JEAN BETHKE ELSHTAIN FROM 1993

I want to pass this along.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oy.

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

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

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

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

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

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

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

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

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

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

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

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

And “interim” … not by a longshot.

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

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

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

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

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

Oy gevalt.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oy. The 1990s.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So much remains to be done.

NOTES

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

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

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

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

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

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

SO SERIES ON NUSSBAUM 4

Well, here We go – the fourth in the series on Martha Nussbaum’s 2007 Harvard Law Review article (94 pages), entitled “Constitutions and Capabilities: ‘Perception’ Against Lofty Formalism”. The link to the text of her article is here.

As with all texts that are available in Adobe, there are two sets of page numbers: the page number assigned by the Adobe browser, and the actual page number of the document as it was written. In this case there is a 3 page difference, so when I make a reference to the text of the article it will look like this: page 13-16. The first number is the Adobe browser pagination, and the second is the actual text’s pagination.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTES

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

Simple but gripping.

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

See where that takes you.

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

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

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

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

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

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

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

SO SERIES ON NUSSBAUM 3

Well, here We go – the third in the series on Martha Nussbaum’s 2007 Harvard Law Review article (94 pages), entitled “Constitutions and Capabilities: ‘Perception’ Against Lofty Formalism”. The link to the text of her article is here.

As with all texts that are available in Adobe, there are two sets of page numbers: the page number assigned by the Adobe browser, and the actual page number of the document as it was written. In this case there is a 3 page difference, so when I make a reference to the text of the article it will look like this: page 13-16. The first number is the Adobe browser pagination, and the second is the actual text’s pagination.

Looking over her menu of Capabilities, Nussbaum blithely notes approvingly that nations such as India have been “creatively extending them” recently. (4/7, note) She had done a 70-page article on that in 1999 (“In Defense of Universal Values”) where she described this at length.

India is a relatively new and hugely divided country (religiously, economically, tribally, caste-wise). As such they are literally starting from scratch in a country that has had little prior history of constitutionalism and – as evidenced by the many types of deep and traditional divisions – there are glaring differences between India and the United States.

Yet the Capabilities Approach that Nussbaum has adopted as applicable to the United States was originally put forth by the economist Amartya Sen several decades ago as a paradigm or a template for India and other developing, formerly Third World nations. It remains to be seen if any government can ever actually sustain such an ambitious and intrusive program, although you can make the case that in India things are SO out of sync with the developments in Western modernity that any progress is better than none.

So, for example, there are so many peasants – as they would be termed in a Western frame of reference – that there is tremendous room for, say, women to enter into the workforce and entrepreneurial activity: there is, comparatively speaking, no established tradition of a ‘male dominated’ economy widely grounded in the polity or in Indian experience. In that sense, India is rather a blank slate, upon which little pre-existing actuality stands in the way of new templates.

But as I said, it’s anybody’s guess whether the applications of Sen – and of Nussbaum as specifically applied to women – are going to work. Because if there is – and the concept of ‘patriarchy’ would clearly seem to suggest it – ‘male domination’ is a universal human phenomenon. And thus you can’t just introduce a simple ‘reform’ without ripping into the fabric of Indian (or any similar polity’s) cultural and social fabric.

And you can’t introduce such a profound change in somewhat the same way as Shylock expected to collect his pound of flesh: with no consequences to the surrounding tissue and fabric and structure of the body. So there is a monster question of consequences in all this.

And while in India (although all of her writing either predates or takes no notice of the huge Western economic collapse of the past 2 years) there may be or may have been an overriding excitement among Indian elites and a developing middle class for Western types of and levels of wealth-creating policies, at whatever cost, yet I don’t know if the specter of Western-style economic collapse or the actual reduction in national wealth to implement all this have had some slowing (and perhaps sobering) effect there.

And there remains the huge political problem of so alienating vast swaths of the admittedly un-modern Indian citizens out in the vast ‘backwoods’ of that nation, that they will resist such ‘reform’ and ‘progress’ not (primarily) because they are willfully or witlessly ‘oppressive’ of women but rather – in a canny ‘peasant’ way – because they realize that these new introductions will introduce a profound ‘deconstructive’ and even destructive dynamic into their culture.

Such consequences of ‘deconstruction’ have always been of little interest to the cadres of the West’s assorted recent Revolutions. And the United States, primary site of the whole thing, is only now experiencing that ‘resistance’ (cheeribly and scornfully dismissed as ‘backlash’ but actually representing something far more profoundly motivated and grounded). Indeed, by the end of this 94 pages Nussbaum herself will make proposals clearly based on her awareness that the ‘majority’ of the American Citizenry, and even Congress, can no longer be trusted to support this advanced level of Revolution, and she will call for the courts to impose (‘protect’) the Revolution’s agenda and demands.

Of course, the internationalizing of the Sex Offense Mania and the SORNA regime, can be seen as part of this effort to extend the war against ‘patriarchy’ around the world, and in the guise of ‘liberation’. And I am not saying here that human rights and the quality of human lives around the world are so well-established that there is no need for concern.

But two points strike me as vital in all this.

First, it isn’t going to do a developing nation a great deal of good to import this divisive ‘war’ on males – through an exaggerated manic emphasis on male (always male) sexual violence – at the same time as you are trying as a Third World government to forge a well-grounded sense of national unity.

And while you are also trying to develop a respect for the Rule of Law and for Courts as they function in modern Western civilization (or at least did function, until the SO Mania was introduced to work its corrosions and corruptions of jurisprudence and jurispraxis).

Second, it is going to introduce a profoundly repugnant aspect of current Western culture into a society that America is trying to win over (so as not to have to add yet one more country-full of ‘enemies’ to America’s growing list).

