JEAN BETHKE ELSHTAIN FROM 1993

I want to pass this along.

I just finished reading the moderate feminist* Jean Bethke Elshtain’s 1995 book “Democracy on Trial”, which is actually a collection of lectures she gave in 1993.**

As you may have noticed, although my concern is the Sex Offense Mania, I wind up mentioning ‘feminism’ a lot.

This is not because I ‘hate’ ‘women’ or because I want to see them restricted in life to Children, church, and kitchen (it works better in the original German: Kinder, Kirche, Kuche).

Nor am I trying to undermine the political efforts of the SO community’s efforts to forge alliances strong enough to roll-back SORNA.

But you can’t examine the SO Mania and Stampede without finding yourself willy-nilly in the radical-feminist ‘law’ thinking that – alas – underlies and ‘justifies’ it. It is HERE that you find the profound disregard for established Constitutional principles – on the assumption that since the Constitution and the Framers’ vision and the American ethos is so deeply ‘tainted’ by patriarchy and oppression that it not only can, but MUST, be disregarded in order to Correctly correct (sorry, couldn’t help myself) everything that’s wrong in America, as the radical-feminists see it.

So, by the way, I’ll be continuing my series on Nussbaum.

Anyhoo – and remember, all of these thoughts and observations come to her in 1993 – Elshtain has the following SO-relevant things to say – although she doesn’t specifically deal with the SO Mania (which in 1993 wasn’t quite developed enough to break the surface of national events the way it did in the 1994 Megan’s Law and the 1995 New Jersey Portiz case).

“But honoring our distinctions, as peoples of a particular heritage is far different from the current construction of ‘difference’ as a form of group homogeneity that brooks no disagreement ore distinction within [the Identity] and can maintain itself only as a redoubt against threatening “enemies” from without …” (page xiv) [italics Elshtain’s]

Here she is getting at what the SO community has seen and experienced: the absolutely fundamental and structural need for the radical-feminist Identity of Gender to have “enemies”.

And while ‘men’ and ‘the Macho-Male’ were always therefore necessary to the ‘success’ of the Gender Identity dynamic, in the 1990s that aim was sharpened (you can’t say ‘refined’) to focus on the sexually aggressive ‘man’ – in domestic relationships, in marriage, and in the Family.***

Thus the Domestic Violence legislation – fraught with lethal Constitutional erosions – and then, rapidly thereafter, the construction of the ‘Sex Offender’ and the Mania-Stampede that the SO community has experienced ‘from the inside’.

“Despite their unpopularity, policies that target [the demands of] particular groups are difficult to alter once they are in place, given the phenomenon of ‘clientele capture’. This term refers to the small number of vocal ‘clients’ of such policies … who have a vested interest in preventing change, even though, over the long run, a policy loses the support of the vast majority of citizens”. (page 4)

Now We have the SORNA regimen. Note that while the ‘policy’ involves huge deprivations of (and government-authorized assaults upon) the Constitutional tradition and the Constitutional rights of Citizens, yet the “clientele” is claimed to be ‘the public’, which allegedly (and wrongly) is imagined to benefit from the policy-regime (and the Advocates who also have now a vested interest in keeping the whole thing going; in order to both continue enjoying Status and Benefit and also – ominously – to prevent any post-Stampede examination of whatever they themselves have committed in the service of their objectives. ****

It might be claimed that the convicted SOs were the ‘clients’, but of course their opinions don’t matter, and if the regime were simply intended to ‘rehabilitate’ them, then the whole SORNA thing would be counter-productive to such a therapeutic objective. Instead, ‘therapy’ is tacked on as a fig-leaf to try to hide the genuine anti-American ethos of the whole regime. And in a remarkable demonstration of government chutzpah, ‘therapy’ is even deployed as an excuse to extend confinement of SOs beyond their judicially-imposed sentences.

But then she gets more specific, back there in 1993: “For example, fueled by claims that wildly exaggerate the extent of violence perpetrated against women – for the media’s hysteria knows no restraint in this matter – various proposals have been made based on the premise that burdensome democratic procedures , including the presumption of innocence, should be seen for what they are: bourgeois hypocrisy”. (page 22)

With the SO Mania and Stampede still formally a year in the future, I imagine it’s the Domestic Violence campaign that has caught her attention.

