trusted to support this advanced level of Revolution, and she will call for the courts to impose (‘protect’) the Revolution’s agenda and demands.

Of course, the internationalizing of the Sex Offense Mania and the SORNA regime, can be seen as part of this effort to extend the war against ‘patriarchy’ around the world, and in the guise of ‘liberation’. And I am not saying here that human rights and the quality of human lives around the world are so well-established that there is no need for concern.

But two points strike me as vital in all this.

First, it isn’t going to do a developing nation a great deal of good to import this divisive ‘war’ on males – through an exaggerated manic emphasis on male (always male) sexual violence – at the same time as you are trying as a Third World government to forge a well-grounded sense of national unity.

And while you are also trying to develop a respect for the Rule of Law and for Courts as they function in modern Western civilization (or at least did function, until the SO Mania was introduced to work its corrosions and corruptions of jurisprudence and jurispraxis).

Second, it is going to introduce a profoundly repugnant aspect of current Western culture into a society that America is trying to win over (so as not to have to add yet one more country-full of ‘enemies’ to America’s growing list).

And I think it is clear that any ‘resistance’ engendered on the part of those societies and those peoples can be seen NOT as some version of ‘they hate us for our freedom’ (the American domestic version: they oppress us because we are female) BUT RATHER as a much more essential societal (and perhaps governmental) resistance to a single program that yet introduces so profound an assault upon the very fabric, the very ‘body’ of that culture and society.

And I think that what can be said about sexual violence here can also be said about sexual violence anywhere else on the planet: it’s something to be decried and alleviated, but prudence must dictate just what a government can do through the blunt instruments of the criminal law (no matter how disguised and spun as ‘civil’ and ‘regulatory’).

Because if the US is trying to spread the American concept of democracy and Constitutionally-limited government, then the SORNA regime and the Mania that enables it are hell-and-gone from the principles of that democracy and that Constitutionally-limited government.

And if SORNA has had to be imposed with so much difficulty and frakkulence over here, what level of intrusive government will be needed in a Third World country that is already predisposed to ‘authoritarian’ if not also anti-democratic government?

By adopting the Sen and Indian template for the United States Nussbaum ignores the dense centuries-old American experience and the densely-interwoven relationships between productivity and the social arrangements (Family and fathers-as-providers, among others) that constitute the very fabric of American society and culture.

And surely the SO Mania and the SORNA regime of laws and jurisprudence and legislation have attacked the very body and fabric of American society and culture, especially as Constitutionally grounded in the concepts not only of limited-government but also of the Unity of The People.

The us-vs-them dynamic of the entire feminist law approach, and the Identity-Politics approach itself, is going to be profoundly destructive of whatever sense of national unity and common weal is starting to take root in Third World countries.

Yes, it is a shrewd tactical move – this getting the SO Mania and the SORNA regime ‘in on the ground floor’ by building them into the still-early constructions of democratic practice in this or that developing nation, but shrewd tactics aren’t enough (and haven’t been enough over here, and haven’t been enough when translated into the conduct of foreign wars nowadays either).

You need to have a comprehensive vision and plan that judges and accounts for the workability of your overall plan in relation to your ultimate objectives (building a widely-grounded democratic government and democracy). This was precisely the level of ‘thinking’ that has been missing in so much domestic policy here for decades, and has led the country to military disasters abroad.

This is a huge – permit me to write it HUGE – change, fraught with complexity, let alone greatly dubious validity and workability. It is not something to be implemented by imposition of vanguard elites and politically-connected elites who shrewdly and purposely have sidestepped deliberation by the entire Citizenry by framing such changes as ‘Constitutional rights’ issues that in the American system would thus brook no delay in requiring government implementation to rectify their alleged frustration.

This has been the strategy of the evolved Feminist Revolution for several decades now, replacing both the muted ‘it’s just a little reform and progress’ approach and also the brassy, in-your-face agitprop demands.

And I note again how the SO Mania and the SORNA regime were introduced not as the huge and dangerous changes that they actually are, but rather as ‘emergency’ measures that simply had to be taken without any public deliberation (and of course, that stunning giveaway: that legislatures passed these things through various procedural stratagems designed precisely not only to prevent discussion and deliberation among the Citizenry, but even among the legislators themselves).

