AMARTYA SEN AND SO MANIA PHILOSOPHY

As often happens in matters of philosophy, you find stuff in places you wouldn’t expect.

The Indian economist Amartya Sen has been developing a philosophy of government that would somehow help the still-developing nation of India address the poverty of its huge population.

You may recall his name; Martha Nussbaum, noted feministical philosopher here in the US, had been trying to use him as a basis for her own recasting of the American Constitutional philosophy of government in such a way as to make things more to the liking of assorted pressure-groups over here.

And in the Nussbaum essays that I have so far managed to Post, I had been making the point that somehow Sen’s economic thoughts had mutated over here into some sort of justification of the SO Mania Regime(s) – plural if you toss in the Domestic Violence Regime.

Which is NOT to say that you will actually find any ‘philosophical’ articles by SO Mania Regime supporters explaining at length how they justify their agenda and demands. As I have often said, the Regime is strangely bereft of several common elements of major, ‘successful’ and ‘progressive’ changes in national policy: legislators crowing to the general public that they supported it, philosophers who are happy to put their creds and status into an article explaining how justifiable and marvelously excellent it is, and public commentators who mention the Regime at all in any context whatsoever.

Nada, zip, zilch, nothing.

Anyhoo, here’s a piece in a recent ‘New York Review of Books’ article discussing Sen (who, to my knowledge, formally does not have and has never had any connection to the SO Mania Regime). The article is actually a review of a recent book by Sen, written by the philosopher Samuel Freeman.

Freeman starts by recalling one of the major recent philosophical positions that Sen disagrees with: John Rawls.

An ominously overnight sensation, John Rawls published his magnum opus “A Theory of Justice” in 1971, the same year that Alinsky published “Rule for Radicals” and the year before the Dems declared themselves the Party of Everything and Everyone (Except – unstated – White Industrial Males, the Women Who Agree With Them, and All Things Adult, Bourgeois, Middle-Class and In Any Way Traditional). 1972 was quite a year; if it slipped by you un-noticed, give some thought now back to “those thrilling days of yesteryear” (as they used to introduce ‘The Lone Ranger’ TV show in the ‘50s).

Rawls starts by imagining Citizens of good-will in “an original position”. This hypothetical Position would be that the Citizens did not have any prior notions of how society should be organized (no such humans exist or could exist beyond the age of 5 or 6, but Rawls is sorta blue-skying here, as the Dems then proceeded to do, and then the entire Beltway).

In this Position, Rawls was sure (no proof, he just reeely reeely felt strongly about this) that everybody would agree that if they were going to have a society, they would want principles of justice. I agree as far as the words go.

But then Rawls starts to blend his own dream in with the imaginary situation and Citizens: he says that the first principle of justice everybody was sure to agree with would be the “guarantee of equal basic liberties for all: freedom of thought and expression, freedom of association, equal political rights, and freedom of conduct with a right to personal property”.

Freeman notes that Rawls “crucially omits economic liberties such as the right to own and control the means of production”. There’s a reason for that, as We shall see.

I’d add that Rawls, even at this early stage of his scheme, has put some phrases in there that didn’t then and certainly don’t now mean what they appear to mean. Thus, for example, “equal political rights” doesn’t simply mean the right to vote, and ‘personal property’ doesn’t just mean your CD or record collection.

Ditto then as Rawls moves to his second principle: “fair and equal opportunities to develop their capacities and talents”. This sounds very nice but you don’t have to move very far into policy formulation (and the Dems wasted no time after 1972, nor did the groups pressuring them) before you are into deep, dark, and tricky waters indeed: where does ‘opportunity’ end and ‘luck’ begin such that anyone who hasn’t succeeded must merely have been the victim of some ‘bad luck’ or at least that everyone who HAS succeeded to some extent must have done so merely because of ‘good luck’?

AND if government is now going to get into the re-balancing business big time (especially since God was a hypothesis in the process of begin progressively Deconstructed) then just how intrusive was government going to have to get in order to reach down into the national doll-house and re-arrange the furniture – and even the dolls themselves? Just how far could the government go in re-arranging not only the schedules and track layouts but even the towns on the national toy train-table?

Rawls began by saying that “extensive educational and health benefits for all” were absolutely called-for, provided by the government. And who can argue with that thought? But the Devil was – and remains – in the details (where he has taken up a strongly fortified position).

So Rawls’s “difference principle” would demand that wherever there was a difference (in ability or in outcome?) the government would have to re-arrange things to ensure that persons were truly “equal” (in capability or in level of achievement or in worldly goods?), and that the least-‘lucky’ were never to be left unattended at the bottom of the heap. Decent thoughts indeed, although not where the Devil chose to make his stand.

Sen came up with a different approach: “Individual well-being can be objective measured by the access people have not only to goods, income, and liberties, but also by the variety of ‘capabilities’ that enable them to pursue satisfying lives”. Although I can’t see how a researcher – let alone a government – can objectively decide A) who has enough ‘capabilities’, B) what exactly objectively a ‘satisfying’ life is, and C) what has gone wrong if a person is discovered to be (or claims to be) suffering an un-satisfying life?

These are the type of problems you run into – that classical Liberalism has always run into – when you rely solely on purely human (and governmental) reason to figure out the complex mysteries of human existence previously left to ‘God’ or ‘Nature’, and furthermore try to calculate your figurings out to several decimal places.

Government would be into guaranteeing ‘capabilities’ and compensating people for ‘bad luck’ that was verrrrry broadly defined.

So government would have to get verrrry involved in the case. Freeman uses the disabled as an example: it’s not enough for government to provide them with the equal resources because “in order to achieve the same state of well-being” they “require more to perform the same activities”. The ‘more’ – since this is a government-dependent Liberal (I am NOT using this word in the current, immature political name-calling sense) – must come from government’s authority to re-distribute or re-arrange society.

“Living a good and satisfying life, Sen argues, consists of engaging successfully in freely chosen activities against a background of worthwhile options and real opportunities.” (And perhaps you can start to see right here how this seemingly decent idea – although, without God or Nature, a government-heavy one – starts to become attractive to Victimologists and other pressure groups.)

Freeman continues describing Sen’s thought: “… our well-being should be assessed according to the ‘capabilities for functioning’ that enable people to exercise ‘effective freedoms’ to choose and do what they value or have a reason to value”.

Note here that ‘people’ is defined not as a society-of-people but as individuals who are simply all bunched together. Everybody may have a different idea – each guaranteed by government – as to just what it will take to ‘satisfy’ them.

Indeed, almost immediately, Sen lists some of the difficulties that will stand in the way of realizing his vision: “poverty, illness, disability, and the subjection of women, among other restrictions, undermine capabilities and deprive people of their effective freedoms to engage in [what they consider to be] worthwhile activities”. You can see where Victimology, operating in synergy with other pressure groups, quickly saw how to include ‘the consequences of being sexually assaulted or living in fear of sexual assault’ – which are two verrry different matters conceptually – as being the types of ‘restrictions’ that government, in Sen’s theory, must address with the sovereign authority.

Speaking of India as he knows it, Sen asserts that once restrictions (he makes no mention of the Victimology element, which is an American mutation) are ‘addressed’, then economic progress will become more possible for individuals (he doesn’t mention ‘families’ or any traditional groupings of individuals).

Sen’s ‘capabilities approach’, notes Freeman accurately, is currently one of the most influential approaches for “addressing issues of social, political, and global justice and human rights”.

As I had mentioned in several of the Nussbaum essays already Posted, the ‘sexual’ material has gotten into the American variants of this approach. Naturally, once government is required (in terms of this influential theory) to aggressively eradicate the ‘sexual restriction’ (sexual assault or fear of assault, however defined), then there is going to be some serious disconnect between Sen’s theory and American Constitutional principles (which, since he is dealing with India, is not a problem that immediately arises in Sen’s original vision).

Worse, in a very real way, is Sen’s refusal to appeal to “universal principles” that will ‘work’ and are ‘valid’ in any country and any period of history. While it is very understandable that he doesn’t want to limit Indian (and Third World or Developing World) efforts by some appeal to what the Developed World has done, he has effectively eradicated the influence of any Higher Law that could stand in judgment on any particular law or policy.

