SO SERIES ON NUSSBAUM: 1

Well, here We go – 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.

Why do this? It is clear to me – as I don’t think has ever been made clear before – that the ‘reforms’ demanded in and incorporated into ‘feminist law’ or in the ‘governance feminism’ agenda are really far more significant and substantial than most Americans have been led to believe.

And surely the SO community is aware as few others can be, through direct and stunning experience, just how all of this has played out ‘on the ground’.

But if what has come out at the business end of the SORNA sausage machine is so frightening and Constitutionally repugnant, it’s important to say what’s been going into the machine – the ingredients. And Nussbaum has served as a codifier, propagator, as well as thinker to all of this; she has for decades been weaving a web of high or innocent-sounding ‘philosophical’ ‘positions’ that – when they are put all together, can result in something like SORNA and the SO Mania.

And on top of that, her thoughts are not only seemingly ‘abstract’ and ‘philosophical’ but also large and, even more, hostile to any traditionally understood concept of Constitutional praxis and the role of government in the vision of 1787.

And a great deal of all of it has already found its way into major chunks of American law and legislation and regulations and regulatory law. And the idea of the SORNA regime as ‘regulatory’, and the justifications presented to the pols who vote for this regime, are going to draw deeply from Nussbaum’s work.

And it has all been presented as being quite reasonable through the philosophical visions and systems of such professors as Nussbaum (she is one of the most prominent legal professors in the country and has been for a while).

And her ideas have been widely propagated not only through feminist advocacy channels but even more significantly through several cohorts of law professors, whose students – or who themselves – have gone on to important positions as government or prosecuting attorneys, judges at all levels, and even as legislators at State or Federal level.

So this is important stuff if We want to grasp the dynamics underlying what has been happening – and what has happened – to the Constitution and the Republic and to a deliberative and democratic politics. And what is driving pols: it’s not just raw political pandering; there are professionals like Nussbaum who are actually putting all this stuff such as this article in front of them and telling them that they’re doing a Good and Right Thing and that they cannot fail the Constitutional rights of every decent Citizen just to respect the rights of SO’s (who were created as a demon-class by Fear and propaganda in the first place).

Enough said.

Let’s get to it. In this short series of Posts I’m going to go through the article sequentially, commenting on elements that strike me as significant.

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.

When I discuss a particular point, I’ll try to quote the actual text on that point, so that you won’t have to do too much shifting from my Post to the Linked text.

Nussbaum starts by quoting Aristotle (2/5): “It is evident that the best political order is that arrangement in accordance with which anyone whatsoever might do very well and live a flourishing life”.

It’s a great thought. It represents a wonderful ideal. Western society has sustained a long struggle toward it.

Of course, you can’t just ‘quote’ a great thought from an acknowledged master and figure that you’ve done all work that needs to be done.

Aristotle, for example, would not have included women and slaves (and Greek slavery was not based on race – which was much more a European phase dating from the discovery of the New World) in his “anyone whatsoever”. He did mean, however, any adult male – and not just the ones in his particular City-State, which was quite a broadening thought in its time. He might even have meant ‘Persians’ and non-Greeks, which would have truly blown a few minds.

Naturally, the SO Mania must claim that SO’s – since they are such a violent and abnormal class – can’t possibly be afforded such a chance to ‘flourish’ since by their conviction they have proven that they have no control over themselves, and do the most unspeakable and abnormal and violent sexual things. They constitute a sub-human class, deeply in need of ‘therapy’ (if anybody ever devises it) but in the meantime they need to be locked up or – if they are allowed out – to be ‘belled’ like the proverbial cat and made to wear some sort of ‘Star’ that will warn everybody of their presence and invite ‘normal’ and ‘decent’ people to – ummmm – take what action they think is necessary.

But there’s the second question about that “flourishing life”: you can’t know if a life is flourishing or not unless you know what it’s ideally supposed to look like. And that means you have to figure out what the Nature of the human being is, what the purpose of the human being is – in order to judge whether any individual’s life is actually conforming to the ideal.

(Nussbaum will depart from Aristotle here: in order to maximize its base and justify its deconstructive agenda, feminist law would claim – and the Supreme Court would echo in such cases as Casey – that while everybody has a right to ‘flourish’ YET nobody has the right to say what the ideal human being, or ideal human behavior, is or can be. In other words, the human being is totally ‘autonomous’, meaning that no power on earth can judge whether an individual human being is conforming to any ideal human-ness.

But she likes that ‘flourishing’ bit, so she’ll slyly keep it and let you think that she and Aristotle are of one mind and that her ‘thinking’ is just a continuation of Master Aristotle’s thinking, and equally as solid and reliable. Her bottom line – as you will see – is that the government has the responsibility to clear a path so that everyone can ‘flourish’, which means that they can do whatever they want to do and the government has to help them do it and keep everybody else from ‘judging’ it. Neat – a teenager’s dampdream.)

In this regard, she not only departs from Aristotle, but from the follow-on work done by Christian philosophers. For them it was not only the bright realities of human ideals and possibilities that lay within human nature; it was also the darker but thoroughly human reality – evident in all human beings – to ‘sin’, to fail those ideals.

Nussbaum doesn’t like to make references to ‘religion’ or ‘particular beliefs of particular religions’, but she also doesn’t like the question of Sin because it implies a) that there is a Nature you can sin against; b) that there is a God who can ‘judge’ human behavior; and c) that ‘being judgmental’ is not a thing nice people do.

AND YET SO’s are thoroughly drowned in such ‘judgementalism’ through the operation of that same SO Mania which Nussbaum favors because it is the product of Law that recognizes the ‘rights of Fear’ – and indeed feeds off such ‘rights’.

So she focuses on the question: “What are people able to do and to be?” (2/5) NOT ideally, but in terms of whatever they think it is that they want “to do and to be”. There can be no ‘ideals’ in Nussbaum’s (and feminist law’s) world: if there is an ideal, then somebody could ‘judge’ somebody else, and that’s a no-no.

But then you realize that this whole article deals with Constitutional law and thought, and thus with the role of the government, and especially in what ways the government MUST (because these are ‘Constitutional’ and ‘rights’ issues) aggressively and assertively shape national culture and deploy its sovereign authority to keep the field clear for all that ‘autonomy’.

So it gets your whiskers twitching when she immediately asks a follow-on question: “And are they really able to do or be these things … ?” (2/5) [italics Nussbaum’s] What she is introducing here is the queasy distinction between what things actually are when subjected to common objective examination, and what things really are [italics Nussbaum’s] … which means that only those with a certain special knowledge will be able to ‘see’ what’s ‘really there’. And you can see where she is going to be moving us into the realm of ‘special knowing’ (like Lenin’s idea that only the truly committed cadres, the ‘vanguard elite’, can really see and really know what’s good for Russia and for the Russian people).

So here at the outset Nussbaum is creating a slippery, shadowy field upon which national life and Constitutional issues are to be examined: there are things going on which aren’t going to be visible (or provable) to just-anybody, but instead will require special-knowledge (sorta like ‘you just have to get it’).

And the SO community can see here where ‘spectral evidence’, visible only to those who ‘know’ and who ‘get it’ starts to get injected into mainline Constitutional legal and philosophical thought AS A VALID AND CUTTING-EDGE PRINCIPLE.

And this is on top of the fact that since these are Constitutional issues, then hugely fundamental matters are at stake, and the follow-on matter of how government might or must deploy its sovereign authority without obstruction or objection. So brace yourself.

About people, she continues asking, “Are there impediments, evident or hidden, to their real and substantial freedom? Are they able to unfold themselves or are their lives, in significant respects, pinched and starved?” (2/5) This is a flower-image – of the lovely flower unfolding as it blossoms, which recalls Flower Children, nicely enough. But it also implies that anything that keeps a flower from blossoming is bad (which it is, assuming the plant isn’t poisonous) and starts to grease the skids toward the follow-on connection that anything that keeps her ‘totally autonomous’ person from ‘blossoming’ is anti-natural and verrrry baaaaad.

And, with an eye toward anybody who will object to her vision: what sort of baaaad person would want to keep a flower from blossoming? Which greases the skids towards her conclusion that nobody can object because this is a matter of Constitutional Rights and so the government must impose it, and immediately and fully, without being slowed-down by deliberation, discussion, or the tolerance of any ‘intolerant’ dissent. Heeeeere we goooooo! You can see where all this might quickly lead.

And here SOs can be cast as a criminal class that is predictably and uncontrollably engaged in repetitive violations of the ‘right to flourish’; so that a ‘sex crime’ is not simply a crime but also a civil-rights and Constitutional-rights violation.

She continues with the image: “What about their environment – material, social, political?” (3/6) So you can see how quickly we’re out of the gardening and into the running of a nation and a culture.

“Has it helped them develop their capacities to be active in important areas of life? If people are like Pindar’s vine tree, is their environment more like a rich soil tended by wise and just gardeners, or more like an arid soil tended by indifferent gardeners, or gardeners with a restricted conception of their task?” (3/6)

So right off, you see where she’s going here. Assuming that the garden-tree image is valid, then it has to have a “rich soil” – and government has to make it so, and is Constitutionally required to do so. AND if there are “gardeners” (the government) that either don’t care or don’t really ‘get’ just how much they’re supposed to be doing … then they are BAAAAD. As are, of course, any Citizens who might object to whatever she’s going to ‘discover’ with her ‘special knowledge’ that not everybody else can see; although they wouldn’t have the ‘right’ to ‘judge’ it anyway, and if they can’t see it, then clearly ‘they just don’t get it’.

Can you get a sense of how Nussbaum is weaving a remarkably dense feministical web here? And laying the groundwork for a very anti-democratic, special-knowledge elite that nobody else has the right to argue with because nobody else ‘gets it’?

