CAROL GILLIGAN: A BIT MORE

This will be a brief Post, just to follow-up on a thought I had put into the Post on Janet Halley a couple back.

You may recall that I wrote about Carol Gilligan’s 1982 distinction between boys and their ‘ethic of justice’ and girls and their ‘ethic of caring’.

If you don’t recall it, I am reproducing it here and then offer another line of thought about it.

In the Halley Post I wrote:

“In 1982 the psychologist Carol Gilligan wrote the book “In a Different Voice”. She asserted that the moral development of females and males differed. The boys developed an “ethic of justice, predicated on the understanding of human beings as individuated and separate, and on the rule of logic and the rule of law”.

The girls, however, “saw that the world is not made up of separated, self-seeking individuals but rather of interrelations, connections webbing everyone together in communities of concern”; further, that “they made moral decisions not through abstract reasoning from rules but by balancing the infinitesimal and acute needs of everybody concerned” (p69). (Italics mine) This, Gilligan said, is an ‘ethic of caring’.

The boys’ “ethic of justice” was contrasted to the girls’ “ethic of caring”.

THIS, as the kids would say, is HUGE.

If you think you can hear oblique echoes of the Sotomayor confirmation hearings, I think what you have here is the American start of it all.

But more fundamentally, I think what you have here is the dark beating heart of the intensifying Constitutional corrosion that has been going on for decades, for which the Bush Era skullduggery is not a cause or source, but merely a symptom and a result.

If you look at what the boys are doing, you will see the essential philosophy underlying the Constitutional ethos: individual persons, responsible for themselves and their development, responsible as well for their actions, but they will be judged – if such be required – according to the logic of cause and effect and according to the rules of the applicable laws. The government, of course, is as contained in its powers and the responsible use of them as the individual citizens are contained by their responsibilities under the laws.

The girls – in Gilligan’s schematic – entertain a vision that is hell and gone from that. It’s a more maternal (!) approach: whichever baby is crying is to be helped along and soothed, regardless of whether there is a ‘reason’ for it to be crying. It’s a fine approach for dealing with still undeveloped infants still helplessly subject to the waves of their passions and emotions’ they can’t be expected to use their ‘reason’ to self-modulate their emotions.

But a nation is comprised of adults who are responsible. Or should be. Or perhaps must be.
The ‘ethic of caring’ works perfectly well for infants. But the ‘ethic of justice’ is what works for adults. If you’re going to have a Constitutionally envisioned limited government, grounded by a Constitutionally envisioned mature Citizenry.

Any government that is going to appoint itself as the Fixer of All Pain is going to be taking on the role of God and the angels – and will demand that much authority (it can never attain that much wisdom). Bill Clinton’s nifty soundbite – I feel your pain – stems ultimately from this schematic of Gilligan’s, I think.

I think it’s clear here how the ‘ethic of caring’ – when raised to the level of national policy on the highest and most profound levels – is a perfect vehicle to justify the sex-offense laws: the government must ‘protect’ and the best way to do that is to ‘prevent’ – and, bingo, the sex-offense Registration and Notification schemes and the civil-commitment schemes and the residency-restriction schemes and all the rest.

And I hope I don’t have to say it too loudly: I am not ‘un-caring’ and I think that ‘care’ is a profoundly valuable and indeed a vital element in the quality of personal and societal life. Indeed, for anyone who does find him/herself engaging in sex-offenses, this may be an excellent starting point for self-repair: to inflict a genuine sex-offense is clear indication that the offender doesn’t care enough about him/herself as a human being, nor about the victim as a human being.”

Now I want to follow-up on what I wrote.

Gilligan’s observation is an interesting one, and I think it’s quite worth some study. Around the kitchen table or in the domestic, familial, child-raising setting, I think Gilligan accurately depicts what the maternal (not totally determined by the sex of the parent) input and influence is and how it works.

The maternal or 'care' approach is that the first priority is to help the kid(s) master emotions and feel accepted and ‘listened to’. Matters of ‘reason’ and ‘justice’ are secondary, not least because a child doesn’t yet have the fully-developed brain-parts that can process ‘abstractions’.

Postponement of gratification, impulse control, and self-sacrifice are not immediately available to humans in their young stages, and cannot be presumed.

So the 'care approach' exercises a somewhat arbitrary and absolute authority – although ideally in a non-repressive way – in order to help the tyke)(s) through this storm of emotion. This is perfectly appropriate and necessary when dealing with tykes and such ‘parental authority’ is in this context not only appropriately exercised but also absolutely necessary if tykes are to have any chance at growing into a genuine and effective maturity.

But now, in the public setting, things get more complicated, and hugely so.

In the American Constitutional vision you cannot have a government exercising the arbitrary omnipotence that a parent naturally and necessarily enjoys over the tykes. In the Framers’ vision, no government – composed of human beings (male or female) – can be allowed to possess that much authority. Human beings cannot be trusted with it on such a large and powerful scale.

Thus the ‘ethic of caring’ – quite accurately described by Gilligan – cannot be transferred from the kitchen table to the legislative and governance forum, from child-raising to public affairs. Because then you wind up with a Nanny State, as it were. And you can see how easily a National Nanny State (NNS) trends necessarily to an anti-Constitutional mode of governance. And the NNS does so just as quickly and surely as the more widely acknowledged National Security State (NSS).

Gilligan’s ‘male’ ethic was cartoonishly taken up as a clear sign of what was ‘wrong’, and her ‘female’ ethic was touted as a sign of what was always right but for so long repressed. Cartoons require a certain mature reading in order to be constructive; otherwise folks simply get their yuks and think that they ‘know’ something that – really – they don’t.

Of course, given the need of certain Identity advocacies to ‘deconstruct’ the political and cultural authority of ‘the family’ – among other deep and dense societal and cultural institutions – then this ‘maternal’ role was cheeribly transferred to the government (and to the criminal law). This was one of those sleights-of-thought that occurred in ominous numbers during the decades – especially the 1980s and 1990s – that many Identity advocacies are now touting as their salad days and the days of their greatest influence, success, and ‘victory’.

And as I’ve said, the Perfect Storm synergy was comprised of several interacting dynamics: the desire of certain Identity Advocacies to replace long-standing cultural institutions and ways of looking at things; the eagerness of first the Democrats and then also the Republicans to get and keep new ‘demographics’; the traditional American optimism about the ‘change’ always being positive and without-downsides or consequences; and the aura (or miasm) of ‘urgency’ and ‘emergency’ that was created by a far too shrewd PR campaign waged by the hired guns and committed ‘advocates’ of both the ‘liberal’ and ‘progressive’ Left and the ‘conservative’ law-and-order Right.

And, in a dark neatness, the decreasing status and authority and competence of ‘the family’ and of ‘marriage’ and of ‘adulthood’ and ‘maturity’ did indeed start producing very large numbers of under-raised children who entered chronological adulthood inadequately prepared to exercise adult and Citizen responsibilities. (I would say that this is the most prevalent and lethal form of ‘child abuse’ in the country at this point, and has been now for so long that many of the children thus abused are now well into chronological adulthood but genuinely ‘unripe’ – now am I trying here to ‘blame the victim’.)