This may well help him sidestep the complexities of, say, Indian religious life and culture – Hindu, Buddhist, Muslim – but if applied to America such an approach works in synergy with the entire Postmodern thrust to Deconstruct anything that would stand in the way of whatever pressure groups demand in the way of what they see as ‘progress’. And the SO community has seen first-hand where that sort of thing can quickly lead.

Sen – following Rawls – would like to see “objective and impartial reason” replace any appeal to Higher Law or Tradition or Religion. This is classically Liberal. BUT curiously, it runs counter to the American radical-feminist philosophy that such “objective and impartial reason” is a ‘male’ thing and ‘insensitive’ to the ‘stories’ and ‘pain’ experienced by assorted groups.

WORSE, combined over here with Alinsky-ite assertions that the only thing that makes politics move is ‘organizing’ even if you have to take ‘the low road’ to do it, then what happens when Sen is blended into the American bubbling brew pot comes out to something more lethal and toxic than Sen’s decent insights and interesting theoretical formulations would lead you to expect.

And, really, Sen runs into the problem that all Liberalism has run into: among humans there is no purely objective and rational approach. The simplistic solution to THAT had been to make an appeal to Tradition or God, but if you apply that appeal simplistically you wind up with two unpleasant social results: first, every individual claiming to understand clearly what ‘God’s Will’ is and second, groups attacking other groups over what they insist is a misreading of ‘God’s Will’.

And a simplistic solution to THAT problem is simply to say (like the Six Blind Men and the Elephant in the Eastern myth) that there is no God or Higher Anything and that it’s all about who can muster the most political pressure (Marx, Lenin, and Alinsky adopted this ‘solution’).

A more balanced approach is to presume from the outset that human beings are indeed capable of reason and – if they train themselves and work hard at it – can muster at least enough objective detachment to work out consensually and democratically the social policies and laws that an entire society can live with.

But – most most regrettably, I would say – this option isn’t ‘sexy’ enough, requires too much heavy lifting, and since it relies on ‘mature voters’ usually doesn’t impress legislators and policy-makers as having enough of a constituency.

Oy.

So We wind up with efforts to terraform society (and Citizens) from the top-down, according to the illuminations of whatever elites and pressure-groups can erect into law and policy. America as a large model train layout on a huge table and the elites and pols as the expert hobbyists wearing their little engineer’s hats and making train-whistle noises while moving all the stuff around to their liking.

AND Sen does follow Adam Smith in supporting a sort of political ethics that can be defended “in an open and free framework of public reasoning”. BUT of course, the Alinsky-ite vision utterly rejects such an approach, as have all the pressure-groups that have blossomed like kudzu in this country in the past 40 years. And the Alinsky-ite vision, as you can see in the series of essays I am Posting on Alinsky, contains a profound functional rejection of Constitutional and democratic politics and of The People as the functional Ground of political authority and wisdom.

Gack.

Sen rejects Rawls because Rawls presupposes that there could ever be a society where most people just naturally want to do the right and just thing for everybody (and not just get some for themselves).

But then Sen – relying on Adam Smith – expects the same thing.

And in American society, where Deconstruction has been governmentally-supported and loudly trumpeted by various pressure-groups and their ‘cutting-edge’ and ‘transgressive-progressive’ thinkers for decades, there is now some real question as to whether a majority of Citizens can even grasp the challenges that lethally confront The People in this age of American democracy.

Again, as Sen refuses to accept ‘ideals’ or any ‘ideal theory’ in order to leave himself maximum room for ‘development’ in the Third World, he leaves himself with no judgment-point above the fray by which this or that policy can be evaluated. To use an admittedly extreme example or two: if most Germans agreed with Hitlerian policies in 1937, who then could stand in judgment on them? Or if most Russians by 1940 were so indoctrinated or cowed by Stalinist Terror that they could not speak and did not dare think for themselves, and there was nothing Higher than Stalin’s Will … then how could anybody stand in judgment?

As Freeman notes, it was John Locke’s vision that served as the Ground for the Declaration of Independence and the Constitution: “the people are sovereign; government originates in their consent; government’s power is fiduciary and exercisable only for the common good; citizens have inalienable rights justifying a right of resistance when violated”.

Alinsky and his pressure-groups cannot accept any of this. And while they claim only to ‘empower’, they introduce a politics of Suspicion and War upon those Citizens whom they have declared their Oppressors and therefore their Enemies (whoever is declared a ‘Have’ by whomever declare themselves somehow to be ‘Have-Nots’) … and you can’t keep a democracy with a politics built on this stuff.

Freeman nicely recalls Martin Luther King’s “I Have A Dream” speech of August, 1963: his aspirations, presented to all Americans as a common goal, “were grounded in political ideals and ideal principles”. Further, says Freeman (as if, I think, he were specifically thinking of Alinsky!), none of this “could have been conveyed by focusing on practicable alternatives offered up by the status quo”.

But there, too, I think Alinsky fails Us hugely. Because part of the human ‘status quo’ is precisely a capacity to be persuaded or inspired to willingly ‘do the right thing’, as individuals and as a society and a polity and a commonwealth. You cannot – in the Leninist or messianic-Marxist mode – simply presume that ‘the masses’ are lumps who ‘just don’t get it’ and are violent lumpish brutes and on the basis of those huge and monstrous presumptions consider yourself justified in ‘waging war’ by whatever means available in order to bring about your idea of ‘progress’ or Perfection.

And to the extent that even Sen – as respectably alive to human suffering as Marx and Alinsky and King – somehow has to seek to do an end-run around democracy because people cannot be trusted to function as The People then – at least as his theories apply to the US – he must be most judiciously and carefully evaluated for the type of plague that is carried in the nihilism and angry urgencies of old European messianism.

And it is precisely those dangerous and lethal bacilli that underlie the SO Mania Regime – which, as I have said in earlier Posts, is not so much a free-standing if bizarre entity but rather was a first or trial run of a much larger and dangerous Theory of Government and of Democracy that can only serve to undermine the Constitutional polity and the entire American Experiment as it was conceived in 1787.

“Ideal theories” are precisely that, says Sen: un-worldly and un-real. Better to come up with something that will ‘work’. But I would say that nothing grounded purely in this-world can ‘work’ because the human realm, through the complex material-spiritual make-up of the humans who generate it, is itself somewhat ‘ideal’. Humans are capable of responding to ‘ideals’.

So when Sen, in Freeman’s view, considers the Constitution to be “ideal theory” and therefore unworldly and unworkable, then I think We are in a heepa trubble. Especially since I think a very large number of ‘prestigious’ progressive thinkers bombarded the Beltway with this ‘cutting-edge’ thought that the Constitution is nothing but an ‘ideal’ and ‘unworkable’, and that it would be better if the pols simply yielded to Alinsky-ite pressure and came to some sort of ‘deal’ rather than hew to any stupid old ‘ideal’.

The ‘ideal’ has been replaced by the ‘deal’ – and whenever that happens, you have to be verrry careful about the terms of such a ‘deal’.

The SO Mania Regime, I would say, is the result of such a ‘deal’, made by dismissing any ‘ideal’, and it was embraced by the Beltway and by legislators and jurists all around the country.

Freeman insists – against Sen – that “the abstract rights and principles of justice in the Constitution have a fundamental regulative role in American society, and also provide a primary basis for public justification and criticism of government”.

And Freeman gives you a little more philosophical exercise: “The fact that principles of justice are formulated for hypothetical circumstances does not mean that they do not apply to our actual circumstances”.

I’d go even further: the ‘hypothetical’ – meaning the ‘ideal’ – is not merely an exercise in imagination or fantasy. Rather, the ‘ideal’ is a very real dimension of the complex human, though not materially evident to the basic senses of sight or touch. To ignore the ‘ideal’ because you can’t see it or touch it is not being ‘realistic’ but rather being simplistic in the extreme. ‘Reality’, and the humans who inhabit this plane of existence and of spacetime, is only partly evident to material examination. Like an iceberg, an awful lot of it is ‘out of sight’ – but as they found out on the Titanic that night, you can ‘miss’ a berg and still wreck yourself.

Sen doesn’t hold with the High Definition of human institutions: if they don’t contribute to individuals’ satisfaction with the quality of their lives, then they are very dispensable and should be dispensed with.

