Saturday, July 05, 2003
LIKELY SEMI-HIATUS ANNOUNCEMENT: Tomorrow (or, by my blog's clock, today [and by all the clocks where I currently am, actually] I'll be moving up to New Haven for a month or so of less frequent internet access and teaching (or trying to teach) political philosophy to bright young minds. Blogging will therefore probably be slow (though I'm hoping that my teaching experience will enable [ie prompt] me to work out, and eventually post, some thoughts I've been mulling over on education, academia, political philosophy, and where to get the best iced coffee in New Haven, so I may have some thoughts to share not too long from now).
Until then ...
Until then ...
Thursday, July 03, 2003
CARRY THAT WEIGHT: This is hilarious. Ah, those crazy Balts. My favourite paragraphs:
'The Finns, on the other hand, apparently just want to have fun. One of their world championship rules, in addition to the one imposing a 15-second penalty for dropping a wife, stipulates that "All the participants must have fun." In past competitions, Finns have awarded winners the woman's weight in beer. The Estonians, at their national championships here on June 21, gave winners the woman's weight in mineral water.
"We take too many things seriously," concedes Indrek Keskyla, the mayor of Vaike-Maarja. He blames the communists who ran this Baltic nation. "In the old Soviet Union days, we had to be serious, gray people," he says. Under communist rule, the village pushed to be the best farm cooperative in Estonia. Now, it produces the best wife carriers.'
Indeed. A heady distinction, for a small Baltic state.
'The Finns, on the other hand, apparently just want to have fun. One of their world championship rules, in addition to the one imposing a 15-second penalty for dropping a wife, stipulates that "All the participants must have fun." In past competitions, Finns have awarded winners the woman's weight in beer. The Estonians, at their national championships here on June 21, gave winners the woman's weight in mineral water.
"We take too many things seriously," concedes Indrek Keskyla, the mayor of Vaike-Maarja. He blames the communists who ran this Baltic nation. "In the old Soviet Union days, we had to be serious, gray people," he says. Under communist rule, the village pushed to be the best farm cooperative in Estonia. Now, it produces the best wife carriers.'
Indeed. A heady distinction, for a small Baltic state.
PHEW!!! Posting on Lawrence v. Texas finally written, and posted below (it goes continuously from top to bottom over more posts than I care to count).
Given how long this took, I think I'll avoid posting on the affirmative action cases -- or restrict myself to a much less detailed analysis of them!
Given how long this took, I think I'll avoid posting on the affirmative action cases -- or restrict myself to a much less detailed analysis of them!
LAWRENCE I: This is a truly landmark decision; and we won’t know its full implications and significance for some time. But, even now, a week later, I suspect that it could be the most significant decision – at least as far as civil rights are concerned – of my lifetime thus far (though we shouldn’t forget that Lawrence isn’t wholly revolutionary; in addition to relying on right-to-privacy opinions stretching back to Griswold, it also builds on the opinion holding discrimination against homosexuals to be unconstitutional in Romer v. Evans – the majority opinion of which was also authored by [Reagan appointee – how sweet it is…]Anthony Kennedy).
There are four opinions, all notable. The shortest is Justice Thomas’ dissent. While joining, with Rehnquist, in Scalia’s dissent, Thomas felt the need to also write a two-paragraph dissent explaining that, while he thinks the anti-homosexual-sodomy law is a bad one, he doesn’t believe that he can over-rule as violating a constitutional right to privacy, since he can find no such right in the Constitution. This seems to me a perfectly honourable position, with which I have some sympathy. I wonder, though, why he doesn’t address the issue of equal protection?
There are four opinions, all notable. The shortest is Justice Thomas’ dissent. While joining, with Rehnquist, in Scalia’s dissent, Thomas felt the need to also write a two-paragraph dissent explaining that, while he thinks the anti-homosexual-sodomy law is a bad one, he doesn’t believe that he can over-rule as violating a constitutional right to privacy, since he can find no such right in the Constitution. This seems to me a perfectly honourable position, with which I have some sympathy. I wonder, though, why he doesn’t address the issue of equal protection?
LAWRENCE II: O’CONNOR’S OPINION. This is the basis for Justice O’Connor’s concurring opinion. At first glance, I find Justice O’Connor’s opinion attractive. While I believe strongly in the value and validity of a right to privacy as a political and legal principle, I’ve always been a bit uncomfortable with the way in which the Court has tried to find it in the Constitution, despite it’s not being explicitly enunciated anywhere in the text, nor, so far as I know, being enunciated as a Constitutional principle or right by commentators or legislators before the 20th century (though I may be wrong; anyone know of any discussions of a ‘right to privacy’ in the Constitution before Griswold – or, perhaps, before Brandeis?) On the other hand, outlawing sexual activities on the part of homosexuals, but not outlawing those same activities by heterosexuals – and, in the process, depriving homosexuals of the ability to have any form of sexual relations (aside I suppose from mutual masturbation), while allowing heterosexuals to engage in a wide variety of sexual activities – does seem to me a violation of the equal protection clause. As O’Connor writes, ‘Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by.’ A right to sexual privacy and freedom is respected when it comes to one segment of the population, and is denied to another; it imposes an oppressive burden on one segment of the population, penalizing one group of people for being what they are (homosexuals), rather than for what they’re specifically doing (having anal or oral sex). And, in making homosexual sex illegal, Texas also stigmatizes homosexuals more generally: ‘Texas’ sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else’ While the law is targeted against conduct, O’Connor points out, it is targeted against conduct closely associated with being homosexual, and on the part of homosexuals. To say that the law doesn’t target homosexuals is, therefore, disingenuous.
