SO SERIES ON NUSSBAUM 5

Well, here We go – the fifth 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.

The Stoic approach to life basically withdrew the human person into her/her own interior self, ‘retreating’ from the world in the ancient classic military sense of compacting your force in order to concentrate it and intensify its power.

The Stoic approach is not a bad way to conceive of conducting a life: there has to be an interior concentration of your powers; they need to be Mastered and then put to good use, constructive and helpful use out in the world. For anybody looking to conduct a life free from sexually offending, this Project is one of the most important to undertake.

It was the human’s interior (they wouldn’t quite say ‘spiritual’ the way We would understand it today) powers that were a) free from the decay of the outside, this-worldly forces of chaos, imperfection, and corruption; b) the truly defining powers that made a human being a human being with human dignity; c) the one area of life in this world where a human being could demonstrate sufficient independence (if s/he wished to exercise it) so as to achieve the best and the most genuine state of being possible to a human.

Your interior powers are you only true powers. They are the expression of the Self. And they Shape the Self by the manner in which they are deployed. Imagine the Self as being Master and Commander and the powers as being the crew. The ship won’t work without both being at the top of their form, working together.

There is a place for the sexual urge – but really it’s just a member of the crew, and can’t be allowed to order the Master and Commander around. If it’s unruly, then the Master’s job is to make it into a working part of the entire crew.

Nussbaum rejects the Stoic vision. For two reasons.

First, she says, those powers “are more dependent on the world than the Stoics maintained. The capacities of thought, ethical selection, and will are undermined by malnutrition, humiliation, and lack of education”. (8-11)

It’s a shrewd and accurate insight, I would say. Humans are indeed deeply intertwined with the ‘world’ around them in which they live, move and have their being. You needn’t posit a God to imagine human beings deeply and dynamically related to the bio-sphere or eco-sphere (not in the ‘Green’ sense but in the broader philosophical sense). Humans are so marvelously intertwined with the rest of the life-world that some would see a marvelousness that strongly suggests a God, but let’s not digress.

But I’d still have to say that there is also something that sets humans apart: We are not simply marvelously intertwined with the rest of the life-world like pine trees or like other mammals. There is more to it because there is more to Us: humans have self-consciousness and will power and all the other amazing things that come with the highly-complex human brain.

And humans also are capable of failing to achieve their potential – although here you get into the huge question of where such failure comes from: within the human or outside the human. And that leads to stuff like assessing responsibility for such failure and figuring out how to ‘change’ that in a human (or leave the individual as-is). And to distinguishing between failure-to-develop and committing-a-crime; and failing to respect others ... or oneself.

Theorists can spend a great deal of time figuring whether a failure of Mastery comes from – or more from – the world around a person or the person him/herself. Just as ship designers and yard-experts can debate about this or that way of fixing a ship. But when it comes right down to it, it’s the Master and Commander who has the responsibility to make the ship work right: vessel, crew, and he himself.

Did the building yard fail somehow? Did something go wrong or work out wrong somewhere along the line? Be that as it may. Now is now and you’re out on the deep and you have to fix the problem as best you can manage. And you strengthen your own capability and authority as Master and Commander by doing so. Your authority over your own self – which is the most valuable and rare authority. And this is not a bad point to begin any self-repair and rework: you’re the Master & Commander; it’s your life and your ‘ship’ and your Mission; and any fixing you can do on your own will increase your Mastery.

So in emphasizing the connection between humans and the world, downplaying the independence of their interiority, Nussbaum is heading into difficult territory. The human is simultaneously extended into the material world but also comprised of some irreducible interior dynamism; erecting a plan, especially one that you want legislated as a national Plan, that somehow ignores or inadequately deals with that interiority … is not in advisable way to proceed.

And for an SO this is an important point to remember: there is a vital life and self principle deep within; it needs to be identified: feel within your many moods and gears and interior sounds and threads – listen to your own internal noises like a sonar operator listening to the ‘deep’ or a radio operator scanning frequencies and listening for something worthwhile (intel types used to call it the ‘alpha stream’) – until you can isolate that deep and Best gear or stream. Then choose purposely only to function in that gear or stream. Then start trying to do that and see what rises from within to distract you from that, what rises from within to wrench you off your ‘best’ gear and out of your ‘best’ self. Then get to work untangling those wires and connections. Just a handy how-to for self-repair.