The mainstream media, of course, were happy for a melodramatic script that was guaranteed to attract viewers and last a reliably long time (sort of like the later Long War(s) in Southwest Asia).

I think it’s clear that the Constitutional vision and ethos cannot survive without a mature Citizenry. Which means that each individual Citizen (or as many as possible) must have reached a certain level of adult maturity in order to participate in the People-wide task of governing the government.

And that this maturity would include that ‘abstract’ justice described by Gilligan as an ‘ethic of justice’. That ethic is not a ‘boys’ or ‘male’ ethic; it is a mature adult ethic suited for and required when mature adults govern themselves and interact among each other. The ‘ethic of caring’ is appropriately deployed in the family setting when raising tykes who by very definition are not yet adults able to exercise the active responsibilities of Citizens.

I am not at all suggesting that mature adults should not ‘care’. But I am saying that the primary ground-rule and frame for envisioning and conducting public affairs and ensuring the common weal has to be an ‘ethic of justice’ (which, as I said, is not just a ‘guy thing’ but is rather an ‘adult’ thing required of both sexes).

No government can be allowed to have and exercise the type of arbitrary authority that the ‘ethic of caring’ requires. Indeed, in the ‘ethic of caring’, the parent acts very much as the old 18th century ‘benevolent despot’ – and you may recall that the Framers specifically rejected such a form of government, realizing that human beings are far too flawed as a species to presume that a wise and benevolent despot would always be available – and elected – to important government office.

So you can see that – intended or not – much of what has passed for ‘change’ and ‘reform’ in the past few decades is really a) old stuff already rejected by the Framers and b) in its essence anti-Constitutional.

The Nanny State requires - not to put too fine a point on it - 'children', not Citizens. And 'victims' as well, as things have evolved over the past decades. This cannot end well for any society or nation - and I think you can see where so much has gone wrong in the past decades because the government has treated Americans like children and the Americans have - not to put too fine a point on it - accepted that role and that identity. Oy.

And from this purportedly ‘benevolently despotic’ Nanny government has flowed ‘preventive law’ and ‘risk-averse governance’ and the assorted Constitutional deformities – sex offense laws being only the most recent and egregious – that precisely presume – without daring to say so – that a) ‘the government’ can be trusted to exercise such despotic police powers wisely and that b) the ‘emergency’ doesn’t really allow Us to ask whether it can or it can’t, should or shouldn’t – but rather ‘we just have to do it’ or else ‘we just don’t get it’.

That sort of thing.

So again, this is what I think is going on and what is at stake in the work to roll back these SO laws. In rolling them back, We are also rolling back the profoundly anti-Constitutional trend that has gripped the nation for several long and frakked decades.*

NOTES

*As if the Constitutional threats posed by the National Security State aren’t bad enough.

ADDENDUM

I’ve located the text of the International Violence Against Women Act and I’ll have a few thoughts in my next Post.

JANET HALLEY: TAKE A BREAK FROM FEMINISM

(I Posted this on my other site, but here I’ll make a few more SO-specific comments. My comments here will be in italics.)

I just read the 2006 book “Split Decisions” by Janet Halley, a professor at Harvard Law School.

I try to keep up with feminist thinking, as you can tell from prior Posts. Feminism has been one of the most substantial influences on the way things have gone in the country these past few decades (the Biblical 40 years and heading toward half-a-century, now) and since it mostly receives a very Politically Correct kid-glove treatment in the mainstream media, it seems to me that it needs a much more careful and not so cream-puffy an examination.

The subtitle caught my eye: ‘How and Why to Take a Break from Feminism’. Now that, I thought, is something you don’t see every day. Especially from an established and prestigiously placed feminist and female author.

It’s never been my position that women (not to be equated with feminists, nor vice versa) should be considered nothing more than the docile herd in the deerpark of male sexual conquests, nor do I hold any brief for males who define themselves, their lives, and their ‘success’ in terms of sexual conquests, especially violent ones. Such a habitus does no good for the maturational prospects of any male, as well as harming any female who comes within range.

So I read the book last night and have a few thoughts. This is not a formal review, of course, so I’m only covering the thoughts that strike me. I’ll give page numbers from the text* when I quote a major point.

She quotes a couple of feminist slogans: “I’ll see it when I believe it” and “I’ll see it when I can theorize it” (p3). These seem to refer to the valid enough epistemological insight that if you don’t have a category for something, you may well not even notice it.

It’s not a bad insight. I recall when I first heard an electronic siren (the whoo-whoo, woop-woop) that began to replace the old mechanical sirens (that sounded like smaller versions of the air-raid sirens of World War 2): I didn’t hear it at first, but rather I felt it – I realized after a bit that my eardrums seemed to be vibrating. Focusing on that odd sensation, it was only then that I realized that something was making a noise, and it turned out to be the local fire chief, whose 1960 Pontiac was coming up the street with its red bubble revolving and this strange contraption on the roof apparently making the noise. The chief was having a hard time moving along, since most drivers didn’t seem to realize what his cutting-edge, state of the art, new-fangled siren was (long before the end of the decade, all Americans who watched the TV news came to know the sound very well).

I didn’t have a mental file for that sound, so I actually didn’t hear it – I only felt its effects (on my poor eardrums). But after that I had a file and I heard them for what they were. That’s epistemology for you.

At the same time, though, I hadn’t studied meteorology and knew what thunder was, so some stuff seems to come almost pre-loaded in the human brain, or it’s learned so early – before the capacity for self-awareness is fully operational – that it seems like you’ve known it all along.

But that part about ‘theorizing’ adds an extra layer of complication: it’s one thing to encounter a strange new machine and put together for yourself what the thing does. It’s a different level of life’s Vulcan chess game to interpret for yourself what an idea or a ‘concept’ is and what it’s all about and what it does. And then to assume that your take on that idea or concept (not physically real like the machine) is the full and accurate take to be had about the thing. And then another step to assume that other folks should agree with you. And then another step to assume that if they don’t, then they just don’t get it and need to made to agree with you.

You see where these things can go. As Bilbo tells Frodo there in Bag End, taking a single step outside your door is a momentous and freighted thing: you never can tell where the Road will take you. (Did you think it was just a movie or just a fiction?)

Halley mentions “the thrill of liberation from the self”, which I think she is defining when she goes on to say “the complexly constituted erotic self”. I can’t be comfortable with any implication that the self – the marvelous human self – can be reduced to its (admittedly complex) sexual aspects and potentials. If for no other reason, I think that the Framers imagined a Constitution that would provide a framework for the political affairs of a citizenry who were indeed individuals who were – according to their individual gifts and lights – efficaciously committed to maturing the self that each of them possessed, thus then coming together to deliberate about their public affairs, thus both grounding and holding accountable the government that the Framers were oh-so-carefully limiting and structuring through the actual Constitution.

If no complex, dynamically maturing Citizens, then no way that the Constitutional machine itself could keep going; like a Ferris wheel (not invented, I agree, at the time of the Framers) that required struts to keep it solidly and stably anchored if it were to perform its marvelous movement.