Thus the SO, although a human being and a Citizen, is degraded and demonized as some sort of weed or bug that prevents ‘blossoming’. The SO is de-humanized as some sort of violent parasite in the National Garden. This can happen easily in Nussbaum’s philosophy because ‘human-ness’ is not Grounded in any Human Nature, certainly not one created by a God – which traditionally has been taken as the source of a dignity so self-evident and inalienable that no other considerations may take precedence over the it; so if there is a ‘consensus’ of ‘proof’ that the SO is not acting as a normal human, than the SO is not primarily a human, let alone a Citizen with Constitutional rights.

She cuts right to the chase: “How have the basic constitutional principles of a nation, and their interpretation, promoted or impeded people’s abilities to function in some central areas of life?” (3/6) Not a bad question, although from what you’ve already seen, she’s going down the garden path and we are all supposed to go along – and may well not have a Constitutional right to object.

Because she’s into Constitutional principles and interpretations here, and in matters that can be established to be relevant to fundamental Constitutional principles and interpretations, then the government in all its Branches can’t allow itself any delay in ‘fixing’ whatever is wrong.

And here you can imagine ‘advocates’ assuring legislators that under this new, cutting-edge ‘knowledge’ the legislators can with good conscience make SO regime laws that under the old and ‘quaint’ system would not be possible. And, it SOs are actually violating the ‘constitutional right to blossom’ and have been and will continue to do so, then the legislators are justified in acting quickly and decisively.

This, you may recognize, is the application of the argument made in the First phase of the Civil Rights Era (up to July, 1965): because Negro/black rights to vote and influence public policy and live a life unhindered by race prejudice have so thoroughly been stifled by Jim Crow, then the Federal government, in the face of such clear, profound, and long-standing abuses has no right to delay in fixing things in the South right away, doing whatever it takes to clear away Jim Crow from Southern law (but also from Southern mind and heart and culture and society).

Which got the government verrry quickly into huge expansions of its power.

And in two ways.

First, the Federal government now took on the task not only of clearing away unjust laws, but also of literally Deconstructing Jim Crow in the minds and hearts and culture of the South and its Citizens, but also of Reconstructing those minds and hearts and that culture. Which is a huge expansion indeed.

Second, since Negro/black Americans lived all over the country – and were Citizens – then this entire project had immediately to be applied to the entire country, including the minds and hearts of its Citizens and the national culture. Which was even more huge.

When, shortly thereafter, the Feminist Revolution got itself going, the Feminists basically deployed the same scenario and the same argument (though never clearly and concisely stated): Males have done and have been doing to females exactly what the Whites of the South did to the Blacks through Jim Crow. Indeed, the entire American culture and all its males and all its male-identified females are basically oppressing women with a gender-version of Jim Crow.

And SOs then can be considered as sort of the Klansmen of gender-based Jim Crow: they are the most vivid and rapacious representatives of this oppressive system that denies (gender) rights to women and victims. And if you live in Fear of them, in Nussbaum’s theory that Fear is a form of knowledge, then you just ‘know’ they are and the government has to act on your claims and your demand to live without Fear because it’s a Constitutional right.

So then, ‘logically’, the government must Deconstruct and Reconstruct American ‘male’ society and culture and all the Citizens (male and female) who support it. And it has to be done NOW without any delay (or public discussion or deliberation – which is useless since most folks are gender-Jim-Crow types anyway) and if you can’t ‘see’ that, then ‘you just don’t get it’.

And that’s what drove so much of the wrack of the past 40 Biblical years. And – who could be surprised? – a Constitution that couldn’t be respected because it was Jim Crow in a gender as well as a race way, was in the Bush-Cheney era considered to be a Constitution that didn’t have to be respected when it came to government waging wars and doing all sorts of other stuff without wasting time on ‘ public deliberation’. And the toe-bone is connected to the foot-bone, and the foot-bone is connected to the ankle-bone, and the ankle-bone is connected to the leg-bone, and … you know the rest of the old song.

And immediately she sets the script and the plot: “Does the interpretation of constitutional entitlements yield real abilities to choose and act, or are the constitution’s promises more like hollow verbal gestures?” (3/6)

Bang. What the country has now, she intends to show, are merely ‘hollow verbal gestures’. And that what she (and feminism) wants are not ‘new’ things that are ‘changes’ (which could be argued about and deliberated upon) but instead are “constitutional entitlements” – so no delay or dissent can be permitted. See where she’s going?

The Fear of being sexually vulnerable thus prevents – in the theory – persons from going out and exercising their rights to a happy and full and free life, just like the fear of the Klan or of police road-blocks on the way to the polls kept Southern blacks from exercising their right to Vote. (And I hope it’s clear to everyone that I am not a supporter of the Jim Crow regime of the pre-1965 South.)

Naturally, what in current ‘everyday’ political talk is called ‘patriarchal oppression’ or some such, is – on Nussbaum’s much deeper Constitutional level – an ongoing Constitutional deprivation which must be addressed without delay or dissent. This is the old culture-war feminism now not claiming to be a ‘new way of thinking about things’ but rather now claiming to be a long-standing Constitutional issue of rights-and-entitlements-denied. And so there need be no more public debate or concern: it’s all Constitutional.

So if the legislators have bought the Nussbaum vision, then any objections raised about the ‘Constitutionality’ of the SO regime no doubt strike them as irrelevant.

She’s going for government imposition of the whole old culture-war agenda, not simply out of political expediency (as it had been decades ago) but now out of Constitutional responsibility.
Of course, if a pol can do something politically expedient while being told that s/he’s doing it out of Constitutional responsibility – well, that’s real catnip.

And this thought of Nussbaum’s is not ‘new’ in 2007 when she wrote this article. She’s been teaching it and writing about it in law schools and other venues for decades, so generations of lawyers, judges, and pols are now not only familiar with it but also – I’m going to bet – were taught in law school that this was the True and Only Way to look at things. And you wonder why democracy and the Constitution don’t seem to be working so well recently?

But this is her plan and she’s sticking with it. “The idea that all citizens in a nation are equally entitled to a set of substantial preconditions for a dignified human life has had a lasting appeal over the centuries in Western political and legal thought – less because intellectuals have favored it than because it has great resonance in the lives of real people”. (3/6)

Notice what she’s doing here.

Suddenly it’s not a matter of the political rights of 1787, many of which limited the government’s ability to interfere not only with individual Citizens’ lives but also with the much wider civil society and culture. NOW she’s changed the field of concern to “a set of substantial PRECONDITIONS” … which means that government is not only going to simply referee a Game – so to speak – whose laws and bounds are already drawn (and refs have to follow the rules just like anybody else). Instead, government is now going to be mussing around in ‘preconditions’ – the refs are going to say where the field is built, the composition of the soil, the drawing of the lines, the whole enchilada.

And the government as uber-ref is now also going to be ‘interpreting’ just what those “preconditions” are (and of course, the more and deeper the preconditions, the more room for government authority). And what earthly government is going to say No to such a free-buffet of power?

Well, the government put together by the Framers of 1787 said No, but – Nussbaum and others are convinced – they were ‘defective’ and their Constitution and their Vision was ‘defective’, ‘incomplete’, and altogether “quaint” (as the feculent Alberto Gonzales said with waayyyyy too much candor in the service of the Bush-Cheney imperium … and his era of Beltway biggies had simply concluded that if the Left can re-arrange the Constitution for its own purposes, so can the Right).

And this approach of Nussbaum’s isn’t going to be on the visible spectrum, as say the great struggle from the 1870s to the 1930s was; Teddy Roosevelt and FDR and LaGuardia and the Progressives of the 1890s to the 1920s were trying to deal with concrete issues like wages and social insurance and the role of the government as being the only power in the country that could stand up FOR Citizens against the huge new agglomerated power of the industrial corporations and corporate combines.

No, this approach of Nussbaum’s is going to be along an invisible spectrum that only those who ‘get it’ can see. And this itself mirrors the attack – spearheaded by the Feminist Revolution and its cadres – upon the entire foundation of assumptions and beliefs and structures that not only have grounded world cultures since the beginning of human history but also ground the Constitutional Vision of 1787.

So SOs and the Fear that many persons have of being sexually vulnerable create a ‘precondition’ of Fear that constitutes a violation of Constitutional rights. But of course, the huge danger here is that ANY crime, or the Fear of being a victim of any crime, can therefore be seen as a Constitutional-rights violation. Which is a recipe of a police state far more thorough than anything Hitler, Stalin, or Mao ever conceived – because even on their worst days those monsters still realized that there’s a difference between a ‘crime’ and a profound violation of the basic authority of the State (treason).

Or between a crime and the fear-of-a-crime, since some human failure is inevitable and not even a totalitarian State can muster and sustain the power to stamp out all Fear of crime by stamping out all crime.

I’m not saying thereby that all of the Revolution’s agenda is ‘wrong’ – I’m saying that some change THIS big and THIS profound has to be looked at verrrrry carefully. And certainly has to be given more and more thorough public deliberation and airing than has been the case up to now. For 40 years the government simply imposed the Correct changes, with the cheer-leading connivance of a ‘free press’ that is supposed to be the watch-dog, not the cheerleader, of government activity.

BUT THIS IS PRECISELY what Nussbaum is trying to sidestep by saying that all of this is a matter of Constitutional rights and therefore you can have no delay and no discussion and there’s nothing to be deliberated anyway. Neat. Dangerous. Treacherous, maybe even.

And again, the effort to sidestep the deliberative process is a hallmark of the SO laws: rarely are they debated even in legislatures let alone among the Citizenry, and certainly they are rarely discussed in any media reporting (that focuses on the Fear or on this or that crime, but not on the legal philosophy that has been evolving to essentially undermine Constitutional and deliberative process among the public as well as among legislators).

It’s a verrrry iffy thing – just what those “substantial preconditions” are. And also just what “a dignified human life” is – although we already know that Nussbaum, true to feminism’s agenda, is going to say that no government and no culture has the right to ‘judge’ what behaviors or characteristics constitute such a “dignified human life”; no, rather a human life is “dignified” simply by virtue of the fact that a human being says that this is what she wants to do and nobody can say No and the government has to make it all work out well.

