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.

SO SERIES ON NUSSBAUM: 1

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

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

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

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

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

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

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

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

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

Enough said.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And in two ways.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notice what she’s doing here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MORE FURTHER NUSSBAUM

I don’t know how the Universe works, but as I put together the notes for a short series on Nussbaum’s 94-page Harvard review article, I came across a 2004 article in ‘The London Review of Books’* that reviews Nussbaum’s then-recently released book “Hiding From Humanity: Disgust, Shame, and the Law”.

Nussbaum was going for the idea that she didn’t want to see – and it wasn’t ‘liberal’ to make – legislation on the basis of what disgusts and shames folks.

Yes, you might immediately say to yourself: Well, that’s pretty much one’s of the SO Mania’s primary results, intended or not.

By this time it might not surprise you to realize that Nussbaum doesn’t refer to the SO mania or SORNA-type legislation at all. And that simple fact is in itself a most curious matter since the SO laws are surely rooted in much of the feminist-law that Nussbaum is trying mightily to insinuate – as a ‘reform’ – into the heart of American legislation and jurisprudence.

She is trying – think of it what you may – to clear more space for what I think can now be called her Destructive Reconstruction of American culture, and wants to use legislation and jurisprudence to do it. This – without any undertone of misogyny on my part – constitutes far too much of the thrust of ‘governance feminism’. And I say again that this crucial reality has received far too little critical attention for decades and has now burrowed itself verrrrry deeply into all that legislation and jurisprudence.

You may recall that it began – some decades ago – with the effort to do away with such things as American society’s aversion to ‘unwed mothers’ and to what was then called ‘abortion on demand’ but what has now been more tastefully clothed as ‘autonomy’ and the philosophical claim that the heart of the ‘liberal’ (and I am not implying that I am ‘conservative’ here) agenda and of the human being is not just the ability to ‘choose’ or to have totally free ‘choice’ but rather, more nicely, to possess ‘autonomy’.

(And when I use those examples I am not here taking a position on them; but these were some of the ‘wedge issues’ as they might be called.)

So this Post is going to go just a bit into ‘philosophy’.

I know that ‘philosophy’ is a little more than you might expect in an SO-oriented blog Post. But I think that since so much of the Mania is based on Nussbaum’s codification of feminist legal philosophy, and since legal philosophy cannot avoid making philosophical claims about both the human being and human nature and also about the American philosophy of government (and of the Constitution) that underlies legal philosophy … then because of that it would be essential for the SO community to be familiar with these deeper issues that underlie the more pressing and immediate practical concerns so well documented in the main SO sites.

I’d like to help the SO community to A) grasp some of the fundamental geology of important ideas and issues lying beneath the SO Mania itself and B) grasp the fact that what the SO community is doing in regard to the SO Mania itself serves as well a larger purpose in the country’s affairs and in its interest.

I am going deeper than any of the usual SO topics themselves, to the philosophical assumptions that are underneath them. And I will ‘come out’ of this little exploration journey at the SO Mania and the matters that are of urgent interest to the SO community. But matters that are also – as I have always said – of urgent interest to the country, even though media treatment and the general level of public awareness has never gone that deeply. Tire, as I always say, has to be Kicked before We make so large a purchase as Nussbaum wants the country – whether it knows it or not, whether it agrees or not – to make.

And of course the Brits – although they are bethumped by their own ‘postmodern’ problems of philosophy and governance – are able to take a more penetrating and acute stance when they examine things, especially matters that the American media ignore, either out of ignorance or deliberate design.

There has always been a problem with the ‘liberal’ insistence on ‘tolerance’ of any approach or behavior, no matter how much such an approach or behavior might strike people – and Citizens – as repugnant or wrong, or ‘shameful’ or ‘disgusting’ to use Nussbaum’s own terms.

Since the ‘liberal’ position is for Tolerance, than it has to be opposed to Intolerance: you can’t tolerate opposition to what you have shrewdly called Tolerance. You can’t Tolerate Intolerance.

But that is itself Intolerant.