And I think it is clear that any ‘resistance’ engendered on the part of those societies and those peoples can be seen NOT as some version of ‘they hate us for our freedom’ (the American domestic version: they oppress us because we are female) BUT RATHER as a much more essential societal (and perhaps governmental) resistance to a single program that yet introduces so profound an assault upon the very fabric, the very ‘body’ of that culture and society.

And I think that what can be said about sexual violence here can also be said about sexual violence anywhere else on the planet: it’s something to be decried and alleviated, but prudence must dictate just what a government can do through the blunt instruments of the criminal law (no matter how disguised and spun as ‘civil’ and ‘regulatory’).

Because if the US is trying to spread the American concept of democracy and Constitutionally-limited government, then the SORNA regime and the Mania that enables it are hell-and-gone from the principles of that democracy and that Constitutionally-limited government.

And if SORNA has had to be imposed with so much difficulty and frakkulence over here, what level of intrusive government will be needed in a Third World country that is already predisposed to ‘authoritarian’ if not also anti-democratic government?

By adopting the Sen and Indian template for the United States Nussbaum ignores the dense centuries-old American experience and the densely-interwoven relationships between productivity and the social arrangements (Family and fathers-as-providers, among others) that constitute the very fabric of American society and culture.

And surely the SO Mania and the SORNA regime of laws and jurisprudence and legislation have attacked the very body and fabric of American society and culture, especially as Constitutionally grounded in the concepts not only of limited-government but also of the Unity of The People.

The us-vs-them dynamic of the entire feminist law approach, and the Identity-Politics approach itself, is going to be profoundly destructive of whatever sense of national unity and common weal is starting to take root in Third World countries.

Yes, it is a shrewd tactical move – this getting the SO Mania and the SORNA regime ‘in on the ground floor’ by building them into the still-early constructions of democratic practice in this or that developing nation, but shrewd tactics aren’t enough (and haven’t been enough over here, and haven’t been enough when translated into the conduct of foreign wars nowadays either).

You need to have a comprehensive vision and plan that judges and accounts for the workability of your overall plan in relation to your ultimate objectives (building a widely-grounded democratic government and democracy). This was precisely the level of ‘thinking’ that has been missing in so much domestic policy here for decades, and has led the country to military disasters abroad.

This is a huge – permit me to write it HUGE – change, fraught with complexity, let alone greatly dubious validity and workability. It is not something to be implemented by imposition of vanguard elites and politically-connected elites who shrewdly and purposely have sidestepped deliberation by the entire Citizenry by framing such changes as ‘Constitutional rights’ issues that in the American system would thus brook no delay in requiring government implementation to rectify their alleged frustration.

This has been the strategy of the evolved Feminist Revolution for several decades now, replacing both the muted ‘it’s just a little reform and progress’ approach and also the brassy, in-your-face agitprop demands.

And I note again how the SO Mania and the SORNA regime were introduced not as the huge and dangerous changes that they actually are, but rather as ‘emergency’ measures that simply had to be taken without any public deliberation (and of course, that stunning giveaway: that legislatures passed these things through various procedural stratagems designed precisely not only to prevent discussion and deliberation among the Citizenry, but even among the legislators themselves).

And of course it must always be noted that there is virtually NO discussion of matters SO and SORNA among the otherwise chatty ‘elite’ media and public-intellectual commentary, whether in books or articles (with the exception of specialists such as the estimable Professors Wayne Logan and Corey Rayburn Yung and a few others). The way I see it, this is a clear indication that the whole thing is soooooo wrong and frakkulent that nobody dares to risk their creds by supporting it and yet nobody dares to risk their ‘elite’ status by criticizing it – thanks to the cartoonish level of ‘thinking’ introduced as part of the SO Mania, whereby if you criticize it you are ‘re-victimizing’ the alleged victim and must be a supporter of the crimes yourself.

Congress, vote-addled and perhaps terrified at its own inability either to maintain electoral viability or to actually do the heavy-lifting of adapting the American economy in such a way to maintain high levels of general wealth in the post-postwar hegemony era, has far too unthinkingly (and perhaps treacherously) implemented this, that, and the other thing in its effort to please the magical 51-percent ‘women’s demographic’.

The consequences are proving lethal: to the unity of the American Citizenry, to the political competence of The People, to the productivity of the nation, and – if the economic collapse moves to the next level and the dollar is dethroned as the world’s reserve currency – perhaps a threat to the political stability of the Union of the States itself. These dangers are not to be pooh-poohed with an airy and dismissive wave of the Revolutionary hand.

Again, although this is not a happy thought, the current state of the American economy, and the hardly improbable follow-on phases of that decline, may well deprive the SORNA regime of cash – despite the Federal efforts to lubricate the skids with cash grants buried in assorted law-enforcement revenue-sharing programs. If the dollar loses its status as the world’s reserve currency, the ‘cash’ (which is already purely notional) will actually disappear overnight and the dollar will have to be devalued (i.e., your hundred dollar bill will be worth ten dollars at midnight tomorrow night – that sort of thing).

Yet such dismissive and minimalizing hand-waving is precisely what Nussbaum does as she then observes that such American “reluctance” to fully adopt and implement her agenda is “made more complicated by disputes over institutional competence and the proper scope of judicial action”. (4/7)

Those innocent-sounding words represent the American traditions of Constitutional limitations on the power of government, of deliberative democracy, and of the role of the Judicial Branch and the Courts in taking the lead by imposing changes that are certain to have profound – and hardly completely positive and constructive – consequences.

