MAKING RIGHTS REAL

I came across a review of this recent book, “Making Rights Real” by Charles Epp.* I haven’t had time to read the book yet, and it is not primarily about SO Mania matters, but in an incisive four-page review of the book** a Boston College professor of political science offers some useful insights.

Epp traces the formation of a great deal of what I would call ‘current conventional wisdom’ and even what is popularly assumed to be ‘law’ through the clever manipulation (its supporters would no doubt call it ‘strategizing’) of Federal regulatory instructions and Federal court case decisions. He uses as examples the lethal use of force by police, playground safety regulations, and sexual harassment (and so you can see where this can get interesting very quickly).

Coming from the legal-studies point of view, Epp notes that the country underwent a “liability revolution” in the late 1970s, that “changed the behavior of local governments throughout the United States”; 1980 was the “great divide” which began a “sweeping law-inspired reform of American bureaucracy” (I would use a term other than ‘reform’).

Court decisions, Epp traces, expanded the legal liability of municipal governments, establishing a “legalized accountability regime” that was designed to curb misconduct or non-conduct or any newly-categorized undesirable actions, by making locally elected officials and governments legally liable for civil damages. You can see where the Feds were trying to enforce changes in law and culture (not all of them bad) not through the civics-textbook approach of either letting the changes ‘filter up’ from the local electorate or through the introduction of Bills that would be subject to public deliberation, but rather by a sly combination of regulatory instructions and regulations supported by case decisions by this or that friendly judge (about which more below).

Epp effectively limns how “legal rules have cemented a potent political coalition of professional reformers, civil rights advocates, and trial lawyers”. The first two categories are what I have been calling Level 3 and 4 ‘Advocacy’, where you are not simply trying to inform the public but are leap-frogging over the public to get your agenda passed by tinkering with and pressuring the lawmakers and the laws behind the curtain, hidden from public view, in order to manipulate the public and even impose your agenda on a public that you consider to be lumpish, uninformed, and that ‘just doesn’t get it’. (I can’t get out of my head the image of the female praying-mantis, sawing off the head of her male partner while apparently doing something else.)

The whole scheme of new liability regulations, the review notes, “changed administrative practices not just by exerting external pressure on government bureaucracies but above all by giving substantial leverage to reformers within those bureaucracies and in the professional groups closely associated with government administrators”. Thus, not only do you create a specific legal danger of being sued for not taking the proper steps, but you induce the professional government-administrator organizations (of police chiefs or playground administrators or of workplace employers, to use his examples) to assume quietly that your agenda is now ‘the new normal’ and thus must be considered as the new ‘standard’ of professional behavior for the target administrators. Thus an administrator who suddenly finds himself or herself targeted because of some incident (that the local news will publicize for you) is going to feel very threatened in terms of employability and job future and is very much going to want to do what your agenda says should be done. Neat.

Indeed, Epp notes that “these reformers tended to exaggerate the threat of liability litigation in order to promote their own remedies” (and, I would add, ‘agendas’).

Indeed, what most frightens local officials now is not the threat of monetary loss (fines against the municipality or a lawsuit against themselves) but simply “the threat of public embarrassment and reputational damage”. This dynamic can function as a much more subtle element of Mania-maintenance than most people would think, it seems to me. “It is the litigation itself, and not just the threat of losing, that causes most of the damage” in the words of the reviewer.

Additionally, Epp’s well-documented research indicates that while popular culture considers the 1970s as ‘radical’ and the 1980s and 1990s as a time of ‘conservative’ retrenching of government authority, this is not actually the case. Huge inroads in the service of “significant social change” were quietly made in the more recent decades, not through the classic 1960s street demonstrations and grass-roots activism, but rather by this sustained and manipulative infiltration of government regulator bureaucracy (and, I would add, the law schools). These latter decades – especially, for SO purposes, the 1990s – are, you may recall, the era touted as “governance feminism”, during which a huge amount of such carefully strategic skullduggery was effected (although then blossoming into the full-blown law-based Mania Regimes as the 1990s progressed).

I won’t get into the hugely fraught issues of ‘police conduct and misconduct’; nor the intricacies of public playground safety regulations (intended, as the reviewer notes, to cover a small local playground as well as large urban playgrounds, and becoming so onerous that – as you may have noticed with public toilets – local municipal authorities simply stopped providing many of them at all).

It’s all part of the theory and strategy of “legalized accountability”, whereby you manage to shape matters quietly at the Beltway regulatory level according to the assumptions held as conventional-wisdom by the professionals and regulators: you essentially maneuver the regulatory enforcers and the local elected officials into doing things your way or face lawsuits. It reminds one of the great boast of the Gilbert & Sullivan’s shrewd, successful, ethically-challenged attorney: “It was managed by a job – and a good job too!”