You can imagine then, what they must have thought inside the Beltway, when Sen’s thought was presented, adapted to the American situation by the claim that a Constitution that somehow protects that ‘sexual restriction’ that keeps folks from fully being satisfied with their life is AND HAS TO BE dispensed with.

(And at this point, you can perhaps see why an awful lot of legislators would rather not have to discuss and admit that they indeed went along with the SO Mania Regime on the assumption that the Constitution needed to be dispensed with.)

Freeman will give you a chance to think about the classic Western philosophical Question about the relationship between the Right and the Good: can you pursue Right with such violent consequences that you destroy the very fabric of society upon which everybody’s Good life depends?

Let me take a bull by the horns here: this was precisely the problem that faced the Framers in regard to slavery and that faced Lincoln in regard to Abolitionism. Let me just take Lincoln: the Abolitionists said that Slavery was so fundamentally evil (and I don’t disagree) that the country could not exist a single moment longer with it and that to the extent that the Constitution somehow kept it going then the Constitution itself was a pact with Hell.

Even in the 1850s Lincoln (while a politician but not yet President) realized that you would destroy the fabric of the country and wreck the entire institution of American Constitutional Democracy if you simply tried to abolish slavery overnight with a declaration or even a law. (Indeed, it was the simple fact of his election, and no declaration on his part that he intended to abolish slavery, that moved so many of the slave states to secede and start the Civil War.)

Slavery was a Wrong and not a Right, but the commonwealth and the fabric of national society and the institutions holding it up, including the Constitution, were not at that moment Perfect and Right, but they were a Good (however imperfectly realized) and you would cause huge wrack and ruin by trying to quickly Perfect it by declaring Slavery abolished.

To the abolitionists this proved Lincoln was willing to live with Evil and therefore was a partner of Evil himself (he didn’t receive their full support until the Emancipation Proclamation in 1863).

You see the problem. How quickly can you institute Perfection if you have to balance the Right and the Good?

I think that it is a species of the Abolitionist mentality that has assaulted the Beltway in the past 40 years, and that was blended – on top of that – with Alinsky’s Marxist-revolutionary stuff about ‘war politics’ and agitating on the basis of unending ‘suspicion’. And I think all of that underlies much of the ‘justification’ for the SO Mania Regime.

Worse, since he is trying to actually influence the shape of a government that is still in its formative stages and a population that is hardly experienced in functioning as The People, Sen is focusing – and not incorrectly – on setting up a society and culture as well as governmental institutions, to replace an ancient and in some ways outmoded Tradition over there in India and much of the Developing World.

So he is not running the risk of hugely undermining an already-functioning polity in the way that is happening – and to great extent has happened – over here.

To assert that the rights of ‘individuals’ don’t count in the face of the great challenges may well be true, at this stage, in India. But to assert such a thing over here is to directly undermine the Constitutional ethos: this country is at a different stage of development and what might not cause so much damage to the established (and vitally humanly necessary) Shape of a Citizenry’s and a population’s lifeways and the Shape of their society over there, would most surely do so – and has done so – over here.

This, as Lincoln saw, is not a project lightly to be undertaken, nor ‘spun’ as purely ‘progress’ – there are huge and dangerous consequences. As We are seeing now.

Freeman gets down to it: he uses the example of Cheney and terrorism and Guantanamo (hardly far removed from the SO Mania dynamics). Surely, Freeman says, Cheney must have realized that “some Guantanamo prisoners were innocent bystanders swept up by a hasty dragnet during the heat of combat”.

And wasn’t the SO Mania Regime – which PRECEDED the Terrorism issue by a decade and more – precisely envisioned as an ‘attack’ by ‘Sex Offenders’ on American society and culture?

“But”, Freeman continues about Cheney, “he argues, in effect, that the abuses of Guantanamo were acceptable because they increased overall security”. Freeman continues: “[Cheney] might concede that there were gross violations of some individuals’ freedom and see this as a cost of the government’s policies; yet he would consider this cost to be outweighed by the greater good”.

This is a type of Utilitarian philosophical calculation: what’s good is what produces some good for the greatest number of persons. On that basis, Hitler in Germany in the mid-1930s and Mussolini since the 1920s, were both doing ‘good’. No Higher Law (‘deontological’ thinking, as it is formally termed in philosophy) existed to stand in judgment over what was being done by the governments’ policies in those countries. It is even conceivable that a strong Utilitarian could have justified the social and political and legal encumbrances laid upon the Jewish citizens of Germany in the 1930s and perhaps even – though it is repugnant to me – the Holocaust itself.

Freeman notes, accurately, that “Sen is sensitive to the criticism that individual rights cannot be sacrificed for gains to the greater good”. Sen tries to solve this profound difficulty (certainly for Western democratic and Constitutional thought) in his system in two ways.

First, Sen tries to say that he is not so much concerned for Utilitarian good but rather for people to have a wider range of ‘capabilities’. But of course, depending on how you define ‘capabilities’ you could wind up quickly with a verrrry intrusive government (exactly the problem Nussbaum runs into when she adds the ‘right’ not to be sexually anxious as part of the American variant of Sen’s Capabilities Approach).

Second, Sen tries to incorporate into his list of ‘goods’ that people should have a healthy experience of democracy. BUT those are just words, given that Sen is precisely trying to set up a government and indeed a culture that must almost by definition be erected over the heads of the Indian citizenry and population that pretty much has no experience of a fully functioning democratic polity and ethos.

So Sen really has no solution to his profound problem: you cannot have a democratic polity while simultaneously establishing by elite and government action – wide and deep – a cultural revolution that your population, by your own criteria and vision, has no experience of.

That’s Nussbaum’s problem over here too. Sen at least isn’t really working with American culture and society and Our Constitutional polity in mind; Nussbaum most certainly is.

Alinsky tried to solve it by reducing politics to ‘the low road’ and asserting cynically and nihilistically that Nothing Is Ever On The Level.

This is not a ‘simple’ problem. But to undermine the Constitution in order to make things more to your conceptual liking is certainly not a prudent let alone an easy solution.

But you see in the SO Mania Regime the product of the Beltway’s attempt to do just that.

As Freeman puts the problem clearly: “How, then, are we to address the inevitable conflicts that arise between maximizing good consequences (economic efficiency, overall happiness, or individuals’ capabilities) on the one hand and respecting individual rights and fair distribution and procedures on the other? Are we allowed to restrict the constitutional rights of a few (denying the rights of ‘enemy combatants to enemy combatants’ to habeas corpus and a fair trial for example, or the interning of Japanese-American citizens during World War II) that effectively guarantees the rights of far greater numbers to personal security and other freedoms?”

Notice how many possible areas of definition that “good consequences” might cover. And can ‘government’ address all of them and remain in its Constitutional bounds? And can ‘government’ effect a revolution of such magnitude without first putting these huge matters clearly and directly to The People?*

Notice also that in the SO Mania Regime (which, I note again, PRECEDED the ‘terrorism’ matter by more than a decade) it can’t so quickly be accepted the governmental ‘solution’ (the SO Mania Regime itself) can at all be accurate described as “effectively” guaranteeing any such security: there is more than enough serious assessment now that indicates that the SO Mania Regime is NOT contributing to ‘safety’.

So again: Sen’s ideas – put forward constructively to help Shape the economics of a still under-Shaped and still-developing polity in India and the Developing World – have profoundly destructive effects when translated into a civil/criminal legal forum in an already-established and fundamentally Constitutional culture and polity here in the US.

The trick was that the assorted pressure-groups here in the US went to the Beltway and cast their Identities as being pretty much ‘oppressed peoples’ as if they were Third World natives, and thus claimed that since Sen was doing such an impressive job with the oppressed peoples ‘over there’ then he could ‘simply’ be adopted whole-hog over here and the US would then also quickly and easily achieve ‘justice’ for the ‘oppressed’ over here.

And THAT gambit was hugely wrong-headed, both in its Content and in the Method (imposition and ‘spin’) by which the whole scheme would be foisted on The People without ‘wasting time’ for public deliberation and consensus-building. (After all, why bother trying to explain things to the masses who by definition ‘just don’t get it’?)

