PAUL MCHUGH AND MEMORY

I’ve just finished reading the book “Try to Remember” by the noted psychiatrist Paul McHugh.*

He discusses, among other things, recovered-memory and the curious history of certain recent medical ‘disorders’ as they are described in the Diagnostic and Statistical Manual (DSM) that is – he regrets – the ‘bible’ of many mental health practitioners.

Since what he describes from his vantage point as a dedicated and highly-accomplished psychiatrist bears directly on the dynamics of the Sex Offense Mania Regime I am putting up a Post here (interrupting my Alinsky series which interrupts my Victimology series … I know).

A dedicated and competent professional, he recounts how in the 1980s he first came into contact with – was almost ‘ambushed by’ – the sinister growth of ‘deductive’ diagnosis. This means that the practitioner doesn’t follow the scientific method – which is ‘inductive’: you gather facts and then try to figure out an accurate explanation of what’s going on. Instead, deductively, you start from your own personal conviction (or ideology) of what’s wrong and then force whatever ‘facts’ you run into to conform to what you’ve already decided is – and HAS TO BE – the explanation.

It’s like choosing only to own a hammer and then deciding that it’s the only tool for every job and THEN hanging out your sign as a home-repair business and approaching any repair job as one that clearly MUST require the use of your hammer. Except that you are not some half-baked homeowner but rather a practicing professional in a field that everyobody expects to be ‘scientific’.

He noticed that he was encountering persons claiming to have ‘Multiple Personality Disorder’ (MPD) – believing that they were actually several or more distinct personalities in their one body. He did what he could to get them beyond that. But after a while, as he says, he stopped simply trying to save this steady flow of persons drowning in the river and started asking himself ‘Who’s throwing them all in?’.

This led him by a bit of detective work to a reputable clinician, a Dr. Loewenstein, who was asking patients if they ever felt there were parts of themselves that they couldn’t control (and who hasn’t had that feeling from time to time?) and then immediately assuring these troubled and confused souls that they had several personalities inside of them and thus were suffering from Multiple Personality Disorder.

There was absolutely no factual or scientific basis for presuming that such a feeling was a guaranteed indicator of any such thing as an ‘alter’ (another self besides the one you sorta know as ‘me’) let alone ‘multiple alters’. There were far less outré clinical explanations already well-established for dealing with a patient’s sense of loss-of-mastery or inability to control one’s interior or exterior life, feelings and/or behaviors.

But this clinician was convinced that such entities as ‘alters’ could and did exist. Worse, he had a ward all to himself at a Baltimore hospital where he gathered all these patients together, where they could set each other off like tuning-forks in a small room. And he restricted his selection of ward staff to only those who would grant “unequivocal support” for the patients’ beliefs that they had multiple-personalities (a belief that his own preconceptions had implanted in their mind).

McHugh asked for an appointment to talk to Loewenstein: it only lasted about 10 minutes, because when McHugh pointed out that the ‘diagnosis’ was based on an un-testable assumption; and that patient histories were ‘corroborated’ by un-testable anecdotal stories; and that there existed every possibility that such troubled souls might ‘manufacture’ material in order to please their prestigious doctor’s expectations and continue that doctor’s attentions … when McHugh pointed out these rather basic issues, he was quickly declared “too biased to be reasonable” and the meeting was terminated. McHugh, clearly, did not ‘believe’ and – I would expect – he ‘just didn’t get it’.

You can’t ask these types of questions, he was told, because you are asking for a sort of “x-ray” of the patient’s mind and that’s not possible. Precisely, McHugh responded: nobody can get a clear picture of what’s going on in anybody else’s mind and there are a number of possibilities that have to be run through, carefully and scientifically, before you can come to a diagnostic formulation.

No, he was told: the multiple-personality “made sense” of the patient’s story. Although this “sense” was only available to those who really did ‘get it’.

It gets worse. In 1973 a maverick psychiatrist, Cornelia Wilbur, had engaged the services of a reporter-ghostwriter to pen the book “Sybil”, allegedly about a woman who suffered from such multiple-personalities.

Worse than that, Wilbur went on instantly to assume that the only thing that could cause the development of the (mythical) ‘alter’ was – wait for it – childhood sexual abuse. And since most of the patients were female, then the perp was usually the father and – not to put too fine a point on it – a male.