In the Constitutional vision, The People is/are the struts that hold the great machine up and also anchor it against the various momentums of its own movements. Otherwise you get the vivid result so neatly imagined by Steven Spielberg in his 1978 film “1941”, where the Ferris wheel, shot free from its struts, rolls drunkenly along a pier and over the edge into the sea. You might have realized the same sensation yourself in recent years, watching national policy and the Beltway careen ever more drunkenly. There is an edge out there, ahead of Us, somewhere.

In order to be credibly feminist, any approach has to accept the following stipulations, says Halley: a) that there is a distinction between male and female; b) that the female is subordinated to the male; c) that opposition to that subordination is required (p17).

I can see that and I can accept it as an approach to construing American civic life. I would be verrry uncomfortable if the primary unity, the core identity, of Americans as Americans, was subordinated to that, however. If for no other reason than the threat posed to the integrity of The People in the vital role of holding up and holding steady the great machine of the Constitutional arrangement.

Once ‘gender’ (or any other aspect of anyone’s complex identity) functionally replaces ‘American’ as the most important definition, then for the most fundamental political purposes at least, We in a heepa trubble.

And if a theory insists that “subordinated sexuality” is the most important and immediate aspect of fully one-half of the Citizenry’s identity, then not only as individuals but as a Citizenry We are taking a mighty limited view of Ourselves, as human beings and as a People. And there will be consequences, just as surely as deconstructing the struts on a Ferris wheel will yield rather inevitable consequences.

And you can see here how the almost complete reduction of civic matters to one of ‘sex’ starts a trajectory toward the SO-mania and its matrix of laws.

Haley muses that by the early 1980s much feminist theorizing – not all of it congruent and easily meshed – had already been done. But then three things happened: a) AIDS; b) ‘power feminism’s’** determination to focus on domestic violence and sexual violence; c) postmodernism (p28).

About (a) I simply note that a thoroughly ‘liberated’ (which is to say unlimited and un-Shaped) sexual range can have profound, even if unintended consequences – although the effects on the maturity and genuine human development of the individual are, though less obvious, even worse than the disease itself.

About (b) I would note that in that same decade of the 1990s that Halley will call “the decade par excellence of governance feminism”*** (p32) this country adopted a host of police-state tactics, including registries (domestic violence and sex offense), arrest without warrant on the simple say-so of another citizen (domestic violence), special courts (domestic violence), and the widespread government-sponsored certification of an entire group of citizens as incorrigible and recidivist monstrosities (sex offense) that allegedly required not only extensive police monitoring but widespread public notification (sex offense).

I would also note that the Constitutional difficulties with the sex-offense laws have increased exponentially, rather than declined, in the two decades since their inception and now include traditionally conservative elements such as the Cato Institute and the actual State governments and police agencies themselves.

This can hardly be an unintended consequence when so much of feminist thought considers “male sexuality to be a vast social problem” (p27). Or, as Lacanian linguistic theory would put it: all of a sudden, almost one-half of the Citizenry of this nation were, in the blink of an eye, and with the politicos' eager support, 'problematized'. Now that is something you haven't seen too often in human history, and that's probably not just coincidence: governments and nations who embark on such a path aren't going to last too long. Or, as one dead white male has put it, echoing some other dead white male: "a house divided against itself cannot stand".

It is also a recipe for profound public, civic, political damage, when – especially with the connivance of the elected officials of the government – almost one half of the nation’s citizens are conceived of as a vast social problem almost overnight. It reminds one of the sudden Soviet attitude and policy toward the Kulaks; but more relevantly to a democracy, it clearly promises to rend the polity jaggedly and profoundly.

You find yourself asking: what democratic government in its right mind would undertake to support such a program? And so enthusiastically? And, of course, having once fractured The People so profoundly, the limits on overweening government built into the Constitutional ethos are themselves effectively fractured as well. As We have been seeing of late.

The idea of governance feminism, it seems to me, was that feminist Theory had to be taken out of the classroom and chatroom and organized into a political pressure that would insist on Theory-friendly changes to American law and jurisprudence. The Democrats were the first to get on-board, since the whole thing had started out as a matter of ‘liberation’ and ‘empowerment’ and as far back as the late Sixties the Democrats had – in a certain amount of desperation (Vietnam, the unexpectedly rackety turn of the post-1966 black civil rights movement) – realized the voter-demographic potential of ‘women’. And of course by ‘women’ I mean and the feminists meant ‘the advocacy of feminist Theory’ as applied through vigorous political pressure on the elected officials.

About (c) Halley herself describes postmodernism’s “anti-foundational, libertine, irrationalist, anti-moralistic” elements (p29). How could it escape anybody that such a caustic dissolvent would most likely corrode much of the machinery and the struts of the Constitution? Would most likely corrode and even corrupt the maturity and civic competence of the individual Citizens themselves?

Such a ‘deconstruction’ of the fundamental principles and ethos of Constitutional and traditional American social, cultural, and even legal practice cleared the path for the flood of sex-offense laws (although the path was already forged by much of the domestic-violence matrix as well). It’s as if they set a wildfire which destroyed the trees, and thus left the ground open for huge mudslides because there were not trees to inhibit the flow of water when the rains came.

Halley reports herself “happy” that governance feminism made certain problems “visible” and showed “reality” while “making life better, even if marginally – for women” (p32). About the Constitutional ramifications, and the ramifications for many individuals – most of them males - ever more intensely coming to light, Halley has nothing to say, nor is there even an entry for ‘Constitution’ in a comprehensive Index at the back of the book. Which, as I have been saying recently, is one of the gravest problems with the entire feminist enterprise as it has been embraced and fulfilled by government policy, regulation, and – oy – criminal law.

It sort of stuns that there are very sizable and influential groups in this country who see the 1990s (the domestic violence laws and then the sex-offense mania and its laws) as pretty much a ‘success’ as well – even more disturbingly – as a ‘victory’ and a ‘vanquishing’. We are talking about American citizens here. Aya Gruber’s article reviewed in one of my recent Posts speaks to this as well: the feminists deciding for political tactical reasons to cast in their lot with the law-and-order, criminalize-everything interests who were no more ‘conservative’ than the governance feminists were ‘liberal’.

She quotes admiringly Catharine MacKinnon, early theorizer and icon of in-your-face feminism (although Halley quickly notes that MacKinnon has a mellower later phase as well): “My consciousness is true, yours is false, never mind why”(p44). This is quickly followed by a second bon mot: “I know I’m right because it feels right to me, never mind why”.

This sort of assertion became acceptable as ‘evidence’, and worse, as ‘evidence’ that could not be questioned without ‘re-injuring’ the person who made the assertion. In a way too, I think this goes some way toward explaining what Wayne Logan has observed to be the SO mania’s imperviousness to the true and actual facts about such myths as ‘sex offender recidivism’ and ‘stranger-danger’ (you can see a nice list of myths on the Constitutional Fights site by the new group WAR (Women Against the Registry). The legislators who passed these things hold the radical feminist position ‘Never Mind Why’ – which is, I would say, a powerful reason to question the conceptual integrity of the legislators and jurists who continue, even in the face of mounting evidence, to support them.