Freeman quickly notes that “in the event of extreme emergencies we must sacrifice some innocent persons’ rights to save the multitudes”. Yes, and those are difficult decisions and – you would think – thankfully rare.

BUT OF COURSE part of the ‘spin’ gambit was precisely to create an ‘emergency’ (think of all those Victimology ‘studies’ and claims and assertions and ‘statistics’) that actually didn’t exist, in order to create a public stampede and the conceptual ‘dust’ that a stampede raises, clouding everyone’s vision of what’s actually going on.

AND OF COURSE, it wasn’t just one such manufactured ‘emergency’ but an endless wave of them, as more and more pressure-groups saw that the Beltway had cut itself loose from the Reality Principle (or the Truth Principle) and would say Yes to just about any demand made upon it.

And the SO Mania Regime was one of those ‘manufactured emergencies’.

Because, as Freeman soberly reminds readers, “it’s important to maintain a distinction between extreme emergencies and the ordinary circumstances of social life”.

But that ‘distinction’ was and is exactly the speed-bump and firewall that the pressure-groups wanted to break down, and had to break down if they were to succeed in their Alinsky-ite project of bringing about the ‘change’ that they were so sure was a Good Thing.

And the Beltway went along with it.

BUT, Freeman continues soberly, “Sen raises the possibility of abandoning this distinction”. After all, Sen says, who’s to draw the line between “catastrophic moral horrors” and “bad social consequences that are not absolutely catastrophic but still quite nasty”?

Well, of course, in a functioning and long-established representative democracy the answer to Sen’s own question is that the elected representatives of The People – working on the authority of The People but thereby required in prudence to confer with The People – would be the ones to “say”, the ones to draw those distinctions between “catastrophic” emergencies and merely “bad” arrangements.

BUT that’s not how it has worked out over here, where the Beltway quietly decided on its own that it would be in its own interests to merely accept the distinction insisted upon by the pressure groups and then ‘spin’ the consequent policies as merely ‘changes’ and ‘reform’ and ‘progress’ and – anyway – that is was ‘merely’ a ‘response’ to an ‘emergency’.

And the SO Mania Regime is a result of that treacherous and hugely deceitful decision by the Beltway.

Because let’s face it: the ideas underlying the SO Mania Regime are wrong-headed and the policies those ideas would call for were wrong-headed and hugely imprudent … but they would have remained just that – odd and dangerously unripe ‘ideas’ – except that the Beltway embraced them and erected them into national policy and law.

Freeman concludes his thoughts and his review with a philosopher’s observation: that it seems to many folks as if ‘philosophy’ was nothing more than a “luxury” since the effects of this ‘idea’ as opposed to that ‘idea’ take “generations” to become clear. Since the consequences of ideas take so long to clearly manifest, many people – Americans especially, given the impatient and youthy make-up of Our culture – figure that things can be ‘speeded up’ efficiently and without ill consequence.

And surely the Alinsky-ite approach, following the revolutionary approach in which it is rooted, not only has no patience with long stretches of ripening time, but actually considers that such ‘delay’ is merely a failure of nerve and determination to create the revolution’s vision of a Good Thing.

And so We got the Stampede that created the SO Mania Regime.

I took this much time (mine and yours) to note all this in order to give you a wider and deeper awareness of how – as best I can make out – some perfectly respectable (if not totally accurate) ideas of Amartya Sen could wind up being ‘adapted’ in this country with such immediate and lethal consequences as the SO Mania Regime.

Ideas are funny things: if embraced by Authority, they can have huge consequences.

Which is why, as the world and societies become more complex, it is necessary for a People – especially The People of the American Constitutional polity – to become MORE informed and aware, rather than less. It’s not enough to figure that you’ve done your job by electing somebody to the legislature and letting them confer with ‘elites’ and do the things that have to be done.

As the SO community knows full well, and the Framers before them, human beings aren’t suddenly rendered wise and prudent by the mere fact of ‘election’ to office. They can make huge mistakes if not well-grounded and guided by The People upon whose authority they act.

So much remains to be done.

NOTES

*I repeat here what I have mentioned before: in 1972, the year that the Democratic Party declared itself to be the Party of Everthing 'new', it lost the Presidential election 49 states to 1. So if I sometimes sound hard about the responsiblity of The People in this country, I recall here that in the one opportunity The People had to voice their opinion of where things were going, The People rejected it by the largest margin in American electoral history.

I think that one of the great hidden dynamics driving American politics in the past 40 years has precisely been to distract The People so that nobody would remember exactly what The People said so clearly in the election of 1972.

SO SERIES ON NUSSBAUM 5

Well, here We go – the fifth 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.

The Stoic approach to life basically withdrew the human person into her/her own interior self, ‘retreating’ from the world in the ancient classic military sense of compacting your force in order to concentrate it and intensify its power.

The Stoic approach is not a bad way to conceive of conducting a life: there has to be an interior concentration of your powers; they need to be Mastered and then put to good use, constructive and helpful use out in the world. For anybody looking to conduct a life free from sexually offending, this Project is one of the most important to undertake.

It was the human’s interior (they wouldn’t quite say ‘spiritual’ the way We would understand it today) powers that were a) free from the decay of the outside, this-worldly forces of chaos, imperfection, and corruption; b) the truly defining powers that made a human being a human being with human dignity; c) the one area of life in this world where a human being could demonstrate sufficient independence (if s/he wished to exercise it) so as to achieve the best and the most genuine state of being possible to a human.

Your interior powers are you only true powers. They are the expression of the Self. And they Shape the Self by the manner in which they are deployed. Imagine the Self as being Master and Commander and the powers as being the crew. The ship won’t work without both being at the top of their form, working together.

There is a place for the sexual urge – but really it’s just a member of the crew, and can’t be allowed to order the Master and Commander around. If it’s unruly, then the Master’s job is to make it into a working part of the entire crew.

Nussbaum rejects the Stoic vision. For two reasons.

First, she says, those powers “are more dependent on the world than the Stoics maintained. The capacities of thought, ethical selection, and will are undermined by malnutrition, humiliation, and lack of education”. (8-11)

It’s a shrewd and accurate insight, I would say. Humans are indeed deeply intertwined with the ‘world’ around them in which they live, move and have their being. You needn’t posit a God to imagine human beings deeply and dynamically related to the bio-sphere or eco-sphere (not in the ‘Green’ sense but in the broader philosophical sense). Humans are so marvelously intertwined with the rest of the life-world that some would see a marvelousness that strongly suggests a God, but let’s not digress.

But I’d still have to say that there is also something that sets humans apart: We are not simply marvelously intertwined with the rest of the life-world like pine trees or like other mammals. There is more to it because there is more to Us: humans have self-consciousness and will power and all the other amazing things that come with the highly-complex human brain.

And humans also are capable of failing to achieve their potential – although here you get into the huge question of where such failure comes from: within the human or outside the human. And that leads to stuff like assessing responsibility for such failure and figuring out how to ‘change’ that in a human (or leave the individual as-is). And to distinguishing between failure-to-develop and committing-a-crime; and failing to respect others ... or oneself.

Theorists can spend a great deal of time figuring whether a failure of Mastery comes from – or more from – the world around a person or the person him/herself. Just as ship designers and yard-experts can debate about this or that way of fixing a ship. But when it comes right down to it, it’s the Master and Commander who has the responsibility to make the ship work right: vessel, crew, and he himself.

Did the building yard fail somehow? Did something go wrong or work out wrong somewhere along the line? Be that as it may. Now is now and you’re out on the deep and you have to fix the problem as best you can manage. And you strengthen your own capability and authority as Master and Commander by doing so. Your authority over your own self – which is the most valuable and rare authority. And this is not a bad point to begin any self-repair and rework: you’re the Master & Commander; it’s your life and your ‘ship’ and your Mission; and any fixing you can do on your own will increase your Mastery.

So in emphasizing the connection between humans and the world, downplaying the independence of their interiority, Nussbaum is heading into difficult territory. The human is simultaneously extended into the material world but also comprised of some irreducible interior dynamism; erecting a plan, especially one that you want legislated as a national Plan, that somehow ignores or inadequately deals with that interiority … is not in advisable way to proceed.