With the phrase “bourgeois hypocrisy” that she quotes from cutting-edge radical-feminist thought, she captures nicely – and We must not forget it – the Sixties’, Boomerish, queasily ‘revolutionary’ frame of reference which fueled much of the Attitude (anti-Constitutional and anti-democratic) that was inherent in those movements back then and which is woven into the warp and woof of subsequent policy and legislation, up to and including the SO Mania and Stampede.

She continues immediately: “We should recognize that the presumption of innocence and the need for our accusers to bear the burden of proof will protect us and our loved ones if we are ever called before the bar of justice; instead we are bombarded with arguments belittling, and even trashing, the whole idea of evidentiary requirements that are central to the ideal of equal standing before the law”. (page 23)

Again, although the national SO regime was still a year or more in the future, she – a law professor herself – had already discerned the huge anti-Constitutional dangers in the radical-feminist ethos and programme. (Recall that in the Domestic Violence scheme that Elshtain would have observed, the burden of proof is shifted TO THE DEFENDANT since ‘the proceedings are civil, not criminal’ and therefore the burden of proof is more elastic and can be shifted with more ease. And of course, nonetheless, the accused is still deprived of access to property and perhaps liberty, is liable to criminal sanction if he violates whatever court Order stems from the ‘civil’ proceeding, AND in many many States winds up on a Domestic Violence Registry no matter what the outcome of the Hearing is.)

Her use of “bombarded” is quite apt. It reminds Us that there is indeed a totalitarian-level of functional propaganda (defined as selective and not necessarily accurate official news tailored not to inform but only to motivate and emotionally arouse the citizenry)at work AGAINST US AS CITIZENS. And the military origin (from artillery usage) of the term reminds Us that We are in the midst of a ‘war’ – because that is precisely how radical-feminism envisions its agenda and objectives. And, naturally, the ‘Law’ is thus ‘the Law at war’ – that ominous and diabolic phrase that calls for Justice to be subordinated to Victory, however that is defined.

And in these Manias and Stampedes, ‘victory’ refers to the crushing by the government forces of an ‘enemy’ who are actually other (many, many other) Citizens. It is increasingly dubious not only how these policies and regimes can retain the appearance of political legitimacy, but how the government that has chosen to impose them can. I’m jus’ sayin’.

She then proceeds directly (and note that the vast bulk of this book is on political theory and not on gender-law) to single out the Violence Against Women Act. In that law, she observes, “the legislation incorporates ‘gender motivation’ into a law that presumes to see in rape – a crime of violence – a paradigmatic, indeed normative, expression of male dominancy”. (page 23)

In other words, she is concerned that an act – rape, already a crime in every State – is erected into some sort of ‘stereotypical’ act-of-domination which makes it a ‘political act’. And, of course, given that ‘gender’ was a highly-charged political term and its ‘advocates’ constituted a highly-influential political group, then any instance of ‘rape’ (and the definition began back then to expand like play-dough) is a matter of the most profound ‘political’ concern, and not simply a matter for ‘quaint’ and ‘ineffective’ and ‘slow’ criminal law and Constitutionally-bounded criminal jurisprudence.

A Federal government always looking to demonstrate its chops through the expansion of its sovereign police power needed to hear this radical-feminist ‘cutting-edge’ legal theory like a massive gorilla on the loose needs to get his paws on a big bowl of sour-mash likker.

Weirdly, “what is aberrant is suddenly re-described as normal”. (page 23) What she means here is that radical-feminist thought cast ‘rape’ (however defined) as not an isolated and aberrant criminal act of a criminal individual, BUT RATHER as the ‘natural’ behavior of ‘men’.

Which means, of course, that the country – in this nightmare vision – is faced with almost half its population normally engaging in an act that is both criminal and political. (Alarmingly, to anyone familiar with history, the concept of ‘political crimes’ instantly recalls Soviet and Nazi jurisprudence; but much of the legal profession and legislators prefer to think of it as ‘cutting-edge reform’, alas.)