Which is one of the complicated little situations that arise when you start looking carefully at the philosophy – and the philosophical consequences – underlying popular or strongly-advocated political agendas.

(Which is why, once they have stated their agenda and their hopes, revolutionaries don’t really want to waste time on philosophy: sooner or later you’re going to have everybody ‘thinking’ and nobody ‘doing’. And more specifically: they’re not going to be ‘doing what your revolution wants’ and instead they may even find holes in your position that allow them to disagree with your revolutionary agenda and your revolutionary demands. And THAT is the type of problem good revolutionaries never want to allow to start up in the first place; the smart revolutionary wants action, not thinking. Or – at the very least – the smart revolutionary wants everybody to simply accept what the revolution claims is the ‘reality’ of the situation and just stay out of the revolution’s way. Either agree or shut-up, but don’t think if that means you’re going to disagree. Because Disagreement is Intolerance. And worse, Disagreement and Dissent will slow down the rush of the revolution – which to a revolution and to a revolutionary is the unforgivable crime and sin.)

Which is not the way for a deliberative democracy to function.

Or for a mature Citizenry in a Constitutional Republic to conduct their vital role as governors of their government.

So then, a position – called ‘liberal’ but is hell and gone from classical Liberalism – that labels any dissent from or objection to its agenda as Intolerant is already manipulative, in the sense of professional propaganda: the Citizens are not given all of the relevant information about an agenda but instead they are only given the selected bits, and the selected ‘spin’, that will move them to agree.

This propaganda approach is the result of a century’s worth of psychological development into advertising’s effort to figure out how to move people toward purchasing its product. In the early 20th century this stream migrated from commerce and advertising and moved into governmental affairs. The world saw this from the extreme Right in Goebbels’s Nazi propaganda program in support of Hitler’s Reich, and from the extreme Left in Stalin’s and postwar Communism’s increasing sophistication in trying to pass themselves and their system off to Westerners and to the rest of the world as ‘liberation’.

But a State, a government, that declares itself to be ‘neutral’ philosophically, and therefore justified in being ‘tolerant’ of anything, has already taken a philosophical position: it is saying that nothing matters enough for the government to take a position on what the shape of the nation, and of its culture, and of its laws, should be.

And over here, where as I have said the post-1965 game-plan has been to Deconstruct and then Reconstruct the entire American culture and society just the same way that the Beltway did to the Jim Crow South, then the Citizens must be manipulated by the government into not only doing but also thinking Correctly, which is to say ‘according to the new plan for the culture and the society’.

And law is one way of sort of shaping the way Citizens think. It acts like those fences in a stockyard that funnel the cows along to where the stockyard process wants them to go.

And – even more importantly – law has the power to punish those who disagree. A cow that tries to break through the fence at the meatpacker’s is going to get pushed back in. After a while, if the cows are around long enough, they may even ‘internalize’ the fence, such that they will move along those paths even if the fence is taken away.

And that’s the type of New Soviet Man that the Commies were going for: the New Soviet Man (or Woman) would so internalize the revolution’s agenda that s/he would cease all dissent and simply move along the desired paths and think along the desired paths, out of his/her own ‘free will’. This was also Hitler’s idea of ‘the good German’: somebody who would internalize the agenda and willingly go along with it, and never question it (and it’s a testament to the Western European advanced-level of social cooperation that so many Germans for so long went along with things, such that Hitler needed and had far fewer secret-police than Stalin had).

So – getting back to Nussbaum and the problems she poses – the question is how ‘politics’ and your political system handles the unavoidable fact that human beings cannot operate without some sense of moral substance. Humans are and always have been – concerned for the ‘moral’.

And in the West – although humans also demonstrate a stubborn inability to always act in complete accord with their own ideals of what is ‘moral’ and so do their governments – this sense of the ‘moral’ has always been accorded a certain vital importance: There is an Ought as well as an Is in reality, and human beings – and the governments they have – must take into their account of things, not only what Is but what Ought to Be.