And for an SO this is an important point to remember: there is a vital life and self principle deep within; it needs to be identified: feel within your many moods and gears and interior sounds and threads – listen to your own internal noises like a sonar operator listening to the ‘deep’ or a radio operator scanning frequencies and listening for something worthwhile (intel types used to call it the ‘alpha stream’) – until you can isolate that deep and Best gear or stream. Then choose purposely only to function in that gear or stream. Then start trying to do that and see what rises from within to distract you from that, what rises from within to wrench you off your ‘best’ gear and out of your ‘best’ self. Then get to work untangling those wires and connections. Just a handy how-to for self-repair.

Her second objection to the Stoics is that “things outside a person’s rational and ethical faculties also matter: health, bodily integrity, the chance to have relationships with friends, family, and children, the conditions of political action, the freedom to worship in one’s own way, and the ability to live on terms of respect and equality with others”. (8-11)

Again, nicely said. But she’s expanding the view of the essential or core human capabilities – the mind and (We might say) the soul, the rational and the ethical or moral – to include a whole bunch of those other things that are certainly nice to have but aren’t traditionally established as defining the core of the human being.

The Stoics wanted to withdraw the human into the fortress or protective and impregnable castle of the self (although not Dark-Age or Medieval in their quality, the ancients had such protective fortresses and walled cities). They did that in order to protect the essence of the human – which seemed somehow to them to be immaterial – from the hurly-burly of the material world, which included many human beings who didn’t seem able or willing to live on the level of their less-material and higher capabilities.

What I’m proposing to SOs is not the plain Stoic approach: it could become too defensive and too static. I’m proposing an active focus on the interior in order to ‘hear’ it, select the ‘best’ self, and then actively concentrate on making that ‘best’ self your interior ‘default’ or ‘primary’ position that you never want to fall out of. You want to get to the point where, like the Chief Engineer of a Starship, you can report that the ship is operating at ’99 percent efficiency’ (or a 110 percent – why not thing big?).

Nussbaum, of course, is not about to admit into her vision any ‘higher’ and immaterial capabilities … they would sound too much like a ‘soul’ or an ‘essence’, and Correct dogma allows neither.

The AA folks talk about a Higher Power. They don’t follow along with that to a Higher Dimension but it’s included in the good thought. An SO can’t afford to live in a ‘flat’, two-dimensional world. After all, his own internal workings need a lot of work and he will need a lot of inspiration and support to do that. Especially if he has to do the rework sort of ‘alone’ (he’s in confinement and there are too few opportunities, or there is the danger of his therapy being ‘recorded and reported’; he can’t afford a civilian therapist even though he is in the world; or there aren’t any competent civilian therapists around … or any of a dozen other difficulties).

And she’s not going to let herself judge whether a person failing to live up to potential is somehow contributing to that failure through a lack of proper will power and intention.

Rather, she will call for the government to guarantee to each individual the possibility of exercising the powers; whether the individual will do his/her share, whether the individual will deliberately choose to not-develop – that’s not Nussbaum’s or the government’s right to judge.

And she’s gone and expanded the range of ‘pre-conditions’ that she considers so essential to the enjoyment of a full human life that they must be considered ‘rights’.

And she will sort of slide away from the Stoic sense of having a responsibility for ‘mastering’ one’s human powers, and slide toward a postmodern (and soooo American) sense of ‘enjoying’ one’s powers.

This is a serious problem in modern American society now: so many folks, many SOs included, seek to ‘enjoy’ themselves rather than to Master&Command themselves. (If you can get a DVD of the film ‘Master & Commander’ I’d recommend it.) But more than many Americans, SOs realize – thanks to all the ‘attention’ and all the dangers – just how difficult and yet necessary it is to Master&Command oneself. Funny how the night moves in these things: your greatest ‘shortcoming’ can become your greatest ‘advantage’. IF you use it well.

With the government thus not responsible for simply keeping a clear and level field for individual humans committed to working their way toward maturity, but rather responsible for providing a large laundry list of pre-conditions and assorted ‘rights’ so that everybody will ‘enjoy’ their powers.

You see the differences starting to develop here. Even as she is trying to build-on the Stoics, she’s taking things in a direction the Stoics no doubt considered, but chose to avoid. Which may be ‘progress’. But also may be making a mistake now that somebody already figured out how to avoid a couple of thousand years ago.

She quickly works in that one of the core human powers is ‘choice’ – the ability to ‘choose’. (8-11)

Well, yes. You have to decide, you have to choose, you have to judge.

But the power to ‘choose’ – which indeed is a power that is tied up with human dignity – relies on the deep and mastered deployment of the core human abilities to reason things out, which is a job of work for any individual.

And reasoning things out is itself dependent on the First Principles that define your world and your own self. It’s like a Starship in ‘Star Trek’: when it’s constructed each ship is programmed with a set of Primary Coordinates – I think they were the coordinates of Earth – upon which, for all of its service life, wherever it goes, that ship will calculate its position. You can’t just go out into deep space and the trackless universe and figure you can ‘choose’ to go in this direction for a while and then in another direction. Such a power to ‘choose’, ungrounded by any Primary Coordinates, is going to get you lost – lost in your own mind’s inability to keep the Big Picture and lost in actual fact: you won’t know where you really are … at least not in relation to your Mission or your Base or your Purpose.

Because where you ‘are’ is itself relative to your Base, as it were. Starships weren’t simply launched and sent out into space never expected to be seen again. If they were going to keep a constructive relationship with their Base, with their mission and purpose, then they had to have those Primary Coordinates. Even when they were exploring, they were doing it for a large purpose: sending the information and knowledge back to Starfleet Command and all that, where the rest of humanity would have a chance to study what you’d found out.

But of course, Nussbaum, true to her ideological First Principles (such as they are) cannot and does not admit that any human has a Purpose or Nature beyond that which – for as long as s/he cares to – s/he chooses to ‘valorize’. And anything so ‘valorized’ would not have a Capital-letter: one can Correctly embrace a purpose but one can never allow any purpose to become a Purpose because that could create a commitment (which would constrict further ‘choice’ that might be made down the road). One commits to responsibility if one wants to, when one wants to, on the terms one wants to , and for only as long as one wants to. And if not, not.

In this regard, any SO who can incorporate that Higher Dimension and Higher Power into his daily vision of how life – certainly his own life – works, is going to be head and shoulders above a lot of ‘normal’ folks who have been insufficiently prepared for life because they have only learned the flat, two-dimensional world of post-modernism.

And if you have a ‘best’ self – as I said above – and that ‘best self’ also corresponds to a Plan for your life that is supported from that Higher Dimension and by that Higher Power … then you are going to feel a lot more motivated about your life’s best possibilities – especially those interior ones. Because now you are in sync with the Universe on a profound level (even though you may have that SO tendency to work through and rework).

And to imagine that one had a Nature is doubly un-Correct. First, because one cannot surrender one’s ‘total autonomy’ to anything that would limit ‘choice’. Second, because if one had a Nature then that Nature might be imagined to be a common Nature – and for humans to have such a thing would constrict autonomy even more.

Radical-feminist identity politics requires that one’s ‘gender’ be the most important aspect of oneself. And if your ‘nature’ or ‘Nature’ somehow defines or shapes your ‘gender’, then you are being oppressed because you ‘total autonomy’ is being circumscribed. Any common ‘human nature’ or ‘human Nature’ is simply a ploy of patriarchal oppression.

In this sense being an SO is also a bit of ‘identity politics’: you are reduced to your psychological or cultural classification (and perhaps your conviction classification): as if you had no deeper or more important Identity. But you are b) a Citizen and a) a Human Being – and no Identity Politics can take that away from you. Those two Identities (add a third: you are yourself) of yours are “inalienable” in just the sense that the Framers meant.

So Nussbaum – as is the whole radical-feminist agenda – is cutting loose from any of the ‘relationships’ upon which humans are so vitally dependent: that relationship to Capital Letter words that represent the non-material high-concepts that will supply Meaning and Purpose to a human life.

In order to keep ‘choice’ as their primary focus, and a ‘choice’ that is unobstructed by anything or anybody else, then they are going to raise up ‘choice’ to Choice, or to ‘total autonomy’ … to do whatever you want.