As O’Connor notes, the Court has applied a higher level of scrutiny to precisely such cases – laws which aim at harming a political unpopular group, and laws which inhibit personal relationships. So, to overturn the law in question on equal protection grounds would be fully consistent with recent Court precedent.
I think that, so far, O’Connor is quite right (pace Eugene Volokh). There is one weak point in her opinion, however: her attempt, at the end, to deny that her arguments open the way to homosexual marriage. She says ‘unlike the moral disapproval of same-sex relations … other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.’ Promoting the institution of marriage, in this case, means not allowing gays to marry.
Well, of course, other reasons than homophobia exist to promote the institution of marriage. But, it seems to me that it is only out of homophobia that one can conflate ‘promoting’ marriage with forbidding a class of people from marrying if they want to. Preventing people from marrying isn’t promoting marriage; it’s declaring the state of wedlock an exclusive club for heterosexuals. It’s putting a ‘no gays allowed’ sign up on the threshold of matrimony. And that, too, seems to me a blatant form of discrimination against gays qua gays – and thus not allowable under the Equal Protection Clause.
As O’Connor notes, the Court has applied a higher level of scrutiny to precisely such cases – laws which aim at harming a political unpopular group, and laws which inhibit personal relationships. So, to overturn the law in question on equal protection grounds would be fully consistent with recent Court precedent.
I think that, so far, O’Connor is quite right (pace Eugene Volokh). There is one weak point in her opinion, however: her attempt, at the end, to deny that her arguments open the way to homosexual marriage. She says ‘unlike the moral disapproval of same-sex relations … other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.’ Promoting the institution of marriage, in this case, means not allowing gays to marry.
Well, of course, other reasons than homophobia exist to promote the institution of marriage. But, it seems to me that it is only out of homophobia that one can conflate ‘promoting’ marriage with forbidding a class of people from marrying if they want to. Preventing people from marrying isn’t promoting marriage; it’s declaring the state of wedlock an exclusive club for heterosexuals. It’s putting a ‘no gays allowed’ sign up on the threshold of matrimony. And that, too, seems to me a blatant form of discrimination against gays qua gays – and thus not allowable under the Equal Protection Clause.
LAWRENCE III: THE MAJORITY OPINION.
In contrast to O’Connor, Justice Kennedy’s majority opinion finds the Texas statute unconstitutional because it violates the ‘right to privacy’. As noted, this is going out on a bit of a limb: the right to privacy exists in Supreme Court precedent, but not in the Constitution – or at least not explicitly.
Still, Kennedy starts out, in my view, pretty judiciously [well of course he does – he’s a judge. Hah. – ed.] He declares that ‘Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.’ So far, so constitutional; we’re in good: we’re in safe 4th Amendment territory here. But, then, we make a move from text to principle: ‘Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.’ We’re now moving from the Constitution, to a particular vision of the meaning and import of liberty. It’s a vision I wholly agree with, I should say, and on that level I’m glad the Court’s adopted it; but, as Justice Thomas noted, it’s not a vision enunciated in the Constitution; so it’s place in an interpretation of what the Constitution allows, or dictates, is somewhat questionable.
Despite the availability of the 4th Amendment and the Equal Protection clause of the 14th Amendment (as well as the Privileges and Immunities clause of the same, which, once again, the Court has passed up an opportunity to revive. A tangential, pet gripe: since the post-Reconstruction Court more or less undermined this clause in the Slaughterhouse cases, the Court has generally been unwilling to touch it. As a result, it’s meaning remains uncertain and undeveloped. I really wish the Court would do something about it, rather than let it sit there inert. But that might be a bit too daring – or presumptuous – even for this Court.) Rather, Kennedy writes, the Court concludes that ‘the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.’ To do so means overturning the precedent of Bowers v. Hardwick, in which the Court upheld a law banning sodomy. And here we get to the beautiful libertarian audacity of Kennedy’s ruling, which declares that ‘adults may choose to enter upon this relationship [homosexuality] in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.’
So, the Court opinion in Bowers, which held that it was ok to ban homosexual sodomy because there’s no explicit right to engage in homosexual sodomy in the Constitution [which is true enough; there’s also no explicit right to be seated at any lunch counter if one’s an African-American. But that’s sort of guaranteed by this larger, broader thing we like to call a principle, see.] [ok, Cherniss, Kennedy’s made the point – you don’t need to get all snarky about it – ed.] , was wrong.