And Nussbaum is writing in a cultural context where feminism has already ‘deconstructed’ any sense of the ‘moral’ and of the Beyond or of any standard or criterion in which a culture or a society or a civilization can say or choose just what characteristics and what Vision will Ground it. For political purposes, America exists in a flattened, two-dimensional world where there is only politics as a determinant of what does (or should) happen – which, come to think of it, closely resembles the Materialistic reductionism that ultimately made Marxism (from the Left) and Fascism (from the Right) so utterly inadequate to the task of addressing the reality of human beings who are – notoriously – so stubborn in their yearning for a Beyond-the-Material dimension to their daily existence.

Shrewdly, she is spinning her plan as not simply ‘good’ because “intellectuals have favored” it (the academic and Beltway elites of today) but rather because it has “great resonance in the lives of real people”.

That last bit sounds nice, but her (and feminism’s) view of “real people” is two-dimensional and Flat (as Marxism’s was). And as I have observed, “real people” are and since the dawn of the species have always been desperately and implacably concerned for a Beyond, for a Real that is more than the ‘real’.

And ‘real people’ are – as any church or religion worth its salt will tell you – ‘sinners’ and ‘under judgement’ … which usually has a sobering effect on the frenzies of ‘I’m pure and you’re evil’ that fueled so many violent communal Manias over the course of human history.

It will be this actuality that will prompt her to give up, later in the article, on any democratic and deliberative process to get her vision accepted: because so many of those “real people” for 40 Biblical years have been stubbornly resistant to being Flattened. It’s not ‘backlash’; it’s more like the horse’s sense, after putting one hoof on it, that a bridge it’s supposed to walk over is wayyyyy too rickety and won’t hold up.

Nussbaum, just to give you a sense of where she’s going to be going, will argue that since most people in the country can’t be trusted to ‘get’ her ideas, then the acceptance of her (and feminism’s) vision and scheme can’t be left up to them and instead has to be imposed by the Courts (she doesn’t even trust Congress any longer). Thus this ‘Constitutional’ approach – since it sidesteps any public debate and deliberation.

Well, that’s enough for this Post. Let me just say that it’s not going to be necessary to go through every page of her 94 pages the way I have had to move through this first couple of pages here. In these early pages she is pretty much outlining her approach and so I have to spend more time on them.

FURTHER NUSSBAUM

I wanted to do a follow-up Post restating or amplifying for clarity what I was driving at in the Nussbaum Post. I covered a lot of ground and there were – I think – some important points.

Before doing that, I have to make note of the Ohio Supreme Court Opinion in Bodyke and the US Supreme Court’s (happily surprising) Opinion in Carr. The cases are discussed at length on the several fine SO sites, and as so often, the Constitutional Fights site is an excellent gateway.

In both cases the Courts have decided against AWA and in favor of the SOs. (And there is a further piece there about how States are still concerned about the financial costs of implementing AWA even with Obama’s sly addition of law-enforcement funding to cover some of the expenses; the start-up and projected expansion and maintenance costs have been – surprise! – understated by supporters of AWA, and the States – I wonder about the public – are shrewd enough to realize that they are going to get stuck not only with a big bill, but an ever-expanding bill for the whole thing.)

In Bodyke the increasingly interesting Ohio Supreme Court ruled that SOs cannot be reclassified by AWA if they have already been classified by court action (i.e. they were classified as part of the judgment that convicted them); this is a Separation of Powers ground (i.e. the Legislative and Executive cannot ‘decree’ changes to established Judicial Branch decisions).

Now this doesn’t reach – and the Court seems purposely to avoid the thorny thing – the issue of Retroactivity: can you retroactively add punishments to a crime for which one has already been convicted? As you may know, to raise the Retroactivity issue a Court would then have to formally decide whether AWA (and perhaps all of the Registration and Notification regime) is ‘criminal’ rather than ‘civil’; and that would be a truly huge decision.

As it stands, there are now 26, 000 or so Ohio SOs who must immediately be put back to their original conviction-classification on the AWA-compliant Ohio registry. Constitutional Fights reports that it actually called the Ohio Attorney General’s office and was put on hold and then given a run-around as to when the AG was going to get around to completing that now Court-mandated task; if the SOs’ names are left on the internet Registry in their new (and enhanced) AWA classification then the State itself will be committing an illegal act.

This will only have ramifications for SOs in States where the classification is actually part of the conviction sentence by the trial court. But Ohio is not the only State where that is done, and so this case will set a most happy precedent.

In a larger sense, of course, the Ohio Bodyke case signals a judicial unease with the AWA (and perhaps entire SORNA) regime. And while the more professional SO sites, where attorneys make comments, are right to note that the actual legal effects are not large, yet still there is the unmistakable sense that the winds are changing.

There was a Dissent in the case where one of the Ohio Justices opined that reclassification is merely administrative and not a ‘further punishment’ – but that’s the old song.

In the even more surprising Carr case, the US Supreme Court, although divided 6-3, said that Carr could not be charged with a SORNA violation for an act that took place before the AWA law took effect. Again, the Court here does not clearly reach the Ex Post Facto or Retroactivity issues, which – if decided against AWA – would be lethal to the SO Mania law regime.

Instead, the Court simply states that Congress did not expressly authorize Retroactive application in the AWA enabling legislation. So it’s something of a ‘technicality’ – the Court leaves for another day the heavy-lifting involved in tackling head-on the Constitutionality of the regime. Congress could re-write AWA to expressly order retroactive application, and then the matter would have to make its way back up to the Supreme Court on those grounds.

Of interest here is that Justice Sotomayor wrote the majority Opinion, while Justice Ginsburg – the other woman on the Court – Dissented. Sotomayor is deploying a bit of feminist-law thinking: that you have to consider not simply the formal law in question, but also take into account the effect upon those who must bear the burden of the law.

Ginsburg – true to a form that has not been sufficiently examined – seems to be writing from an older feminist-law thread whereby ‘women’ must be aggressively protected from male sex aggression and any law that works toward that must be upheld. I also note that Ginsburg operates well within the Nussbaum vision: since it is a ‘given’ that males ‘aggress’ against women sexually, then women’s rights are thereby violated and the government must use its sovereign legislative and police powers immediately and aggressively to put a stop to that. (Although the SO community is well aware of how ineffective the SO regime laws really are even in achieving their stated purposes of public and women’s purported safety.)

See my thoughts further on in this Post where I discuss that thread and its approach a bit more.

All in all, I am verrrrry leery of the feminist-law approach and the mind-set that underlies it.

(Which is not at all to say that I support genuine sexual offending by anybody of any age or gender against anybody of any age or gender; nor am I anti-woman or misogynist or in favor of female Citizens being deprived of Constitutional protections.)

And while it is nice to see how even feminist-inspired legal thinking can actually work in favor of SOs, I also realize that the entire SO Mania is profoundly inspired by the general feminist-law approach as it has evolved in this country over the past few decades.

So much for the cases. Let me move on to some further discussion of Nussbaum – since her vision is a major element in the theoretical underpinning of the feminist-law agenda.

As I had said in my previous Post, it seems to me that the 1970s saw feminist-law thinking and strategizing adopt the Black Civil Rights paradigm. In that paradigm, it was simply (and generally) accepted as true and as a given that the South of the Jim Crow Era (between roughly 1875 and 1965) clearly discriminated against Blacks in the South in such profound and clearly un-Constitutional ways that the government was justified in stepping in and vigorously re-arranging Southern culture and society in order to finally put an end to the whole Jim Crow regime.

Thus the government would be ‘regulating’ the South and its laws and its culture through aggressive action. So there was a ‘presumption of guilt’ – and that presumption was made against all Southerners such that you pretty much could and had to presume that everyone and everything down there was ‘tainted’ with Jim Crow thinking.

Nor did you have to presume that Southerners were individually and consciously seeking to abrogate or suppress the Constitutional rights of Blacks in the South: Jim Crow was so much a part of the warp and woof of Southern culture of that Era that even ‘decent’ white Southerners who had no conscious and deliberate ill or malicious intentions could grow up in that culture simply assuming the ‘normality’ (and even Constitutionality) of Jim Crow.

Thus ‘regulatory’ law would be the paradigm: the government would literally re-form or re-shape Southern culture so that it would no longer provide a seed-ground for Jim Crow-type suppression of Black Constitutional rights. And, as I said, this ‘regulation’ presumed the tainted nature of Southern culture and of the mind-set of most Southerners.

And Southern law – though ‘legal’ – and Southern legal thought had to be overridden in any instance where it operated to effectively deprive Southern Blacks of their Constitutional rights.
This might work in a ‘regulatory’ law approach.

But you can see where it bodes hugely dangerous trouble if applied to the practice of Constitutional criminal law: you cannot, in Constitutional criminal law, ‘presume’ the ‘guilt’ of an accused defendant. Indeed, such a presumption is not only un-Constitutional but profoundly anti-Constitutional.

Feminist law – and Nussbaum insofar as she codifies feminist-law thinking and underpins the feminist-law agenda – adopted the Black Civil Rights approach as it sought (and seeks) to re-shape American culture.

Thus, according to the paradigm: American culture is as hostile to women - and even more so - as Jim Crow culture was to Blacks; and since then the entire American culture is ‘tainted’ with those habits of thinking and acting, and since American law and jurispraxis is so tainted as well, then the government sovereign power must be deployed against American culture and the ‘male’ mind-set just as aggressively as it had been against the anti-Black Jim Crow culture and mind-set in the South.

Thus much of the ‘culture war’ dynamic as it has played out in the country for the past decades. Although most media and public attention was focused on ‘instances’ of such deprivation, rather than on the deeper legal thinking that was starting to flood in with ‘feminist law’.

But then in the Domestic Violence and Sex Offense legislation, you start to see the migration of this ‘regulatory’ approach into the criminal law.