And I think that the SO community has to understand that this sort of ‘thinking’ has fueled the SO Mania all along, such that even putatively knowledgeable legal ‘elites’ have been assuring legislators and their staffs that SORNA legislation is ‘good’ because the only things standing in its way Constitutionally are ‘wrong’ and ‘tainted’ anyway. Nor have the media distinguished themselves as informed watchdogs in this matter: far easier to go with the sensationalism and ignore the deeper problems.

None of this bodes well for the health of the Constitutional ethos – which, however, has already been dismissed by the cadres as ‘defective’, ‘oppressive’, and ‘quaint’ and pretty much another (and worse) form of Jim Crow deprivation of ‘rights’.

She refers to the 2006 term of the Supreme Court’s Opinions as demonstrating “an ominous failure to protect the capabilities of citizens”. (5/8) As if the rest of the Citizenry’s opinions, those not sitting on the Court, don’t matter. Which, however, it pretty much true as far as her vision goes. After all, if the ‘majority’ is hopelessly tainted like those Southerners of half a century ago, then who cares or needs to care what they think or feel?

If she is correct that the Court (up to 2006) has been demonstrating some reluctance in regard to her CA scheme, I don’t think that the SORNA regime is fatally wounded. Don’t forget: the SO Mania shrewdly united both ‘liberal’ Left and law-and-order and family-values Right. So whether the Court swings Right (so to speak) or stays Left (so to speak), there will always be a politically credible ‘justification’ for the SORNA regime.

She also indicts the Court for not using “the sort of reasoning recommended by the CA [her Capabilities Approach] – a realistic, historically and imaginatively informed type of practical reasoning that focuses on the actual abilities of people to choose and act in their concrete social settings”. (5/8)

Again with the nice individual words that add up to a frakkulence.

“Realistic” here means that the reasoner already buys into her vision as ‘reality’.

To be “historically informed” means – as best I can make out – to consider the government on the same mission as it was embarked upon when Deconstructing/Reconstructing the Jim Crow regime half a century ago.

To be “imaginatively informed” means that the reasoner will cut loose from any reliance upon – or respect for – ‘tradition’ in society and culture in order to ‘creatively’ (you remember that buzz word from the Sixties and Seventies) invent ‘new’ and ‘fresh’ (but also perhaps anti-Constitutional) schemes to implement what Nussbaum’s CA demands.

“Practical” means that the reasoner will not allow ‘theoretical’ and ‘abstract’ objections and concerns to stand in the way – such theory and abstractions inferring with sly politeness the entire corpus and burden of American historical and cultural arrangements and the requirements of Constitutional democracy. ‘Abstraction’ and ‘thinking’ being, of course, ‘masculine’.

And you can see here where legislators can sleep at night, secure in the belief (illusion, I’d say) that they are being ‘realistic’ and ‘practical’ by overriding established Constitutional and jurisprudential principles – and even the Rule of Law – and instead legislating and adjudicating on the basis of ‘stories’ – sensationalist stories that the media are happy to supply.

This also takes deliberation – public and legislative even more than judicial – into the realm of ‘story’ as opposed to ‘thought’. You’ve seen this tendency in media reporting: the foregrounding of a horrific ‘story’ about this or that person which is then presumed to be sufficient ground for a new ‘law’ to make sure that such a story never happens again. Any attempt to deliberate on the workability or the prudential calculation of bad consequences – intended or unintended – is just so much ‘abstraction’ designed – like the objections raised in the 1950s and early 1960s by Jim Crow Southerners to obstruct any change to their regime.

This was then deployed in the service of all the follow-on ‘Revolutions’ that quickly adopted the Civil Rights Era paradigm, including Friedan’s repulsive attempt to use the Holocaust ‘story’ for the service of her own Feminist Revolution. (The practice then migrated into foreign affairs with “humanitarian interventionism” and that Mother of All Stories – that Saddam had WMDs and was somehow the mastermind of 9-11 – and that Mother of All Interventions – the Iraq War and the American role as ‘liberators’.)

She smuggles in one of her favorite tropes: such performance by the Court in the 2006 session demonstrates a turn away from her CA approach and “a return to selective imprisonment”.
(5/8)

Meaning that ‘women’ and all the other ‘minorities’ who are not ‘majority’ will be at risk of becoming once again blacks in the Jim Crow regime. There is also the implied recall of that queasy implication in Betty Friedan’s assertion in “The Feminine Mystique” that for women the American Family was “Dachau”. And you can see here how any chance of maintaining a unity of The People was shot close to the heart by such a sense that one-half the population had been running a Nazi death-camp for the other half and that this was in the nature of that oppressive half and that the government had to Deconstruct that oppressive half as a matter of implacable Constitutional ‘rights’ forthwith and totally.

It’s amazing here to watch Nussbaum claim to seek to abolish ‘imprisonment’ while her system supports – even for all practical purposes requires – the SORNA regime and all the frak that is heaped upon those caught up in its toils.

Oy.

You can see why Obama in his speeches has been trying to tiptoe beyond any serious discussion of what’s been going on for 40 Biblical years that might have weakened the American sense of national and societal unity and common purpose, or any sense of ‘common weal’ at all.

And yet he will continue to pander to both Left and Right by trying to find ways to fund AWA-SORNA. And note that in the new US Attorney General Guidelines not an inch of ground is given: the Guidelines still insist, for example, that the AWA-SORNA scheme retroactively applies to anybody convicted of a qualifying sex-offense, but allows that States can come into ‘compliance’ merely by Registering under the AWA scheme only those still in some form of State custody or supervision. But the States are still welcome, the Guidelines coo, to take on the Retroactivity challenge through their own laws (and face whatever court cases such laws might ignite).