There then follows a quite masterly survey noting the absence of jurisprudence explicitly and specifically targeting homosexuality in early American law, and a general trend of non-enforcement of sodomy laws against acts performed in private (as opposed to against ‘predatory acts’ against minors or the victims of sexual assault): ‘Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.’ [Sorry, Santorum – bestiality and homosexuality remain separate issues.] ‘It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution’. So the historical authority appealed to in the Court’s opinion in Bowers is, as the Court would never say, bollocks. (This, by the way, is a good illustration of how academic historical scholarship can, every now and then, change the world a little.)
In contrast to O’Connor, Justice Kennedy’s majority opinion finds the Texas statute unconstitutional because it violates the ‘right to privacy’. As noted, this is going out on a bit of a limb: the right to privacy exists in Supreme Court precedent, but not in the Constitution – or at least not explicitly.
Still, Kennedy starts out, in my view, pretty judiciously [well of course he does – he’s a judge. Hah. – ed.] He declares that ‘Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.’ So far, so constitutional; we’re in good: we’re in safe 4th Amendment territory here. But, then, we make a move from text to principle: ‘Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.’ We’re now moving from the Constitution, to a particular vision of the meaning and import of liberty. It’s a vision I wholly agree with, I should say, and on that level I’m glad the Court’s adopted it; but, as Justice Thomas noted, it’s not a vision enunciated in the Constitution; so it’s place in an interpretation of what the Constitution allows, or dictates, is somewhat questionable.
Despite the availability of the 4th Amendment and the Equal Protection clause of the 14th Amendment (as well as the Privileges and Immunities clause of the same, which, once again, the Court has passed up an opportunity to revive. A tangential, pet gripe: since the post-Reconstruction Court more or less undermined this clause in the Slaughterhouse cases, the Court has generally been unwilling to touch it. As a result, it’s meaning remains uncertain and undeveloped. I really wish the Court would do something about it, rather than let it sit there inert. But that might be a bit too daring – or presumptuous – even for this Court.) Rather, Kennedy writes, the Court concludes that ‘the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.’ To do so means overturning the precedent of Bowers v. Hardwick, in which the Court upheld a law banning sodomy. And here we get to the beautiful libertarian audacity of Kennedy’s ruling, which declares that ‘adults may choose to enter upon this relationship [homosexuality] in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.’
So, the Court opinion in Bowers, which held that it was ok to ban homosexual sodomy because there’s no explicit right to engage in homosexual sodomy in the Constitution [which is true enough; there’s also no explicit right to be seated at any lunch counter if one’s an African-American. But that’s sort of guaranteed by this larger, broader thing we like to call a principle, see.] [ok, Cherniss, Kennedy’s made the point – you don’t need to get all snarky about it – ed.] , was wrong.
There then follows a quite masterly survey noting the absence of jurisprudence explicitly and specifically targeting homosexuality in early American law, and a general trend of non-enforcement of sodomy laws against acts performed in private (as opposed to against ‘predatory acts’ against minors or the victims of sexual assault): ‘Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.’ [Sorry, Santorum – bestiality and homosexuality remain separate issues.] ‘It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution’. So the historical authority appealed to in the Court’s opinion in Bowers is, as the Court would never say, bollocks. (This, by the way, is a good illustration of how academic historical scholarship can, every now and then, change the world a little.)
After a further survey of recent legal history, pointing to a trend towards a growing awareness of the importance of, and respect for, the right of privacy, Kennedy addresses the Equal Protection argument against the Texas statute. He acknowledges that it applies, but brushes it aside so that the Court can revisit – and overturn – the Bowers precedent. This is necessary to prevent states from re-drawing statutes to prohibit ALL sodomy – which would continue to violate individuals’ privacy, but wouldn’t be a violation of Equal Protection. In doing so, they would remove the explicit stigma on homosexuals, but leave in effect a de facto one. Bowers must be revisited because ‘Its continuance as precedent demeans the lives of homosexual persons.’
After pointing out that, despite Bowers’ talk of the Judeo-Christian values of Western Civilization, many other countries – mainly the EU – have rejected the criminalization of homosexuality, Kennedy addresses the objection that the Court shouldn’t overturn its earlier decisions out of respect for the doctrine of stare decisis (letting precedent decide). (This is a linchpin of Scalia’s dissent). Now, certainly, the Court shouldn’t cavalierly change its mind and throw away precedent and tradition. But the Justices are human, they sometimes make mistakes, and later, wiser justices shouldn’t be inhibited from correcting what, in retrospect, appear obvious and noxious errors (do the words ‘Dred Scott’ and ‘Plessy v. Ferguson’ have any resonance here? They do to me.)