As the Brits would say: So there it is then. In the proverbial nutshell. Never mind why. How carry on a democratic politics, how conduct any sort of civil or civic discussion at all? Nor is it enough to say that this is from her ‘early’ period and perhaps later disowned, modified, or de-emphasized; this was the type of stuff that overran such conceptual and intellectual defenses as the Beltway in the Reagan era might have mustered.

It’s a sign of precisely the approach – Never Mind Why – that has resulted in the destruction of a politics (or political class) based on deliberation and gravitas, and the erection (as it were) of a politics (and political class) of emotional assertion and thorough-going anti-intellectualism. Let’s not think that Rush Limbaugh is purely a product of the Right; the launch skids were greased for that behemoth by MacKinnon and her brassy and cocky (as it were) sistern (male and female).

The media lapped it up like catnip.

And this goes a great way toward explaining that jaw-dropping media moment in the now infamous Duke Lacrosse gang-rape when, as the prosecutor's case started to cave in by the chunkful, almost one hundred of the faculty stated officially to the media that "facts don't matter". The Theory had convicted these 'males', these 'men', and - as Goebbels was fond of telling the German people, "that's all you need to know".

It was MacKinnon’s insight to “use the law to resist male domination” (p56). Now male domination, except in the most overt cases of rape, is something that – in feminism’s own schematic – you have to believe in and theorize in order to ‘see’. Something so deep – if it is, and subtle – as it apparently is, and long-lived – as it is claimed to be … something that complex is not something against which any rational government deploys the short, sharp, blunt-edged tool of the criminal law. But again … the Beltway did. And is still doing.

Which is not to say that ‘male domination’ doesn’t exist. But granted that it does, in some form, and to some extent rather short of ‘total’, then it was going to take some careful and extensive deliberation to get to work on it. Which is neither the European revolutionary way, nor the impatient attention-challenged American way – and the feminists had drunk deeply from both tainted wells. Enter then the vote-addled Democrats, certain that the female demographic was too frakking big to lose and that the ‘white industrial male’ demographic was most certainly going the way of the dodo, courtesy of the corporate biggies who were paying handsomely into the Beltway’s PACs for the privilege of ‘outsourcing’ as fast as they could line up cheap labor in the paddies, fields, and backstreets of the Third World. Those were the days.

In short, MacKinnon’s plan – espoused by the vote-addled politicos – was to “use law to undo gender” (p56). Once again, it may seem strange that a democratic and Constitutionally-limited government would seek to deploy its carefully constrained authority in order to undo with Law what millennia of human history, tradition, and experience indicated might be a substantial human reality, but as it worked its way through the Looking-Glass the Beltway lost track of just what ‘strange’ might be. Which was the plan; it was Incorrect to be judgmental and categorize things, especially in an insensitive and negative way. Those were the days.

Cultural feminism holds, in Halley’s taxonomy, that “women have a distinct consciousness and/or culture”, although then this consciousness might derive either from their biological situation or from “their historical oppression by men” (p58). Which leaves a lot of blank space to be filled in on the map.

Halley uses an interesting and useful example: imagine that women make good mothers. An ‘essentialist’ analysis would say that women are naturally maternal, while a ‘social constructivist’ analysis would say that men made women do all the mothering so they just sort of got good at it. When last I got a memo on the subject, you could lose your job or wind up in front of some sort of adjudication if you proposed that the former might well be the case (although one never gets all the memos in an ongoing revolution that bids fair to become permanent … sort of like wars that are forecast to last generations – although I don’t think that anybody planned the Hundred Years War with that particular timeframe in mind).

As I’ve said before, from everything known about Evolution, its Modus Operandi – verrry well established – is to provide deeply for the most important purposes. So, in something as primary as the reproductive survival of the species, and in a species that has the largest relative brain of all the animal kingdom and takes the longest time to mature to full brain potency, then the big E would probably want to ensure steady and reliable care. It would ensure that by preparing the child-bearer as deeply and complexly as possible. And perhaps the lumpish Fred Flintstones of the earliest hominid communities realized exactly what Wilma seemed to be able to do with kids; perhaps they weren’t such cartoon characters as they have been made out to be.

To imagine Evolution looking at both the male and the female adults of the species and merely dismissively waving its hand in a Yeah, Whatevvvvverrrrrr sorta way … I don’t think so. Evolution, unlike Americans nowadays, doesn’t just wave its hand dismissively and leave it up to Whaaateverrrr. It takes steps – verrrry specific steps. I’m jus’ sayin’.

Halley quotes Robin West, author if 1997’s “Caring for Justice” and, Halley opines, “one of the legal academy’s most articulate and theoretically astute cultural feminists”: “There is such a thing as patriarchy - ‘the social system when men’s interests trump women’s whenever they conflict’ – … [and] no society is utterly free of it, even this one ” (p60).

Which says a lot less than it looks like it’s saying. No society is utterly free of anything, and surely the contention that America is one of the most horribly patriarchal of them all has become gospel (you should pardon the expression) among American elites and among all those kiddies whose parents have recently shelled out two-hundred and fifty large for a first-rate education.

But according to this theory, feminism is also “an irrepressible human reality” – which kind of jars since the last memo I saw was to the effect that the afore-mentioned patriarchy had repressed it all since just a few minutes after the beginning of recorded human history. So it leaves you wondering how an irrepressible human reality was so repressible for so long and more or less so thoroughly. I’m jus’ sayin’. Is it at all possible that it was so repressible from the get-go since even the most benighted cave-folk got the impression that to the best of their observation that’s the way things worked best for the species?

Which is not to say that therefore the world should go back to the cave (although you could say that most of it has never left Plato’s Cave, but let me not digress). But it is to say that if something has been chugging along since about the beginning of human history then you might not want to just haul off and rip it out by the roots on the basis of the most trendy theories, no matter how forcefully asserted. Some serious deliberative thought might be in order. It’s not as if it were as clear as, say, the blatant injustice of the old Jim Crow laws.

Further, for MacKinnon – who was riding pretty high in elite circles during the 1980s – male domination was not a “moral” issue (p61). I take this to mean that it was not a matter of individual males acting illegally or immorally; rather, the thing should be seen as a deep-seated gender-wide issue that required the hammer and sickle of the Law, as hefty and robust as the Beltway could wield them. The hammer and sickle, that is to say, to be struck at the roots of the male sex as a class – which has more than a vaguely Commie ring to it. (Funny, that as the Soviets and their ideas and their political system were lurching toward utter implosion and dissolution ‘over there’ their illuminations were being taken up as the new gospel ‘over here’ – funny, funny, funny).

MacKinnon is here engaging in the old Soviet gambit of raising up a ‘class enemy’ against whom the State, in its righteous defense of ‘the masses’ may deploy whatever hostile actions it wishes to. The Kulaks – successful farmers, though no doubt some individuals engaged in some sharp practice against the peasants – were not considered individually as criminals, but rather as a criminal class and an ‘enemy of the people’.

Of course there are radical branches of feminist Theory that do indeed see ‘men’ and ‘male sexuality’ and ‘male dominance’ as conceptually wrong and oppressive, such that any and every male and all males together can always be assumed to be ‘enemies’ of women’s interests and freedom. They hew even more closely to the Soviet playbook.