Thus for example, the ‘male’ is ‘presumed’ to be violating the rights of the female, and the government power thus must be exercised not to determine guilt (which is already presumed) but rather to ‘vindicate’ the rights of the female (increasingly cast as ‘the victim’).

You can see this clearly and quickly in the Domestic Violence entry in the massive “Corpus Juris Secundum”*, the legal encyclopedia that amasses all of the case law in a given area of legal practice. A 1987 Pennsylvania case is cited** wherein a court upholds the Domestic Violence legislation against Constitutional challenge by stating that such (at that time) apparently un-Constitutional novelties as ex parte court procedures, deprivation of access to property and family, warrantless arrests on the say-so of one person, and many of the other elements of Domestic Violence law were justified because of a) the ‘emergency’ of (male) violence and b) “to compensate for deficiencies in the criminal justice system”.

Note the ‘emergency’ bit. The SO community will recognize it.

Note too that the “deficiencies” the court refers to are actually the Constitutional principles precisely set up by the Framers to prevent the hasty and emotional misapplication of the sovereign police power against a Citizen. IT WAS PRECISELY TO GET AROUND THEM that the feminist-law approach – with its incessant trumpeting of ‘emergencies’ that precisely DO require ‘hasty’ action – selected the ‘back-door’ paradigm of Civil and Constitutional Rights in order to insinuate itself into the American legal system.

Thus, Domestic Violence law is ‘civil’ and ‘regulatory’ in nature and not ‘criminal’ (although, neatly, if you violate a DV protection order then you are subject to criminal penalties).

And it ‘presumes’ the ongoing offenses on the part of the ‘male’ just as the Civil Rights Era anti-Jim Crow regulatory approach presumed the racism of the Southern culture and population, regardless of whether any of those folks thought they were committing, or intended willfully to commit, a crime.

And in the 1980s Domestic Violence law you start to see verrrry queasy ‘reforms’ that – by the way – are not at all unfamiliar to the SO community: these are ‘civil’ and not ‘criminal’ procedures (although – tee hee – criminal sanctions apply if you violate the Protective Orders); the ‘emergency’ is soooo great that SOMEthing must be done without any further delay; the goal is not ‘punishment’ but MERELY ‘prevention’; the now-traditional promise that the whole regime will ‘end’ something (in the Domestic Violence scheme, ending ‘family disruption’); and the grab-bag of dangerous tactics: ex parte issuance of Orders, warrantless arrests even on one’s own property, accepting the ‘word’ of the reporting party as sufficient to deploy the police power, as well as the de facto presumption of guilt.

Now what starts with Domestic Violence is taken to a dangerously aggressive new level in the 1990s Sex Offense regime – you are seeing an even clearer migration of the ‘regulatory’ into the ‘criminal law’ arena. And that’s on top of the whole invasive government-power paradigm derived from the Civil Rights Era.

The effect – and I believe the intent – of the feminist-law approach here is to sidestep or get-around the Constitutional safeguards that protect individual Citizens from the invasive and hasty application of the sovereign government police power through the criminal law.

Thus, SOs, like the Southerners of the Jim Crow Era paradigm, are presumed to be violent and dangerous; and thus they must be ‘regulated’ in the interests of an aggrieved group whose rights are already known to have been violated such that the government is not creating a ‘new’ level of invasiveness but rather is merely stepping-in to redress a long-standing abrogation of ‘rights’.

And thus SOs are not so much individual Citizens who – at most – have deliberately committed a crime; rather, like those Jim Crow Southerners, they are a deeply misguided group that has – whether deliberately or otherwise – been violating ‘rights’ and have to be stopped through ‘regulation’.

AND you can presume as a given that they indeed are doing the violating. And so any ‘trial’ is going to be a ‘show trial’ in the formal sense: a trial not to ascertain guilt or innocence, but rather to ‘show’ that the government power will redress, prevent, avenge against actions that are so abusive of others’ rights that the actions must be stopped immediately.

THIS, I think, helps explain the profound intransigence of legislators and jurists in the matter of establishing and critically analyzing the SO Mania regime of laws. They are not simply politically pandering to vocal ‘interests’ (although that too now is a major element in this thing). Rather, they are convinced by this ‘regulatory’ paradigm (long espoused by Justice Ginsburg, and codified in the law schools by Professor Nussbaum) that they are doing The Right Thing, the same way that the legislators of the 1960s did The Right Thing by putting an end to Jim Crow culture in the South.

So the ‘regulatory’ and ‘civil’ aspects of the SO regime are actually vital elements of the Mania, specifically and deliberately (I would say) selected precisely as a way of circumventing ‘traditional’ American Constitutional safeguards.

To put it another way: if you have a ‘right’ not to have a crime committed against you, then any crime committed against you can be construed as a violation of your purported ‘Constitutional right’ not to have a crime committed against you (or, put another way, your ‘right’ not-to-live-in-fear-of-a-crime-being-committed-against-you). THIS THEN triggers the Southern Jim Crow paradigm, whereby you are having your ‘Constitutional rights’ violated and the ‘defendant’ or alleged perpetrator is now also an ongoing civil-rights violator.

AND ONCE THAT paradigm is accepted, then the classic and traditional (and indispensable) Constitutional rights accorded to accused Citizens that are enshrined in the Constitution are effectively sidestepped and you can be treated by the government not as the classic ‘defendant’ but rather as an already-presumed civil-rights-violator; and there go your rights.

And since the whole thing is a matter of ‘civil rights’ and not of a specific alleged crime, then not only are your Constitutional protections sidestepped but you are subjected to the tripwire jurisprudence and legislation that are the consequence and legacy of the anti-Jim Crow campaign of the Civil Rights Era.

Verrrrry neat. Verrrrrrrrrrrrrry dangerous.

This entire dynamic is reinforced by Nussbaum’s long held belief that ‘emotions’ are themselves a form of ‘reasoning’ rather than a potentially dangerous rival to ‘reasoning’. (Which is a curious position for a feminist, who might reliably be imagined to refuse any such equation of ‘female’ and ‘emotionality’ as opposed to ‘rationality’ – but Nussbaum tries to solve that problem for herself by claiming that ‘emotionality’ is a form of ‘rationality’ … neat.)

And of course, one of the primary emotions is Fear – and once that is introduced as a primary element in jurisprudence and in the justification for sweeping police-power legislation (even when costumed in ‘civil’ or ‘regulatory’ sheeps-clothing) – then any Constitutional ethos is in a heepa trubble.

Ditto ‘outrage’ if you presume or discover yourself to have been denied your ‘rights’ all along.

Ditto raging impatience as you feel yourself justified to ‘demand’ immediate redress and vengeance.

Ditto the legislators and jurists who then want to mollify all these raging feelings and yet still claim to be acting (legislating, adjudicating) ‘rationally’.

Oy.

And further, I had mentioned in the previous Post that Nussbaum wants to see her concept of ‘rights’ imposed by courts – especially the Supreme Court, because she doesn’t really trust ‘politicians’ or the ‘political process’ any more. But of course, you couldn’t trust the Jim Crow Era Southerners to clean up their own culture because they were so thoroughly used to it that they would neither be motivated to change nor able to see what had to be changed in the first place.

In the Nussbaum-Ginsburg vision, American culture (and – even more sweepingly – human culture) is as profoundly besotted and deformed by ‘male’ and ‘macho’ thinking and acting (especially in matters sexual) as Jim Crow culture was besotted and deformed by anti-Black racism.

And that therefore, in terms of the paradigm, American and world culture must be as vigorously and aggressively ‘changed’ as the culture of the Jim Crow South was.

Hence you get a Beltway, now, that considers itself empowered to do all of that.

And – since the trouble is not so much a ‘criminal’ act as it is a thoroughly tainted and debased 'white and male' cultural outlook and way of living and thinking and being – then the government sovereign power must be deployed against the most profound core of the national culture itself.

This is a recipe for a lot of things, not all of them good. But it certainly requires something more than a ‘limited government’ in the Constitutional and Framing vision – which is precisely why the Constitution has been under sustained and lethally profound assault not only from the Right but from the Left (which was supposed to be the ‘liberal’ and pro-people side).

And, I think, it is the profound un-ease evinced in the hearts and minds of the Citizenry that has constituted so much sustained hesitation about embracing this vision that Nussbaum now (in her 2007 article) effectively declares that ‘democracy’ cannot be trusted to ensure her vision of ‘rights’! So she looks to the courts. (And thus you can see why, on a much deeper level than is usually noticed, it is essential that persons (and not necessarily female) who buy into this vision are appointed to the Supreme Court.)

Oy.

Which brings me to my last point: defining ‘rights’ in all of this. There are, I would suggest, three overall conceptions of American Constitutional rights: the first is the 1787 vision: Americans as individuals and as a civil society have a right to be free from any excessive government (National even more than State) intrusion or aggressive action that is not most clearly and undeniably justified. In this vision, the government police power and sovereign authority must be bound so as not to flood like the Mississippi and wreck everything built up along its banks and flood-plain.

The second vision is FDR’s rather overly capacious ‘Second Bill of Rights’ of 1944: every American should have a right to a job with a living wage, a home, freedom from unfair competition and monopolies, medical care and education. Now the government power is envisioned not simply as keeping the boundaries of the national ‘playing field’ steady and level and clear but is actually going to be running the national ‘game’ – this suggestion of FDR’s was a huge (and not altogether workable) change from the 1787 vision.

Even more so was his Four Freedoms: freedom OF speech and expression and freedom OF religion; but also freedom FROM want and FROM fear. You can see quickly that any government that would seek to implement the provision of such Freedoms as FDR proposes was going to have to be a verrrry busy government indeed.

And to stay relevant to SO matters, this Freedom From Fear: if a government has guaranteed to its people that it will protect them from all Fear, then that government is going to need the wisdom and organizational ability and authority of ‘God’. And if you watch the development of feminism and victimism through the last few decades in this country – where ‘fear’ seems to be the primary characteristic of Citizens … then you can see where this all can go.