McHugh began to get calls from men who, in that era, were suddenly being confronted by grown daughters showing up on the doorstep or in the living room claiming rather vividly that they had been abused as children. He started to be asked to offer expert opinions –ominously – in court cases, since more and more often these cases were being stove-piped (to use a phrase from the Bush-Cheney era of getting only the intelligence information they wanted to hear) right into the legal system.

The ‘evidence’, said these MPD aficionados, was simply “the revealing mental state of the patient”. In other words, the patient believes it so that’s all the evidence we need, not only to diagnose MPD but also to establish that some form of sexual abuse took place. (And of course, what was ‘revealed’ was exactly what a whole lotta ‘interests’ very much wanted to hear – see below.)

I didn’t pay much attention to “Sybil” when it came out as a book back then or – shortly thereafter – as a Hollywood movie.

But reading McHugh it becomes clear now just how marvelously (by intention or serendipity) Wilbur’s plot was positioned to harness the energies of, and ride the crests of, several very large cultural waves of that era: Youth was being ‘valorized’ just as ‘adulthood’ was being ‘deconstructed’; radical feminists were waging Alinsky-ite ‘war politics’ against Men and against Authority and against the Family and claiming that Men were sexually violent by their very nature and – in the view of some radical feminists – that all sex was rape whether it was intended to be or not; Victimology was just beginning to warm up to the ideas that Victims were being ignored, that their ‘pain’ (and their stories) must be ‘trusted’, and that skepticism constituted nothing less than re-victimization, and that instances of such outrages were 10, 50, 100 or more times as frequent as what was reported to the authorities or the media.

And on top of all that, the Beltway was robustly engaged in accepting every advocacy’s claim as true and simultaneously responding to their Alinsky-ite ‘pressure’ by making lots and lots of money available while also starting to monkey around with laws civil and criminal.

Wilbur had a male friend, also a psychiatrist, who happened to work at the National Institute for Mental Health, and – McHugh notes – by 1986 this sort of thing was established as a major focus of well-funded government ‘science’.

It is a sign of just how useful Wilbur’s book was that although the character of Sybil was said to have been sexually abused as a child by a mentally-ill mother, yet quickly the ‘classic’ scenario was morphed to being a daughter abused by a sane but rapacious father. And, as might be said at Santa Anita, they were off! And the band played on.

While McHugh notes that Freud (for whose intuitive and ‘gut’ approach with no scientific research to support it McHugh has scant regard) asserted that the core psychological drama is enacted within the individual, I would say that the combined effects of radical-feminism’s agenda and Victimology and a lot of government money transferred this to an ‘exterior’ battle with evil persons who victimize the individual and upset what was (presumably, if impossibly) a perfectly normal and utterly healthy life.

But Freud’s insight that the human family was in essence a seething swamp of human passions – sexual aggression, power-struggles for dominance and influence – was retained as the decade and the assorted advocacies went barrelling along.

And so too came the clinical ‘approach’ of “high suspicion, low skepticism” that grounded itself in no actual validated research data, but instead only in “assumptions, expectations, and fantasies” (on the part of the clinician even more than the patient).

The simplistic diagnostic equation ran something like this: Premise – all depression is caused by sexual abuse as a child; Observation: the patient is depressed; Conclusion: the patient was sexually abused as a child. He notes that this is nothing more than a travesty of the Scientific Method, and is based on nothing more than irrationality, illogic, and constitutes a gross betrayal of professional integrity and responsibility.

As McHugh pithily puts it: “don’t try to read between the lines until you’ve read the lines themselves”.

He notes that sizable numbers of persons began declaring themselves “survivors” although there was no evidence of just what it was they had survived.

I would add that it is a perennial human temptation to seek status to shore up one’s sense of self – and if you’re needy and desperate enough, by any means necessary or available. And this predisposition is not well-served by a culture that makes such status simultaneously ‘valuable’ and so easily achieved (you simply have to ‘declare’ it). This is NOT to breezily dismiss the possibility of sexual abuse but simply to observe how terribly fraught these matters are; and that they should not be played with any more than children or anybody else should be allowed to play with dynamite.

They declared themselves thus because, many said, their therapists had helped them ‘recover repressed memories’ – which, as I have always said, are things that constitute classic examples of ‘spectral evidence’ (visible only to the self-declared sufferer and not to any other person, clinical or judicial).