Kennedy and the Court conclude that Bowers was wrong when it was decided, and is wrong now; and declare that ‘the petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.’ The opinion goes on to advance a ‘living Constitution’ argument that would’ve been right at home on the Warren Court:
‘Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.’
As I’ve said, I’m a bit uncomfortable with such a loose reading of the Constitution; after all, while it can lead to the setting right of entrenched injustices, it can also lead to reckless and unfounded judicial activism – remember the Slaughterhouse cases. Still, I can understand how the Court would want to adopt this reasoning; and, now that it has, I can’t say that I’m sorry that it will become part of the body of Court precedent.
After pointing out that, despite Bowers’ talk of the Judeo-Christian values of Western Civilization, many other countries – mainly the EU – have rejected the criminalization of homosexuality, Kennedy addresses the objection that the Court shouldn’t overturn its earlier decisions out of respect for the doctrine of stare decisis (letting precedent decide). (This is a linchpin of Scalia’s dissent). Now, certainly, the Court shouldn’t cavalierly change its mind and throw away precedent and tradition. But the Justices are human, they sometimes make mistakes, and later, wiser justices shouldn’t be inhibited from correcting what, in retrospect, appear obvious and noxious errors (do the words ‘Dred Scott’ and ‘Plessy v. Ferguson’ have any resonance here? They do to me.)
Kennedy and the Court conclude that Bowers was wrong when it was decided, and is wrong now; and declare that ‘the petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.’ The opinion goes on to advance a ‘living Constitution’ argument that would’ve been right at home on the Warren Court:
‘Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.’
As I’ve said, I’m a bit uncomfortable with such a loose reading of the Constitution; after all, while it can lead to the setting right of entrenched injustices, it can also lead to reckless and unfounded judicial activism – remember the Slaughterhouse cases. Still, I can understand how the Court would want to adopt this reasoning; and, now that it has, I can’t say that I’m sorry that it will become part of the body of Court precedent.
LAWRENCE IV: GAY MARRIAGE.
A lot of the people who’ve gotten upset over the decision warn that it’s a step towards legalizing gay marriage. To which I would reply – well, good! Only, it isn’t – or needn’t be. Now, if O’Connor’s reasoning had been adopted, despite her own rather flimsy denial, it would serve as a firm foundation for legalizing gay marriage: if the state grants heterosexual couples the right to be legally recognized as married, with all the benefits and privileges it involves, it would seem a violation of Equal Protection to deny the same recognition to homosexuals just because they’re homosexuals. Which is the case now.
Which, personally, I think is appalling. But, that’s neither here nor there. Alas.
However, the opinion actually adopted doesn’t seem to me to pave the way to gay marriage. Here’s why.
The opinion focuses on what we might call (if we’ve read Isaiah Berlin way more than is healthy for us – check) an example of ‘negative’ liberty. Indeed, it’s a beautiful, exemplary statement of a negative-libertarian position: the state may not interfere with the private practices (so long as consensual and not directly or clearly harmful to others) of individuals.
The right to marriage is different, though. It doesn’t involve just being left alone by the government; it means the government recognizing and affirming a particular status on the part of (at this point) a couple, granting them a particular public stature and title. This is a very different matter. To use an analogy: there is a big difference between the government leaving me alone to cook in my own kitchen, and letting me identify myself as a credentialed chef in public.
This isn’t to say that homosexuals shouldn’t be granted the right to marry, nor even that such a right is less important than the right to engage in sex in the privacy of their own homes. It’s merely to say that it involves a different legal status, a different legal activity, and that the principle announced in Lawrence guaranteeing the one right doesn’t lead to or demand the granting of the other, so far as I can see.
A lot of the people who’ve gotten upset over the decision warn that it’s a step towards legalizing gay marriage. To which I would reply – well, good! Only, it isn’t – or needn’t be. Now, if O’Connor’s reasoning had been adopted, despite her own rather flimsy denial, it would serve as a firm foundation for legalizing gay marriage: if the state grants heterosexual couples the right to be legally recognized as married, with all the benefits and privileges it involves, it would seem a violation of Equal Protection to deny the same recognition to homosexuals just because they’re homosexuals. Which is the case now.
Which, personally, I think is appalling. But, that’s neither here nor there. Alas.
However, the opinion actually adopted doesn’t seem to me to pave the way to gay marriage. Here’s why.
The opinion focuses on what we might call (if we’ve read Isaiah Berlin way more than is healthy for us – check) an example of ‘negative’ liberty. Indeed, it’s a beautiful, exemplary statement of a negative-libertarian position: the state may not interfere with the private practices (so long as consensual and not directly or clearly harmful to others) of individuals.
The right to marriage is different, though. It doesn’t involve just being left alone by the government; it means the government recognizing and affirming a particular status on the part of (at this point) a couple, granting them a particular public stature and title. This is a very different matter. To use an analogy: there is a big difference between the government leaving me alone to cook in my own kitchen, and letting me identify myself as a credentialed chef in public.