Her second objection to the Stoics is that “things outside a person’s rational and ethical faculties also matter: health, bodily integrity, the chance to have relationships with friends, family, and children, the conditions of political action, the freedom to worship in one’s own way, and the ability to live on terms of respect and equality with others”. (8-11)

Again, nicely said. But she’s expanding the view of the essential or core human capabilities – the mind and (We might say) the soul, the rational and the ethical or moral – to include a whole bunch of those other things that are certainly nice to have but aren’t traditionally established as defining the core of the human being.

The Stoics wanted to withdraw the human into the fortress or protective and impregnable castle of the self (although not Dark-Age or Medieval in their quality, the ancients had such protective fortresses and walled cities). They did that in order to protect the essence of the human – which seemed somehow to them to be immaterial – from the hurly-burly of the material world, which included many human beings who didn’t seem able or willing to live on the level of their less-material and higher capabilities.

What I’m proposing to SOs is not the plain Stoic approach: it could become too defensive and too static. I’m proposing an active focus on the interior in order to ‘hear’ it, select the ‘best’ self, and then actively concentrate on making that ‘best’ self your interior ‘default’ or ‘primary’ position that you never want to fall out of. You want to get to the point where, like the Chief Engineer of a Starship, you can report that the ship is operating at ’99 percent efficiency’ (or a 110 percent – why not thing big?).

Nussbaum, of course, is not about to admit into her vision any ‘higher’ and immaterial capabilities … they would sound too much like a ‘soul’ or an ‘essence’, and Correct dogma allows neither.

The AA folks talk about a Higher Power. They don’t follow along with that to a Higher Dimension but it’s included in the good thought. An SO can’t afford to live in a ‘flat’, two-dimensional world. After all, his own internal workings need a lot of work and he will need a lot of inspiration and support to do that. Especially if he has to do the rework sort of ‘alone’ (he’s in confinement and there are too few opportunities, or there is the danger of his therapy being ‘recorded and reported’; he can’t afford a civilian therapist even though he is in the world; or there aren’t any competent civilian therapists around … or any of a dozen other difficulties).

And she’s not going to let herself judge whether a person failing to live up to potential is somehow contributing to that failure through a lack of proper will power and intention.

Rather, she will call for the government to guarantee to each individual the possibility of exercising the powers; whether the individual will do his/her share, whether the individual will deliberately choose to not-develop – that’s not Nussbaum’s or the government’s right to judge.

And she’s gone and expanded the range of ‘pre-conditions’ that she considers so essential to the enjoyment of a full human life that they must be considered ‘rights’.

And she will sort of slide away from the Stoic sense of having a responsibility for ‘mastering’ one’s human powers, and slide toward a postmodern (and soooo American) sense of ‘enjoying’ one’s powers.

This is a serious problem in modern American society now: so many folks, many SOs included, seek to ‘enjoy’ themselves rather than to Master&Command themselves. (If you can get a DVD of the film ‘Master & Commander’ I’d recommend it.) But more than many Americans, SOs realize – thanks to all the ‘attention’ and all the dangers – just how difficult and yet necessary it is to Master&Command oneself. Funny how the night moves in these things: your greatest ‘shortcoming’ can become your greatest ‘advantage’. IF you use it well.

With the government thus not responsible for simply keeping a clear and level field for individual humans committed to working their way toward maturity, but rather responsible for providing a large laundry list of pre-conditions and assorted ‘rights’ so that everybody will ‘enjoy’ their powers.

You see the differences starting to develop here. Even as she is trying to build-on the Stoics, she’s taking things in a direction the Stoics no doubt considered, but chose to avoid. Which may be ‘progress’. But also may be making a mistake now that somebody already figured out how to avoid a couple of thousand years ago.

She quickly works in that one of the core human powers is ‘choice’ – the ability to ‘choose’. (8-11)

Well, yes. You have to decide, you have to choose, you have to judge.