He was greatly discouraged when the American Psychiatric Association (APA; not to be confused with the American Psychological Association – also APA) did not quickly and effectively tamp down the growth of this entire clinical trend that included ‘recovered memory’.

What was happening here, I would say, is that these prestigious professional organizations were succumbing to the inherent organizational ambiguity of their objectives: on the one hand to maintain a certain integrity and competence among practitioners, but on the other hand to ensure as many lucrative employment opportunities and venues for ‘new’ and ‘cutting edge’ therapies as could possibly be construed as worthwhile. After all, every therapy that is officially denounced is some practitioners’ bread-and-butter. You see where this sort of thing can go. And there was lots and lots of government money if you were looking to solve the Correct problems.

And there’s the ‘professional’ and ‘scientific’ element ripe and ready for Stampede.

McHugh helped found the False Memory Syndrome Foundation, not simply out of concern for the integrity of his profession but also because by the early 1990s it was clear that large numbers of people were winding up in court and many families deeply disrupted if not wrecked.

But though the DSM was being revised at that time, its gatekeepers did not want to introduce the diagnosis of “false memory syndrome” since the proponents of buried-abuse and recovered-repressed memories were at the same time trying to bolster their increasingly-challenged theories and – indeed – were cagily trying to rename MPD as Dissociative Identity Disorder (DID) to distract the growing objections and give themselves a new lease on professional life (and profits). After all, the neat harnessing of multiple-personality, sexual abuse, and recovered-memories had proven to be quite a crowd-pleaser and certainly both government and media were robustly engaged with it.

Nor, I would add, are psychologists or scientists totally free from the usual foibles of the human mind and heart: thinking for oneself is a lonely business at the best of times. But in times of Correctness and Mania it can be positively dangerous (to your status, your employment, your career, your livelihood). And it always feels better to be part of the herd and even better - to be 'ahead' of the herd, leading the way. Yet being a 'wall-breaker' is not necessarily being a 'path-breaker', especially if the walls you are cherribly deconstructing are carrying and load-bearing structural walls and not just decorative or convenience room-partitions.

And for that matter, the busy and robust movement of a roller-coaster ride is neither 'travel' nor 'progress', though it offers some diverting fun if properly supervised.

McHugh notes that it is rarely if ever the case in matters psychological that A and only A can be the cause of B. There are usually many possible factors (C, D, E, F and so on) that might also be the cause of B, or a combination of those factors operating deep within the self in all manner of complex synergies.

The deductive approach – I believe that A and only A causes B and thus wherever I diagnose B then A must have been the cause – is illogical and cannot conform to the complex and subtle and variable realities of psychic causation. Patients must then be ‘helped’ (‘manipulated’ is more like it) to accept that the necessary ‘script’ happened to them even if they have no memory of such a script ever taking place in their lives.

Much better and much more accurate, says McHugh, to start with a focus on the patient’s actual problems in the Here And Now than to try to impose a script on an almost impossible-to-access ‘past’ set of ‘remembered’ experiences.

AND, he notes, his growing experience in court-rooms as a clinical expert was starting to demonstrate that once you let his deductive-presumptive approach into the court-room, you wind up with both 1) a presumption of guilt; and 2) the burden of proof being placed on the accused rather than on the accuser; and 3) the accused actually being assigned legally the logically-impossible task of proving a negative.**

Things didn’t get any better with the late-1970s explosion of a diagnosis called Post Traumatic Stress Disorder.***

You had a ‘diagnosis’ given to something that is not a disease-entity but rather is merely a set of emotional and behavioral responses to tremendous pressures generated by your experiences. Worse, ‘pain’ – while it can be real, in the sense that it is ‘felt’ by a sufferer – cannot by easily validated or corroborated by an outside observer and in that sense its dynamics function with a queasy similarity like the old ‘spectral evidence’.

But it was clear by the late 1970s that the Vietnam-era troops, some of them, were having a bad time of it in their post-military lives, and something should be done to ‘help’. ‘Valorizing’ PTSD must have seemed a quick, direct, and politically popular ‘solution’.

As early as World War 1 in this country some professional observers from the new psychological disciplines had noted what they called ‘war neurosis’ in some troops; although there were popular public awareness going back to the Civil War when those veterans thus-afflicted were said to have a case of ‘soldier’s heart’. The Brits actually had a hospital set up under a psychiatrist named Rivers that tried to help suffering soldiers (mostly officers) regain their balance.