But Epp presents a ‘sexual harassment case study’ that seems greatly informative for the SO community. The reviewer notes that it is a classic example (Epp likes all this new stuff; the reviewer does not) of “how ‘legalized accountability’ can compromise democratic accountability”.

Because the rules on sexual-harassment, and indeed the assumptions underlying them, have “never been never been announced in a federal statute”. (Yes, this is not the case with the Mania Regimes, especially the SO Mania Regime, but you can see how this dynamic works from beneath, flowing along under the radar, under the surface of public perception and opinion, helping to carry things along like a subsurface river of hot magma moves tectonic plates.)

And the manner of it, as Scripture saith, was on this wise: The theory underlying the assumption, Epp excitedly informs us, was “developed by activists in Cambridge, Massachusetts” and by the avowedly and robust feminist legal scholar Catherine MacKinnon. Specifically, the goal was to get people to simply assume that ‘sexual harassment’ (however defined, which is a topic worth many books on its own) was in and of itself, per se and prima facie, a form of gender-discrimination and therefore illegal.

This would, of course, bring the whole male-female ‘thing’ under the general scope of the Civil Rights Act of 1964. You may recall that at the last minute, and from the floor of the House and not in any prior committee deliberation, a soon-to-retire Congressman inserted the simple term “gender” among the proscribed categories of “racism” which the Bill, and most of the citizenry, wished to address through the Bill in the first place.***  

It was a neat gambit: if you could somehow spin male-female human encounters as somehow an interaction akin to Southern-style, oppressive Jim Crow ‘racism’, then you could surf the solidly established public sympathy for combating ‘racism’ and  lay the legal groundwork for a similar campaign to whip up public revulsion at ‘patriarchy’. Which, sort of like the small matter of scooting into Iraq and knocking over Saddam’s government in a quick and brilliant stroke, wound up committing the country to something else altogether, a truly “long, twilight struggle”.

And more specifically, MacKinnon sought to have ‘sexual harassment’ (initially narrowly defined) declared to be in violation of the 1972 Title IX requirements prohibiting discrimination based on sex in academic institutions.

Through regulatory re-definition and ‘definition creep’ the term ‘sexual harassment’ has now morphed into something far beyond the repulsive sex-for-employment type of thing; now almost anything that a ‘victim’ complains about is capable of being declared to create some form of discriminating ‘environment’. In the Tailhook-addled Navy of the early 1990s (nor has it subsided) a ‘look’ or a ‘victim’s’ inferred sense of what you were thinking could get you ‘locked up’ in front of a superior’s desk for a stern warning or worse. Even to make the candid observation that a vital task was not well-performed was ill-advised (and the wise supervisor and ‘leader’ stopped noticing such failures forthwith). Such are the consequences of revolutionary change and ‘reform’ imposed with revolutionary zeal.

Naturally this gambit spear-headed by MacKinnon quickly created a ‘complex’ of what I would call ‘interested interests’ looking to cash in on the status and funding that the (then) fabulously wealthy and powerful federal government was going to provide for Correct research, practice, and administration. And they were off!

After a Federal Appeals Court (on which her father sat) agreed that demanding sexual favors to further academic advancement was a form of sex discrimination, the Equal Opportunity Employment Commission quickly issued some “guidelines” of its own, and – the reviewer notes – “not coincidentally only a few days after Ronald Reagan defeated the President who appointed those who issued the rule”, a classic instance of “midnight regulations” which are famously “designed to tie the hands of the incoming President”. Neatly, in another example, two days before the inauguration of George W. Bush the Office of Civil Rights, running the same game-plan, published more “Revised Guidelines”.

The point to be made here is not that ‘sexual harassment’ – at least in its more overt definition as sex-for-employment or promotion – is in any way a good thing. Rather the crucial dynamic is that such behind-the-scenes maneuvering skews the conflicting tension “between legalized-accountability and political accountability”; its purpose is – whether admitted or not – “to substitute professional norms for political judgments”. And in matters that could only create huge societal consequences, beneficial or otherwise, such shrewd ‘strategizing’ (now the stuff of self-congratulatory war-stories at gatherings of those who masterminded the game) worked in the long run to weaken the citizenry’s and the public’s participation in matters of vast import.

I continue to wonder just how much popular political support actually remains for the SO Mania Regimes, and how much there actually ever was; and further, how much public ‘support’ was based on grossly inaccurate and deliberately misleading ‘official’ information.

But nowadays, clearly, the established standard operating procedures in effect in the Beltway are for mostly quiet and hidden maneuvering. The ‘outrageous’ publicized incidents do not seem to be the focus any longer; instead, the corps of ‘experts’, ‘scholars’, and the corpus of ‘research’ that support it – while useful for media window-dressing – are deployed merely to provide the ‘studies’ which give pandering politicians the chance to do what they must do under the cover of ‘science’ and ‘facts’. Joe Biden’s recent gambit up in New Hampshire, about which I recently Posted, is a clear example of the tip of that iceberg.