A ‘realism’ that claims that for humans there is only what Is, and that what Ought To Be is merely pie-in-the-sky is what Machiavelli was driving at: a government can only act on the basis of the brutal realities of humanity at its worst, even if that then means that sin the process such a government has to immerse itself totally in that dark swamp. In Machiavelli’s vision you were setting yourself up to be a hot lunch if you tried to be ‘nice’.

As if trying to coming to grips and respecting that awesome Ought To Be was simply a matter of ‘being nice’.

It’s more than that. Much more.

Because if the entire Universe, the entire realm of human affairs and human history and even human nature itself, is set up such that there is a Nature to Things and that therefore there is a Way to go about being human that actually helps fulfill that Nature (perhaps even that Purpose) … if THAT is true, then respecting the Ought is not simply a matter of being Nice, but of being in tune with the ultimate reality of existence. As Martin Luther King put it: “the arc of the universe is long, but it bends toward justice”.

What he was saying there was that there is indeed a Nature, an Essence, and even a Purpose to human existence, and that it will reveal itself in human respect for oneself and for others, and that to set yourself up against that Nature and against the Purpose of fulfilling it … is to violate and to oppose the Ultimate Force of that Nature.

It’s like a pilot and an aircraft: there are certain basic laws of aerodynamics and of gravity itself. If you ‘choose’ or if you claim the ‘autonomy’ to fly your plane in opposition to them (say, trying to fly it backwards, or loading it so that it weighs more than the thrust your engines can provide) then you are going to be proven wrong in your ‘choice’ and your assumptions very quickly. If you assume that there are no such laws or that you as a pilot have the power to ignore them … you aren’t going to be in the flying business very long. The Nature of Things (natura rerum in the Latin) will see to that.

There are laws and regulations in flying that are set up by humans and can be changed: the FAA can set up regulations as to what altitudes Westbound and Eastbound aircraft must maintain so as to keep order in the sky; there are company regulations as to the color of uniforms its crews will wear. Any of these can be changed by humans.

But there are those laws of aerodynamics that no government agency or corporation can change: you can’t be ordered to fly the aircraft backwards, nor would it be wise to pass a law or even a Congressional Resolution demanding or approving such an attempt. The best laws – some traditional and classical thinking would say the only laws that are worthy of obedience – are those that help humans fulfill that Nature of Things and their own Nature.

Heavy stuff, but absolutely vital for folks to realize. This is the nature of the game – as it were. This is the fundamental nature of civilization and society and government: to help and not to hinder humans to achieve the fulfillment of that Nature that is so utterly basic that no human power can dispense with them or ignore them or violate them.

And, of course, if the whole Universe is set up such that to fulfill that Nature is to fulfill your own individual human nature, then why would any sane person want to?

Now bring all this down to today’s American culture and politics.

Are there any boundaries to ‘autonomy’? Is ‘autonomy’ capable of standing up as a ‘value’ on its own, with no reference to the larger Field – that Nature – in which it will function? And if there is a Human Nature that is a part of that Universal Nature, if there is a Human Shape and Dynamic that finds its fulfillment – like a well-piloted aircraft – by cooperating with those laws … then shouldn’t humans, in their own lives and in their societies and cultures and civilizations, try to get in sync with all that?

And what is the role of government in all of this? Should a government try to ignore all that and simply claim to be ‘neutral’? Can a government do that?

Or: can a government insist that it is ‘neutral’ and then make all sorts of laws that are made on the assumption that there is no such Nature? Is that a wise course for a government to try to pursue? Is it even possible for a government to successfully sustain such laws?

Or: can a government and should a government try to Deconstruct its own society’s and Citizens’ sense of such a Nature and then instead of that sense try to impose a regime of belief that there is no such Nature and that everything is up for grabs? Is such Reconstruction possible? Has it any hope of surviving the Universal dynamics of Nature?

Can a government say to its society and its Citizens that the belief in such a Universal Nature is not worthy of respect? Or can a government say to its society and its Citizens that such a Universal Nature is not scientifically provable, and is therefore a matter of personal or private opinion and not a matter that should influence how it will govern that society and those Citizens?