AND once you assume anything close to the stunning assertion that ‘all sex is rape’, then it also assumes that almost half the population – AND the gender-determined ‘man’ half – is wired by Nature to ‘rape’. *****

And from that the SO community can clearly see that the ‘next logical step’ had to be Sex Offenses and the Mania and the Stampede necessary to lubricate the passage of the SORNA regime in all its laws and policies and half-baked ‘justifications’.

Oy.

Rather than each criminal case being looked at individually, she continues, this approach will “assume an undifferentiated class of victims (female), raising the specter that the concrete facts in a case of sexual assault will be much less important in establishing guilt or innocence than will some vague ‘animus based on a victim’s gender’”. (page 23) And thus you see where 16 years later AWA will get its idea that the ‘best’ thing to do is to ‘register’ anybody you can get your hands on, with no regard for any ‘differentiation’ as to crime or risk-level.

But that’s not all. “The motive police here rely on the platitudes of radical feminist ideology, a view of the moral and social world that, in the words of Catharine MacKinnon, ‘stresses the indistinguishablity of prostitution, marriage, and sexual harassment’”. (page 24) [italics mine]

Nor is it enough to claim today that maybe that was, ummmmmmmm, a little bit of an overstatement and no longer represents ‘mainline radical-feminist thinking’. It very much represented that mainline radical-feminist thinking when the laws were passed and I’m going to bet that most pols and a whole lotta legal professionals and jurists still hold to it.

Elshtain follows this bogie like a fighter-pilot hot on its tail: “It follows that men simply are rapists” (page 24) [italics Elshtain’s]

And you don’t need a law or political science or philosophy degree to see where THAT was going to take the country. And all of Us, as Citizens and Americans.

She concludes with the thought (and look at this from the perspective now, of 2010): “One finds, then, at this moment, the distressing spectacle of an assault on civil liberties coupled with a perfervid ideology of victimization”. (page 24)

And add in that the Beltway and the State-governments have all committed themselves to this, and have for around 20 years. And the media ditto.

In a later section entitled “The Ideology of Women’s Victimization” she observes that there is now a “totalism” that deliberately seeks to lump all ‘sex’ cases together and all ‘perpetrators’ of sex together in a (dangerous and violent-by-nature) lump. And thus that it is demanded that “we must, as part of an interim strategy, expand the arrest powers of the police and promote the jurisprudential conviction that women are a special legal category requiring unique protections”.
(page 47)

Notice two things: a) this ‘totalism’ is similar to actual historical ‘totalitarian’ practice, and not simply by a grammatical similarity in the words; and b) that from the vantage point of 2010 that “interim strategy” has become semi-permanent and keeps growing like a cancer.

And she continues: “Mandated counseling, even behavioral conditioning of violent or ‘potentially violent’ men, coupled with compulsory punishment and no appeal, are common parts of the panoply of interim proposals that have been made; the potential abuses inherent in extending the therapeutic powers of the state as part of its policing function are commonly ignored”. (page 47)

And that expansion has now infected and taken-over the powers of the Federal, and not just the State, governments.

And you can see now where the SO Mania and SORNA regime were pretty much guaranteed to become actuality, just as soon as the pols could get around to it and a couple of particularly outrageous individual cases could be raised-up in truly propagandistic fashion in order to start the next logical Stampede.

And “interim” … not by a longshot.

But also note that even domestically, and in matters of huge Constitutional import, the possible and most likely probable lethally BAAAAAD Consequences were already being ignored. And then along came the Iraq War.

Elshtain observes that all of these proposals “lean heavily on the state’s policing powers” (page 48).

And then she quotes one highly influential activist of the early 1980s,whose totalist scenario envisioned as a solution for purported male violence a “total restructuring of society that is feminist, antiracist, and socialist”. (page 48)

Now nobody who has been to college – especially back in the day – can fail to recognize the type of dope-and-booze fueled bull-session ‘solving’ of the world’s ‘biggest problem’ (however the speaker conceived of it). And nobody who has ever eaten in a faculty dining room can fail to recognize the type of thinking (and thinkers) usually relegated with polite tactfulness to a table over in the corner.

But this type of thinking was not allowed to jell or mature over time, or – in the alternative – die under the weight of its own fantastical excitements. Instead, it was raised up – and by the government as well as the media – as ‘cutting edge reform and progress’.