Thus Nussbaum, in the accents of concerned but grounded professional legal wisdom, wants the Court to judge according to “first principles” (5/8), a trusty and honorable philosophical term that refers to the very basic Principles upon which a world-view and a world are built and around which they are organized. For Nussbaum these Principles are not the utterly comprehensive and millennia-long Principles upon which Western Civilization has been built (it and they are, after all, ‘tainted’ by oppression and patriarchy) but rather the governing strictures of her own Revolution.

She then nails that down even further by including “the goals and ideals embodied (and sometimes not embodied) in our constitutional tradition”. (5/8) The ones not-embodied in “our constitutional tradition” are the ones that pertain to her Revolution and her CA. It’s amazing that such a profound change (not to say assault-upon) the Constitutional ethos and fabric has not received more public deliberation. But then, the media were making hay with their ‘stories’ and the pols were far too concerned for their own electoral viability to be doing any ‘thinking’ about the Constitutional ethos.

And again, you can see where legislators and judges can sleep at night by being assured that they are adhering to ‘first principles’, although they need not recall that these are A NEW SET of first principles that seriously undermine the ‘old’ and ‘quaint’ set of first principles. Lovely.

Ever a good ‘liberal’ (which is hell-and-gone from limited-government Classical Liberalism) she selects a couple of examples from the Classical Liberal era of 19th century British history (go figure) and then blames … the Republicans for the current (2006) falling-off in Court support for her agenda: “In the aftermath of the Reagan Revolution, legislative support for key aspects of the approach [her Capabilities Approach] has proven fragile; judicial support in areas once agreed to be the legitimate domain of legal action appears to be on the wane.” (6/9)

That this falling-off in legislative and even Court support might reflect an awareness (and I’d be happy to imagine it) on the part of pols and judges that there are not-good consequences to everything they’d embraced for decades, and that it might be a good idea to back off and indulge in some ‘masculine’ thinking for a while; or that the economy (even in 2006) was showing signs of serious problems that posed an even more significant threat than electoral viability … these sobering possibilities do not detain her.

And again, the SO community has seen some heartening Opinions on the part of some lower Federal and higher State courts and even, most recently, in the Supreme Court itself. So the tide may no longer be at the flood. But it is far from receding in matters SO and nobody in the SO community or the criminal-defense and SO-defense legal community should breathe easier: this thing is still very much a threat.

Instead she blames a tradition in American Constitutional thought she calls “lofty formalism”. (6/9) This evil tendency she will describe as a mulish judicial tendency to simply judge cases by established principles of Law, existing legislation, and the body of cases already decided in a particular area of law. In other words, to judge cases according to what is popularly referred to as the Rule of Law (and you can see now why the Bush-Cheney claque and their ‘lawyers’ felt so bold in ignoring the Rule of Law).

So then, the distinguished and verrrry influential law professor is not supportive of the Rule of Law. But of course, in the Jim Crow paradigm, the ‘Law’ is so tainted to begin with that it can and must be ignored.

This argument, of course, has fueled the SORNA regime's apparent impermeability: ‘facts’ and the Rule of Law and established American Constitutional principles that militate against SORNA are simply ‘tainted’ and the pols and judges, if they wish to remain ‘cutting edge’, can blithely ignore them.

But even in the Jim Crow Era, and the Deconstruction/Reconstruction Era that followed it, there was still a concern for the Rule of Law – changes had to be done legally, although even back then, under the pressure of the ‘emergency’, that Rule was bent every which way. But there was a rather substantial national public consensus – fueled by those frightening newsreels of Southern police – that an actual ‘emergency’ actually did exist, that it constituted an actual matter of Constitutional rights-denied, and that something had to be done immediately. No such consensus existed for the ‘emergency’ claimed by the follow-on Feminist Revolution when it adopted the Civil Rights paradigm for its own agenda.

To conclude this Post, I’d offer the thought that the ‘culture wars’ that have so profoundly wracked the American polity and Citizenry and People for all these decades have not been so completely based on the ‘backlash’ of entrenched white, male, oppressive, patriarchal, majoritarian power that refused to yield its advantages; rather, there has been – on some deep visceral level, and on the part of female as well as male Americans – a deep unease about the wisdom or prudence of both the Content of the Revolutionary agenda and the Method in which it has been summarily imposed.

After all, the Family and the freedom to determine if and when one might prefer an abortion – to name just two fundamental essentials of the Revolutionary agenda, are not just elements of a patriarchal 1787 Constitution. They are building blocks – especially the Family – that have been in place in world societies and civilizations since the beginning of recorded human history. You can’t simply pooh-pooh all that as ‘patriarchal illusion’ and then proceed forthwith to Deconstruct the whole fabric, the whole foundational-system that antedated the Constitution and the Framers (but which they presumed when they built their limited-government), and in the process impose it upon a Citizenry without any deliberation or serious consensus-building on the blithe assertion that since their very thought-patterns are so ‘tainted’ that their deliberations would be useless anyway.

But that has been pretty much the governing dynamic of American legislation and jurisprudence for decades.

And it has to stop. Before the entire structure collapses in upon itself.

And the SO community knows this far far better than most Americans whose lives have not been touched by SORNA and who have seen at first-hand what is happening.

In that regard, I think that the SO community represents the Continental Europeans who saw in the mid-1930s just what the Reich’s New Order was going to mean; but Americans, safe behind their ocean walls, did not and could not grasp that any such monstrosity could reach – or affect – them.

But of course, the Mania and the regime deployed against the SO community today establishes the precedent whereby a Mania and a regime can be deployed against any other group tomorrow.

Happy Fourth.

SEX OFFENDERS NO-FLY?

Apologies for breaking the chain of the Nussbaum series, but I just came across an article about an Ohio 6 year-old who was discovered to be on the TSA No-Fly list.