And if on top of that you accept the vision that one group of your own Citizens is by very nature and cultural upbringing the greatest source of ‘fear’ among the rest of the Citizens … you can see quickly where the Sex Offender becomes not simply a Problem, but a Necessary Demon that has to be invented in order to keep the Fear Factor up. Oy.

Or, to put this point another way: the massive post-1965 Second Reconstruction of Southern culture and laws could not have happened unless there was the 'emergency' and 'outrage' posed by the ongoing and violent 'taint' shared by Southern culture and by - for all practical purposes - all Southerners; the Southerners were the ongoing evil perps whose existence was essential to catalyze and justify the massively intrusive extension of Federal authority in those States. So too, I would say that the existence of the ongoing, uncontrollable and irredeemable 'sex offender' is essential to the massive extension of Federal authority in the Sex Offense Mania and its regime of frakkulent laws.

And, of course, all of this dovetails with feminism's Deconstruction-Reconstruction of 'tainted' American culture and society and - oy! - the American Constitutional ethos and even the democratic and deliberative process. (After all: according to Nussbaum, it's not the 'process' but the 'outcome' that is important here: the 'taint' has to be thoroughly uprooted like the Biblical weeds among the wheat - and it has to be done RIGHT NOW because, neatly and slyly if also somewhat incoherently, it is a 'constitutional rights' problem.)

But then there is also this third vision of ‘rights’: Nussbaum’s Capabilities Approach. Here, as I noted in the previous Post, she is claiming that ‘formal rights’ aren’t at all enough: government must do whatever it takes in order to make sure that everyone has AN EQUAL CHANCE to exercise those rights. And once again: when government is not only tasked with keeping itself from intruding into the polity, and not only tasked with ensuring protections that not even Divine Providence has historically guaranteed in this life, but is also tasked with ensuring that absolutely nothing interferes with the Capability to Exercise the Rights that the Constitution guarantees … then you have a Benevolent Despot from hell.

So when the term ‘equal rights’ is thrown around, you have to understand that there are hugely different ‘loads’ that the phrase might be made to bear. And you have to ask the speaker of the phrase just how s/he defines ‘rights’ in order to get an inkling of just how much government power will be necessary to guarantee that they are ‘equal’.

And you can’t ignore the question as to whether any earthly government has a reasonable chance of doing so much. And doing it well.

And whether the government of 1787 – not because it was ‘male’ or ‘majority’ or ‘white’ but simply because it was HUMAN – has any possibility of undertaking such a huge agenda and yet still remaining a limited government.

Thus when you hear folks saying that the Constitution is ‘defective’ or ‘quaint’ or ‘inadequate’ you have to ask yourself some very serious questions as to just what the speaker expects the government and the Constitution to be doing.

Because if feminist law is essentially implying (though slyly not saying it in so many words) that if 'limited Constitutional government' doesn't meet its demands (couched as 'equal rights' arguments) then 'limited Constitutional government' has to go ... if THAT is the core dynamic of their programme, then We most surely have a huge national discussion to conduct.

(And if several decades of generations of law students, law professors, attorneys, prosecutors, and judges at all levels have already been produced under the illusion that this type of dreck is 'cutting edge' and 'progressive' and 'reform' thinking, then We most surely are in a heepa trubble.)

So then, I see after reading Nussbaum , that Sex Offenders and the Mania and its regime are not simply a cynical and duplicitous effort of a failing government to pander to certain ‘interests’ in the hopes of securing electoral support and distracting public attention from its own short-comings. Rather, the SO Mania is simply a step in the deliberate effort, grounded and guided by Nussbaum’s game-plan (Ginsburg the most successful quarterback), to profoundly alter the role of government by seducing it into taking on Objectives and Goals that no human, let alone limited, government can ever realize.

To imagine that such a plan is merely ‘optimistic’ and ‘progressive’ is to imagine that a rhinoceros can fly – or even dance ballet in a tutu.

And the SO community is on the cutting edge of this frightening shift in American governance as it attempts to move the tectonic plates upon which the whole polity rests.

We have a job of work to do.

And the country needs the help more desperately than it knows.

NOTES

*The CJS is a 100-plus volume copyrighted legal encyclopedia. I can’t find its material online; a large public library or university or law school library would have a set (about $7,000 for the whole). The ‘Domestic Violence’ section starts off Volume 28. . [Verry interestingly, while the CJS has specific article entries for Domestic Violence and for Rape and for Sodomy, it has no article-category for ‘Sex Offenses’; perhaps the editors consider the subject too incoherent to organize; or too changeable to keep up with; or – could it be? – not a real legal category worthy of inclusion in their encyclopedia at all.]

****Yankoskie v. Lenker, 526 A.2d. 429.

GARRY WILLS ABUSING THE POPE

(I put this article up on my other site. It’s about the Catholic clergy sex abuse crisis; the popular intellectual Garry Wills gives his views in the article to which I link here. Since I get into concepts of feminist and victimist law as they relate to a sex-abuse situation, I thought it would be of some use here. Apologies if there’s a bit more other stuff – religious history and Western political history – than I would usually put in an SO Post on this site.)

I have a backlog of subjects and material for Posts and I don’t like doing a same-subject Post immediately after I’ve already done one.

But after putting up the previous Post yesterday, the course of my reading today brought a Garry Wills article (“Forgive Not”, in ‘The New Republic’, print edition of May 27, 2010, pp. 14-16).

The article is worthwhile in a negative sort of way.

Wills starts off with the wrong dates, and portentously so: “This early in the twenty-first century, the rulers of the Catholic Church have suffered an earthquake of crumbling credibility. Nearly ten years ago …” He’s going for the long-range ‘historical vision’ here, and considering that the Church has been around for all twenty-one of those centuries, it’s not a bad thing.

But “the rulers of the Catholic Church” strikes a sort of monarchical note that does not really capture the mode of governance that operates in the Church: the Vatican does not “rule” in the sense of a monarchy in the Middle Ages or in any pre-modern era. Though surely in a democratic (such as it still is) era the term “rulers” is going to strike certain chords in any reader.

It wasn’t ten years ago but twenty-five or so that the first focus on Catholic priests surfaced, about the same time that the ‘victim’ or ‘victim-rights’ movement was picking up steam, in Reagan’s first administration, not long after the Satanic Ritual Abuse School Day Care mania had gone through its first explosive phase. My own thought is that Wills uses the shorter time-frame to avoid giving ground for a reader wondering why this thing has been going on for a quarter of a century, and to preserve a sense of the ‘freshness’ of the issue.

He is falling into line with the thrust of this 4th phase (by my count) of the Catholic Clergy Sex Abuse matter, which is to go after the Vatican, the Pope and the rest of the Church’s leadership in Rome as well as in Europe. “At first, the Vatican rejected the measures taken [in 2002] by [the US bishops’ conference ] … as not being fair to accused priests, giving too much scope to lay panels of critics, and violating the confidentiality of confessions”. This, to Wills, constitutes evidence of collusion and cover-up.

But it seems to me that the observations made in Rome were perfectly consistent and precisely the type of moderation to be expected by a reviewing authority considering measures made by more local authority in the heat of a sudden situation that had arisen somewhere in the world.

And surely, the dynamics of the evolving victimist-‘sensitive’ jurisprudence (and media treatment) were unfair to any accused. In the evolving script dynamics, a) anyone who claims to be a victim is indeed a victim; therefore b) anybody accused must be a perpetrator simply because ‘there is a victim’; and further c) a victim cannot be questioned closely or skeptically about an allegation because that would ‘revictimize’ and ‘disrespect the pain’ of said victim; but there’s no need to worry about a miscarriage of justice (civil or criminal) because d) victims don’t lie.

You don’t need a law school education to see how such a set of assumptions – utterly fundamental to victim-oriented ‘justice’ – would, regardless of their ‘good’ theoretical intent, profoundly derange Constitutional principles of ‘innocent until proven guilty’, the right to confront and examine one’s accusers, and indispensable standards of evidence.*

Wills, however, wants the Vatican comments to be evidence of something much more sinister. This is not solid historical analysis; it is selective and seeks to move readers toward one specific (and negative) view, though the supposed ‘evidence’ clearly indicates that there are other less-sinister and even more plausible explanations.

Equally so, he quotes a Cardinal (Bertone) who opined to an Italian magazine that he didn’t think it a good idea that a bishop be required to forthwith “denounce” to the police one of his priests who “admitted the offence of pedophilia” to that bishop; if a priest could not confide in his bishop then the core of the bishop-priest relationship is cut away.

Bertone is right, from a purely conceptual standpoint. Although there is enough evidence that bishops did not hold up their end of the responsibility by taking forceful action (insisting on credible therapy, removing the priest from certain ministries, or from ministry altogether, or having Rome ‘defrock’ him).

Becoming aware of that, the Vatican now has to steer an even more difficult course: beefing-up the disciplinary and preventive elements of episcopal oversight and priestly training, while simultaneously not yielding to the excesses of the reaction that Rome’s own failures have ignited.

It also strikes me that Bertone’s reference to “an offense of pedophilia” is unhappily vague. Is he referring to a priest confessing what amounts to the clinical diagnosis of pedophilia – which itself is only ‘an attraction to’ prepubescent children? Is he referring to the confession of an actual pedophilic act? Or merely to that ‘attraction’ though it has not been acted-upon? And if it has been acted upon, in what degree was the ‘act’? Or is it a sexual attraction but not to prepubescents? Acted upon or merely the ‘attraction’? To the conventional ‘script’ as it has now evolved and mutated, this is all ‘thinking too much’ and ‘evidence’ of collusion and cover-up; but to any administrator or manager or leader of a human organization (and not just a religious one) these are significant questions that must be addressed before a constructive and efficacious corrective policy can be formulated and deployed.