Oy gevalt.

You probably wouldn’t be wrong to think of the Beltway as the world’s most dangerous on-going Bull-Session. Or as the world’s most dangerous Corner of the Faculty Dining Room.

Yet this is the policy that has to be pointed out to intelligent foreigners as enjoying the Status of being the national policy of the United States. I wonder sometimes if there aren’t more people laughing at Us around the world than are trying to blow Us up.

Although, until the Dollars run out or are demoted to just another national currency, Our honchos and honchettes will be ‘hailed’ with suitably straight faces and polite applause.

Continuing her quotation of that early 1980s activist, Elshtain notes as “most important” that the activist demands that “family life would be open for community scrutiny because the family would be part of and accountable to the community … community-based institutions could hear complaints AND DISPENSE JUSTICE [caps mine], and community networks could hold individuals accountable for their behavior and offer protection to women … if a false separation did not exist between the family and the community, women might lose their sense of isolation and gain a sense of entitlement to a violence-free life”. (page 48)

Nobody familiar with the ‘neighborhood associations’ of Imperial Japan, whose members policed the habits, thoughts (the Thought Police, kempei-tai, backed them up), and daily doings of the citizens, or the numerous local informers who pushed their ‘delations’ and accusations onto the desks of the Gestapo and the Stasi and the duty-desks of innumerable Soviet police stations and Party offices, can read this without a sense of alarmed disbelief.

And the Constitutional dangers of considering the ‘home and hearth’ as not being the sanctuary of the individuals from government intrusion, but rather as ‘public spaces’ liable to public and government policing … what were these people thinking?

I can’t see that they were thinking in any sort of Constitutional way at all.

And in a world of original sin – as the ‘quaint’ theology has it – where any human is capable of being ‘violent’ (what is Sin, really, if not a violence perpetrated upon the moral Order and moral Nature of humanity?) … how can anyone possibly expect a ‘right’ to a ‘violence-free’ life? Can anyone sanely expect a sin-free life, and as a ‘right’?

And if ‘God’ didn’t design things that way, then is the police-power of the State or Federal Government going to have any real expectation of achieving (and enforcing) such a vision?

And as the Framers well knew, no government in the history of the world would ever turn down the chance to be acknowledged as wielding the authority of ‘God’, especially if it got a chance to play with a level of power and authority equal to God’s. After all, that’s exactly what they were trying to prevent with their clanky, ‘quaint’ Constitutional vision of 1787.

Elshtain pursues the women-as-victim thread: “Eight years ago I researched the issue of women as victims of crime. I learned that, on the best available evidence, the assertion that women are the principal victims of violent crime is false. The most vulnerable body to inhabit in America today, as it was when I conducted my research, is that of a young black male”. (page 51)

This is inadmissible for Correct discourse, naturally, because it creates – or rather reveals – the incongruence between one Identity-Advocacy and another; it creates, as it were, ‘duelling victims’ or ‘duelling Identities’ or ‘duelling Advocacies’ – and the whole Idea is that there is just one great big bunch of ‘innocent victims of oppression’, a rainbow of perfectly congruent pains.

And certainly the cadres of radical-feminism, the biggest winners in the Big Pain sweepstakes, do not want to either a) lose the moral high ground (or at least the appearance of it for rhetorical purposes) by being perceived as ‘winners’ rather than ‘victims’ or b) to appear to be conniving enough to realize that they’ve won and admit that that’s what they wanted all along.

Elshtain continues: “ … violence against women is not on a precipitous upsurge compared with other crimes. Yet popular perception, fueled by the victimization narrative, holds otherwise. As a result, women tend to think of themselves as crime victims”. (page 51) (italics Elshtain’s)

Again, it can be no surprise that Elshtain was quickly labeled a gender-traitor by the cadres and the word went out to their friends and camp-followers in the media that she was not Correct: because here is a woman, and one with impeccable academic and professional credentials, saying that ‘it’s all in their mind’ – which, regardless of its accuracy or inaccuracy – raises the specter of women working themselves up in to a tizzy over something that’s mostly in their head.