The reason she discovered this was that "earlier this month" the TSA began checking domestic as well as international passengers. Previously, I gather, the TSA had only checked international passengers.

It immediately occurs to me that given the ease of 'merging' this and that electronic list, the TSA might now or soon be 'checking' Sex Offenders (registered or - who knows? - merely accused or arrested-for).

Just a heads-up.

I don't think any possibility is far-fetched in this SO Mania.

X SERIES ON NUSSBAUM: 2
Well, here We go – the second in the series on Martha Nussbaum’s 2007 Harvard Law Review article (94 pages), entitled “Constitutions and Capabilities: ‘Perception’ Against Lofty Formalism”. The link to the text of her article is here.

As with all texts that are available in Adobe, there are two sets of page numbers: the page number assigned by the Adobe browser, and the actual page number of the document as it was written. In this case there is a 3 page difference, so when I make a reference to the text of the article it will look like this: page 13-16. The first number is the Adobe browser pagination, and the second is the actual text’s pagination.

There is a profound Constitutional problem with Nussbaum’s Capabilities and Preconditions approach: the government must deploy its sovereign power at a level so deep and so inchoate that the possibility of impossibly excessive overextension of that power is almost guaranteed to happen.

The 1787 Framing vision was that the government would limit itself to general activities common to all the States (foreign policy, defense and war, interstate commerce).

Further, there were significant restrictions placed upon the Federal government in the Bill of Rights, in regard to Citizens but also in regard to the several States (the Xth Amendment). And of course, within the text of the Constitution itself the Articles clearly separated the power of the Branches (Legislative, Executive, and Judicial).

The SO community will be familiar with the Xth Amendment: it reserves to the States all rights and powers not specifically enumerated among the Federal government’s powers in the Constitution. Among these powers is the authority to conduct criminal process within their borders; this is one of the Constitutional issues raised against the SORNA regimes, especially in the AWA.

The Framing concern was to prevent the overextension of government. The Framers saw that such overextension would destroy liberty and also create a monstrously engorged entity that would eventually wreck itself as well as the States and the people and the culture and society created over centuries.

While it has been a characteristic trope of the past 40 years that the Framing vision was ‘defective’, ‘quaint’, ‘tainted’ (by oppression in many forms) and therefore needed to be ‘updated’ or politely ignored, yet still the core original anxieties of the Framers remain as valid now as at the Founding.

One of the great confusions of the present day is that the Revolution of the Identities (spearheaded by Feminism as it has evolved within the Beltway) threatens to engorge and hyperextend the deployment of the Federal government power just as surely – though out of ‘sensitivity’ and the desire to ‘liberate’ – as any government would have done in the earlier days through a desire to ‘control’ and ‘oppress’.

And again, the SO community can easily recognize the significance of the SO Mania and the SORNA regime in all of this.

Indeed, lost in the (very legitimate) approval of what the Federal government had done in the South prior to 1965 during the first explicit Civil Rights Era (1955-1965) was the awareness – not lost on the Old Southrons – that they were being to some extent assaulted by their own Federal government.

And in this regard, again, you can see where a number of persons caught up in the toils of the SO Mania and the SORNA regime might begin to feel the same thing. And not simply because ‘perps’ always feel they are being singled-out and unjustly put-upon when they’re ‘caught’.

Rather, government – starting with the Feds who got behind the whole thing – has chosen to take this frakkulous route and pursue this Constitutionally dangerous path against almost a million of its own Citizens, and if you add in the wrack and ruin that is inflicted on their families and friends that number is increased by a factor of – what? – four or seven at least.

And this is to say nothing of the ‘invisibly wracked’ – among whom you would have to include legislators, law enforcement officials and prosecutors, jurists, attorneys who must administer and engorge this regime. And a media well-rewarded for its sooo selective and sensationalistic ‘reporting’: their integrity is daily challenged and often corrupted on several levels and at this point has been for almost two decades.

And the Citizenry themselves, whose Constitutional awareness and civic competence is corroded and corrupted quietly but inexorably.

Of course, the Jim Crow culture and polity had continued the repression of Negro/Black civil rights that had theoretically been stamped out through the extraordinary method of Civil War, and the entire ‘North’ and the rest of the country supported the Feds’ long-overdue rectification of the situation.

But what started the Revolution of the Identities Era – although Feminism would soon overtake the Black Rights movement as the ‘prime revolution’ – was the follow-on Federal ‘solutions’, which did not enjoy such a wide public support: high on this list was ‘positive discrimination’ or, as it was quickly and shrewdly renamed, ‘affirmative action’. Again, a worthy objective, but a method of trying to realize it that had as many if not more downsides as any good it could possibly achieve: but in what was becoming typical ‘American’ fashion, the government galloped ahead, downplaying consequences and spouting nothing but best-case scenarios for the projected outcomes, and then – as things began to go wrong – simply and brazenly ignoring the mounting evidence of a clearly predictable disaster. (And can you say ‘Iraq War’? ‘Global War On Terror’? ‘Housing Bubble Economy’?)

Further, the Feds soon wound up trying to re-shape Southern ‘thinking’, using not so much criminal law but regulatory law: actionable misdeeds included verbal comments or even facial expressions, and then it was decreed that since Southrons could be ASSUMED TO BE RACIST, then if any ‘outcomes’ in hiring indicated fewer Black hires than should be proportionally and statistically predictable, then ‘racism’ would be presumed; which led in short order to the dynamics – if not the accurate naming – of Quota.

I say this not to embed a racist rant in this assessment, but just to point out the dynamics that began to take root in Federal praxis. Much public doubt and resistance may result from just such misgivings about the effort to bring the battleship of Federal power so close inshore; at such close ranges, firing the big guns in well-intentioned defense of the village may well blow away the village itself simply by the force of discharge of the guns, though the shells were aimed somewhere else.