Similarly Wills quotes another Cardinal (Casado), not an American, who looks at American society from the outside (rather a multicultural sort of thing) and opines that the pedophilic scandal is attributable to “exaggeration, financial exploitation, and nervousness”.

To Wills this is evidence of more high-level cover-up. But Casado’s remarks are hardly inaccurate, though not a complete assessment of the matter. That from the point of view of social psychology there is some connection between America’s embrace of abortion and a greatly reduced family life on the one hand, and a simultaneous anxiety over the safety of ‘children’; that one of American feminism’s primary foci has turned out to be the sexual activity and proclivities of males; that the ‘reform’ (actually weakening and skewing) of both civil and criminal jurisprudence (see Note 1 below) has had as one of its consequences the opening of a highly lucrative opportunity for unscrupulous litigation; that the combined authority of both media and legislators has been deployed in the service of heightening this societal anxiety (or ‘nervousness’) … these are hardly inaccurate or irrelevant observations. It’s mostly sad that Americans as a rule can’t see these dynamics as clearly as non-Americans.

(And I suppose I’d best say this now: I hold no brief for sexually abusive priests nor bishops or any managers lax in their oversight. I say this here because I noticed in victimist matters decades before the reign of Bush-Cheney, that verrry disturbing simplification to the effect that in the matter of victim-sensitivity one is either ‘with us or against us’ and that any effort to think is nothing but evidence of ‘insensitivity’. And, Wills would like everyone to think, evidence of collusion and cover-up.)

I can certainly agree to some extent with Wills when he quotes disapprovingly the opinion of the dean of canon law at the Gregorian University that “the bishop and superior (of religious orders) are neither morally nor judicially responsible for the acts committed by one of their clergy”. The service of human beings generates a strong responsibility to ensure training and oversight of those who will serve; this is as true for the Church as it is of, say, the Pentagon, when it deploys combat troops into civilian areas where non-combatants might be harmed by the actions of those troops.

And I think that in that regard the Church has not taken its responsibilities seriously enough. And to the extent that the Church is now correcting that – and has – then things are progressing at least as well as, again, the military’s efforts to fine-tune its activities in the several current war-zones. **

Another Cardinal (Maradiaga) is quoted as observing that Cardinal Bernard Law (of the Boston Archdiocese, in charge there when the 3rd phase broke out in January of 2002) was subjected to “Stalinist processes against Churchmen”. As I say in Note 1 below, the similarity of dynamics between ‘revolutionary justice’ and the methodology of feminist-victimist law cannot be ignored.

Which is not a cheap shot seeking to ‘trump’ everything else, but rather is an observation that warns of the presence of dynamics highly corrosive of the Constitutional ethos and is intended to stimulate serious deliberation about what is going on and the possible consequences (unintended, one must hope).

Another Cardinal (Rodriquez) is quoted as observing that the sustained nature of the media attention amounts to “an obsession [that] is a mental illness”. From the point of view of a social-psychology analysis, it’s neither an inaccurate nor irrelevant observation.

The same Cardinal observed in a press conference that Americans have become rather litigious, using the example of suing a homeowner for slipping on a banana peel on the sidewalk in front of the house. This is hardly an original or novel observation and is almost conventional-wisdom even among Americans. As is his further observation that such litigation has become “a kind of industry” in the United States. That Wills claims this as evidence of cover-up or avoidance is a stretch indeed.

The same Cardinal then perorates that he’d rather go to jail than “harm one of my priests”. As a statement of pure principle it is unobjectionable and even impressive – surely the example of Abu Ghraib, where the ‘little people’ among the guards were offered up as scapegoats while the higher-ups escaped consequences comes to mind.

But I have to say that if any prelate in episcopal authority or in the Vatican failed to take sufficient measures in the oversight and training of his priests, then he has indeed “harmed them” as well as made possible the harm to any genuine victims of such priests. And in that I concur with Wills’s anger.

Wills then asserts that although his own book – “Papal Sins” – was published in 2000, before what I would term the 3rd phase, yet he sees now “the same patterns of denial, evasion, defensiveness, accusation, and protestations of innocence and holiness that I had already analyzed”. I have not read Wills’s book, but the quotations he marshals in this article do not with any degree of clarity establish such “patterns”.

Indeed, I am reminded of nothing so much as the ant-aggressors in T.H. White’s “Once and Future King”: preparing for a war against another nest, the ant propagandists say of their intended targets that “they are attacking us by defending themselves”. This dynamic is a key element in the victimist methodology, sad to say: if you do anything less than totally and immediately accept and approve every claim that a self-designated ‘victim’ makes, then you are somehow ‘attacking’ or ‘re-victimizing’ the victim. This simplistic equation is a recipe for democratic and Constitutional catastrophe. And it is no coincidence that White’s novelistic characterization was a reflection of Hitler’s actual propaganda as he gobbled up one neighboring country after another claiming ‘national self-defense’ and characterizing any opposition to his invasions as ‘attacks upon the German troops and people’.

But then Wills goes in another and more extraordinary direction. He claims to have been moved by reading Lord Acton’s disapproving assessment of the first Vatican Council (1870): Pius IX had used low political pressure tactics to get the Council to approve his claim of ‘papal infallibility’, Acton said, but clearly a papacy that had gotten through the St. Bartholomew’s Day Massacre (of the French Huguenots in 1572) and whose claims to near-imperial authority were based on forgeries (the ‘Donation of Constantine’, dating from the 8th or 9th century A.D.), “was just acting true to form”.

This gets Wills going on the idea that the Papacy itself is an “ahistorical” accretion, almost a parasite (my image, not Wills’s) that fastened itself upon genuine Christianity and upon “the people of God” (Wills’s term). In other words, there is, according to Wills, a genuine Christianity comprised of lay believers, and then there is this thing comprised of clergy and bishops and Pope that was not part of the “early history of the Christian community”. Nor, he adds, were “males the only ministers at the outset”.

I had mentioned in earlier Posts within the past month that among the ‘interests’ comprising the synergy driving the oddly sustained ‘crisis’ of Catholic clerical abuse was a congeries of primarily Western and American elements who a) want to ‘democratize’ the Church and b) want women to be ordained (as part of the feminist initiative). I had also opined that this 4th phase of the ‘crisis’ seemed even more specifically aimed at taking a big bite out of the Vatican and the Papacy itself, almost as a logical extension of the earlier phases, but more specific and, consequently, more revealing of its basic generating dynamics and objectives. And here now is Wills’s article pretty much laying the whole thing out.

Wills recounts the history of the Papacy’s increasing monarchical trappings and power throughout the Middle Ages. He presumes that it is evidence merely of a parasitic organism’s deliberate attempts, with malice aforethought, to impose itself upon genuine and true Christianity, those “people of God”.

I would like to see more concern for the complexities of Western history after the Fall of the Roman Empire. The Bishop of Rome – now the only authority left in the City with the departure of the Imperial court – became the only temporal as well as spiritual authority in the City. And when the Western Empire collapsed, and the Byzantine Patriarch attached himself as a sort of Court Chaplain to the Eastern Emperor in Constantinople, the Bishop of Rome both became the only authority left in the West and also sought to gain some equal authority to the Patriarch of Constantinople in order to prevent the lands and peoples of the former Western Empire from simply being subsumed spiritually under the senior authority of the Patriarch and the Emperor in Constantinople.

In the process the Roman Church established itself as independent of secular and temporal authority (as the Orthodox Church in the East, as evidenced by the Russian Orthodox Church, did not do).

As the Dark Ages ended and the Middle Ages began, Western political structures began to develop into nascent monarchies, and the Papacy found itself now striving to preserve spiritual independence across a broad spectrum of grasping temporal powers. The Papacy wound up becoming something of a temporal monarchy itself in order to avoid being overrun, or being subsumed as the ‘court chaplain’ of this or that momentarily dominant monarch or ‘emperor’.

And it wound up not only remaining the fulcrum of spiritual authority but also struggling to retain itself against the temporal tumult of Medieval European politics.

You don’t operate in floods like that without getting wet – and the Papacy wound up as temporally befouled as the rest of the monarchies of the time.

But to characterize this as some sort of long-held conspiracy on the part of (pick one or several: power-hungry clerics, ‘men’, maniacs) to deprive God’s true people of their rightful authority in matters of Church governance ... that is indeed a stretch.

Indeed, absent a central fulcrum of identity, Christianity would have dissolved into the many variants that actually developed after the Protestant Reformation, including the queasy fundamentalist sects so repugnant to Wills and the ‘liberal’ interests with whom he shares such an aversion to the Vatican and the Papacy.

So his analysis here does not at all impress.

Especially when he refers, almost incoherently, to the Papacy’s “ahistorical and medieval roots”. In the first place, the Papacy is verrry much ‘historical’ and in the second place its roots go back further than the Middle Ages (although roots in the Middle Ages alone would still be a pretty hefty set of ‘historical’ credentials).

I see in Wills the feministical tendency, evident as well in Marxist thought, to see ‘history’ primarily as a ‘conspiracy’ of those currently targeted as being ‘successfully in power’; said ‘conspiracy’ to have somehow existed and been sustained and nurtured over long eons of human history. Marx actually was on to something – the natural tendency of humans to seek security but also to overdo it and greedily amass resources – but the ‘conspiracy’ bit as a fundamental driving dynamic of history was a serious derailment.

Ditto the feminist assertion of the all-powerful ‘patriarchy’ that was responsible for everything that they felt was wrong these days (and whose ‘defeat’ was, by the by, such a great achievement of the present cadres of the revolution): ‘men’ had evilly plotted and ‘oppressed’ for no reason but pure malice. (Yes, there is now a kinder, gentler branch of feminist thought that feels ‘men’ might simply have been ignorant, and will be rescued by the current cadres – but the essential presumption that ‘men’ are ‘the problem’, have always been the problem, and will continue to be the problem remains.)

This is the investigative paradigm that Wills brings to the Papacy, through the mechanism of this multi-phased, sustained ‘clergy sex abuse crisis’.