This isn’t to say that homosexuals shouldn’t be granted the right to marry, nor even that such a right is less important than the right to engage in sex in the privacy of their own homes. It’s merely to say that it involves a different legal status, a different legal activity, and that the principle announced in Lawrence guaranteeing the one right doesn’t lead to or demand the granting of the other, so far as I can see.
LAWRENCE V: SCALIA’S DISSENT.
Scalia’s dissent is very long, and involves a number of issues, and I’m going to ignore most of them. The first part is concerned with the Court’s supposed inconsistency regarding the principle of stare decisis, and why the Court’s upholding of the precedent of Roe v. Wade in the Casey case was a ‘result-oriented expedient’. I’m not going to get into this, because I’m writing about Lawrence, not Roe, and just because Justice Scalia likes to lump together various targets of his reactionary ire doesn’t mean that I need to get into the abortion debate. At the same time, I think that Scalia’s basic point – that the Court picks and chooses when it respects precedent and when it doesn’t – is obviously valid. I’m just a bit less bothered by this fact than he (which is why it’s probably a good thing I’ll never be a jurist.)
Scalia then points out – again, quite rightly – that the guarantee of ‘liberty’ associated with the Due Process clause in the majority opinion isn’t actually there – or rather, it’s qualified by the words ‘due process’ (hence the name ‘Due Process Clause’, see.) This Clause has been held to offer special protection against violation only to liberties which have traditionally been regarded as especially valuable. And, apparently, the right to engage in consensual, non-harming personal relationships in one’s own home without the State barging in isn’t among those liberties.
Well, ok, ok, Scalia wouldn’t put it that way. He’d say that homosexual sex isn’t specially protected in that way. This is the reasoning of Bowers; and this is reasoning that the majority opinion rejects as blinkered. I’m with the majority here; I take this case as a matter of the right to privacy of personal relationships, to which I think homosexuals are as entitled under the law as anyone else.
Scalia’s dissent is very long, and involves a number of issues, and I’m going to ignore most of them. The first part is concerned with the Court’s supposed inconsistency regarding the principle of stare decisis, and why the Court’s upholding of the precedent of Roe v. Wade in the Casey case was a ‘result-oriented expedient’. I’m not going to get into this, because I’m writing about Lawrence, not Roe, and just because Justice Scalia likes to lump together various targets of his reactionary ire doesn’t mean that I need to get into the abortion debate. At the same time, I think that Scalia’s basic point – that the Court picks and chooses when it respects precedent and when it doesn’t – is obviously valid. I’m just a bit less bothered by this fact than he (which is why it’s probably a good thing I’ll never be a jurist.)
Scalia then points out – again, quite rightly – that the guarantee of ‘liberty’ associated with the Due Process clause in the majority opinion isn’t actually there – or rather, it’s qualified by the words ‘due process’ (hence the name ‘Due Process Clause’, see.) This Clause has been held to offer special protection against violation only to liberties which have traditionally been regarded as especially valuable. And, apparently, the right to engage in consensual, non-harming personal relationships in one’s own home without the State barging in isn’t among those liberties.
Well, ok, ok, Scalia wouldn’t put it that way. He’d say that homosexual sex isn’t specially protected in that way. This is the reasoning of Bowers; and this is reasoning that the majority opinion rejects as blinkered. I’m with the majority here; I take this case as a matter of the right to privacy of personal relationships, to which I think homosexuals are as entitled under the law as anyone else.
Scalia’s argument, if I read him rightly, really hinges on the contention that seeking ‘to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Scalia alleges that this would lead to the end of all morals legislation.
This seems to me to correctly identify the crux of the issue between Scalia and the majority, but to carry its implications a bit further than they need actually go. It’s true that the Court opinion, as it stands, spells the end of a particular type of morals legislation – that against private (which I take to mean non-commercial, though perhaps this is an unwarranted assumption), consensual sexual activities on the part of adults. But I don’t see that that would rule out all legislation of morals – though it would severely circumscribe what morals can be legislated, and to what extent. But, then, I, unlike Scalia, think that it’s probably a good thing if a majority can’t use the state to force others to lead their lives, however onerously, in a way that conforms to the morals – or should I say the prejudices – of that majority.
Finally, Scalia denies that the Texas statute violates Equal Protection because the ban on homosexual sex applies to heterosexuals as well. This is the sort of stuff liberals just can’t make up; it reminds me of Anatol France’s great old quip that ‘the law, in its majesty, allows rich and poor alike to live under bridges.’
Well, yes, the law does apply to everyone; but it’s only enforced against homosexuals. And, if I recall correctly, the Court overturned, on Equal Protection grounds, racial segregation in the South – even though that applied to whites and blacks equally (that is to say, whites couldn’t drink at ‘colored’ water fountains, or send their children to ‘colored’ schools, or sit up in the balconies at movie theaters with the ‘coloreds’, etc. Poor oppressed dears.) And the laws against miscegenation applied to blacks and whites alike. And, in Nazi Germany, laws against marriages between Jews and Aryans applied to Jews and Aryans alike. And I suppose one could even say that both Jews and non-Jews were subject to the law holding that Jews had to wear yellow stars – Jews were required to, non-Jews weren’t; but the same law affected both!