And feminism, adopting the Civil Rights paradigm, then quickly made the appropriate changes in the equation’s variables: a) women had been oppressed as much or even more than blacks, b) the ‘Southerners’ in this equation were now the entire male (and ‘male identified female’) population, and all the culture and tradition that such Citizens had tainted with their oppressive ‘patriarchy’, c) though in ways that were not quite so obvious as slavery and Jim Crow but which still ‘proved’ the ‘emergency’ that ‘patriarchy’ was just a huger and more ancient form of Jim Crow, and so d) whatever the Feds were doing against Jim Crow must now be expanded almost infinitely further to deploy against ‘patriarchy’ in thought, word, or deed.

Of course, the purported depth and width and height and length and breadth of ‘patriarchy’s oppression’ meant that the Feds were going to be getting verrrrrrrrry deeply involved in national life indeed. And in the lives of private citizens.

(You saw this in Domestic Violence law in the 1980s where, since the Jim Crow of male aggression and oppression extended into – and especially extended into – marriage and the family and the home itself – then the government coercive power MUST be extended into the home and the hearth of the Citizenry: precisely what the Framers wanted to avoid through their limited-government vision. The consequent acrobatics intended to effect this feminist demand while not overtly violating the Constitution resulted in the bizarre and embarrassing assertions that while police officers were doing the invading, they were doing it through a ‘civil law’ and not a ‘criminal law’ authority (sort of like rescuing a cat out of a tree) – although the defendant, since his male aggression was PRESUMED, lost through the police power access to home and property and assets and relationships. And you wonder where the Feds got the idea after 9-11 to come up with so many whackulent excuses to ‘prove’ they weren’t ‘torturing’ or, at the same time, that ‘torturing’ is sometimes necessary? Indeed, I’d say that in the Domestic Violence laws of the 1980s you can see the first run-out of what is now touted as “humanitarian intervention” in overseas military operations.)

So now Nussbaum here has set the government to deploy its sovereign power against the Citizenry to ensure (and thus to ‘prevent’ the suppression of) an entire sub-surface world of ‘preconditions’ that are not and cannot be clearly defined and perceived, and which are so deeply embedded in human affairs that you have to ask if the government isn’t actually being seduced into taking the field against Life and Reality itself. (In which case you might as well demand that the government build and maintain a retaining wall a half-mile out around the entire US coastline to protect beachfront summer property, in an embarassingly ‘American’ intensification of King Canute trying to command the tides. Or trying to turn the Afghan culture into a nice, up-to-date American one, which is the only Correct one because it knows itself to be, on the advice and assurance of visions such as Nussbaum’s.)

She THEN introduces an ominous image: people can be “like prisoners, unable to select modes of activity that are central to a life worthy of human dignity”. (3/6) It is in this type of imagery that Americans (or at least the elites in law schools and judges and legislators) are invited to see the Constitution and the Framing Vision as IMPRISONING the Citizens.

In which vision, the SO (so largely a construction of the government) is now presumed to be the worst of the ‘imprisoners’ , locking everybody else into a constraining cage of Fear. Which gives an otherwise failing government the chance to look like the ‘protector’ of the Citizenry.

It has to be one of the great ironies of American history that the Democrats (eventually be followed by the Republicans when they morphed into the bipartisan ‘Beltway’), eager to make up for their purported failure to ‘defend America’ in Vietnam, whackulously attacked and overturned the Framing Vision by embracing this idea that the Constitution and its culture and ethos were the ENEMY and indeed JAILOR of the American Citizen.

In which scenario and in which script, the Federal government would be the ‘cavalry’ riding to the rescue of the civilians so hideously bethumped by the ‘Indians’ of the Constitutional ethos itself. In this script the government would thus clearly conduct offensive operations in the field against the Constitution. And against white, male culture.

And again, the SO has been scripted as the ‘Injun’ in this Wild West scenario. And a necessary one: you can’t make a rip-roarin’ Western without ‘Injuns’!

And – of course, as everybody knows – in such an ‘emergency’ the ‘cavalry’ can do whatever it has to in order to ‘save’ the good citizens. And there goes any limit to ‘limited government’, swept away in the ‘emergency of rescue’ … kinda like a certain German Chancellor’s decree of the ‘Emergency Law For the Protection of Reich und Volk’ – not to put too fine a point on it. Only here it’s not for the protection of the entire Volk – the entire People – but rather for the protection of this or that Identity against all the other Citizens. Who can wonder why politics and Constitutional democracy doesn’t seem to be working any longer?

And when you realize just what Nussbaum claims are the elements that go into such a ‘life worthy of human dignity’ you have to ask yourself if God Him/Herself isn’t the only power capable of providing such a list of demands. But then, by claiming that ‘religious’ stuff is purely private and should have no part in ‘public’ affairs, then the Federal Government becomes, by default, ‘God’. And that surely can’t end well for a Constitutional democracy.

Notice also the give-away phrase: “This happens most obviously when a regime REPRESSES CHOICE [caps mine] across the board, curtailing many of the entitlements that are traditionally thought central to such a life”. [3/6]

What I see in this is the give-away that Nussbaum is making up, stitching together, a ‘philosophy’ in order to reach the pre-ordained conclusion that what the Revolution wants is what must Be, or should be: ‘Choice’ is all. This is not philosophy: Philosophy is the open-ended pursuit of truth using your trained Reason to try to develop a working and accurate perception of unseen – but very real and Real – dynamics that operate in human life and history.