And of course it must always be noted that there is virtually NO discussion of matters SO and SORNA among the otherwise chatty ‘elite’ media and public-intellectual commentary, whether in books or articles (with the exception of specialists such as the estimable Professors Wayne Logan and Corey Rayburn Yung and a few others). The way I see it, this is a clear indication that the whole thing is soooooo wrong and frakkulent that nobody dares to risk their creds by supporting it and yet nobody dares to risk their ‘elite’ status by criticizing it – thanks to the cartoonish level of ‘thinking’ introduced as part of the SO Mania, whereby if you criticize it you are ‘re-victimizing’ the alleged victim and must be a supporter of the crimes yourself.

Congress, vote-addled and perhaps terrified at its own inability either to maintain electoral viability or to actually do the heavy-lifting of adapting the American economy in such a way to maintain high levels of general wealth in the post-postwar hegemony era, has far too unthinkingly (and perhaps treacherously) implemented this, that, and the other thing in its effort to please the magical 51-percent ‘women’s demographic’.

The consequences are proving lethal: to the unity of the American Citizenry, to the political competence of The People, to the productivity of the nation, and – if the economic collapse moves to the next level and the dollar is dethroned as the world’s reserve currency – perhaps a threat to the political stability of the Union of the States itself. These dangers are not to be pooh-poohed with an airy and dismissive wave of the Revolutionary hand.

Again, although this is not a happy thought, the current state of the American economy, and the hardly improbable follow-on phases of that decline, may well deprive the SORNA regime of cash – despite the Federal efforts to lubricate the skids with cash grants buried in assorted law-enforcement revenue-sharing programs. If the dollar loses its status as the world’s reserve currency, the ‘cash’ (which is already purely notional) will actually disappear overnight and the dollar will have to be devalued (i.e., your hundred dollar bill will be worth ten dollars at midnight tomorrow night – that sort of thing).

Yet such dismissive and minimalizing hand-waving is precisely what Nussbaum does as she then observes that such American “reluctance” to fully adopt and implement her agenda is “made more complicated by disputes over institutional competence and the proper scope of judicial action”. (4/7)

Those innocent-sounding words represent the American traditions of Constitutional limitations on the power of government, of deliberative democracy, and of the role of the Judicial Branch and the Courts in taking the lead by imposing changes that are certain to have profound – and hardly completely positive and constructive – consequences.

And I think that the SO community has to understand that this sort of ‘thinking’ has fueled the SO Mania all along, such that even putatively knowledgeable legal ‘elites’ have been assuring legislators and their staffs that SORNA legislation is ‘good’ because the only things standing in its way Constitutionally are ‘wrong’ and ‘tainted’ anyway. Nor have the media distinguished themselves as informed watchdogs in this matter: far easier to go with the sensationalism and ignore the deeper problems.

None of this bodes well for the health of the Constitutional ethos – which, however, has already been dismissed by the cadres as ‘defective’, ‘oppressive’, and ‘quaint’ and pretty much another (and worse) form of Jim Crow deprivation of ‘rights’.

She refers to the 2006 term of the Supreme Court’s Opinions as demonstrating “an ominous failure to protect the capabilities of citizens”. (5/8) As if the rest of the Citizenry’s opinions, those not sitting on the Court, don’t matter. Which, however, it pretty much true as far as her vision goes. After all, if the ‘majority’ is hopelessly tainted like those Southerners of half a century ago, then who cares or needs to care what they think or feel?

If she is correct that the Court (up to 2006) has been demonstrating some reluctance in regard to her CA scheme, I don’t think that the SORNA regime is fatally wounded. Don’t forget: the SO Mania shrewdly united both ‘liberal’ Left and law-and-order and family-values Right. So whether the Court swings Right (so to speak) or stays Left (so to speak), there will always be a politically credible ‘justification’ for the SORNA regime.

She also indicts the Court for not using “the sort of reasoning recommended by the CA [her Capabilities Approach] – a realistic, historically and imaginatively informed type of practical reasoning that focuses on the actual abilities of people to choose and act in their concrete social settings”. (5/8)

Again with the nice individual words that add up to a frakkulence.

“Realistic” here means that the reasoner already buys into her vision as ‘reality’.

To be “historically informed” means – as best I can make out – to consider the government on the same mission as it was embarked upon when Deconstructing/Reconstructing the Jim Crow regime half a century ago.

To be “imaginatively informed” means that the reasoner will cut loose from any reliance upon – or respect for – ‘tradition’ in society and culture in order to ‘creatively’ (you remember that buzz word from the Sixties and Seventies) invent ‘new’ and ‘fresh’ (but also perhaps anti-Constitutional) schemes to implement what Nussbaum’s CA demands.