Do I need to go on? No, of course not. Anyone who’ll be convinced has been convinced already; anyone who hasn’t, probably never will be.
(Incidentally, some of you might wonder if I’m suggesting that Scalia is on a moral level with the Nazis or Southern racist segregationists circa 1870-1960. Well, no, I’m not. But, let’s just say this: I’m awfully glad Justice Scalia wasn’t on the Court when Brown was heard.)
Scalia does go on to meet this argument, by holding that racial discrimination is subject to heightened scrutiny, while sexual discrimination isn’t. But he doesn’t explain why this is, or should be so. After all, there was a period when racial discrimination wasn’t subjected to such scrutiny; and racism has been just as enshrined in the fabric of American law as homophobia – nay, more so; homosexuals were never enslaved, and there were no fugitive gay laws, nor full-scale homosexual segregation.
Again, can I just say, I’m REALLY glad Scalia wasn’t on the Court for Brown?
But, despite some still more sophistical reasoning, Scalia is quite right to identify O’Connor’s concluding attempt to ward off gay marriage as an incoherent mess. Except that he seems to think that this constitutes an objection to applying the Equal Protection argument; whereas I think it’s a reason for legalizing gay marriage.
This seems to me to correctly identify the crux of the issue between Scalia and the majority, but to carry its implications a bit further than they need actually go. It’s true that the Court opinion, as it stands, spells the end of a particular type of morals legislation – that against private (which I take to mean non-commercial, though perhaps this is an unwarranted assumption), consensual sexual activities on the part of adults. But I don’t see that that would rule out all legislation of morals – though it would severely circumscribe what morals can be legislated, and to what extent. But, then, I, unlike Scalia, think that it’s probably a good thing if a majority can’t use the state to force others to lead their lives, however onerously, in a way that conforms to the morals – or should I say the prejudices – of that majority.
Finally, Scalia denies that the Texas statute violates Equal Protection because the ban on homosexual sex applies to heterosexuals as well. This is the sort of stuff liberals just can’t make up; it reminds me of Anatol France’s great old quip that ‘the law, in its majesty, allows rich and poor alike to live under bridges.’
Well, yes, the law does apply to everyone; but it’s only enforced against homosexuals. And, if I recall correctly, the Court overturned, on Equal Protection grounds, racial segregation in the South – even though that applied to whites and blacks equally (that is to say, whites couldn’t drink at ‘colored’ water fountains, or send their children to ‘colored’ schools, or sit up in the balconies at movie theaters with the ‘coloreds’, etc. Poor oppressed dears.) And the laws against miscegenation applied to blacks and whites alike. And, in Nazi Germany, laws against marriages between Jews and Aryans applied to Jews and Aryans alike. And I suppose one could even say that both Jews and non-Jews were subject to the law holding that Jews had to wear yellow stars – Jews were required to, non-Jews weren’t; but the same law affected both!
Do I need to go on? No, of course not. Anyone who’ll be convinced has been convinced already; anyone who hasn’t, probably never will be.
(Incidentally, some of you might wonder if I’m suggesting that Scalia is on a moral level with the Nazis or Southern racist segregationists circa 1870-1960. Well, no, I’m not. But, let’s just say this: I’m awfully glad Justice Scalia wasn’t on the Court when Brown was heard.)
Scalia does go on to meet this argument, by holding that racial discrimination is subject to heightened scrutiny, while sexual discrimination isn’t. But he doesn’t explain why this is, or should be so. After all, there was a period when racial discrimination wasn’t subjected to such scrutiny; and racism has been just as enshrined in the fabric of American law as homophobia – nay, more so; homosexuals were never enslaved, and there were no fugitive gay laws, nor full-scale homosexual segregation.
Again, can I just say, I’m REALLY glad Scalia wasn’t on the Court for Brown?
But, despite some still more sophistical reasoning, Scalia is quite right to identify O’Connor’s concluding attempt to ward off gay marriage as an incoherent mess. Except that he seems to think that this constitutes an objection to applying the Equal Protection argument; whereas I think it’s a reason for legalizing gay marriage.