In which case the domestic-violence and sex-offense laws are the righteous war of the ‘people’ and their government against the ‘class’ (in this case sex or gender) enemy’. And as always, such revolutionary ideology has never been susceptible to any sort of proof to the contrary or even any evidence. It is the Theory itself that has convicted the ‘class enemy’ and facts would merely get in the way. So from a Soviet point of view, Never Mind Why is not only acceptable but even required. And to allow yourself to be distracted by facts makes you yourself an enemy of the revolution.

Women, it was said – and I am not in complete disagreement with this – were not simply discriminated against but were “subordinated” and “undervalued” (p62).

Personally, I think – and this is hardly original, I agree – that one of the greatest candidates for the term ‘original sinfulness’ is the perennial human tendency to undervalue the human species in all its powerful and marvelous potential. This is truly a profound and abiding human tragedy, and the seedbed of catastrophes great and small; nor is each small or individual instance of it any less significant merely because of its ‘small’, ‘individual’ site. A human being, truly, is a terrible thing to waste. And, I believe, the entire species pays for such losses.

There are, it is said – and no doubt this was impressed upon the less-then-profound politicos – two diametric sexes, and they are set against each other, and that is absolutely the fundamental human (and political) reality; there are “gendered harms” (p63) that women suffer and men, precisely, do not. And it is the government’s responsibility – the politicos were told in season and out of season – to fix that.

About harms males may suffer for being male, and the trials and tribulations of being a ‘man’ in this world, nothing is said. Which is in a way as it should be – feminism is an advocacy after all, and you expect an advocacy to speak highly and vividly about its clients’ concerns. But all of this has been presented – over the past few decades – not as an advocacy position looking for some purchase on the political ground, but rather as the hugest and most awful discovery ever to be made in the history of the species. Intellectual hubris or P.T. Barnum exaggeration or a shrewd Goebbelsian shot in the air that will spark a public stampede (and a stampede among the halls of the government) … you can take your pick as to the relative proportions of each in the recipe.

And of course, following the Soviet playbook, this is an advocacy that needs ‘an enemy’ in order to establish itself and mobilize its supporters. The Movement itself, like the Red Revolution (at least until Stalin got rid of all the dissenting revolutionaries who disagreed with his interpretation of the revolution) needed ‘enemies’ in order to distract people from the incoherence and incompatibility of its many assertions and claims.

West is continued: “Virtuous sexuality is feminine sexuality and it has a decidedly infantile, lesbian, and caring shape” (p64). This foregoing is asserted proudly. The theory, it seems, is that young girls develop a deep love for older women in their lives (their mothers, one imagines, first of all) but are too soon ripped away from that caring and nurturing experience in order to define themselves by and conform themselves to their roles in the domination-subordination script imposed by patriarchy as an established concept and by sex-crazed, thoughtlessly assertive and violently aggressive ‘men’.

And once again, one wonders: sure, it’s a theory and deserves a careful look, but would any democratic government in its right mind simply throw the weight of its authority, prestige, and the consensus of its very legitimacy behind such a vision? No wonder that even after Bush the Egregious frakked up the economy and started two losing wars, the Democrats were just able to squeak by in the last presidential election.

There are a lot of people in the country, I think, who are not happy with the sex-offense situation as it is evolving, just as there were many who probably voted Republican not because they are imperialist running-dogs and jingo-crazed super-patriots but simply because they are deeply uneasy with where the Democrats are taking things.

Halley will quote the feminist writer Adrienne Rich who posits “a redemptive, feminist, intrinsically lesbian sexuality”, even “infinitely redemptive” (p64). And another feminist writer, Ellen Bass, who posits the “redeemed sexuality of the original desire” (meaning the original attraction of the young girl to the older female). Is it just me or am I right in thinking that if this statement were about males, then such an assertion would bring you dangerously close to the NAMBLA position?

And I’m still not in agreement that ‘sex’ and the having of it somehow constitutes the essence of being human and the epitome of human achievement, self-awareness and self-definition. Where would We be if Homer and Dante and Michelangelo and Theresa of Avila and Elizabeth I**** followed such a philosophy of self and of the human? Of course there was Catherine the Great (the empress, not the feminist philosopher) … but her mark on history was not as great as the possibilities of her position might have provided, and there was that stuff about the Guardsmen … and something about a horse.

Sex in and of itself doesn’t and can’t ‘redeem’ a life. It has its occasional highs and its pleasures, of course, but except in a kid's idea of the world you can’t build and conduct a life – and a self – on such a narrow and limited basis.

But now Halley gets to some material that I think contains crucial information, relevant to the situation the country faces today.

In 1982 the psychologist Carol Gilligan wrote the book “In a Different Voice”. She asserted that the moral development of females and males differed. The boys developed an “ethic of justice, predicated on the understanding of human beings as individuated and separate, and on the rule of logic and the rule of law”.

The girls, however, “saw that the world is not made up of separated, self-seeking individuals but rather of interrelations, connections webbing everyone together in communities of concern”; further, that “they made moral decisions not through abstract reasoning from rules but by balancing the infinitesimal and acute needs of everybody concerned” (p69). (Italics mine) This, Gilligan said, is an ‘ethic of caring’.

The boys’ “ethic of justice” was contrasted to the girls’ “ethic of caring”.

THIS, as the kids would say, is HUGE.

If you think you can hear oblique echoes of the Sotomayor confirmation hearings, I think what you have here is the American start of it all.

But more fundamentally, I think what you have here is the dark beating heart of the intensifying Constitutional corrosion that has been going on for decades, for which the Bush Era skullduggery is not a cause or source, but merely a symptom and a result.

If you look at what the boys are doing, you will see the essential philosophy underlying the Constitutional ethos: individual persons, responsible for themselves and their development, responsible as well for their actions, but they will be judged – if such be required – according to the logic of cause and effect and according to the rules of the applicable laws. The government, of course, is as contained in its powers and the responsible use of them as the individual citizens are contained by their responsibilities under the laws.

The girls – in Gilligan’s schematic – entertain a vision that is hell and gone from that. It’s a more maternal (!) approach: whichever baby is crying is to be helped along and soothed, regardless of whether there is a ‘reason’ for it to be crying. It’s a fine approach for dealing with still undeveloped infants still helplessly subject to the waves of their passions and emotions’ they can’t be expected to use their ‘reason’ to self-modulate their emotions.

But a nation is comprised of adults who are responsible. Or should be. Or perhaps must be.

The ‘ethic of caring’ works perfectly well for infants. But the ‘ethic of justice’ is what works for adults. If you’re going to have a Constitutionally envisioned limited government, grounded by a Constitutionally envisioned mature Citizenry.

Any government that is going to appoint itself as the Fixer of All Pain is going to be taking on the role of God and the angels – and will demand that much authority (it can never attain that much wisdom). Bill Clinton’s nifty soundbite – I feel your pain – stems ultimately from this schematic of Gilligan’s, I think.