But the power to ‘choose’ – which indeed is a power that is tied up with human dignity – relies on the deep and mastered deployment of the core human abilities to reason things out, which is a job of work for any individual.

And reasoning things out is itself dependent on the First Principles that define your world and your own self. It’s like a Starship in ‘Star Trek’: when it’s constructed each ship is programmed with a set of Primary Coordinates – I think they were the coordinates of Earth – upon which, for all of its service life, wherever it goes, that ship will calculate its position. You can’t just go out into deep space and the trackless universe and figure you can ‘choose’ to go in this direction for a while and then in another direction. Such a power to ‘choose’, ungrounded by any Primary Coordinates, is going to get you lost – lost in your own mind’s inability to keep the Big Picture and lost in actual fact: you won’t know where you really are … at least not in relation to your Mission or your Base or your Purpose.

Because where you ‘are’ is itself relative to your Base, as it were. Starships weren’t simply launched and sent out into space never expected to be seen again. If they were going to keep a constructive relationship with their Base, with their mission and purpose, then they had to have those Primary Coordinates. Even when they were exploring, they were doing it for a large purpose: sending the information and knowledge back to Starfleet Command and all that, where the rest of humanity would have a chance to study what you’d found out.

But of course, Nussbaum, true to her ideological First Principles (such as they are) cannot and does not admit that any human has a Purpose or Nature beyond that which – for as long as s/he cares to – s/he chooses to ‘valorize’. And anything so ‘valorized’ would not have a Capital-letter: one can Correctly embrace a purpose but one can never allow any purpose to become a Purpose because that could create a commitment (which would constrict further ‘choice’ that might be made down the road). One commits to responsibility if one wants to, when one wants to, on the terms one wants to , and for only as long as one wants to. And if not, not.

In this regard, any SO who can incorporate that Higher Dimension and Higher Power into his daily vision of how life – certainly his own life – works, is going to be head and shoulders above a lot of ‘normal’ folks who have been insufficiently prepared for life because they have only learned the flat, two-dimensional world of post-modernism.

And if you have a ‘best’ self – as I said above – and that ‘best self’ also corresponds to a Plan for your life that is supported from that Higher Dimension and by that Higher Power … then you are going to feel a lot more motivated about your life’s best possibilities – especially those interior ones. Because now you are in sync with the Universe on a profound level (even though you may have that SO tendency to work through and rework).

And to imagine that one had a Nature is doubly un-Correct. First, because one cannot surrender one’s ‘total autonomy’ to anything that would limit ‘choice’. Second, because if one had a Nature then that Nature might be imagined to be a common Nature – and for humans to have such a thing would constrict autonomy even more.

Radical-feminist identity politics requires that one’s ‘gender’ be the most important aspect of oneself. And if your ‘nature’ or ‘Nature’ somehow defines or shapes your ‘gender’, then you are being oppressed because you ‘total autonomy’ is being circumscribed. Any common ‘human nature’ or ‘human Nature’ is simply a ploy of patriarchal oppression.

In this sense being an SO is also a bit of ‘identity politics’: you are reduced to your psychological or cultural classification (and perhaps your conviction classification): as if you had no deeper or more important Identity. But you are b) a Citizen and a) a Human Being – and no Identity Politics can take that away from you. Those two Identities (add a third: you are yourself) of yours are “inalienable” in just the sense that the Framers meant.

So Nussbaum – as is the whole radical-feminist agenda – is cutting loose from any of the ‘relationships’ upon which humans are so vitally dependent: that relationship to Capital Letter words that represent the non-material high-concepts that will supply Meaning and Purpose to a human life.

In order to keep ‘choice’ as their primary focus, and a ‘choice’ that is unobstructed by anything or anybody else, then they are going to raise up ‘choice’ to Choice, or to ‘total autonomy’ … to do whatever you want.

So long as you don’t hurt anybody else, of course. But I can’t see how a bunch of ships out in space with no Prime Coordinates and no Prime Directive can avoid hurting other ships: and how can a bunch of humans retain their cohesion as a group or community if there is nothing to hold them together except the idea that they can each do whatever they want, whenever they want.