It’s not just a matter of ‘religion’. It’s a matter of a government’s stance toward a reality – or a Reality – that even religions, limited as they are by the limits of human knowing and acting, can’t fully embody.

It’s not a matter of ‘reality’; it’s a matter of Reality. It’s not a matter of the color of the pilots’ uniforms; it’s a matter of the fundamental aerodynamics that shape and control the entire experience of flight.

So when you talk about ‘choice’ (and not merely in the ‘abortion sense’) and about ‘autonomy’ you can’t stop there. You have to already have a grasp of what the Nature of the being is that is endowed with or claims such ‘autonomy’. A pilot has a certain significant authority in making decisions about the operation of the aircraft; but if he ‘chooses’ to fly the thing backwards, or even upside down when it’s full of passengers, then … what ‘autonomy’ does the pilot really have in those matters?

The problem today, it seems to me, is that the feminist-law emphasis on ‘autonomy’ – the autonomy of all human beings to fulfill their lives as they individually and personally see fit – is the equivalent of pilots claiming ‘total freedom’ to fly their aircraft, without going to the indispensably larger next step and understanding the nature of aerodynamics that ultimately Shape and Boundary any flying at all.

And they want to government to impose that view on itself and on everyone else.

Because, they say, there is no proof that there is any such Nature. And that’s a mighty big gamble – to ignore the possibility of such a Nature.

And for a government where so many Citizens think that is such a Nature, it’s a mighty iffy thing to try to claim that there isn’t.

And it’s a mighty iffy thing for a government to insist that folks should just stop thinking, and that their belief in such a Nature is just a private thang that may not even be true.

As the Citizen-passengers of the American aircraft, you have to wonder if the pilots really know what they’re doing. And if they’ve thought this thing through.

And as Citizen-governors of the government of the Republic, then you have to wonder if you don’t have some responsibility individually and collectively to speak up rather definitively. After all, having a ‘voice’ and being ‘empowered to have a voice’ is pretty much what the Constitution guarantees.

These beliefs aren’t simply “the particular values of a particular religion” – these beliefs are a demonstrable constant in human assessments of human existence for the entire recorded history of the species. And while I fully agree that 10 blind men may all bump into different parts of an elephant and think that they have figured out the whole thing (it’s a huge root – the trunk; it’s sharp and hard – the tusk; it’s a leather butterfly – the ears; it’s like the trunk of a tree – the legs; it’s like a massive house – the sides of the body itself; it’s like a snake – the tail) you still can’t decisively (or accurately) conclude from their various conflicting reports that the elephant simply doesn’t exist.

So in trying to rearrange the national Building in order to make more space for themselves and their demands the reformers are trying to move it off its foundations, or any foundation at all.

This doesn’t seem wise.

In trying to make more space, then, the various revolutions of the past few decades, trying to pass themselves off as ‘reforms’ so as not to frighten up too much opposition to their agenda, have had to declare that the Building itself has no foundations, or at least no solid carrying walls that you can’t mess with without weakening the entire integrity of the structure.

You see how all of this ‘reforming’ gets kind of quickly into something more than re-arranging the national Furniture or knocking down a few inessential Walls inside the national Building.
This was going to be a verrrrry demanding task. Which the Beltway undertook with (typically American) impatience and zeal, and with the urgency that only vote-addled pols can demonstrate when they are really really worried about electoral viability. But also want to make it appear that they are either ‘just reforming’ some stuff or ‘doing all this with really clear knowledge of what’s involved’ (and can you say ‘Iraq War’?). Wheeeeeeeeee!

So ‘liberal morality’ – like ‘liberal philosophy’ – is that there is no common ground for morality or philosophy at all. And that folks should just ‘get used to it’ and if not, then they ‘just don’t get it’. The only ’moral’ thing to do is to let everybody do what they want.

It can hardly be surprising that any human government that tries to build on that foundation is going to wind up having to be very ‘regulative’, and will have to impose a whole lotta rules.