Looking at Epp’s support of “the imposition of national standards” the reviewer wonders if the “difficult tradeoffs” even in such a relatively simple matter of playground safety (i.e. are we going to have more safety or more playgrounds?) localities should be far more involved.

He notes that even Epp admits that the national standards on excessive police use of force were “largely aimed at the Southern states” whose Jim Crow regimes were not indicative of the rest of the nation.

As Epp concludes his uniformly supportive book approving the changes, the reviewer agrees with him that “who could oppose ‘making rights real’?” But almost weirdly, in the last two pages of this 350-page book, Epp suddenly acknowledges that “the ultimate question is whether the benefits of legalized accountability outweigh the obvious costs”, among which Epp quickly ticks off administrative process that is slower, more cumbersome, costlier, and “sometimes contribute to nonsensical outcomes”.

I would go much further. The question that must concern Us after three or four decades of this sort of thing – and the process is only becoming more refined, which is to say more brazen and less controllable by well-informed public deliberation – I think that there was are Costs with a capital-C.

I do not favor ‘police brutality’ as it existed in the awful era of Jim Crow; I do not favor any human being having to participate in sex simply for the right to earn a living and achieve legitimate recognition for accomplishment. I am all for playground safety although the only way to be truly and totally ‘safe’ is probably to stay in bed for most of your life.

But the Content of these solutions has ‘creeped’: and it is now almost guaranteed that ‘definition creep’ and subsequent ‘regulation creep’ must continue, because there are so many sly strategic traps by which even the most decent local government can be ensnared into ‘creeping’ for the sake of its own survival and because there are now so many entrenched ‘interests’ that have battened upon this or that Federal ‘initiative’, with the skids being greased by a shock-happy media seeking eternally to capture increasingly inattentive or distracted ‘news consumers’.

And worse, the Method of all this imposition is tremendously corrosive of democratic process. The American Citizen is increasingly becoming used to quiet regulations suddenly appearing, long after any initiating ‘crisis’ has passed (to the extent that it ever existed in the first place). To the reviewer, a professor of political science, this many-stranded rope is creating a noose around the neck of the entire fundamental concept of deliberative democracy. And, since they are no longer called on to deliberate, Americans are no longer participating: no longer investing their time and energy in understanding the issues and challenges that are put before them.

There are very few ‘crises’, I would say, whose imposed resolutions would justify undermining the core integrity of the entire dynamic of deliberative democracy. Certainly not the ‘creepy’ continuation of expanded and ever more obscure ‘definitions’ that require fresh ‘impositions’ of regulations and guidelines without public deliberation.

And if you define not-having-a-crime-committed-against-you as a Constitutional right, then every crime (perhaps even the victimless ones that have at least one Citizen-victim, the perpetrator) is conceptually eligible as a ‘federal case’.

And most advocates would rather not discuss such consequences, certainly not in public. But the consequences are already operating and have been for quite some time.

The Great American Experiment in popular government has always actually been more of a Great American Gamble: that somehow human beings can come together in a polity and through common and careful deliberation exercise their Sovereign Authority to shape their polity on their own, rather than be indentured (or worse) to a King or a Leviathan governing apparatus.

The Framers themselves were not completely comfortable with that Great Vision. While it might work in small venues like towns and counties (although who could forget in 1787 the Salem Witch craze of less than a century before?), a larger national government would require representatives. The solution was frequent elections and the system of checks-and-balances, in order to keep the great Wheel of Government from developing its own momentum (and its own Will) and running away with everything.

Lincoln was always aware of this conundrum: can a government amass the power to function effectively without by the very exercise of its power undermining the sovereign rights of The People and of the Citizens? He was the only one among American Presidents to face a Civil War, and his were terribly difficult times. The actions he took were taken under the one exceptional situation that the Framers had recognized and acknowledged.

By the turn of the 19^th century into the 20^th, however, there is some question as to whether anybody in Washington really believed that the country – now so complex and large and diverse – could be effectively governed and its energies and resources harnessed, without the clear and direct direction by people who genuinely knew what they were doing in a way that no simple Citizen could ever know. Teddy Roosevelt wanted to run the government, but at least wanted to use its growing authority as a counter-balance to the great corporate combinations and their intensely concentrated wealth. William Howard Taft couldn’t see how else it could be done, but hoped that those who knew how to do things and who had power to get things done would act responsibly. Wilson was convinced that only a truly Great Man could be a Great Leader, which is what he figured the country would now always need.

None of them had really any practical use for the Vision of 1787. Perhaps they sensed, at some level, that they couldn’t afford that Vision.