And what does ‘hurt’ mean then? It’s a much deeper concept than simply committing a legally-defined crime – even a violent one – against other humans. ‘Hurt’ is a much deeper and more complex concept (and reality) because humans are: humans are so complex and intertwined that you can ‘hurt’ them without breaking any legal laws or committing what is construed as a crime (especially of violence).

By limiting ‘hurt’ to the types of activity that serve their own agenda, certain Advocates actually wind up thinning out the huge complexity and subtlety of ‘hurt’: the entire common weal and all its members can be ‘hurt’ by the introduction of institutionalized and legalized scapegoating and all the frakkery that goes along with keeping such things going in a society and a culture.

So these envisioned choice-droids that radical-feminist theory wants to turn everybody into … don’t strike me as fully human. Nor will any they have any chance of putting together and holding together a common-weal or a polity whose sinews and bonds will hold it together under pressure and challenge.

But she wants to use the Stoic idea of ‘human dignity’ but then adds to it the idea of ‘human vulnerability’ (8-11): humans have great dignity, but their potentials to fully actualize or achieve that dignity are vulnerable to so many pre-conditioning conditions.

But those pre-conditioning conditions are outside the human; there is no interior struggle in this vision. Rather, in her vision the government is tasked with actively going ahead of all its human citizens like an ice-breaker and keeping the ice out of their way. Or the government is responsible for Shaping and Controlling the national life-world so that all those pre-conditions are and remain favorable to each person/citizen so that each will have “access to a life worthy of human dignity”. (8-11)

It’s an intriguing vision, and not an evil one at all. But it’s going to require a whole lotta government. And the SO comminity realizes just how much government – and not government at its ‘best’ – that this whole scheme requires.

And for a long time, this huge and deep job had been assigned to … God. Not the Greek gods, who really couldn’t have cared less as a rule what happened to humans. But the Judeo-Christian God who was a person (3, perhaps) and cared a very great deal, like a parent for children.

Of course, Nussbaum is doing philosophy here, and not theology. And she is working on a political philosophy that will translate somehow – she hopes – into actual government policy and law.

But in matters human I think that – just like with Starships – you need a set of Prime Coordinates … and if you don’t want to allow them in another dimension (God, say) then you will have to assign something in this dimension to do the job.

Nussbaum wants to assign the task to ‘government’. But that is going to wreak all hell with the Founding idea of a ‘limited government’. But she and the entire radical-feminist Revolution have cast their lot with the Beltway; it is their ‘god’ for all practical (that is to say, political) purposes.

In a way they make an ‘idol’ of government the same way that the Fundamentalists of the Right do: claiming that the government speaks for God and has God’s authority and nobody can ever doubt that.

Idolatry, at this stage of Western civilization, doesn’t strike me as ‘progress’; exactly the opposite.

But you can see why they want to get rid of any rival ‘religion’ and any ‘rival’ god – like, say, God.

And Nussbaum admits it: Her Capabilities Approach “ascribes an important role to government in human life: government is charged with securing for citizens a comprehensive set of necessary conditions for a life worthy of human dignity”. (8-11)

She’s got that right. An organization exercising the role formerly ascribed to God has an ‘important’ set of Shoes to fill indeed.

Whether any earthly entity can – especially if its nature is supposed to be limited … well that’s another question entirely.

She puts her finger on an actual lack in human affairs: humans’ most important abilities – indeed their entire hope for any success and enjoyment in this world – are dependent on forces and dynamics beyond their control.

But Nussbaum wants – decently enough, certainly – to fill this lack by assuming that what an individual cannot do, a government can successfully do for him/her.

I’m not sure she’s thought this thing through.

Because while those powers are somewhat dependent upon the external world, they most surely and indispensably must be developed and wielded by the person, in that interior world. And yet it's precisely here that Nussbaum's vision wants to keep government out of people's lives: they shouldn't have to be 'judged' on what they do with their 'autonomy'. OK, but even people who want to drive motor vehicles or fly aircraft have to submit their achieved skills to 'judgment'.

And while I don't want any government Office of Self-Development Evaluation, still it has to be said that if individuals don't undertake the long hard road to Self-Mastery then nothing at all is going to wind up working. As the songster saith: "You got to walk that lonesome valley; you got to walk it by yourself".