Because if you raise kids to think that they have ‘total autonomy’ then they aren’t going to be well prepared for understanding or respecting themselves or anybody else. And if the Citizens can’t govern themselves in their own individual lives, then the government is going to have to do it for them with a whole bunch of laws – regulatory and also criminal – that does that governing for them. If individuals can’t master themselves, then sooner or later government is going to have to be the Master (Mistress).

And there goes your Constitutional Republic and the entire American vision of how a free (but not ‘totally autonomous’) People can govern itself.

Oy. And thus We might pray with the inimitable Chester A. Riley: “What a revoltin’ development DIS turned out ta be!”.

And so you wind up with a government like We have today: seeking to impose the philosophical position that there is no possible public philosophy upon a Citizenry that mostly thinks there is, and with a government that – like all of history’s governments – doesn’t really mind if it is turning into a Master/Mistress (the old Benevolent Despot scam that the Framers saw and knew well and rejected).

If the ‘moral’ is purely private and has no place in the public realm, then you are heading toward Machiavelli’s approach to governing (and you can see this in foreign affairs now even more vividly than in domestic affairs).

Machiavelli really didn’t mind what his Prince did in his personal and private life; he only wanted the Prince to be a ruthless though crafty manipulator in public affairs.

But Machiavelli’s huge mistake in his calculations was to imagine that a human being can consistently be one thing to him/herself in private, and the exact opposite in public activity, and to be able to sustain this profound and monstrous opposition over a lifetime without any adverse consequences.

And that’s crazy-talk. Human beings aren’t so easily divisible and compartmentable.

Now to Nussbaum in her book.

Mulhall sees that she is making a claim that emotions like Disgust and Shame are not emotions that she wants to see become the basis of laws.

But in her overall feminist-law approach she has claimed elsewhere in her thought that Emotions are a form of Reasoning. In her effort to get Law off its oh-so-Western foundations in ‘reason’ and ‘thinking’ and ‘abstractions’ she also wants to make legitimate space for the Emotional (which is precisely what Western Law has been trying to get OUT of the process in order to protect individuals from arbitrary government assault).

Thus – if you are, say, Disgusted by ‘unwed mothers’ or ‘abortion’ (please don’t think I’m trying to raise the A-issue here) or you are Shamed that your society would approve of it, then you are simply indulging in Emotion, and that shouldn’t be the basis for laws. (She doesn’t go into whether it should be the basis for Culture and Tradition … which is itself a whole other, but equally vital, matter.)

And yet she wants Emotion to be considered a form of Reason (and there’s a verrrry odd connection here – though I am not claiming this as a trump factoid – between feminism’s assault on ‘male’ reason and thinking and feminism’s trumpeting of ‘womens’’ intuition and feeling).

Emotion, she says, is a form of Reason because it embodies a particular “understanding” of whatever object it is aimed at. But such an ‘understanding’, drawing upon the more primal parts of the brain and not involving the more advanced prefrontal cortex capabilities of the brain, is really no ‘understanding’ at all; it is merely a reaction – and one that may be grossly uninformed or under-informed about its object.

This is precisely why Western Law has worked so long and hard on trying to engage the more advanced parts of the human brain – that prefrontal cortex – even long before medical science actually established the existence of the tripartite division of the brain and that remarkable and uniquely human prefrontal cortex with all its ability to postpone an immediate response of some Action, and instead to work beyond emotions in order to analyze, deliberate, and carefully consider. THAT is precisely what court trials are designed to do. And what lynchings precisely avoid.

Thus – verrrrry relevant to SO concerns – she thinks that Fear is a form of Reason. Now it becomes clear that if Fear is seen as a form of Reason, and ignored as the profoundly powerful Emotion that it really is, and then to make Law based on that Fear … then you have regressed Western Law and the entire Western cooperation (hardly perfect, I’ll be the first to say) with the ‘higher’ human capacities bestowed upon humans be their genuinely unique and remarkable human brain. You have regressed it away from Reason and back to Emotion. This is not progress. And Nussbaum’s playing with words cannot make it so.