And throughout their Administrations the Progressives were urging government to use its authority to clean the country up: clean up the food, clean out the nests of child laborers, get rid of liquor, and in a thousand ways be the Great Sheriff that would clean up Dodge (according to whatever this or that Progressive thinker took to be the Great Problem or Great Outrage of the day). There were problems that extended beyond any individual States, and there was also the Convenience Factor: it would be a lot easier to get one Federal law passed or regulation imposed rather than get each individual State to do it.

A great complex machine like the country had become now required ‘experts’; not necessarily great human beings, but greatly knowledgeable ones that knew what they were doing and  - always a slippery definition – what had to be done.

People ‘just didn’t get it’ because they couldn’t get it – everything was so complicated that the average Citizen just couldn’t get a handle on enough matters to form a respectably serious opinion.

That tension – between expanding the power of the national government to keep up with the expansion of the country’s complexity and retaining the Founding suspicion of and limits on the power of the national government lest it swallow up the power of the States and come to infiltrate the entire polity – posed a monstrous challenge.

Things were then rendered even more complex when the national government under FDR extended itself to combat the Great Depression and try to smooth out the workings of the economy, and then immediately thereafter when the national government directed the nation in the largest war-effort in its history, militarizing the already corporatized and industrialized society.

But what happened in the late 1960s pushed things to an entirely new level.  

The old Progressive urge to ‘improve’ became much more ‘revolutionary’. Not only did the Content of their demands insist upon all sorts of ‘change’ that went beyond ‘reform’ into ‘revolutionary’ change, but the Method of their demands also reflected the ‘revolutionary’ mindset: only those elites who ‘get it’ should have any real voice, and their job would be to get control of the huge government power and wield it as they saw fit.

Under the pressure of radical feminist agendas (abetted by eager-to-please politicians) and a ‘re-balancing’ of social and cultural status between the sexes that has resulted, hardly surprisingly, in a sustained gender-based war upon males (it’s not a civil war because the males are not fighting back) this has led the country to the Mania Regimes, where a legitimate concern is ‘sexed up’ into a ‘crisis’ and huge and immediate government action, unhindered by doubters or thinkers, must be immediately implemented.

If the original American Vision was already weakened widely by the 1890s and 1900s, it has now been weakened deeply and profoundly.****

There is no easy answer to this problem.

At this point, even if the money – that mother’s milk of government-programs – runs out, will there be enough Americans left who can step up to begin functioning once again as not only ‘concerned’ but truly participant citizens, dedicated to a common-weal and to a sober and serious management of a nation far too riddled by excitements and appearances?

The Epp book reminds everyone that while the age of (eagerly publicized) over-the-top agitprop antics seems to have passed, the more serious threat to participatory democracy are the hydra-headed forces seeking to quietly impose further regulations behind the scenes and out of public view, both to politically pander to a particular fraction of the demographic ‘base’ and to continue the gravy train for the particular professional-academic-advocacy ‘complex’ that now derives great benefit from continuing their ‘issue’ ad infinitum.

The American polity – unlike Divinity – is finite, and it cannot continue to absorb ad infinitum the various ‘deals’ that each sap it of vital and genuine strength. I sometimes think of the commonweal as a whale, under attack by sharks: while few sharks can individually take enough bites out of a whale to kill it, a frenzied gang of them certainly could reduce the great creature to bloody bones if allowed to go at it long enough.

When is long enough? That is the question.

NOTES

*Epp, Charles. “Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State”. Chicago: U/Chicago Press, 2009. ISBN 9780226211640 (cloth) and ISBN 9780226211657 (paper).  Note that the cloth edition is 72.00 and the paper is 24.00.

**Reviewed by R. Shep Melnick, a political science professor at Boston College. The review is published in the print edition of the journal ‘Social Science and Modern Society’: Vol. 48, No. 3, May/June 2011, pp. 264-267. The online link to this review is here, although purchase is required.

***Argument among commentators goes back and forth as to whether this last-minute insertion of an entirely (and hugely) different matter into the Civil Rights Act that was prompted by the Southern Civil Rights struggle led so vividly and for so long by Martin Luther King, was merely a last-minute, last-ditch effort by a ‘conservative’ to stymie the passage of the Bill, or whether (I can’t help but think) it was a ploy quietly organized at the behest of the Democrats to ‘birth two birds with one Bill’ by creating a new government-reliant electoral demographic not only for African-Americans but also one for ‘women’ as well. It was certainly a gambit within the scope of LBJ’s talents and abilities, and the possibility of securing the fealty of a ‘52%’ demographic (the percentage of ‘women’ in the population) would have exerted a most tempting pull on any anxious politician.

****Of course, you can always approach this from another level and apply John Adams’s insight that “our Constitution was made only for a moral and religious people; it is wholly inadequate to the governance of any other”. But that is beyond the scope of this site.