It was precisely the objective of the radical-feminists to establish ‘women’ – or at least themselves – as the fearless and accurate thinkers; it was everybody else that they wanted to stampede like a mindless emotion-addled herd.

No problem – you might say. If any individual woman were to make a false accusation because of what was actually going on mostly in her head, well that would come out in any court trial … right? Ah – enter the revolutionary tactical genius: simultaneously with the weaving of the now-classic victimist Narrative was the effort to pre-empt any detached questioning of that Narrative or of any particular individual’s alleged narrative: detached, rational, objective, skeptical analysis would merely ‘re-victimize’ the victim and demonstrate the ‘historic insensitivity’ of the (male-dominated) justice system and courts and so forth and so on. Neat.

Elshtain continues: “the ideology of victimization” and the “perception” that women are special targets of “skyrocketing” crime have combined despite the fact that the most numerous class of crime victim is young males, just as the largest class of perpetrators is young males. (pages 51-2)

Worse, she sees that “the fear-of-crime syndrome has a debilitating effect on behavior, as women internalize a distorted perception of themselves [i.e. as helpless and special victims of crime]”. (page 52)

In 1991, she noted, half of the 250 made-for-TV movies made in the US involved – the heart of Lifetime! – “women undergoing abuse of one kind or another”. In the pulpy world of ‘knowledge derived from TV watching’, I would add, this supports the ‘fact’ that every woman in the country every week has a 50% chance of becoming a victim.

Oy. The 1990s.

Engaging in a bit of judgment, Elshtain concludes that “often such trashy programs are given a feminist gloss, but by portraying women in peril in the home, the workplace, and the street, they ill serve women or any feminism worthy of the name”. (page 52)

And you can quickly see where this type of sensibility would drive even putatively mature and credentialed professionals to do a bit of official stampeding themselves: the Domestic Violence and Sex Offense Stampedes and their respective regimes quickly flourished in such richly-dunged earth.

Elshtain concludes this thread with the thought: “Women are shown either as trembling wrecks or as fierce avengers with scant regard for what is usually called due process”. (page 52) And you can take your pick among those two equally whackulous civic role-options.

Congress, displaying the wisdom of Solomon in a most unwise way, chose to pander to both options.

I think – from what I can work out reading period works from a quarter-century ago – that the women’s liberation-victim types got around the problem of lower numbers of women’s victimization by creating two separate categories: on-the-streets and in-the-home. And then they proceeded to hugely demonize both Home and Family as the locus of huge amounts of violent crime (‘battering’ was the elastic term of the Domestic Violence initiatives as ‘sex abuse’ and ‘molestation’ and ‘assault’ were the elastic terms of the later Sex Offense Mania).

All the ‘vulnerable’ populations – women, children, and the old (everybody in the home, actually, except for the male – assigned the role of demonic assaulter) – were trapped under the roof of the Home, which in this scheme became the greatest crime scene venue in the country.

This line of attack would serve several purposes: it would keep up the victimization figures while simultaneously providing ‘telegenic’ victims and victimization scenarios; it would continue the attack upon male sexuality while also attacking the role of male ‘domination’; it would prepare folks for the radical-feminist Deconstruction of the Family (as well as the Father) that was essential to that view of women’s ‘equality’ and ‘liberation’; it would provide an ‘emergency’ upon which the government could invade what in the 1787 Framing vision had been the Citizen’s sacrosanct refuge from government intrusion – which promptly happened in the Domestic Violence regime legislation.

(I will go into this point at greater length in my upcoming Post on Robert Elias’s 1986 book “The Politics of Victimization”.)

Elshtain notes the oddness of a self-proclaimed oppressed class that is putatively oppressed by an oppressive society, then calling upon that same oppressive society to protect them from the oppression. (page 54)

But really, that’s not at all what the radical-feminists did: they did not try to, and never intended to, enlist the help of ‘society’ - how could they, since so many in society ‘just don’t get it’? No, their plan was always to do an end-run around any public debate or discussion or deliberation: they did not ‘debate’ the radical-feminist position in public, they did not seek to have a thorough deliberative process take place even within the halls of Congress itself.

And the SO Mania-Regime is proof of that: to this day, little if any deliberation has been done in public, nor even among the legislators themselves.