So long as you don’t hurt anybody else, of course. But I can’t see how a bunch of ships out in space with no Prime Coordinates and no Prime Directive can avoid hurting other ships: and how can a bunch of humans retain their cohesion as a group or community if there is nothing to hold them together except the idea that they can each do whatever they want, whenever they want.

And what does ‘hurt’ mean then? It’s a much deeper concept than simply committing a legally-defined crime – even a violent one – against other humans. ‘Hurt’ is a much deeper and more complex concept (and reality) because humans are: humans are so complex and intertwined that you can ‘hurt’ them without breaking any legal laws or committing what is construed as a crime (especially of violence).

By limiting ‘hurt’ to the types of activity that serve their own agenda, certain Advocates actually wind up thinning out the huge complexity and subtlety of ‘hurt’: the entire common weal and all its members can be ‘hurt’ by the introduction of institutionalized and legalized scapegoating and all the frakkery that goes along with keeping such things going in a society and a culture.

So these envisioned choice-droids that radical-feminist theory wants to turn everybody into … don’t strike me as fully human. Nor will any they have any chance of putting together and holding together a common-weal or a polity whose sinews and bonds will hold it together under pressure and challenge.

But she wants to use the Stoic idea of ‘human dignity’ but then adds to it the idea of ‘human vulnerability’ (8-11): humans have great dignity, but their potentials to fully actualize or achieve that dignity are vulnerable to so many pre-conditioning conditions.

But those pre-conditioning conditions are outside the human; there is no interior struggle in this vision. Rather, in her vision the government is tasked with actively going ahead of all its human citizens like an ice-breaker and keeping the ice out of their way. Or the government is responsible for Shaping and Controlling the national life-world so that all those pre-conditions are and remain favorable to each person/citizen so that each will have “access to a life worthy of human dignity”. (8-11)

It’s an intriguing vision, and not an evil one at all. But it’s going to require a whole lotta government. And the SO comminity realizes just how much government – and not government at its ‘best’ – that this whole scheme requires.

And for a long time, this huge and deep job had been assigned to … God. Not the Greek gods, who really couldn’t have cared less as a rule what happened to humans. But the Judeo-Christian God who was a person (3, perhaps) and cared a very great deal, like a parent for children.

Of course, Nussbaum is doing philosophy here, and not theology. And she is working on a political philosophy that will translate somehow – she hopes – into actual government policy and law.

But in matters human I think that – just like with Starships – you need a set of Prime Coordinates … and if you don’t want to allow them in another dimension (God, say) then you will have to assign something in this dimension to do the job.

Nussbaum wants to assign the task to ‘government’. But that is going to wreak all hell with the Founding idea of a ‘limited government’. But she and the entire radical-feminist Revolution have cast their lot with the Beltway; it is their ‘god’ for all practical (that is to say, political) purposes.

In a way they make an ‘idol’ of government the same way that the Fundamentalists of the Right do: claiming that the government speaks for God and has God’s authority and nobody can ever doubt that.

Idolatry, at this stage of Western civilization, doesn’t strike me as ‘progress’; exactly the opposite.

But you can see why they want to get rid of any rival ‘religion’ and any ‘rival’ god – like, say, God.

And Nussbaum admits it: Her Capabilities Approach “ascribes an important role to government in human life: government is charged with securing for citizens a comprehensive set of necessary conditions for a life worthy of human dignity”. (8-11)

She’s got that right. An organization exercising the role formerly ascribed to God has an ‘important’ set of Shoes to fill indeed.

Whether any earthly entity can – especially if its nature is supposed to be limited … well that’s another question entirely.

She puts her finger on an actual lack in human affairs: humans’ most important abilities – indeed their entire hope for any success and enjoyment in this world – are dependent on forces and dynamics beyond their control.

But Nussbaum wants – decently enough, certainly – to fill this lack by assuming that what an individual cannot do, a government can successfully do for him/her.

I’m not sure she’s thought this thing through.

Because while those powers are somewhat dependent upon the external world, they most surely and indispensably must be developed and wielded by the person, in that interior world. And yet it's precisely here that Nussbaum's vision wants to keep government out of people's lives: they shouldn't have to be 'judged' on what they do with their 'autonomy'. OK, but even people who want to drive motor vehicles or fly aircraft have to submit their achieved skills to 'judgment'.

And while I don't want any government Office of Self-Development Evaluation, still it has to be said that if individuals don't undertake the long hard road to Self-Mastery then nothing at all is going to wind up working. As the songster saith: "You got to walk that lonesome valley; you got to walk it by yourself".

She asserts that these human ‘capabilities’ she discerns, so vulnerable to the world, “need support from the political world”. (8-11) But she has to face it: the “political world” is the US government, the Beltway, an earthly government composed of humans, and probably not Deputized by God to exercise his full authority. And currently running verrrry short of cash, which will be needed to fund the knowledge-and-service society (which will never be able to pay for itself), and now the Capability society as well.

But, she continues, “the political goal” can only be “capability, not functioning”. (9-12) That is to say: the government can only make the conditions ready for individuals to achieve or realize or master or enjoy their Capabilities.

“At that point, the decision whether to take up a given opportunity must be their own. Respect for a person requires not dragooning that person into a particular mode of activity, however desirable it might seem”. (9-12)

But all this government expense and intrusion – assuming that it all doesn’t either wreck the polity or bankrupt the government or both – are thus expended simply so folks can ‘choose’ … what? Not to actualize their Capabilities? To actualize them in ways that will harm others or deprive others of the benefits of mutual contribution and cooperation?

And surely, the government and all of Us are being ‘dragooned’ into supporting this incomprehensibly broad and kind of fuzzy Plan.

But as has been the case for 40 years now, ‘choice’ – broadly and vaguely defined and carried to the ultimate extreme – is the only thing that has to be preserved. Nothing else really matters.
And no human being is simply a choice-bot. It is a grossly inadequate vision of human beings.

And a life with nothing but ‘choice’ is not a life as humans know it or could live in it. And ‘choice’ without any Shaping at all … is kudzu without a trellis: all you’re going to wind up with is a flat but dense jungle, and not a garden.

Which brings things back to the question as to whether any such ‘secular’ society as is being proposed to be imposed upon the country has any possibility of serving as a livable and survivable vessel for Americans or for any humans.

Or whether this whole past 40 years has been as wrackulous an adventure as Vietnam: a Plan insufficiently conceived by elites who figured that they were too big to fail because they were Americans and they were on top of the world. And that American power and brains could never fail, and that American money would never fail.

And here We are.

And so SOs – whether ‘identified’, ‘registered’, incarcerated or under supervision or not – can actually use this whole dangerous situation to advantage by using it as a motivator to do their own ‘self-work’, their own repair-and-rework. That is a ‘choice’ that they can make: to become a Master&Commander by taking responsibility for their lives and the workings of their ‘ship’. And this can be done, as a profoundly necessary beginning, in the privacy of your own ‘self’, on your own ‘quarterdeck’ you might say.

And for the SO community who are not themselves SOs but want to help make this situation better, much can be done; because while I don’t think that much of Nussbaum’s stereotypical ‘progressive’ position (though I don’t think there’s not much ‘progressive’ about it, and a lot that’s ‘regressive’ about it) is going to make it onto Beltway desks, there’s still so much of it that has already been enacted into law and policy, and so much of it that Beltway types and government types on the State level – along with generations of law school grads who are now judges, prosecutors, and pols – have accepted as being ‘just some reform’ or else ‘the best cutting-edge new thinking’.

I imagine the SO community as being something like Anthony Hopkins’ character of Zorro, faced with the character (played by Antonio Banderas) of the young man, still sunk in his own mess, whom he must prepare for great things: “This”, says the older man resignedly, “is going to take a lot of work”.

So much remains to be done.

SO SERIES ON NUSSBAUM 4

Well, here We go – the fourth 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.

Having finished her Introduction, Nussbaum moves on to “Philosophical Elements”. (7-10) Here she is going to assemble the various bits of philosophical insight she has selectively lifted from here and there going all the way back to the beginning of Western thought; she will re-assemble them, re-weaving them into a fabric that can be made to cover her CA vision with the appearances of ancient and long-established wisdom.