Thus he rails against “the mythical underpinnings of the priestly system”. I think he only means ‘male’ priests; I get the impression that if priests were women, his objections to ‘the priestly system’ would dissolve; perhaps also his objections to the Papacy if a woman were Pope.

He asks with an angry flourish: “What real change can occur when such myths are clung to with a blind ferocity?” I’m not sure that the Vatican is either ‘blind’ or ‘ferocious’, but certainly he has given no evidence to support such a characterization.

It is equally possible that in the Vatican they don’t quite see the value of what Wills (and his many compatriot ‘interests’) is seeking; or they don’t know if ‘revolution’ as practiced in America these past Biblical 40 years is a prudent way to go; or they realize that with the exception of the declining West the current Church structure (of which abuse is not an officially-approved component part) is doing rather well in the world; or perhaps they see what happened to the music when Protestantism deprived the orchestra of a conductor and a score and yet claimed that every player could play the music s/he sorta felt was best – and how THAT has worked out for ‘the people of God’.

There are many possibilities here – and Wills’s efforts to move the herd down the one path he favors smacks of manipulation.

“The reaction of the hierarchy has been to dig itself even deeper into the past”. Surely, an institution that has survived for twenty-one centuries is going to have a sense of its past. And by the same token, is going to be a little leery of those who suddenly insist that that entire ‘past’ has been nothing but an oppressive and malicious conspiracy.

The stampede game-plan worked with the vote-addled Democrats over here 40 years ago, and contributed to the deformative morphing of both Parties into the treacherous blob that the Beltway now is.

But it hasn’t worked with the Vatican and the Papacy. Which, I think, is gall and wormwood to the cadres and drives them to frenzy – and hence, partially at least, the sustained nature of this ‘crisis’ over a quarter of a century.

This is a matter not only of interest to Catholics but to Americans. Because the dynamics involved here are deeply corrosive of a deliberative politics and the Constitutional ethos.

NOTES

*I have mentioned in a prior Post the statement of one Wendy Murphy, law professor and expert on ‘victim law’, who recently burbled that she was happy that a victim would not be denied ‘justice’ merely because of a lack of evidence. I am currently researching a far weightier expression of that principle by Martha Nussbaum, a top-tier philosopher of feminism, who gives clear voice to the basic feminist assertion that trials are not to establish the existence of a crime so much as to ‘provide justice’ to the (already believed) ‘victim’.

Thus, in her and feminist law’s vision, it is the outcome of the trial (punishing the already-presumed perpetrator) that must be the focus of expectation, rather than the process of ascertaining whether the defendant was indeed a perpetrator at all. In this scheme, the mere existence of the ‘victim’ is proof-positive that the crime was committed; the courts are simply there to provide official certification of that fact by deploying the sovereign police power of the state to punish the perpetrator-defendant and bring about (pick one or several: ‘justice’, ‘acknowledgement’, ‘closure’, ‘retribution’, revenge, prevention of further victimization).

Once you look at its core dynamics, it’s hard to distinguish the fundaments of ‘feminist’ and ‘victim’ law from the ‘revolutionary justice’ and ‘show trials’ of the Stalinist or Maoist or Hitlerite regimes, to name but a few more recent examples. And you don’t have to be a Pope-defender to see that either.

**In that regard, for that matter, the Church has never sent out the type of flyer to its agents that the USAAF sent to its bomber pilots during the fire-bombing campaign of Japanese cities: “for us, there are no civilians”. Nor have any priests or Church agents ever been assured, as American troops now report they were assured, that ‘command’ will ‘cover them’ if they kill civilians in the course of their actions. Thus, there has never been a Church document advising priests that it was ‘open season’ on children and they would be ‘covered’ by the Vatican if children (or anybody of any age) were sexually abused or raped in the course of ministry.

CONNECTED

As you may have noticed, the Catholic Priest Sex Abuse tornado has circled around and blows through town for – by my count – the fourth time now.

I have already Posted on that curious phenomenon on my other site and you can read that here if you wish. This phenomenon is a sub-variant of the general Sex Offense Mania and I look at it as the result of a synergy of all sorts of larger and deeper forces in American society.
My concern in this Post on this site is a bit more specific.

I came across an article today about a priest from India – now back in India – who, years later, is charged with “sexually assaulting” a “teenage parishioner”. Or, at least, the charges are just now being publicized.

As always, I hold no brief for anyone who takes liberties with another human being, especially when that anyone is in a position of trust or authority.

I also don’t like stampedes. And while they’re physically dangerous when you’re talking about Texas Longhorns, they’re politically and morally dangerous when you’re talking about people, especially Citizens responsible for a Constitutional Republic.

That being said, and meant, there are some other points.

First, of course, is that “sexual assault” – the trusty vague phrase that can mean anything from something approaching Attempted Rape to something like a pat on the behind (or, for that matter, on the head, since as I noted in my last Post it seems acceptable in Sex Offense jurisprudence now to infer a ‘sexual’ motivation even if it isn’t actually there).

The parishioner is a 16 year-old female, which while it certainly does not excuse improper behavior indicates that this is not the Lindbergh Baby case either.

Curiously, there isn’t too much of a timeline given. But what there is indicates that he came to this country in 2004, worked in a small parish in northern Minnesota, and then in 2005 returned to India – the article says – because his mother was ill.

Half a decade later and the case is part of the 4th Wave.

There is no reason given by the local prosecutor as to why it has taken half a decade to bring the case to light, or why the US government has not yet moved for his extradition.

An ecclesiastical official in India said that in light of the public criticism that has arisen, the priest “has a duty to establish his innocence”. I’d like to point out a couple of things about that comment.

In the first place, in the context of the Catholic Church, with the priest being an official representative and the matter receiving – as it now is – wide publicity, then the publicity itself now creates its own variable in the equation: there is the matter of “scandal”. In Catholic organizational and legal usage this term means that there is an event or action which might subject the faithful to unnecessary and unwarranted doubt as to the integrity of the Church.

When a matter which had been previously dealt with without such a publicized dimension is suddenly raised up by publicity, it is not so much a matter of the American popular usage of the word ‘scandal’ (something bad had been ‘hidden’ or ‘swept under the rug’ and has been finally brought to light); in theory – and in this case – official Church procedures were deployed and the priest in this case was sanctioned by his bishop –in this case, the priest is no longer working in parishes but rather in a special-ministry with alcoholics (where, presumably, he will be working with few if any children).

Rome – the Vatican – had apparently wanted the priest removed from all ministry, possibly ‘defrocked’ – although the article is not quite clear on this. Whether Rome did it because what the priest was determined to have actually done after ecclesiastical investigation and adjudication was serious enough to justify defrocking, or whether Rome made its recommendation to the priest’s ‘home’ bishop in India simply because the general atmosphere of Mania in the US would pretty much guarantee a situation of probable ‘scandal’ for the faithful … this is an interesting question, not dealt with in the article.

At any rate, in the Catholic system, the ultimate decision was in the hands of the local bishop. This is contrary to a popular impression that the Church functions much as the US military – where ‘Washington’ or ‘the Pentagon’ can issue a definitive order to any forces and local commanders anywhere in the world. In this sense, Catholic organizational practice is actually similar to the American State-rather-than-Federal arrangement, where the ultimate authority rests with the ‘local authority’ – the State – rather than with the Federal authority. (Although in the SO Mania over here we have seen a consistent effort by the Feds to horn in on the States’ Xth Amendment authority – as evidenced in the AWA and other legislation.)

The local bishop in India made his decision that the priest would no longer be allowed to work in parishes; but that he would be allowed to continue exercising his calling in other ministry settings where ‘children’ are not present, nor where the assorted ‘home’ or other ‘informal’ or ‘domestic’ settings organically arising from parish ministry would arise; the priest would work in a setting that by its nature was structured to preclude such informal interactions with the alcoholics.

In this way – in the Catholic view of things – the erring priest (to the extent – one must always say in matters of the SO Mania – that he had indeed erred) was removed from a setting that would place him in occasions of ‘temptation’, and the faithful and the Church would both be preserved from ‘scandal’ and not deprived of his actual services while the priest himself would be allowed to fulfill his calling.

This is – if you take a look at my Post on the other site – a pretty standard example of the Church’s overall ‘patience’ and ‘prudence’ in such matters of priestly weakness, seeking both to maintain the integrity of the ministry while allowing a priest with a demonstrated weakness (to the extent that applies here) to continue to carry on his life-calling.

It is, most certainly, an approach that is hell-and-gone from the more radically ‘impatient’ American approach – so similar to the general Fundamentalistic approach (see my Post on the other site) – whereby ‘evil’ must be immediately rooted out and destroyed vividly. This Fundamentalistic approach, the ‘impatient’ approach in my terminology, informs the SO Mania over here.

As does the ‘zero tolerance’ policy, which actually includes not only an absolute intolerance of ‘evil’ but also the vivid and utter erasure of the offender’s life possibilities.

While nobody can accuse the Church of not being interested in ‘evil’, it has always been rather interested in ‘good’ as well – and the Catholic (as opposed to Fundamentalistic) approach has always been to salvage whatever good is possible from a situation.

This is premised upon a rather common-sense awareness that ‘evil’ does not exist in the abstract, but rather manifests through the lives of individual human beings, and you want to try to avoid creating more damage with your solution than existed with the problem in the first place (and can you say Iraq War?).

Also, the Church has always realized that ‘sin’ is more relevant an operational concept than ‘evil’, since the concept of ‘sin’ includes the human life through which ‘evil’ manifests itself in the world. If you simply grab an edged-tool and start scything away in the field seeking to immediately inflict zero-tolerance on the tares, you are going to wind up cutting up a lot of still-growing wheat.

Which, also, does not mean to imply that some people are ‘tares’ (or weeds, and therefore totally evil) and other people are wheat (and therefore totally good). In the ‘field’ of each human individual, there is some amount of weed (evil) among the wheat (good) … that has always been the Catholic approach.*

And again, to the Fundamentalistic** mentality that has proven so crucially formative in the SO Mania, this can easily be spun into the more sensationalistic ‘script’ of ‘corruption finally uncovered’ that – nicely –also appeals to America’s increasingly sensationalistic media.