I think it’s clear here how the ‘ethic of caring’ – when raised to the level of national policy on the highest and most profound levels – is a perfect vehicle to justify the sex-offense laws: the government must ‘protect’ and the best way to do that is to ‘prevent’ – and, bingo, the sex-offense Registration and Notification schemes and the civil-commitment schemes and the residency-restriction schemes and all the rest.

And I hope I don’t have to say it too loudly: I am not ‘un-caring’ and I think that ‘care’ is a profoundly valuable and indeed a vital element in the quality of personal and societal life. Indeed, for anyone who does find him/herself engaging in sex-offenses, this may be an excellent starting point for self-repair: to inflict a genuine sex-offense is clear indication that the offender doesn’t care enough about him/herself as a human being, nor about the victim as a human being.

It seems to me that Bush the Egregious merely took advantage of the Constitutional deformities already enshrined by the Left’s reputedly liberal emotionalism, applied it to the emotional situation created by 9-11, and the rest is history – although a history still bursting even now.

And his puppet Attorney General, Gonzales, surely was not intelligent enough or observant enough to declare the Constitution “quaint”. I would say that the Constitution was rendered unworkable the moment a quarter century or so ago when Gilligan’s ‘ethics of care’ began to gain traction inside the Beltway and in the law schools (whence prosecutors, US Attorneys, politicians, and judges of all ranks have now sprung).

Halley doesn’t go into the downsides. She does mention the “dark side” of feminism, and that there is – and of necessity – “blood on its hands” from where things had to be done (though she doesn’t go so far as to repeat the old Communist saw about the eggs that have to be broken to make an omlette). More on that in a moment.

Surely one of the dark sides is this creation of an ‘enemy’ and then the waging of ‘war’ upon that enemy, which is what we see in the sex-offense mania and its matrix of laws. ‘Men’ were the eggs that had to be broken to make the omlette of the feminist ‘revolution’ – and that is wrong on soooo many levels.

When she gets to the gist of her main point, fully expounding it towards the end of the book, she does remarkable work. Without rancor, supportively and yet firmly, she suggests that it’s time to Take A Break From Feminism (pp.341-ff).

And then she unpacks that.

Feminists need to stop repeating the “subordination mantra”, that women are subordinated (thus oppressed) by men. She calls it the “politics of injury” (I would call it ‘victimism’, but I can see where she’s trying not to be too inflammatory and, following the best advice of Gilbert and Sullivan, seeks to “gild the philosophic pill”.) She bravely adverts, nonetheless, to the follow-up phase in the Politics of Injury: questioning an assertion made by one of the injured is tantamount to re-injuring her.

Feminists have to stop seeing the “brain drain as a good thing”. Here she refers to something you don’t often see discussed in the media: that women who in their reflections and thoughts and observations come up with conclusions unacceptable to feminist orthodoxy are hounded or frozen out of the feminist ranks. She herself shares the feeling that when she wondered about the damage that available prostitutes might do to men she immediately felt that “it seems somehow not-feminist to suggest it”.

Feminists need to resist bad faith. The wide and frequent deployment of the Injury Triad (female injury plus female innocence plus male immunity) has to be acknowledged for what it does. It does not eliminate consequences and costs simply by removing those costs and consequences from women; it merely shifts those consequences and costs to others. And feminists who claim that they can exercise broad and deep political power without causing injury to – she dares to say it – men must stop such posturing, stop operating in such bad faith.

Feminists need to minimize moral perfectionism and their magical-realism style of thinking. They cannot claim that women, being oppressed and victims, can never themselves oppress and victimize others once they exercise power. Feminism, especially in the exercise of long-sought power, cannot hold itself as “morally immaculate” (p344).

Feminists need to deconstitute women’s suffering. Might it not harm a woman – she suggests – to insist that if she has been raped she is now so traumatized that she may well never recover? Is it always ‘blaming the victim’ to inquire whether in a particular case any activity of the female might have been contributory? Does it do women any good to dogmatically remove them from any responsibility for their experiences at all? Is the standard and required feminist “rape discourse” (subject-verb-object, man-raped-woman) sufficient to all situations and does it respect the complexity and integrity of human experience? Is it possible that in affirming and identifying with female “injury” feminism is actually intensifying it?

These are splendid questions. I’d have to say that they should have been asked long ago, but that is not the particular fault of Halley, whose book – with full and due regard for feminism’s acute sensibilities – asks questions that must be considered.

In fact, this whole concept of Theory needs to be looked at. It’s all very well for a bunch of humanities and literature types to think up ways they can play with a text like kids’ play-clay, but an actual living nation is not a ‘text’, nor is a society, and while the Constitution is a document, it’s a hell of a lot more than simply another piece of fiction to be parsed and cut-pasted.

In that regard, I recall what Frederick Crews said; he was speaking about Freudian theories, but it could apply to all this material here as well: “Freudian concepts retain some currency in popular lore, the arts, and the academic humanities, three arenas in which flawed but once modish ideas, secure from the menace of rigorous testing, can be kept indefinitely in play”.*****

Many of the foundational assumptions and assertions of feminist theory – in all the dense and indeed jungle-like tangle of its diversity – are very much still “in play”. For that matter, the entire country, the entire nation, the entire society, the entire culture, the entire ethos of Western civilization is very much a playing board, for games political as well as Theoretical. Which does not, for all its brash and frizzy excitements, bespeak a becoming gravitas about just what an amazing but fragile construction has been bequeathed to Us. We may well improve upon it; but We are fools to ‘deconstruct’ it.

Still and all, Professor Halley has done a great and worthwhile service here. And I don’t know if anybody outside the charmed circle of feminist true-believers could do it with any chance of being heard. I am reminded of the observation that “only Nixon could go to China”, although I mean thereby no disrespect to Professor Halley.

I’d conclude this, however, by connecting another dot from beyond her book. An article by Joshua Kurlantzick, examining the curious and surprising persistence of the Communist Party in China despite the formation of a respectably endowed urban middle class, comes to the conclusion that – contrary to the conventional wisdom that the emergence of a middle class facilitates a move toward democracy – the Chinese urban middle classes are actually rather supportive of authoritarian government … because it seems a more reliable protector of their gains.

It seems to me that this is somewhat of the same problem that Obama is facing here, and one of the main reasons that he has been unable to fulfill so many of his campaign promises and – I believe – his own goals: too many who have gained much from the Identity Politics regime of the past forty years do not want to see too much change. And in that, for all practical purposes, such groups are natural (if silent) allies of the wealthy who also do not want to see what they have placed at risk of redistribution.

How Obama can overcome resistance from both sides – as it were – of the current political spectrum, from both remaining sources of the Beltway’s power (Identity Politics and corporate PAC contributions), is a very sobering question indeed.

In that sense, finally, I think Obama is in the same position as the Constitutional ethos itself: it’s under fire from both sides. The Identity Politics advocacies want to see it ‘reformed’ in order to remove its obstacles to their politically useful ‘politics and ethics of caring’ while the law-and-order Rightists want to see it diluted so as to ensure more ‘order’ than the traditional American vision allows the government police power to impose.

And surely, if the feminist visions of slavering male sex-addicts and the wealthy’s visions of a demanding and enraged and suddenly impoverished citizenry are allowed to run free, then they will both converge in an engorged police state, the better to regulate and control their respective bugbears and nightmares.