Scalia then goes into a Right-Wing radio-host-style rant about how the majority opinion is ‘the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda’ (when I got to the ‘so-called’, I recognized the favourite catch-phrase of my reactionary grandfather [alev hashalom], who used to enjoy spitting it out whenever possible as a way of supposedly undermining things without offering any argument – ‘you’re so-called-liberal friends’ ‘the so-called anti-war movement’, etc. He was a quite a guy, my gramps. I wouldn’t have wanted him on the Court for Brown, or any other case, either.) Scalia also charges that the Court has ‘taken sides in the culture wars’. By which he means, the Court has decided that persecuting homosexuals is a bad thing, which the law shouldn’t encourage. If that’s taking sides in the culture wars, so be it; but, again, Brown and the other civil rights cases were taking an even more momentous and controversial side in an even more impassioned and divisive culture war (are we likely to see members of the National Guard sent in to guard the bedroom doors of homosexuals from the local constabulary? Probably not.) And when Scalia declares that ‘Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive’, he’s addressing a completely different point. There’s a difference between wanting to protect yourself against having to spend time with, work with entrust your children to, homosexuals, and letting them do their own thing on their own. Again and again, Scalia seems to be saying, ‘Those homosexuals – give them an inch, they’ll take a foot.’ [Er – you do know that could be taken more than one way, don’t you? – ed.] But, as a legal argument, I think this is just cockamamie [ahem! – ed.]
Scalia says that he has no problem with homosexuals ‘promoting their agenda through normal democratic means … But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.’ So, imposing one’s views on the majority is bad; but imposing the majority’s views on a minority is ok – even if the view imposed on the majority is that it can’t use the state to impose it’s own views, while the view imposed on the minority is that they are evil sinners who have no right to physically express their love for one another.
These seem like two very different sorts of imposition; and the one Scalia thinks is perfectly fine seems to me much more of an imposition. Scalia apparently has never heard of something called the tyranny of the majority.
Once again, it all comes back to gay marriage:
‘One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly.’
Well, as I’ve suggested above, the Court’s decision actually does the same thing – so Scalia and his vaunted moral majority needn’t stay up at night worrying about gay marriage being guaranteed by the Court.
At least not in this decision. But it is a step, make no mistake, towards adopting civil rights for homosexuals as a constitutional principle. And, as that happens, it’ll be harder and harder – barring the adoption of a Constitutional amendment (and guess what the Republican Congress is now moving towards trying to pass? …) – to fight off the granting of marriage rights to homosexuals.
Scalia says that he has no problem with homosexuals ‘promoting their agenda through normal democratic means … But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.’ So, imposing one’s views on the majority is bad; but imposing the majority’s views on a minority is ok – even if the view imposed on the majority is that it can’t use the state to impose it’s own views, while the view imposed on the minority is that they are evil sinners who have no right to physically express their love for one another.
These seem like two very different sorts of imposition; and the one Scalia thinks is perfectly fine seems to me much more of an imposition. Scalia apparently has never heard of something called the tyranny of the majority.
Once again, it all comes back to gay marriage:
‘One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly.’
Well, as I’ve suggested above, the Court’s decision actually does the same thing – so Scalia and his vaunted moral majority needn’t stay up at night worrying about gay marriage being guaranteed by the Court.
At least not in this decision. But it is a step, make no mistake, towards adopting civil rights for homosexuals as a constitutional principle. And, as that happens, it’ll be harder and harder – barring the adoption of a Constitutional amendment (and guess what the Republican Congress is now moving towards trying to pass? …) – to fight off the granting of marriage rights to homosexuals.
Wednesday, July 02, 2003
INTERMISSION: FROM ONE COURT, TO ANOTHER: Taking a break from trying to read the Lawrence opinions (difficult in part because many of the links to the full texts online that I've tried don't seem to be working [though I've finally found one now], and in part because, while I'm interested in legal opinions, I don't necessarily find them easy reads -- even ones as fascinating, and frequently rhetorical, as the Lawrence opinions. Robert Jackson, wouldst thow were living -- or writing opinions, or offering instruction on how to write opinions -- in this hour!), I note, courtesy Brett Marston, that the US isn't only refraining from signing onto the International Criminal Court, but is trying to use economic pressure to bully other countries to give US troops waivers from prosecutions by the ICC.
Now, I have certain reservations about the way the ICC is set up, despitely strongly supporting the project of an independent international court, and I can understand why the US has problems with it -- though I'd prefer to address those problems by trying to reform the ICC as problems arise, rather than just walking away. But, no matter. What I think is really stupid, and also rather disgusting, is using economic strong-arm tactics to get other countries to do our bidding. The US -- and it's allies -- have already gotten a lot of bad PR for this, which has undermined what credibility we might hope to have with observers around the world (including sceptics within the US). The last thing we need right now is to re-confirm others' worst image of us, and provide more ammunition to anti-Americans. But, once again, that's precisely what the Bush administration is determined to do.
Now, I have certain reservations about the way the ICC is set up, despitely strongly supporting the project of an independent international court, and I can understand why the US has problems with it -- though I'd prefer to address those problems by trying to reform the ICC as problems arise, rather than just walking away. But, no matter. What I think is really stupid, and also rather disgusting, is using economic strong-arm tactics to get other countries to do our bidding. The US -- and it's allies -- have already gotten a lot of bad PR for this, which has undermined what credibility we might hope to have with observers around the world (including sceptics within the US). The last thing we need right now is to re-confirm others' worst image of us, and provide more ammunition to anti-Americans. But, once again, that's precisely what the Bush administration is determined to do.