Nor can Nussbaum’s and feminism’s assumption that the human Nature is totally plastic and as malleable as children’s play-dough clay make it so. Humans have a certain same-ness on some profound and basic level that has to suggest that there is SOMETHING ‘in there’ that remains constant, has its own identity sustained over time and Time, and is therefore possessed of a certain Shape. And – like an aircraft – is thus answerable to certain laws and dynamics which no ‘pilot’ can ignore or pretend doesn’t exist.

And if you don’t want to call it ‘soul’ or the human soul or human nature of human Nature … you can come up with a new WORD for it, but its REALITY remains rather strongly independent of whatever words or phrases you want to use. In this sense ‘religions’ didn’t invent the human ‘soul’; they simply tried to understand a clearly perceived aspect of human existence and of human reality that from the earliest times humans sensed was somehow ‘out there’ and – more to the point – ‘in there’.

The ‘religion’ thing here is a red herring.

She doesn’t want Law made on the basis of Shame and Disgust because those Emotions are “unthinking” forces, but then she plumps for Fear because it is a form of ‘knowing’ and “understanding”.

Suppose Disgust and Shame in the matter of some of feminism’s agenda are forms of “understanding”? Or of ‘knowing’?

If THAT’S true, then the significant public aversion to some of what has been going on all these decades is a form of “understanding” and maybe she and her fellow-sister cadres “just don’t get it”.

And if it’s true, then you ALSO have a Beltway that has committed itself to a whole mess of Law that flies in the face of the majority of the Citizenry’s understanding and knowing.

Which is not a good situation for a Constitutional and deliberative democracy to be in. (But it’s precisely the situation that developed when the federal government undertook to Deconstruct and Reconstruct the South in the 1960s to clear it of the Jim Crow mentality.)

And how can any or all of this be presented as ‘liberal’ or ‘progressive’? The results are certainly not ‘liberal’ or ‘progressive’. Which is an unintended consequence from hell.

She wants to delegitimize “the disgust of one human group at the behavior of another human group” and she most certainly doesn’t want that Emotion enshrined in laws or Law. (And yet she wants Fear to do be just so enshrined, and the SO Mania is the result.)

She doesn’t want “disgust” to be enshrined in Law because it makes “the legal system complicit in the perennial human desire to regard some human beings as subhuman”. (Which, of course, is precisely what the SO Mania has done by creating and defining ‘sex offenders’. And it is now clear that ‘fear’ grants you very little knowledge of ‘sex offenders’ at all, as numerous studies from various disciplines now indicate.)

Mulhall observes that “Nussbaum concludes that laws which inflict shame on fellow citizens, and which fail to protect them from degradation or humiliation typically reflect a failure to renounce infantile fantasies of omnipotence, a persistent denial of our finitude, and hence a denial of our humanity”.

Well, there you have – and from one of the most prestigious of feminist-law thinkers in the country today – a pretty good assessment of what drives the SO Mania: an attempt to create a ‘scapegoat’, the proverbial ‘black sheep’, relative to which everyone else can consider themselves superior and ‘good’.

It’s good but it’s not complete: there is a political-gain element whereby an otherwise failing legislative authority can both ‘prove’ that it’s doing something and also distract Citizens (as it so effectively did) from far larger and far more real and urgent public problems (preventive war, torture, the economy); and there’s the apparently eternal feminist desire to somehow take ‘men’ down a peg (though sex offenses by women, and especially lesbians with that extra dollop of maleness in their biology, rarely get examined).

And while we’re on the psychological aspects of things, Nussbaum stunningly uses as an example of ‘shaming’ the license plates that drunk drivers have to put on their car marking them as such – but not a word about the SO Mania (which also includes license plates in some States) although by 2004 when she wrote this book the Mania was well-established. (Mulhall doesn’t note the SO Mania in his otherwise acute and perceptive review, either; although the UK already had its own version in place, though less virulent than the American version.)