What Nussbaum is trying to do is to justify the Revolution by selectively stitching-together only those elements of previous thought that can be made to support – or at least look like they support – the goals of her Revolution.

But then she immediately starts to qualify what she has just said, trying to shape it toward where she wants things to go.

“Sometimes, however, imprisonment is only partial”. (3/6) Perhaps, she explains, it won’t cover the entire list of entitlements; or perhaps only partial in the sense that only certain groups (the several Identities of the Revolution) are unable to exercise the option of selecting valuable functions.

As for example, she specifically says, by the by, “when a hierarchical constitution accords basic entitlements to men and not to women, to whites and not to blacks, to the rich and not to the poor”. (3/6)

This is a verrrrrry shrewd list of examples. The whites-blacks example seeks to recall the first Civil Rights Era’s rectification of the Jim Crow deprivations – about which there was wide national consensus and for which the Civil Rights and Voting Rights Acts were passed precisely to address these clear deprivations. The Feminist-led Revolution of the Identities can claim much less clarity in its list of deprivations and much less popular consensus and support (which is why, I will say, there has been so little public debate and deliberation, and instead only the imposition of a stifling Political Correctness, a practice embraced by the early Soviet government: since the Revolution already knows what is right for you, then your ignorant blathering is irrelevant and a waste of time).

And in regard to the rich and the poor, she is seeking to tie in her Revolution’s agenda with the century-and-a-half long American struggle of rich against poor. Since not long after the huge industrial – and corporate – development birthed in the Civil War, there has been a political struggle to a) prevent the concentration of all that money from wrecking the democratic balance of one-man/one-vote by allowing the wealthy to purchase the votes of Congress Members and b) to ensure that the WORKERS who were providing the sweat that did all the producing would not be deprived of a share of all the wealth that their labor, in the factories of the corporations, was creating.

A long and wide tradition – Populists (for the farmers), union organizers, Progressives – sought to ensure jobs and job-security and workers’ rights and respectable pay for the product and labor provided by workers, who would then provide for their families.

The struggle against ‘concentrated wealth’ and its deforming tendencies to buy influence and refuse to acknowledge the efforts of the sweaty laborer … this is an age-old struggle well-known to human history. And it must continue.

But ‘wealth’ and ‘jobs’ are tangible things.

And they are sited in the locus of workers and families.

The current Revolution is trying something hell-and-gone from the old Progressive agenda. It is seeking government ensurance of ‘preconditions’, which are in no way as obvious or tangible (or generally accepted as legitimate or even workable goals for a limited government).

Further the Revolution has already demanded the Deconstruction of ‘family’ and has denounced the male productive worker as an aggressive, lumpen-perp, a gender-version of Jim Crow.

The ‘family’ and man-as-provider has been the traditional arrangement for millennia. While I am not saying that ‘God’ wants it that way, it surely is the way that the human species has figured it best to proceed since the beginning of human societies.

To overturn all of that, and not say that you are actually doing it, and to sidestep careful and serious public deliberation among the society and people upon whom you wish to impose such a ‘revolution’ in the most core social arrangements … I can’t see this as wise or prudent. And that’s just in the matter of the Method of introducing the changes.

The SO then is not only the ‘Injun’, but the Klansman of Jim Crow and the rapacious Robber-Baron of the first Gilded Age (the country is now in the second). As well as the Imprisoner who locks everybody into an invisible cell of Fear.

There’s still the matter of whether the Content of the changes is actually accurate or whether it is inaccurate and – not to put too fine a point on it – wrong.

But it cannot be just an ironic coincidence that in the same 40 years that Nussbaum’s Revolution has held sway in this country, not only ‘family’ but ‘worker’ and ‘production’ and ‘jobs’ have all gone by the board. All the stuff that the Populists and Progressives and union organizers fought for … gone.

Yet the wealth remains, and in far more powerful forms of concentration than We ever thought would be seen again in this country. And the poor remain.

Many impoverished by being assured that if they came to America there would be ‘jobs’ and money.

Many more impoverished by being assured that they could exercise their choice and have sex and then have kids and hold it all together without having the help of a husband (who, neatly, won’t have a job anyway now).

And many, many, many more impoverished by growing up thinking that ‘the government’ owed them their entitlements and they wouldn’t need to worry about anything else.

And – not only economically but spiritually – many, many, many, many more who were assured that ‘success’ is just a matter of ‘moral luck’ (John Rawls) and so Character, and Maturity, and self-discipline don’t matter because you’re either already born ‘unlucky’ or ‘lucky’ – as stunningly and frakkingly passive and anomic an approach to conducting a human life as any Flower Child could have come up with on a dope-addled San Francisco summer afternoon.

And – as I have said – the increasing numbers of Citizens whose lives are wracked and ruined by the SO Mania and the SORNA regime.

Nussbaum continues that some ‘imprisonment’ is “subtle”, almost hidden”. (3/6) So We are back in the realm of ‘spectral evidence’ – you can see it but nobody else can, but you have to be believed and on your word the sovereign power of the government deployed (the term in American history dates to the Salem Witch Trials of 1692).

And once again, especially in the matter of ‘repressed/recovered memory’ and in the larger sense of the SO now being – on top of everything else – scripted into a national ‘horror’ movie as some combination of vampire and witch, the SO actually starts to represent – although few yet recognize it – the Citizenry, as the government slides further down into the abyss of manipulating its Citizens like play-dough.

She continues in that vein: “… the words in a nation’s constitution may be promising, extending basic entitlements to all citizens on a basis of equality, but the interpretation of those entitlements is so narrow that groups of citizens are not really able [italics Nussbaum’s] to select some crucial activities. In name they are free, but not in actuality.” (3/6-7)

Again, you can see here where legislators might be convinced – on the authority of Nussbaum’s scheme and vision – that they are ‘liberating’ folks, from the Fear of SOs. Although it was the government itself that created the illusion of the Monster Recidivist Stranger Sex Offender in the first place. This was no accident, this SO Mania.