In the second place, I’d note that the comment of the ecclesiastical authority in India that it is the priest’s “duty to prove his innocence” must be taken as an expression of this Church requirement that the faithful not be scandalized. As an official representative of the Church, he must respond actively to such accusations – since not doing so (human nature being what it is) would lead the average person (in the American setting, anyway) to assume that the government charges are accurate and that the priest is therefore guilty as charged.

But I would not at all accept this comment as reflecting traditional Western legal theory, especially as it is woven deeply into the fabric of the Constitutional vision and ethos: one is innocent until proven guilty, and it is the government’s responsibility to prove guilt.

It is hugely regrettable, I think, that in 2002 the American bishops chose to ‘settle’ in civil courts (for sums in ‘damages’ that now total in the billions of dollars) rather than accept the route of defending priests in criminal trials.

Yes, sound legal advice from the Church’s organizational legal advisers might very practically have justified that approach: the sight of dozens or even hundreds of criminal trials involving priests as defendants might itself have provided ‘scandal’. And in a time of Mania Law – especially given the deformations introduced into such classic jurisprudential protections as Rule of Evidence and Statutes of Limitations, and the monstrously selective and hostile ‘reporting’ done by most of the media – a seasoned legal professional might have decided that it would be impossible to guarantee the possibility of an uncontaminated trial-process.

But the result of choosing the ‘civil settlement’ route has been equally disastrous. Such a surrender merely engorged and further inflamed the appetite for financial gain. And many accused priests were deprived of a chance to defend themselves. And many of the faithful, confronted with the jaw-dropping sight of the American Church truckling so quickly and shelling out billions without – as it were – a fight, led many to believe that the nightmare scenarios limned by the accusers and their representatives were largely accurate (which has not been established).

Only a little less so, I am going to imagine, have been any plea-bargains made. Yes, seasoned defense counsel now take it as given that a defendant in the current climate and in light of the assorted deformities that have now been formally introduced into the American legal system has a poor chance of establishing innocence in a rational and traditionally Constitutional way. But most Americans still operate on the assumption – now utterly outdated by events – that only ‘guilty’ people make plea-bargains; whereas many defendants now accept plea-bargains imposed by prosecutors who know that the defendant’s only other option is to face a trial on a greatly skewed field.

And that further reinforces the ‘scandal’ of many of the faithful presuming that priest-defendants are indeed almost always ‘guilty as charged’. Which may well not be the case at all.

Most interestingly, of course, the idea of guilty-until-you-prove-yourself-innocent is precisely the anti-Constitutional presumption woven into the very core of the SO Mania legal approach.

And that stems from the very fundaments of so-called ‘feminist’ law or – to use my term – its further enshrinement in ‘victimist’ law. Which is demonstrated clearly in a comment in the article made by the (female) prosecutor up in Minnesota: “We want justice for the victim here and we want to do whatever we can to protect potential future victims everywhere”.

This is an almost pitch-perfect encapsulation of the frakkery of this ‘new’ type of legal thinking.

In the first place, nobody is formally a ‘victim’ until they are proven so in a court. It has been a great conceptual trick – ‘rhetorical’ in the classic sense – of feminist/victimist law that anyone who makes the claim to be a ‘victim’ must surely indeed be a victim.

And from that flows the further frakkulent assumption that to ‘question’ the victim further or to ‘doubt’ the victim’s allegations or ‘story’ constitutes a further ‘re-victimizing’ of the ‘victim’. Recently one Wendy Murphy, former prosecutor and now second-tier law school ‘victim’ maven, opined that she’s glad victims no longer are ‘denied justice’ just because there’s no evidence. (Yes, she’s a lawyer – and a law professor.)

Instantly, the entire process of formally establishing guilt or innocence is utterly undermined. Because then if there is a ‘victim’, and that ‘victim’ must be assumed to be truthful (and ‘good’), then whomever the victim has accused must indeed be cast as a ‘perp’ (and therefore utterly ‘evil’). At which point the necessary elements for a melodramatic, soap-opera type ‘script’ are in place. And let the games begin.

The legitimate insight underlying this dynamic of feminist/victimist law is that many crimes can thus remain hidden because there is insufficient evidence to prove that they actually took place.

This however is hardly a new observation. You may recall that in the film version of ‘Camelot’ – now almost half a century ago – one of the old-school barons approaches King Arthur, who had just established the fundaments of evidentiary law against the old Medieval concept of ‘intuition of guilt is enough to justify the presumption of guilt’. The baron reproaches Arthur for such a new-fangled approach: “So, no evidence no crime, then?”

But the position Arthur takes in the film is actually the (pre-feminist/victimist) Constitutional approach enshrined in Western and American jurisprudence: you cannot permit the police power of the government (or the ‘sovereign’) to impose its awesome capacities against any individual unless you make the government/sovereign authority clearly prove that such a deployment is justified. And you can only establish that by making the government demonstrate that its evidence is beyond any reasonable doubt.

So – alas – what feminist/victimist law has done (and continues to do) since its espousal by the government (no surprise there) in the 1970s is to re-introduce the old Medieval concept that ‘intuition of guilt is proof of guilt’. Or to put it less formally: if it feels like he’s guilty, then he is guilty. This is not progress and it is not ‘progressive’. It is regress and it is frakkulously ‘regressive’. (And again, you can see what has happened not only in the SO Mania but also in the ‘justifications’ put forth for the invasion of Iraq after 9/11.)

It’s not hard to understand the frustration built into the classic post-Medieval Western legal system: a crime can indeed be ‘hidden’ in the sense that there is not sufficient evidence to clearly justify the deployment of the government police power against the alleged perpetrator.

But the only alternative is to have the government police power deployed merely on the basis of ‘feelings’ and ‘intuitions’ – and that is death to the post-Medieval Western political concept of limited government. And this is not essentially resolved by the government raising up the ‘victim’ to ‘front for’ the engorgement and un-limiting of its police power. (And again, you can see the lethal effects of this ‘new’ development in other areas of government activity, including the invasion of other sovereign nations, whether on neocon or neoliberal grounds.)

Further, this prosecutor’s comment touches the ominous but oh-so-Correct base of ‘preventing’ further harms to “potential victims”. Which boils down to the government deploying its police power against non-existent criminal actions. And this constitutes a core dynamic motivating and sustaining the Regulatory-Preventive State, whereby the police power can now be deployed even where no crime has yet been committed.

Because, built into the post-Medieval Western concept of limited-government is the assumption that there is only so much a limited-government can do. Beyond which boundary a government escapes its ‘limits’ and you are hell-and-gone from the classic Western genius and into some other, far more ominous, form of government.

I add that such a development – as I have said before – is virtually guaranteed if you take Carol Gilligan’s 1982 mommy-at-the-breakfast-table vision (Mommy knows best and must provide whatever she feels is best to calm her squalling, immature children) and try to erect it into a philosophy of government.

But with the hugely-dangerous adoption of the Gilligan insight by the vote-addled Beltway, the most indispensable basis of Constitutional vision and ethos is thoroughly undermined. The government will deploy its police power a) on the basis of feelings and intuitions about b) what may happen and c) its intentions are so ‘good’ or the ‘emergency’ created by ‘pain’ is sooo great that it may not be effectively questioned.

If it is not clear just where this must lead, then folks have really and truly lost touch with the fundamental genius of Western and American government.

And if that is so, and it is not widely considered worthwhile to reverse this trend, then this country is indeed no longer in touch with its Founding genius and it is truly ‘decadent’ in the most basic (and ominous) sense of that term.

NOTES

* And – I say again – you can imagine how Iraq might have turned out had the Catholic rather than the Fundamentalistic approach had been taken; in a sense the Catholic view would support the ‘diplomacy’ approach and the Fundamentalistic approach demands the ‘military’ approach.

Thus also, you can see why the Fundamentalistic Ascendancy in American politics (and most surely in the military chaplaincies and senior leadership) was so dead-set against the Catholic vision and the Catholic approach. Neither the neocon militarization approach nor the neoliberal ‘humanitarian intervention’ approach (equally militarized) are looking for the obstructions to the imposition of their will and the fulfillment of their ‘visions’ that a Catholic ‘patience’ and diplomacy would present.

**I also point out here that the Fundamentalistic 'impatience' and impetus toward the 'radical rooting out and punishing' of 'evil' is itself very similar to the Leninist and Maoist 'revolutionary' impatience with in-Correct thinking. This is not so surprising, for two reasons.

First, the late-19th and early-20th century 'revolutionary' approach was a secularized version of the Fundamentalistic approach always latent, and often not-so-latent in Reformation-era Protestant thought.

Second, the radical 'revolutionary' approach very greatly informed early, radical feminist thought and praxis as it came to then be espoused by the political 'elites' over here starting in the early 1970s.

ADDENDUM

The article adds a second report of a priest who was accused of “fondling” a 12 year-old altar server (female) at her apartment in 2003, for which a New York court sentenced him to four months “in prison”. The priest served the time, returned to his native India, and is now working with alcoholics and is not in parish work. Which the article seems to consider more or less outrageous.

It’s odd that in 2003, a full year after the 3rd Wave began on Jan. 2, 2002 with the ‘Boston Globe’, an American court – and in New York, no less – would give such a short sentence for a substantive sex offense charge against a minor. And so short a sentence usually means ‘jail time’ in a county lock-up, not full-scale ‘prison time’ – which usually indicates a sentence of at least a year.

ADDENDUM 2

As if by inadvertence, the 'Boston Globe' - whose 'reporting' enabled the 3rd phase of the Mania in 2002 (it also supported the invasion of Iraq) and now fuels the 4th - today 'reports' on its own stunning marvelousness in a front-page, above-the-fold story.