She starts off with a hallowed insight of Western thought (that patriarchal and oppressive tradition, you will recall) which will then lead to a useful give-away: “At the heart of the CA”, she intones, “is an idea that it borrows from and shares with most of the world’s great religious traditions: the idea that all human beings are precious, deserving of respect and support, and that the worth of all human beings is equal”. (7-10)

It is, clearly, one of the great and ominous signs of Mania that the country so quickly and thoroughly ignored this when it indulged in the literal construction and inflation of the ‘Sex Offender’ into a being so ‘awful’ that his/her fundamental reality as a human being and a Citizen were so hugely eclipsed. This alone should have given thinking persons great pause, but then I think that especially among the legislative, academic, advocacy, and legal ‘elites’ there was no interest in ‘thinking’ but instead an almost revolutionary obsession with ‘doing’ – as in Get the thing passed and we’ll fix it later.

(Let me take a moment here to advise you of an interesting piece: the always-useful Sex Offender Research site, in a Post dated 7-5-2010, entitled “The Conversation: The Sex Offender Registry”, links to a Forbes article by Forbes Opinion writer Lenore Skenazy; her article is entitled “Shred Your Sex Offender Map”. She, a youngish woman by the looks of her photo, takes the position that the Registries are so crammed with non-dangerous persons that they are mostly useless. And the Comments (97 as of yesterday) are also worthwhile to review: while you get some of the classic ‘I have a right to know who’s living near me’ bits, even they acknowledge that if you are on the lists inappropriately then you should work to change that. But there are substantial numbers of Comments that largely agree with her. Some bright light for your day.)

This is a decent-enough rendering of that profound conceptualization, although with a tweak (and in Nussbaum you always have to watch the tweaks).

All human beings are indeed precious. In the Judeo-Christian tradition this belief would be based in the action of the Creator-God, endowing each human being with a soul, a spiritual element joined to the material and corporeal, Spirit within Matter. Since this soul was created by God and infused – unique to every person – within every human being, then such a belief became a universally reliable Ground for the dignity of each human being and for the entire human species.

Moreover, this Ground was beyond the power of mere humans or their governments to change or abolish. It constituted a Higher Reality, you could say, and thus there was a Higher Law – higher than any merely human-made or government law – to which all humans (and their governments) were subject.

The Framers, living in the Enlightenment, were able to take advantage of a unique Moment in human history: the power of human Reason was growing, reinforced by the beginning of the Scientific and even the Industrial Revolutions, and after the wracking religious wars of the 16th and 17th centuries in Europe, there was a disenchantment with ‘religion’ in the West. But the afterglow of the great Catholic synthesis – developing the universal Ground of human dignity – was still strong, and people still thought in terms of an undeniable and “self-evident” universal Ground.

But the Greeks, long before the great Grounding of the Christian synthesis, had sought to establish this ‘given’ without recourse to religious and theological belief’ – their ‘gods’ were a pretty human bunch, capricious and self-involved, compared to the benevolent God of Justice and Love of the Judeo-Christian vision.

Instead, after careful examination, the Greeks chose the human ability to ‘reason’ as being the unique and awesome capacity that distinguishes humans from all the other beings on the planet. Plato sensed that this power came from some higher and more perfect realm, an Ideal realm* - although there was no loving or just God there.

For centuries in the West, governments, as well as individual humans and their societies, had – in theory at least – to respect the Grounded dignity of the human being. Either they accepted the overtly religious (and spiritual, not quite the same thing) Ground of that dignity, or they had their cake and ate it too by claiming that such a Ground existed in human Reason rather than in the God-sourced ‘soul’.

The kicker there is that with the spiritual or ‘Beyond’ source, a source that is actually a Who, namely God, even governments could not mess with that human dignity. God was literally Beyond the power of governments to command, and had a reputation for punishing those governments as well as individuals who transgressed against the dignity of His beloved human creatures.

But no doubt, trying to figure out even God’s plan and Will is a bit of a job for humans: it’s like Martians trying to figure out humans simply from examining an abandoned spaceship or, say, automobile.

And once the ‘game’ was shifted entirely to this dimension and this world – that human dignity was Grounded not in a God but in human Reasoning – then that opened the door for any humans, and any governments, to come up with their own conceptions and their own visions as to human dignity.

And as governments in the West became more powerful and centralized through the 19th century’s Industrial Revolution and then the wars of the 19th and 20th centuries, then the question became one of a government beginning to act as if it alone were the source of human dignity. Or at least that since government was the most powerful source of authority in a given society or culture or polity, then government got to say what constituted human dignity and could make whatever laws it saw fit to Shape its culture, society, and civilization. But let’s not get ahead of Nussbaum here.

And you can see here where the Feds have perhaps been thoroughly soused with this ‘cutting edge legal theory’ that it is the Federal government, and NOT the Constitution or any visions and convictions that constitute the Framers’ Constitutional ethos, that is the source of whatever rights Citizens have.

Things have gotten to this point in a curious way: I think that 40 years ago the Big Thing was for the Feds to use their authority to expand rights (and surely that is what Nussbaum is trying to do here). BUT somehow – as is the way of things in this world – by admitting that the Feds could do a lot of expanding, it became possible that they could also use that power they theoretically had in order to reduce rights.

And once you have opened up that watertight door, then you risk a flood of Federal reductions in rights, again stemming from the theoretical presumption that rights come not from God nor are they “self-evident” (since the whole Constitution was put together by oppressive patriarchs who saw only what they wanted to see and so their Constitutional vision was ‘tainted’.

But this is precisely where she’s headed: “The tradition from which the U.S. Constitution emerged placed large constraints on government, to be sure, but the tradition was hardly willing to deny a substantial role for government, or even to minimize its presence.” (7-10)

You can sense that while she accepts – at this point in this article of hers – that the American Constitutional tradition is fundamentally concerned with limiting government, it still has – in her terms – “a substantial role”; and that not even the Constitutional tradition was willing – in her suspiciously vague though innocent-sounding phrase – “to minimize its presence”.

She’s heading for open water here, her vision unbounded and hugely expanded over the original Founding vision. Government will play a huge role, perhaps the key role, in her vision.

And in terms of ‘open-ended’ and unbounded and un-boundaried Federal authority and government police-power, you can’t do better than to watch not only the erection of SORNA but then its on-going expansion. And I would say that since these legislators and jurists are operating under the assumption that the Feds (the Beltway) is the source of ‘rights’, then they who give can also take away. Against this belief, facts and studies – such as are becoming more numerous and cogent and clear – are still going to have an uphill battle.

In this regard there are two points I see as significant.

First, having ‘deconstructed’ not only the Beyond-dimension in which the Judeo-Christian Grounded human dignity, but also the Founding vision of the Constitution (especially a government limited in what it can do to Shape the lives of individual Citizens and the life of American society and culture), the ‘Revolutions’ that have been embraced by the Beltway since the late-1960s are now the only Source (not to say Ground) of human dignity and rights: the government can give and take away (just as it did with the South in the first era of the Civil Rights movement).

Second, spear-headed by the Feminist Revolution – supported by the theories of Deconstruction** and Multiculturalism*** - all traditional sources of authority in society and culture are instantly reduced to just ‘opinions’, and probably ‘quaint’ and ‘defective’ and ‘insufficient’ opinions to boot. Thus everything – at even the most fundamental level of societal and national life – is up for grabs, up for ‘reform’.

And when this is applied to Constitutional theory (and Constitutional law) you can quickly see where things can go. And have gone, in many ways. So when Nussbaum is writing here, she’s not just theorizing in some private or academic way; she is putting out a blueprint for where the political and Constitutional ethos of the nation have to go.

And whether she intended it or not, SORNA is a poisoned fruit of this whole thing.

And now there are generations of legal professionals and other ‘elites’ who have been trained in all this. And a sensationalist and shallow journalism that can’t or won’t grasp its significance.

She then makes what I find is one of her most impressive moves, yet also one of the most dangerous.