“Practical” means that the reasoner will not allow ‘theoretical’ and ‘abstract’ objections and concerns to stand in the way – such theory and abstractions inferring with sly politeness the entire corpus and burden of American historical and cultural arrangements and the requirements of Constitutional democracy. ‘Abstraction’ and ‘thinking’ being, of course, ‘masculine’.

And you can see here where legislators can sleep at night, secure in the belief (illusion, I’d say) that they are being ‘realistic’ and ‘practical’ by overriding established Constitutional and jurisprudential principles – and even the Rule of Law – and instead legislating and adjudicating on the basis of ‘stories’ – sensationalist stories that the media are happy to supply.

This also takes deliberation – public and legislative even more than judicial – into the realm of ‘story’ as opposed to ‘thought’. You’ve seen this tendency in media reporting: the foregrounding of a horrific ‘story’ about this or that person which is then presumed to be sufficient ground for a new ‘law’ to make sure that such a story never happens again. Any attempt to deliberate on the workability or the prudential calculation of bad consequences – intended or unintended – is just so much ‘abstraction’ designed – like the objections raised in the 1950s and early 1960s by Jim Crow Southerners to obstruct any change to their regime.

This was then deployed in the service of all the follow-on ‘Revolutions’ that quickly adopted the Civil Rights Era paradigm, including Friedan’s repulsive attempt to use the Holocaust ‘story’ for the service of her own Feminist Revolution. (The practice then migrated into foreign affairs with “humanitarian interventionism” and that Mother of All Stories – that Saddam had WMDs and was somehow the mastermind of 9-11 – and that Mother of All Interventions – the Iraq War and the American role as ‘liberators’.)

She smuggles in one of her favorite tropes: such performance by the Court in the 2006 session demonstrates a turn away from her CA approach and “a return to selective imprisonment”.
(5/8)

Meaning that ‘women’ and all the other ‘minorities’ who are not ‘majority’ will be at risk of becoming once again blacks in the Jim Crow regime. There is also the implied recall of that queasy implication in Betty Friedan’s assertion in “The Feminine Mystique” that for women the American Family was “Dachau”. And you can see here how any chance of maintaining a unity of The People was shot close to the heart by such a sense that one-half the population had been running a Nazi death-camp for the other half and that this was in the nature of that oppressive half and that the government had to Deconstruct that oppressive half as a matter of implacable Constitutional ‘rights’ forthwith and totally.

It’s amazing here to watch Nussbaum claim to seek to abolish ‘imprisonment’ while her system supports – even for all practical purposes requires – the SORNA regime and all the frak that is heaped upon those caught up in its toils.

Oy.

You can see why Obama in his speeches has been trying to tiptoe beyond any serious discussion of what’s been going on for 40 Biblical years that might have weakened the American sense of national and societal unity and common purpose, or any sense of ‘common weal’ at all.

And yet he will continue to pander to both Left and Right by trying to find ways to fund AWA-SORNA. And note that in the new US Attorney General Guidelines not an inch of ground is given: the Guidelines still insist, for example, that the AWA-SORNA scheme retroactively applies to anybody convicted of a qualifying sex-offense, but allows that States can come into ‘compliance’ merely by Registering under the AWA scheme only those still in some form of State custody or supervision. But the States are still welcome, the Guidelines coo, to take on the Retroactivity challenge through their own laws (and face whatever court cases such laws might ignite).

Thus Nussbaum, in the accents of concerned but grounded professional legal wisdom, wants the Court to judge according to “first principles” (5/8), a trusty and honorable philosophical term that refers to the very basic Principles upon which a world-view and a world are built and around which they are organized. For Nussbaum these Principles are not the utterly comprehensive and millennia-long Principles upon which Western Civilization has been built (it and they are, after all, ‘tainted’ by oppression and patriarchy) but rather the governing strictures of her own Revolution.

She then nails that down even further by including “the goals and ideals embodied (and sometimes not embodied) in our constitutional tradition”. (5/8) The ones not-embodied in “our constitutional tradition” are the ones that pertain to her Revolution and her CA. It’s amazing that such a profound change (not to say assault-upon) the Constitutional ethos and fabric has not received more public deliberation. But then, the media were making hay with their ‘stories’ and the pols were far too concerned for their own electoral viability to be doing any ‘thinking’ about the Constitutional ethos.

And again, you can see where legislators and judges can sleep at night by being assured that they are adhering to ‘first principles’, although they need not recall that these are A NEW SET of first principles that seriously undermine the ‘old’ and ‘quaint’ set of first principles. Lovely.