And if the Sixties insisted that there were no limits and no bounds and no Shapes to which any individual must conform – either in order to accept an external obligation or to fulfill an interior nature – then after several generations, such an unripened and immature citizenry must be both incapable of governing its government and in need of that government’s police power in order to enforce whatever civil order remains possible.

These are dark trajectories indeed. And the sex-offense mania is one of the darkest trajectories that We have seen … to date. And the government, hiding behind its role as righteous avenger of the ‘victims’ of the ‘enemies’, continues to try to expand itself, using any pretext that it thinks will get by the courts. And of course, a government – and legislators – whose primary justification for laws is ‘we feel it’s a good idea to have this law – Never Mind Why’ … well, that’s not any government that corresponds to the Constitutional vision.

Halley’s suggestions are certainly an excellent place to begin a desperately needed change of course.

NOTES

*My copy of the book is the Princeton University Press edition of 2006.

**With no disrespect to Halley, it’s like reviewing old Soviet history to read her enlightening list of assorted feminisms: power feminism, governance feminism, cultural feminism, liberal feminism, difference feminism, postcolonial feminism, sex-positive feminism, structuralist feminism, essentialist feminism, social constructivist feminism, convergentist hybrid feminism, divergentist hybrid feminism … one can’t help but think of Mensheviks, Bolsheviks, Old Bolsheviks, Trotskyites, Zinovievists, Narodniks, legal Marxists, primitive accumulationists, polycentrics, Titoists, permanent revolutionists, right deviationists, left deviationists, and a ghostly host of others including, of course, that greatest creator of ghosts, Stalinism. I suppose you could, if you were so inclined, describe this all this as “intense, theoretical productivity”.

***Who may be said to have abandoned the outsider-revolutionary approach, and instead concentrated on changing things from within the government and the major institutions (law schools, the judiciary, universities, and such).

****At one point in this book, Halley refers to Elizabeth – the queen who ruled England in the 1600s … or words to that effect. My immediate thought was that she could simply have said “Elizabeth I” or “Elizabeth I of England” but then it occurred to me that at this point in elite academic history, a substantial amount of her readers (even the Harvard ones) might not be able to place “Elizabeth I” either as to timeframe or place. I am not referring to the Ivy frosh who were recently discovered to reach the hallowed halls secure in the knowledge that Lincoln beat Hitler or the Kaiser and Kennedy followed Roosevelt. But then, they were all men, and dead white men at that.

*****Crews, Frederick. “Follies of the Wise”: Shoemaker-Hoard, Emeryville, CA; 2006. Page 16.

CURBING GPS IN MASSACHUSETTS

MORE STRAWS IN THE WIND

(Once again, a fresh development leads me to interrupt my Poritz series, but the series will continue.)

On August 18, it is reported, the Supreme Judicial Court of Massachusetts decided 4-3 that a 2006 law mandating GPS monitoring of all sex-offense probationers cannot be applied retroactively.

I have the newspaper report and I also now have the text of the Decision. In this Post I am going to comment on the newspaper article making the report . Later today or early tomorrow I will Post on the text of the Decision (and Dissent); I will of course provide hyperlinks to the Decision.*

So to the news report, which is not a bad one at all, considering what you usually encounter in matters sex-offensual.

The case concerns a man convicted of a sex-offense in 1997 (the MA GPS law took effect 12/21/06). So there arises immediately the issue of ‘retroactive’ or ‘retrospective’ application of the law, especially since if the law is criminal in legislative intent or in effect, then it cannot be applied to persons convicted before the law went into effect without violating the Ex Post Facto Clause of the US Constitution (and the Massachusetts Constitution). That EPF Clause prohibits the increasing of a penalty for a crime after the crime was committed; it does not apply to ‘civil’ or ‘regulatory’ law.

As we know, the classification of any sex-offender laws as ‘punitive’ or ‘regulatory’ is a crucial key to their permissible scope. If punitive in intent or effect, then they cannot be retroactively applied to persons convicted before the law came into effect. You will recall from Poritz that the NJ Supreme Court had to go to great lengths to explain away the fact that in 1995 it was seeking to cast a net back in time to Register persons convicted of sex-offenses decades before that date.
The first solution was to declare the sex-offender scheme ‘regulatory’ rather than ‘punitive’; hence it could be retroactively applied.

As I said in my immediately preceding Post (“Doe v. Poritz 4”) this requires courts to focus – almost to the point of absurdity – on legislative intent as stated and on the narrowest framing of the sex-offender’s situation under the scheme. But a legislature can (disturbing and ominous as it is to contemplate) claim officially to seek only ‘regulatory’ goals with a law, while its ulterior motive is to punish or to control the liberty of citizens.

And ‘regulation’ is hardly adequate to describe what the sex-offender laws do to an individual. It is not the same as an individual wanting to cut hair being ‘registered’ as a barber or stylist, or a doctor wishing to practice medicine being ‘registered’ as a doctor: in these instances, the individual actually benefits from having publicly-accessible approval from the State to practice that craft. Similarly, a motor-vehicle operator does not suffer any loss of liberty or reputation or standing in the community from being publicly identified as a licensed (or ‘registered’) driver.

But of course, such is totally inapplicable to designated sex-offenders, since the SO Registry is precisely for the purpose of ‘tagging’ or identifying individual citizens to the community as unpredictable, dangerous, threatening, and – according to the judicially and legislatively recognized ‘scientific facts’ – compulsive and incurable.

Even if the essential underlying ‘science’ were accurate, an SO Registry would constitute a punishment and trigger the Ex Post Facto Clause (among others).

But given that after over 15 years of these things we are now finding out just how flawed the initial underlying ‘scientific’ research and assertions and claims and predictions were back then, then these SO laws are even more fundamentally unjustifiable. SO ‘recidivism’ and ‘dangerousness’ – in its width and depth and temporal duration – is now clearly characterizable as minimal compared to other crime-groups (that have not been so ‘tagged’ and ‘stigmatized’), and such spikes in recidivism as there are appear only in very limited sub-categories of sex-offenses.

So if the entire matrix of SO laws is characterizable as ‘punitive’ and ‘scientifically ungrounded’, then the two great pillars identified by the laws’ supporters themselves thus collapse. And if the courts and legislatures don’t recognize that, and continue to maintain and expand the schemes, they risk the very legitimacy of American Law itself. And their own legitimacy as Legislators and Jurists.

The article reports that “the decision, which forced judges to weigh child protection against constitutional rights, outraged enforcement officials and [State] lawmakers”.

Well, a couple of things.

First, we note once again the sly conflation of ‘sex offenders’ and ‘sex-offenders against children’. There is no rational basis for presuming that ‘all’ SOs or ‘any’ SO will constitute a threat to ‘children’. Yet when defending these laws, supporters (and too many journalists, whether they have thought it through or not) instantly mention ‘children’ as the reason why ‘sex offenders’ must be tagged and stigmatized. The vast majority of currently-defined sex-offending does not take place against children.

This, of course, recalls the unpleasant possibility that ‘children’ are being deliberately used as a ‘human face’ to ensure a stampede of public opinion in support of sex-offense laws that are in essence profoundly anti-Constitutional in spirit and concept and effect.