She rejects the ancient Stoic view that a human being is most importantly a private individual being, whose greatest challenge in life is to develop his/her own interior gifts and – in a non-religious sense – the interior ‘spiritual’ life. (8-11)

The Stoics, unimpressed with the wrack and imperfection of the human dimension and this imperfect world of human affairs, chose instead to locate the great drama and struggle (‘agon’ is the Greek word) within the person of each human being. Without holding out much hope of a life-beyond-death (the Christian insights of redemption and heaven didn’t come to flower until late in the Stoic period – and helped end it), the Stoics still felt that the true dignity of the human being lies in mastering or perfecting – to the extent humanly possible – the interior life, ‘character’ you might say.

Nussbaum, reflecting nicely and respectably the modern Western urge to improve the living conditions for humans in this world, rejects that approach. For the modern approach, especially as it has been developing in the West here for 40 years, the great locus and site of the human drama is not within the individual but rather in conforming the ‘surround’ of the individual, the ‘world’ or the society and culture around the individual, the ‘ethos’ or the ‘milieu’ … in actively and aggressively shaping all of that to expand the individual’s opportunities in this world. (There is no reliable ‘next world’ in the modern view, don’t forget; it’s either a ‘private’ matter or perhaps even doesn’t exist at all except as a sustaining and consoling fantasy for the weak-hearted.)

Human gifts, she says – and not unreasonably – rely for their nurture and development (like so many feminists, she considers ‘mastery’ a ‘masculine’ concept and doesn’t use it often) on the conditions imposed by the world surrounding the individual.

And it is that ‘world’, that society or culture or ‘milieu’ or ‘ethos’ that will determine to great extent the chances any individual (especially those who are minority or oppressed) might have to deploy whatever gifts and strengths s/he has to begin with.

So the focus is not within the human but external to the individual.

(You can see an example of this in, say, efforts to make the world more hospitable to the wheel-chair bound: since lack of transportation and widespread (perhaps natural) human predispositions to value ‘abled’ over ‘disabled’ persons, then a person bound to a wheel-chair faces vast challenges and obstructions to any self-realization or ‘success’, far more than the ‘abled’. Hence the move towards trying to remove both the physical obstructions – curbstones on sidewalks, public transport – while simultaneously re-shaping (through government action) public perceptions and predispositions toward the wheel-chair bound.

(This is a well-intentioned and hardly unworthy plan. But given that the wheel-chair bound constitute a very small percentage (less than 5%) of those legally classifiable as ‘disabled’, and that aggressively changing human perceptions is a hefty and invasive piece of work, and that it is the government that is doing it … you can get a sense of where valid and worthy insights and intentions can lead to all sorts of complications, especially in the American arrangement whereby ‘government’ is limited.)

But Nussbaum represents as well a ‘de-valuing’ of the ancient Stoic priorities of ‘character’ and ‘mastery of self’ and ‘excellence achieved’ … nor am I saying that she herself intends this.

(Although there is this strong ‘external’ emphasis in the Feminist Revolution as it has evolved, downplaying all of the ‘interior’ ‘virtues’ around which Western children were once gathered like vines around a complex trellis, to Shape their growth so that they didn’t simply dissipate their energies growing wildly along the ground like kudzu … there is in all of this a rejection of the Garden and an embrace of the Jungle – so to speak – that was evident as early as the Boomers and perhaps, going further back, to the generation of the 1920s and, in Europe just before World War 1 ‘les Fauves’ – the free-spirit and self-styled ‘Savages’ who rejected ‘civilization’ and ‘manners’ as being artificial restraints upon the essential (as they saw it)’wildness’ of the human spirit.)

Although later on she is going to get to her point about it being a ‘right’ not to be sexually assaulted or to live in fear of sexual assault, I’ll just point out here that for anybody who is tempted along the lines of sexual imposition, especially upon children, these points in regard to interior self-mastery and the dignity of each human being (yourself and all other humans) and the ‘wildness’ of un-mastered human energies … are all excellent points from which to contemplate the pathing of one’s own energies within the ‘ship of self’. If somehow the sexual energies have gotten mis-pathed, such that one is susceptible to letting them flow out ‘wildly’ and in violation of one’s own and another’s human dignity, then there is a lot of quiet repair-and-rework you can start doing.

It makes no difference here whether Nussbaum herself intends this or even whether the Feminist Revolution deliberately intends this (although there is a lot suggesting that the Revolution does). The important fact is that this thrust is implicit in Nussbaum’s vision and if that vision is implemented then this thrust will be implemented along with it, will reveal itself in consequences intended or unintended.

The great and almost unperceived deep-danger here is that in so strongly ‘valorizing’ the ‘external’ there will be a ‘de-valorizing’ of the ‘interior’ – the interior life of the human spirit, of the human struggle for self-mastery and for ‘character’ and for ‘achievement’ and for ‘excellence’.****

And yet Nussbaum’s motivating or initial insight is valid and attractive, and even compelling: persons coming into the world, endowed with such potentials as they have although each is possessed of the dignity of human being, will not be able to even get to first base or even up to the batter’s box if their surrounding world does not allow them to develop their gifts. (The baseball imagery is mine, not Nussbaum’s.)

The huge question – which should become a major element in the nation’s public discourse – must be to figure how the nation (and NOT just ‘the government’) can make best use of these insights without wrecking the Constitutional gift which is – among the governments and governing-systems of the world – one of the greatest enabling gifts that humanity has ever received.

NOTES

*The Platonic thread never ceases to be interesting. Imagine a ‘cup’: no matter of what it is made or how it is decorated or how it is shaped, there is something about a ‘cup’ that humans can identify as a ‘cup’ – as opposed, say, to a bucket or a spoon or a boot being used to convey drinking water. So, said Plato, there is a certain ‘cup-ness’ that every actual cup shares with all other cups in the world. And thus, he went on, there must be an ideal Cup, that exists in a dimension where all the Ideal forms of everything exist, since every inanimate thing or animate being had an Ideal form of which it was a particular example or instance.

Simple but gripping.

And then apply Plato – as he did – to human beings: that there exists somewhere the Ideal Form of a human being, and that all individual human beings are instances of that Ideal Form, each in his or her own way.

See where that takes you.

There are ethical implications: must not each human work with the responsibility to develop him/herself according to that Ideal?

And there are political implications: governments must be judged by how well or ill their laws help or hinder the human responsibility to conform to or develop according to the Ideal.
And there is the inevitable question: what about humans who do not or are not able to develop according to the Ideal? And is there such a thing as a human who is unable (rather than unwilling) to shape his/her life according to the Ideal?

Jefferson talked of a ‘natural aristocracy’ of those born with gifts or the burning desire or character (is that itself a gift rather than an achievement?) to enable them to live ‘in the Ideal’ at a level more advanced than the ‘average’ human.

With these issues you are now getting into the territory that Nussbaum, building on Rawls and Amartya Sen, is operating in.

**Originally a literary theory that saw the ‘authority’ of a ‘text’ as being ephemeral, and upheld instead not the vision of the author of a text, but rather the right of any subsequent reader of that text to make of it what s/he thought best. This rejection of the ‘authority’ of any tradition or original intention of an author – and you can see why – quickly became translated into the political realm, where it could serve as a theoretical underpinning for rejecting any ‘tradition’ or ‘authority’ in the service of letting the ‘reader-individual’ do whatever s/he thought best. You can see where that leads.

***Multiculturalism essentially holds that no culture deserves to have ‘primacy’ in a country, and that every country’s ‘majority’ culture must be watered-down or limited in such a way that all other ‘minority’ cultures get an equal shot at Shaping – or at least keeping their own – civic and civil ‘space’. It has been deployed in (I would say ‘against’) American traditional culture and society for 40 years; to the point where a new immigrant today – unlike in the earlier eras of immigration – would be advised by the Multiculturalist precisely NOT TO assimilate into American culture, but rather to keep his or her own. One curious result of this is the Multiculturalist insistence that fresh immigrants must be continually brought in exactly to prevent any trending toward ‘assimilation’ on the part of other immigrants who have been here long enough to yield to the inertia of ‘assimilating’ into the national culture.

****You can see this is something as seemingly inconsequential as the now-classic San Francisco children’s league softball teams where ‘score’ isn’t kept for fear that the ‘losers’ will lose ‘self-esteem’ and the ‘winners’ will merely think they are better than the losers. But when this is applied to – say – the military, and to the training of generations of officers in the Service Academies … you can see where all this can quickly go.

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.