So once again, as if the responsibility for an earthly government to provide the basic and clear freedoms of the Constitution weren’t enough, Nussbaum wants the government to profoundly assault its own polity and ethos, its own civilization and culture and society, in order to provide ‘entitlements’ the justification of which either nobody else can see or nobody else can be trusted to see (because, of course, ‘they just don’t get it’).

She tries to trump this thought by spinning the closing image: they are equal “in name”, but not in “actuality”. In other words, the Constitution’s rights and guarantees are only ‘appearances’; the “actuality” belies those appearances.

You could suggest, in the alternative, that the Constitution merely provides the procedural guarantees of equality, but can’t – since it is not God – guarantee the outcome. But no revolution can allow ‘God’ to exist because that takes the fulcrum-point of action out of this earthly dimension and puts it Somewhere Else, and thus the Revolution would be out of a job, so to speak. (The current solution: make the Government, for all practical purposes, into ‘God’.)

You could suggest that there’s only so much a limited government can do, but that there’s no ‘limit’ on what The People – the governors of that government – can do when the Citizens come together as The People, deliberate to common purpose, and then exert The People’s collective will upon those employees of The People, the elected representatives. But Nussbaum can’t trust The People because so many Citizens are tainted by (pick one or several: race, gender, ethnic) bias and ‘just don’t’ get it’.

Neither the Citizens who ‘just don’t get it’ nor the oppressed themselves can really be trusted with the vision of the Revolution – only those cadres who ‘get it’ can be trusted with it. And since they are the only ones who can ‘see’, then they must have the right to impose the Right and True Knowledge that only they have and nobody else can see …would you buy a used car from this Dealer?

But of course, on top of all that, in all of this vision of hers, The People (the white male bunch and the ‘male-identified’ women, anyway) are not only cast as just the gender-variants of Jim Crow ‘oppressors’. The People – most of them – are ALSO being cast as the Big Money, Robber-Baron-Rich against whom the historical Progressives of the late 1800s and early 1900s struggled, in that age-old human struggle over wealth and its distribution.

If you somehow, according to the theory of the Revolution, were ‘lucky’ enough to be born with those ‘preconditions’ then you are ‘rich’, in the sense that the Robber-Baron Rich were rich: you have something, you’ve taken it unjustly off the backs of most of the rest of the country, and the Government has to take it from you and give it to them. Which did and does make some sense when you get to Robber-Baron levels of wealth, but is quite a stretch when you have declared hostilities against the entire middle class.

What I find primarily alarming here is the idea that not only the Constitution, but now also the majority of The People, are being cast as ‘the problem’, and – public discourse being what is here these days – therefore ‘evil’ and ‘the enemy’. As Abe Lincoln said, quoting that Other, Earlier Authority: “A house divided against itself cannot stand”.

And once again, the SO is actually – though few yet realize it – the symbol of what has been happening for four decades now: a sizable chunk of the Citizenry is being sensationally and profoundly ‘scripted’ as baaaad in order to justify an ‘emergency’ government intrusion to favor some other chunk, sidestepping both the Constitution and democratic public deliberation in the process. (So on some deep level the country can truly say “we are all SOs now”.)

And this whole vision and theory of Nussbaum’s and of the Revolution of the Identities has pretty much required such a division of the country, of the polity, of the common weal, of The People … AND they want the Federal Government to intensify that division.

This cannot end well for the United States. And it should be clear even now that it cannot end well because it is a frakkulously wrong-headed approach to making things better, to the extent that things can be made better. Especially now that the economy is teetering over an abyss and hanging by a thread.

But there is a second Question: it’s not just a matter of whether such shortcomings exist in this country. It’s also a question as to just what the Government can do to address them WITHOUT overstepping its Constitutional limits and wrecking constitutional democracy.

And the past 40 years have not been encouraging in that regard.

Because – no doubt based in great part on the twin arguments of ‘emergency’ and ‘most folks just won’t get this anyway – the Beltway has pretty much struck its own bargain with the Revolution and joined wholeheartedly in side-stepping or hoodwinking The People.
And The People – lumps though they are who ‘just don’t get it’ – realize it.

And now Nussbaum – as you will see in this article of hers – is trying to erect this side-stepping into a Philosophy, claiming that since not enough of The People can be trusted to ‘get it’, then government has to impose it on them (through Legislation or the Courts, though she’s kinda leaning toward the Courts).

And again, there is more than a small element of this arrogant confidence that the Citizenry just don’t know what’s good for them and the Beltway does so just impose all this and let the Citizenry ‘get used to it’. Legislators who have had this type of smoke blown at them for decades will be far less receptive to any input from a Citizenry that ‘just doesn’t get it’ in the first place.

(And thus, just as nobody listened to the Southerners in the Civil Rights Era since they were so ‘tainted’ to begin with, the Feds aren’t going to feel they need to listen to any ‘input’ from the Citizenry – which is a fatal dynamic to set loose in a democratic republic.)

And if after 40 years and so many of The People still don’t ‘get it’, is it possible that there is something in the whole Scheme that The People don’t trust? That The People don’t think is a wise or perhaps a prudent idea?

Nussbaum – like the Revolution and just like any Revolution (especially one that’s read wayyyyy tooooo much Lenin and Mao) – doesn’t trust The People.

And if THAT is what is becoming ‘the new normal’ in law schools and among attorneys and government officials and legislators and judges … then We are in a heepa trubble.