Ever a good ‘liberal’ (which is hell-and-gone from limited-government Classical Liberalism) she selects a couple of examples from the Classical Liberal era of 19th century British history (go figure) and then blames … the Republicans for the current (2006) falling-off in Court support for her agenda: “In the aftermath of the Reagan Revolution, legislative support for key aspects of the approach [her Capabilities Approach] has proven fragile; judicial support in areas once agreed to be the legitimate domain of legal action appears to be on the wane.” (6/9)

That this falling-off in legislative and even Court support might reflect an awareness (and I’d be happy to imagine it) on the part of pols and judges that there are not-good consequences to everything they’d embraced for decades, and that it might be a good idea to back off and indulge in some ‘masculine’ thinking for a while; or that the economy (even in 2006) was showing signs of serious problems that posed an even more significant threat than electoral viability … these sobering possibilities do not detain her.

And again, the SO community has seen some heartening Opinions on the part of some lower Federal and higher State courts and even, most recently, in the Supreme Court itself. So the tide may no longer be at the flood. But it is far from receding in matters SO and nobody in the SO community or the criminal-defense and SO-defense legal community should breathe easier: this thing is still very much a threat.

Instead she blames a tradition in American Constitutional thought she calls “lofty formalism”. (6/9) This evil tendency she will describe as a mulish judicial tendency to simply judge cases by established principles of Law, existing legislation, and the body of cases already decided in a particular area of law. In other words, to judge cases according to what is popularly referred to as the Rule of Law (and you can see now why the Bush-Cheney claque and their ‘lawyers’ felt so bold in ignoring the Rule of Law).

So then, the distinguished and verrrry influential law professor is not supportive of the Rule of Law. But of course, in the Jim Crow paradigm, the ‘Law’ is so tainted to begin with that it can and must be ignored.

This argument, of course, has fueled the SORNA regime's apparent impermeability: ‘facts’ and the Rule of Law and established American Constitutional principles that militate against SORNA are simply ‘tainted’ and the pols and judges, if they wish to remain ‘cutting edge’, can blithely ignore them.

But even in the Jim Crow Era, and the Deconstruction/Reconstruction Era that followed it, there was still a concern for the Rule of Law – changes had to be done legally, although even back then, under the pressure of the ‘emergency’, that Rule was bent every which way. But there was a rather substantial national public consensus – fueled by those frightening newsreels of Southern police – that an actual ‘emergency’ actually did exist, that it constituted an actual matter of Constitutional rights-denied, and that something had to be done immediately. No such consensus existed for the ‘emergency’ claimed by the follow-on Feminist Revolution when it adopted the Civil Rights paradigm for its own agenda.

To conclude this Post, I’d offer the thought that the ‘culture wars’ that have so profoundly wracked the American polity and Citizenry and People for all these decades have not been so completely based on the ‘backlash’ of entrenched white, male, oppressive, patriarchal, majoritarian power that refused to yield its advantages; rather, there has been – on some deep visceral level, and on the part of female as well as male Americans – a deep unease about the wisdom or prudence of both the Content of the Revolutionary agenda and the Method in which it has been summarily imposed.

After all, the Family and the freedom to determine if and when one might prefer an abortion – to name just two fundamental essentials of the Revolutionary agenda, are not just elements of a patriarchal 1787 Constitution. They are building blocks – especially the Family – that have been in place in world societies and civilizations since the beginning of recorded human history. You can’t simply pooh-pooh all that as ‘patriarchal illusion’ and then proceed forthwith to Deconstruct the whole fabric, the whole foundational-system that antedated the Constitution and the Framers (but which they presumed when they built their limited-government), and in the process impose it upon a Citizenry without any deliberation or serious consensus-building on the blithe assertion that since their very thought-patterns are so ‘tainted’ that their deliberations would be useless anyway.

But that has been pretty much the governing dynamic of American legislation and jurisprudence for decades.

And it has to stop. Before the entire structure collapses in upon itself.

And the SO community knows this far far better than most Americans whose lives have not been touched by SORNA and who have seen at first-hand what is happening.

In that regard, I think that the SO community represents the Continental Europeans who saw in the mid-1930s just what the Reich’s New Order was going to mean; but Americans, safe behind their ocean walls, did not and could not grasp that any such monstrosity could reach – or affect – them.

But of course, the Mania and the regime deployed against the SO community today establishes the precedent whereby a Mania and a regime can be deployed against any other group tomorrow.

Happy Fourth.