As should come as a surprise to nobody, the assorted movements and advocacies took what was an already dubiously-cast ‘diagnosis’ stemming from war experiences and quickly applied it to ‘abuse’ experiences and assorted other ‘victimizations’. McHugh will note later in the book that there is now a movement afoot, agitated by this and that advocacy, to get the next edition of the DSM to declare that clinicians no longer have to – or should – try to determine if there really is any conceivably valid ground for a patient’s claimed or reported ‘pain’. Rather, the simple fact of the patient’s declaration should be ‘scientific evidence’ enough that the diagnosis of PTSD applies. I will allow myself here the observation that this is actually heading toward a mutation of the PTSD diagnosis to ‘NTSD’: Non-Traumatic Stress Disorder.

You don’t need a college-degree to realize that if you basically allow the patient to determine the diagnosis you are A) increasing exponentially the risk of inaccurate diagnosis (of what is already a conceptually dubious diagnosis in the first place) and B) increasing exponentially a ‘patient pool’ that could keep a whole lotta therapeutic practitioners in business for quite a while – the perfect clinical ‘self-licking ice cream cone’, as the Pentagon contractors like to say.

Members of the SO Community will be very familiar with the deployment of the ‘incalculable damage’ assertion that grounds so many of the ‘Findings’ which, legislators claimed, created the Emergency that required the Regime.

And again and again and again, I am not denying here that some very real cases of sexual-offense trauma can create valid issues that require professional attention. But I also note that the country has now become ‘medication-happy’, as any tally of TV commercials for prescription drugs (‘ask your doctor’, which works out usually to ‘demand from your doctor’) for this, that, and every other ‘pain’ and ‘issue’.

In this regard, McHugh notes sadly as a lifelong practicing professional, that Oliver Wendell Holmes, Sr. (the mid-19th century doctor, father of the Civil War hero and Supreme Court Justice into FDR’s first administration) noted acutely that his beloved discipline of Medicine was as susceptible to public fads “as a barometer”.

As McHugh found himself traveling all over the country in the 1990s he notes that prosecutors and law-enforcement personnel who would distrust a person’s claim of being assaulted would suddenly become utterly credulous if the person suddenly changed the claim to one of being sexually assaulted or raped. And he notes one judge who actually said that she expected the accused to prove that he did NOT do what he as accused of – which is a logical impossibility (and apparently basic logic courses are not part of the law-school curriculum any longer, or logic is no longer considered relevant to law and jurisprudence).

But there are occasional bright spots: in a Rhode Island case it was the prosecutors who moved to dismiss due to the “subjective character of the psychological data”. So something moved the prosecutors to recall the old ‘spectral evidence’ problem.

But the problem of “over-inclusive diagnoses” remains lethal in the DSM arena; the professional psychological community – true to Holmes’s ‘barometric’ observation – want to be ‘inclusive’ and don’t want to ‘re-victimize’ and so are tending toward accepting literally ‘whatever’ as evidence of validly diagnosable malady. And, I would venture, this will continue as long as the money holds out. And if not, not.

In a particularly acute observation, McHugh poses the hypothetical but quite probable question: But if it’s in the DSM, then it’s real, isn’t it? To which he responds firmly and clearly: No. A fact that courts – including the US Supreme Court – now realize in the matter of recovered/repressed memory cases.

It’s simply ungrounded speculation, and contrary to much of what is actually and validly known about human psychology, to claim as an Invariable Rule that Psychic Disintegration is caused by Repression which is caused by Childhood Sexual Abuse. The entire thrust of evolution, in order to protect and preserve the species, is that human brains are wired to ‘remember’ – at least in a general way; a species that couldn’t recall quickly whether saber-toothed tigers were good things or bad things wouldn’t get very far.

But specific memory remains a complex and hugely variable process: there is no evolutionary need for ‘photographic’ memory and the brain isn’t set up for it; many factors internal to you (your emotional state of arousal, your level of awareness and powers of observation) and external to you (the amount of distraction, the circumstances of tranquility or danger) affect what your memory records. Indeed, if anything, even if you have an I’ll-Never-Forget-It experience, there is serious question as to what a mind under great pressure is going to be capable of recording.