Strange that in all their crowing in their recent victory-lap histories the feminists do not count the SO Mania among their ‘governance feminism’ “victories”. (And in regard to the Domestic Violence laws, they only burble about the good intentions – with not much to say about the actual consequences, intended or unintended). Funny how the night moves in all of this. Here is a great ‘victory’ and ‘success’ that has no heavy-hitting ‘fathers’ (or ‘mothers’, of course) … JFK was wrong apparently when he said that “Success has a thousand fathers”. But then, he added “failure is an orphan” … and what we have in the SO Mania is an orphan … so maybe … ?

Nussbaum wants to create by laws a “facilitating environment” that protects people from others’ disgust or shame. She is, I am sure, trying to put a philosophical ‘ground’ under the long-standing agenda to make a whole lotta things ‘OK’ and to make them ‘the new normal’. She wants to protect people from the judgments of other people, no matter what they do.

She tries to spin that as simply using Law to neutralize what she sees as the abnormal-psychology of groups when they scapegoat or black-sheep certain groups. “Those who call themselves as ‘normals’, who understand themselves as ‘normatively normal’, essentially free of the imperfections [that] they project upon others … satisfy their infantile need for control”.

And doesn’t this indicting judgment apply to those who fan the flames of the SO Mania? And not only in order to ‘control’, but in what I would call a profound abnormal-spirituality as well as abnormal-psychology, seek almost blasphemously (as they used to say back in the day) to imagine themselves as ‘pure’ and ‘decent’? Clint Eastwood marvelously has his aged gunfighter tell an aspiring young worshipper: “We ALL got it coming, kid.” That’s not just a (wonderfully succinct) statement of some “particular religion’s belief”; that’s a statement of the human condition. A human condition which in their efforts to further their own agendas far too many ‘advocates’ have utterly ignored.

And in ignoring the SO Mania she ignores the awesome reality that her own feminist-law has sought to manipulate public opinion – and subvert Western Law – in order to raise up just such a group as an object of Fear and Disgust: the SO. The SO who, by virtue of the near-eternal SORNA requirements can now rightly be considered an American version of Naziism’s “der ewige Jude”.

This is not progress. Nor is it coherent philosophy. Nor is it a legitimate basis for public policy and Law.

As a final observation, I’d support Mulhalls’ excellent selection of Nussbaum’s claim that necrophilia should not be viewed with revulsion because, really, it’s essentially a case of a violation of property laws: the corpse belongs to ‘the family’ and to violate it is at most a property offense.

Mulhall cuts instantly to the heart of it: Nussbaum has the case exactly backward. The corpse is not worthy of respect because it is somebody’s property; rather, the corpse is worthy of respect because it is the former site of a human being. And it is the value of that deceased person’s humanity – and perhaps it might be said of humanness and humanity itself – that endows the corpse with that claim upon respect, and which should also reach ‘back’ into Time to further illuminate the humanity of the deceased’s family.**

Well, this is the type of problem a philosopher runs into when s/he tries to make ‘reality’ arrive at a pre-determined point that is politically relevant and useful.

NOTES

*The article is only 2 pages long, but it’s one of those meaty and in-depth discussions that the Brit book-review journals – and also ‘The New York Review of Books’ – do pretty well. It is entitled “Decay-Prone”, written by Stephen Mulhall, and it appeared in the July 22, 2004 issue of ‘The London Review of Books’, on pages 24-25. The LRB’s site is subscriber-only, so it requires a subscription to access the piece.

**Nussbaum, it might occur to a reader, paints herself into a corner here: she winds up making such a stunning statement about necrophilia by considering the corpse as merely ‘property’ the same way that at the other end of life feminism must consider the fetus to be merely ‘property’. Funny how the philosophical night moves.

FURTHER NUSSBAUM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Verrrrry neat. Verrrrrrrrrrrrrry dangerous.

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

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

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

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

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

Oy.

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

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

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

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

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

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

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

Oy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We have a job of work to do.

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

NOTES

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

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