Elshtain remarks upon the queasy and ominous development of a “society of scrutiny”, in which gimlet-eyed cadres or ‘reliable observers’ are constantly watching the population to raise the alarm at the first sight of un-Correctness. This weird intrusiveness is common both to small-towns and to all sorts of Party cadres; everyone watches everyone else, and I do NOT merely mean that everyone watches out for everyone else. And the alarm is sounded at the first sight of someone who is not-Correct, who would then be shamed, disciplined, ostracized.

You can see here how SORNA would be ‘the next logical step’ in the development of a society that watched, shamed, punished, ostracized.

You can also see where this ‘shaming’ concept – coming from a small-town tradition that was also, alas, a totalitarian tradition – lulled the (already feminist-friendly) New Jersey Supreme Court when it upheld Megan’s Law in the Poritz case, and goosed the increasingly pulpy reasoning of the US Supreme Court when it overturned the Alaska Supreme Court in Smith v. Doe in 2003 (startlingly so, since a State’s Supreme Court is considered the final arbiter in interpreting that State’s own constitution).

“For those who push a strong version of identity politics, any politics that does not revolve around their identities is of no interest to them. There is no broader identification with a common good beyond that of the group of which one is a member.” (page 58)

So simply by the core working of a ‘strong’ form of identity politics (who would embrace a ‘weak’ form?) any commonality based on an identity liked ‘shared citizenship’ or both being members of The People … are undermined by necessity.

And then to take a chunk of those formerly-united-with Citizens and declare them (again, of necessity) ‘enemies’ of your Identity – and then on top of that to declare that they are not only enemies but threats – and then on top of that to declare that they are threats ‘by nature’ and cannot help themselves and therefore cannot be trusted to be rehabilitated or to exercise any self-restraint – and then on top of that they are ‘violent’ by nature as a class that happens to be their gender – and then on top of that their incorrigible violence also constitutes a violation of their (possibly constitutional?) right to live without violence … well, you see where all that can quickly lead.

Curiously, it was precisely to protect both (all?) genders’ rights to live without constant fear of government violence that the Framers so carefully constructed the Constitution in 1787.

Correlating her own thought with that of political scientist George Kateb, she mentions the “re-tribalization” inflicted by Identity Politics. On top of all the regressions – to Medieval jurisprudence, to a pre-Constitutional ethos – We must also include now The People being fragmented back down into ‘tribes’. I’m not seeing the ‘progress’ here.

So much remains to be done.

NOTES

*As best I can make out, there are a substantial number of verrrrry impressive thinkers who would call themselves ‘feminist’ but not of the radical variety. Elshtain is one. If you haven’t heard much about her, it’s primarily because only the radicals ‘organized’ themselves into a world-bending (and Constitution-corroding) Advocacy who made the Long March to the Beltway; they then labeled all feminists less radical than themselves as something akin to gender-traitors thereby neatly leaving the term ‘feminist’ to themselves.

Which, by the by, is precisely what happened as soon as Lenin took power: the first folks to get it in the neck (even before the Czar and the imperial family) were all the assorted Mensheviks and other deviationists who were Marxist and Communist … but not the way Lenin thought a Correct Marxist should be (i.e. the only Correct Marxist was a Marxist-Leninist).

**The edition I am quoting is the Basic Books paperback of 1995.

***Which dovetails nicely with what the entire feminist project has to demand, unpleasant and inconvenient as it may be to mention it in polite or unsuspecting company: the Deconstruction of the Family as a set of committed relationships which possesses a pre-existing authority to interfere with the ‘choice’ and ‘comfort’ of the ‘contracting parties’ (you can no longer simply say ‘adults’ and you can no longer assume a male-female dyad).

****I have often used the historical referent of Mussolini’s minions after the Allies started to re-take Italy in 1943: they desperately wanted to be ‘forgotten’ for their roles in the former Duce’s regime (but, nicely, wanted to receive their pensions for their ‘government service’ nonetheless).

*****Although, in a jarring illogicality, the radical-feminists who claim that men by Nature rape, are equally fanatic in their demand that women NOT be seen as being by Nature ‘nurturers’. Curiouser and curiouser do things get, as anybody familiar with fairy-tales would say.