And which you then might be able to access at a later – perhaps much much later – date.

(I had an experience just last week: I had a flash-drive with important material on it in my briefcase on Monday. On Tuesday, rummaging in the briefcase, I couldn’t find it. Instantly, I was anxious. My mind – trying to be helpful – gave me two ‘answers’: first, on Monday I had stepped out of the car with the case and distinctly heard a ‘click’ as I walked away from the car but thought insignificant; second, my mind produced a clear and distinct image of that flash-drive lying among some papers at the coffee shop I had stopped into for a cuppa. I had two clear and distinct images (not to say ‘memories’). I went back to that town and the parking space and the coffee shop both yielded nothing. Getting back into the car, it quietly came to me that I had for convenience tossed my briefcase (the leather, open-topped kind that holds laptops) across the front-seat into the passenger seat. I looked down and there, in the crevice of the passenger seat, was the flash-drive. And yet my mind had – with the best of intentions, I am sure – given me two almost film-like images of ‘memory’ that turned out never to have happened that day.)

Nor is it necessarily established, McHugh goes on, that “one heals by remembering” – which is the mantra of the MPD proponents and recovered/repressed memory crowd and every group that finds their assertions somehow useful.

Clinically, you’re on much more solid and workable ground by focusing on the patient’s present complaint of behavior or feeling or thought and working through THAT – and THEN seeing if that hasn’t given the patient relief. Imposing a hugely dubious, not to say impossible, ‘script’ on the patient will run up bills, create probably more trouble and pain for the patient than s/he originally came to you with, and generally degrades not only the patient’s quality of self and life but your own professional integrity as a practitioner AND the overall integrity of the profession itself.

The “explosive phase” of the repressed-memory “craze”, he recalls, seems to have been at its height about 1994 (the Domestic Violence and Sex-Offense Regimes legislatively established, though court challenges hadn’t yet begun in earnest). He quotes an author who has researched that of the 250,000 licensed ‘therapists’ (a verrrrry broad term itself) that year, a quarter claimed themselves competent to offer “memory-focused therapies” (again, a verrrry broad term) and claimed to recover such memories in 34 percent of their roughly 50 female clients per year. Some math brings you to the rough figure of a million cases. And each case had several more persons attached to it, not infrequently as accused persons.

On the basis of questionnaires and surveys McHugh’s Foundation has done upon available official information, some characteristics of the group of accusers are: almost all Caucasian, 93 percent female, an average age of 32 years, 77 percent college-educated and working in professional, white-collar occupations.

Further, accusations were rare among this pool before 1985 but peaked in 1991-1992, declining down to 1999-2000 (which is around the time the courts began to back away from the validity of repressed/recovered memory … although the Sex Offense Mania Regime was by then performing the neat two-fer of almost completely overshadowing the equally misconceived Domestic Violence Regime and also picking up the slack left by the waning recovered/repressed memory craze).

McHugh raises the hugely intriguing and apt professional question: was all this the result of a ‘craze’ n actual illness OR a “craze in therapy”?

I would add the significance of the college-educated element: precisely the class that would have been exposed to the radical-feminist ideology as it infiltrated (is 'infested' too strong a word, d'ye think?) college campuses in the guise of this or that 'studies' course or department.

He then limns, ominously but informatively, recent jinks and jives among the MPD proponents. They have started now to spin themselves as “humanistic”, as if they were concerned for ‘people’ while clinicians trying to work according to established facts were merely ‘technicians’ concerned with ‘abstractions’ and ‘proof’ and ‘evidence’ and ‘research’ rather than with ‘persons and their pain’ (as if the two approaches were mutually exclusive AND as if the MPD proponents hadn’t caused huge human wrack and wreck).

Further they are trying to position themselves on the PTSD wave by talking about “betrayal trauma” as if it were a clinical disease-entity or constituted as awful an assault on the human being as direct combat experience or substantive disaster-level experience.

In that “betrayal” McHugh sees the continuation of the pervasive – indeed constitutive and indispensable – dynamic of “suspicion” introduced into psychology by Freud: you must always suspect that beneath any appearances of ‘civilization’ or ‘maturity’ in a person there is a deep, hidden, dark frothing mass of essentially sexual passion, repressed but active and indeed determinative in human behavior and motivation. Although this huge assertion of Freud’s is nowhere established by any credible scientific research.