I can’t imagine any public servant at this stage who wouldn’t be risking his or her career by expressing any opinion except ‘outrage’ at any curbing of the SO laws. It has taken a particularly courageous group of senior State jurists to do it.

Further, we then see another old demon invoked: “If there is even one individual that is not required to be monitored, and that individual reoffends, then that is one too many”. This from a State lawmaker, she who sponsored the GPS bill to begin with.

Nothing more clearly indicates how far away from the American Constitutional vision this citizenry, this country , and clearly many of its legislators, have fallen.

The Founders’ vision was that individual citizens are equally capable of moral failure and moral greatness, and hence all other citizens are continually exposed to each others’ possibilities for harm or – let’s not forget – advantage. Hence, the Founders’ vision encompassed setting up a government criminal justice and police power that would be carefully constrained in its ability to interfere with the lives of its citizens. The danger was, as I have said in prior Posts, the ‘ravenous lion’ of government power coming to control the lives of the citizenry.

But with the ‘mother hen’ vision of American law, which has quietly insinuated itself into American law and politics in the past three or four decades, the government police power is a benevolent mother hen, which will respond with its full force to any distress – real or perceived – on the part of its chicks. This, as I have said, is the recipe for a police state, and surely not the grounds for a Constitutional democracy and Republic, comprised of equal and mature citizens who all share the status of Citizen and who together then constitute The People.

And rather than a democratic government we get what Eric Janus calls "the preventive state", a government demanding enough police power to 'prevent' whatever happens to be the threat-du-jour, and a serfdom happy and eager to give that power to it. The country was not founded by people looking to be 'safe' - let alone totally safe - but by people looking to exercise liberty. Not the same thing at all. If you get my drift.

And thus it can hardly be surprising when the old Goebbels-ian tactics of manipulating public opinion in order to stampede it in favor of the government’s all-encompassing control are the tactics which have recently come to control American law and legislation. False ‘science’ brazenly asserted and accurate science deliberately ignored or suppressed, emotionally gripping (if rare) cases luridly amplified as if they were usual occurrences, ‘reason’ denigrated in favor of ‘feeling’.

Thus this ‘if only just one’ (a spinoff from the old ‘zero tolerance’ of the War on Drugs era) is actually – whether its speakers realize it or not – profoundly anti-Constitutional. The Founders were willing to accept that some crime would be committed, even heinous crime, as happens in any human community; but they were not willing to permit the engorgement of a police-state on the pretext of utterly stamping out ‘crime’. To have said to the Framers in Philadelphia in that hot summer, that ‘even if only one’ crime were to be committed, then they must engorge the police-power … would not have been met with an enthusiastic and supportive response.**

And of course, this legislator also goes on to add “There are too many instances where a child is harmed that shouldn’t be”. There are too many instances of all sorts of humans being harmed who shouldn’t be. If we are going to engorge the police power to stamp out all ‘crime’ or all ‘sin’ then we have indeed turned the Constitution into a suicide pact – as a democracy and a Republic. Because this country cannot exist under a government that has taken upon itself the task and authority and mission that not even God has chosen to assume and deploy: the immediate and utter abolition of human moral weakness.

The (female) Justice who wrote the Opinion defended the ruling, calling the statue “punitive in effect”. As did the Alaska Supreme Court, until the US Supreme Court beat it down in 2003 in Smith v. Doe. (See my Post of June 29, 2009 on this site.) And we see here once again some respectable judicial effort to gauge the actual situation into which SO law casts the tagged ‘offender’: when government can destroy reputation in the community with such immediacy, on the basis of grossly inaccurate science to the effect that the offender – or his ‘class’ – is reliably beyond effective rehabilitation and constitutes a compulsive and violent and unending danger, then that government has on false grounds effectively ‘yellow-starred’ an entire constructed ‘class’ of its own Citizens. Governments have gone down this dark path before in recent history.

In a lengthy Dissent, another Justice rightly falls back on the precedents of State, Federal, and Supreme Court Opinions of the past 15 years: “This court has stated that recidivism among sex-offenders is high and protection of the public a compelling state interest”. The interest, of course, is only compelling if the recidivism is indeed high – precisely what we know are seeing is inaccurate in the extreme. If it’s not true about the ‘recidivism’, then there is no compelling justification for the State to so monstrously destroy the lives of a designated class of Citizens. ***
And this Dissenting Justice continues that “this statute establishes a nonpunitive regime to protect the public”. Again, we are faced with the courts standing next to the car with the sex-offender in it, about to be pushed over the cliff by the government police power, and focusing with ludicrous narrowness on whether the seat-belt is fastened (it’s all ‘legal’ if the seat-belt is fastened before car and occupant are pushed over the edge). If having yourself publicly and officially branded as a permanent and eternal threat to the community – and on the basis of hugely inaccurate ‘science’ – is not punitive, then nothing is punitive.

Admittedly, the Court takes no position on the validity of the law as it applies to sex-offenders convicted after the law took effect on December 21, 2006.

The article refers to this Opinion as an example of the Court’s “new thinking”. I think not. The ‘new thinking’ was the insidious ‘mother hen’ approach to law (more formally known as ‘an ethic of care’) that insinuated itself into law schools and legislative philosophy several decades ago. The Court here is returning to some sense of an ‘ethic of justice’: that there are rules, that the government police power must respect them, and that individual cases or periods of high public emotion do not and cannot override those rules and the principles that ground them.

Indeed, I think it can be said that the ‘ethic of care’ has the effect – intended or not – of creating in a very real sense an ‘unprincipled’ vision of American legislation and jurisprudence.

And since the early 1990s, we have seen increasingly vivid and Constitutionally violent deformations of American principles, not only in sex-offense laws and domestic violence laws, but also in the behavior of the government in the conduct of foreign military adventures and of the business and financial elites in the pursuit of personal profit.

I don’t think that’s a coincidence. Not hardly.

NOTES

*If you want to get a head-start on the Decision today, follow these instructions: a) go to www.massreports.com/slipops; b) that screen will give you click-options on your left-hand side of the screen – click ‘slip opinions’, which will immediately prompt you to choose ‘Supreme Judicial Court’ or ‘Appeals Court’ – click ‘Supreme Judicial Court’; c) that will lead to a screen containing the 9 or 10 documents from August 18, 2009 – you want Number 3 (the Order) and Number 2 (the text of the Decision). The title of the case is COMMONWEALTH vs. Russell M. CORY. SJC-10314 August 18, 2009.

**This point is covered in radical feminist legal and philosophical thinking by simply dismissing the Founders (although not for wide and sustained public consumption) as ‘quaint’, ‘patriarchal’ and ‘oppressive’. Alberto Gonzales was not smart enough to think up the Constitution’s ‘quaintness’ on his own; he got it from other Beltway sources.

***And in this regard, the sudden appearance of the RAND Corporation as a supporter of these types of laws very probably constitutes an effort to ‘shore up’ the failing ‘science’ without which these laws cannot survive stand Constitutional scrutiny. (See my Post on ‘Violent Offender Laws’ on this site, August 13, 2009.)