She asserts that these human ‘capabilities’ she discerns, so vulnerable to the world, “need support from the political world”. (8-11) But she has to face it: the “political world” is the US government, the Beltway, an earthly government composed of humans, and probably not Deputized by God to exercise his full authority. And currently running verrrry short of cash, which will be needed to fund the knowledge-and-service society (which will never be able to pay for itself), and now the Capability society as well.

But, she continues, “the political goal” can only be “capability, not functioning”. (9-12) That is to say: the government can only make the conditions ready for individuals to achieve or realize or master or enjoy their Capabilities.

“At that point, the decision whether to take up a given opportunity must be their own. Respect for a person requires not dragooning that person into a particular mode of activity, however desirable it might seem”. (9-12)

But all this government expense and intrusion – assuming that it all doesn’t either wreck the polity or bankrupt the government or both – are thus expended simply so folks can ‘choose’ … what? Not to actualize their Capabilities? To actualize them in ways that will harm others or deprive others of the benefits of mutual contribution and cooperation?

And surely, the government and all of Us are being ‘dragooned’ into supporting this incomprehensibly broad and kind of fuzzy Plan.

But as has been the case for 40 years now, ‘choice’ – broadly and vaguely defined and carried to the ultimate extreme – is the only thing that has to be preserved. Nothing else really matters.
And no human being is simply a choice-bot. It is a grossly inadequate vision of human beings.

And a life with nothing but ‘choice’ is not a life as humans know it or could live in it. And ‘choice’ without any Shaping at all … is kudzu without a trellis: all you’re going to wind up with is a flat but dense jungle, and not a garden.

Which brings things back to the question as to whether any such ‘secular’ society as is being proposed to be imposed upon the country has any possibility of serving as a livable and survivable vessel for Americans or for any humans.

Or whether this whole past 40 years has been as wrackulous an adventure as Vietnam: a Plan insufficiently conceived by elites who figured that they were too big to fail because they were Americans and they were on top of the world. And that American power and brains could never fail, and that American money would never fail.

And here We are.

And so SOs – whether ‘identified’, ‘registered’, incarcerated or under supervision or not – can actually use this whole dangerous situation to advantage by using it as a motivator to do their own ‘self-work’, their own repair-and-rework. That is a ‘choice’ that they can make: to become a Master&Commander by taking responsibility for their lives and the workings of their ‘ship’. And this can be done, as a profoundly necessary beginning, in the privacy of your own ‘self’, on your own ‘quarterdeck’ you might say.

And for the SO community who are not themselves SOs but want to help make this situation better, much can be done; because while I don’t think that much of Nussbaum’s stereotypical ‘progressive’ position (though I don’t think there’s not much ‘progressive’ about it, and a lot that’s ‘regressive’ about it) is going to make it onto Beltway desks, there’s still so much of it that has already been enacted into law and policy, and so much of it that Beltway types and government types on the State level – along with generations of law school grads who are now judges, prosecutors, and pols – have accepted as being ‘just some reform’ or else ‘the best cutting-edge new thinking’.

I imagine the SO community as being something like Anthony Hopkins’ character of Zorro, faced with the character (played by Antonio Banderas) of the young man, still sunk in his own mess, whom he must prepare for great things: “This”, says the older man resignedly, “is going to take a lot of work”.

So much remains to be done.

JEAN BETHKE ELSHTAIN FROM 1993

I want to pass this along.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oy.

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

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

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

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

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

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

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

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

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

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

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

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

And “interim” … not by a longshot.

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

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

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

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

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

Oy gevalt.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oy. The 1990s.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So much remains to be done.

NOTES

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

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

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

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

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

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

SO SERIES ON NUSSBAUM 4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTES

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

Simple but gripping.

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

See where that takes you.

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

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

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

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

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

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

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

SO SERIES ON NUSSBAUM 3

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

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

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

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

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

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

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

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

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

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

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

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

But two points strike me as vital in all this.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Happy Fourth.

SEX OFFENDERS NO-FLY?

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

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

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

Just a heads-up.

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