(Curiously, I would note, Freud’s assumption that children are not immune from this because that’s how profoundly and quintessentially human the sexual-motivation is … this assumption of Freud’s was quickly ignored by assorted permutating advocacy positions in the scrum of politicking and political pressuring that has been an all-too-determinative dynamic in the on-going saga of all of this Sexual Violence and Male Sexual Violence stuff. The ‘Child’ is, for the purposes of those interests, an essentially pristine and pure and innocent (in the Victimology sense) entity – which is a vision that not even Freud would have accepted.)

And in this “persecutory psychiatry” as McHugh terms it I see as well the abiding political suspicion of Haves (out of Marx by Alinsky), as well as of Men (out of Alinsky by radical-feminism), and of Perps (out of Marx and Alinsky by Victimology).

The MPD proponents are now billing themselves as “traumatologists”, using a vague and elastic application of the PTSD diagnosis, while also seeking to have their former MPD diagnosis re-named Dissociative Identity Disorder (DID). Concerning their previously trumpeted assertions back in their salad days, these proponents are now claiming that their terminology was just “metaphor” and that they are victims of “misunderstanding”. And, no doubt, that in any case they ‘meant well’.

You can chart their course in shorthand as MPD to DID to PTSD as they continue to surf for a ‘place’ where they can set up shop (and continue billing).

McHugh concludes the book with a significant proposal for a new clinical classification system that I won’t go into here but is simple and well worth the read.

All patients resemble each other in their distress, he says, BUT NOT IN THE CAUSES OF THAT DISTRESS. Thus the DSM approach has been flawed from the get-go in trying to classify Symptoms rather than the possible Causes of that distress.

His new classification system would divide patients according to Causes: genuine brain deformity or disease; Dimensional Disorders (such as intellectual dysfunctions or overly strong emotions or extremes of introversion or extroversion); Behavioral Disorders (such as alcohol or drug dependence or abuse and hysterical illnesses****); and Life-Story Disorders (the cumulative consequences of maladaptive or ineffective emotional or behavioral responses to the challenges of one’s life and to distressing life experiences”.

In all patients, the goal is not only to ‘relieve pain’ but to do so by helping the patient develop and sustain a greater “mastery” over his/her life and thus over his/her self.

I support this approach strongly.

And I can’t help but notice how many elements in current American society are dismissive of the goal of ‘self-mastery’ – either because it is too ‘male’ a goal or because it doesn’t allow for the quick-burning political fuel so beloved of Alinsky-ite agitating and organizers of ‘pressure groups’.

So much remains to be done.

NOTES

*Published by Dana Press, New York, in 2010. McHugh is a Professor of Psychiatry at Johns Hopkins, and from 1975 to 2001 was Director of the Department of Psychiatry and Behavioral Science at the Johns Hopkins School of Medicine, as well as Psychiatrist-in-Chief at Johns Hopkins Hospital.

**You can prove a positive: if you can find one instance of your assertion, then you have proven it. So for example, if you assert that purple elephants exist then you need produce only one such elephant to prove your assertion. However if you claim that NO purple elephants exist, then – impossibly – you have to establish that no such creatures can ever be found to refute your assertion … and THAT task is impossible to achieve.

Thus it’s almost impossible to prove that you did NOT sexually abuse someone.

Which is a frakkulent gambit that has helped ‘keep up the numbers’ in the Sex Offense Mania Regime in all of its permutations and sub-variations.

***I’m going to have some critical observations to make about this PTSD diagnosis here. Given the state of public-discourse nowadays let me say here and now that I am NOT in any way making light of ‘the troops’ and the awful suffering that they face as a result of a decade of unremitting (and most unsuccessful) military operations. And it is the troops themselves who developed the lethally perceptive advice to ‘Embrace the Suck’.

****He uses ‘hysterical’ here in the formal, not the popular, sense. Formally, a hysterical illness is a deception practiced by a patient on him/herself, and NOT merely a conscious ploy perpetrated on others, and it is not a matter of conscious ‘pretending’. In response to a deeply-threatening perceived problem, a patient will pre-consciously develop a physical symptomatology that is actually a smoke-screen evolved by the patient to shield the actual problem from his/her own awareness.

The purposeful deception bit is formally termed ‘malingering’, which is a problem all its own.

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.