PRELIMINARY REMARKS: THE TERM AS A WHOLE. While most commentary and coverage has focused on the really controversial cases recently decided by the Court, concerning gay rights and affirmative action, there have been a good many other important -- and surprising - decisions issued by the Court this term.
In some respects, there’s been a small but notable leftwards shift. Take a look. Aside from upholding affirmative action and outlawing bans on gay sex, the Court has (Desert Palace v. Costa, No. 02-679) made it easier for employees to sue employers for discrimination based on race, sex, religion, and national origin. The opinion was unanimous, and authored by Clarence Thomas. And the Court, in Brown v. Legal Foundation of Washington, No. 02-1325, narrowly (5-4) upheld a national program that uses the interest earned on short-term deposits that lawyers hold in trust for their clients to pay for legal services for the poor. I haven’t read the opinions in the case, and so don’t know what I think of the points of law at issue; but the program, in addition to being intrinsically good, doesn’t strike me as unconstitutional, so I think it’s good the Court exercised restraint here.
In the area of criminal law, the Court issued two rather illiberal and, to my mind, deeply disturbing opinions regarding sentencing laws (Ewing v. California, No. 01-6978 and Lockyer v. Andrade, No. 01-1127); both opinions were 5-4. The Court also overwhelmingly upheld 'Megan's Law' in two cases. So, if you've ever committed a sex-crime, best get ready for the torch-carrying mobs. Worse, the Court elsewhere gave its approval to the eroding of legal protections for immigrants -- which, in post-9/11 America, as ruled by Ashcroft and Bush, is not a trend that should be encouraged.
But the Court also, in Miller-El v. Cockrell, No. 01-7662 (8-1, Thomas dissenting) and Wiggins v. Smith, No. 02-311 (7-2, Scalia and Thomas dissenting), overturned lower court rulings in capital punishment cases. These weren't the victories for the anti-death penalty movement I would've hoped for, but they do reflect a heightened concern about the justice -- or injustice -- of particular death-sentences, and a heightened scrutiny of such cases that'll hopefully, in time, make the public more sensitive to the very real dangers of unjustly executing people under our current laws.
Though I consider myself a civil libertarian, I can see the rationale for the Court's moderate position on cross burning in Virginia v. Black, No. 01-1107; I remain ambivalent about the decision, but don't think it's a disaster or a travesty. I'm a bit less sanguine about the Court's ruling in U.S. v. American Library Association, No. 02-361, where the 6-person majority [ad hominem tangent: this term Justice Breyer I think forfeited the right to be called -- or danger of being called -- a liberal] ruled that the Children's Internet Protection Act is constitutional. This act would require -- now, requires -- public libraries to install anti-pornography filters on computers as a condition for receiving federal subsidies. This does address a real 'problem' -- having worked in a public library for a couple of months, I can from personal experience confirm that this will, in fact, affect some people's behaviour. I can also say, from personal experience, that this behaviour didn't cause too much of a problem -- so far as I know, no innocent young cherubs were grossly corrupted. (It did give us library workers something to talk cattily about, though -- 'Hey, look, that sketchy old guy is looking at porn again! Ew!') As for the Court's upholding campaing finance laws and ruling that California can hold Nike accountable for making misleading statements about it's employment practices -- I agree with the Court that free speech isn't/wasn't infringed.
All in all, an interesting – and, on balance, I think a fairly good (so long as you’re not a repeat criminal offender, a former sex offender, or an illegal immigrant) – term.
In some respects, there’s been a small but notable leftwards shift. Take a look. Aside from upholding affirmative action and outlawing bans on gay sex, the Court has (Desert Palace v. Costa, No. 02-679) made it easier for employees to sue employers for discrimination based on race, sex, religion, and national origin. The opinion was unanimous, and authored by Clarence Thomas. And the Court, in Brown v. Legal Foundation of Washington, No. 02-1325, narrowly (5-4) upheld a national program that uses the interest earned on short-term deposits that lawyers hold in trust for their clients to pay for legal services for the poor. I haven’t read the opinions in the case, and so don’t know what I think of the points of law at issue; but the program, in addition to being intrinsically good, doesn’t strike me as unconstitutional, so I think it’s good the Court exercised restraint here.
In the area of criminal law, the Court issued two rather illiberal and, to my mind, deeply disturbing opinions regarding sentencing laws (Ewing v. California, No. 01-6978 and Lockyer v. Andrade, No. 01-1127); both opinions were 5-4. The Court also overwhelmingly upheld 'Megan's Law' in two cases. So, if you've ever committed a sex-crime, best get ready for the torch-carrying mobs. Worse, the Court elsewhere gave its approval to the eroding of legal protections for immigrants -- which, in post-9/11 America, as ruled by Ashcroft and Bush, is not a trend that should be encouraged.
But the Court also, in Miller-El v. Cockrell, No. 01-7662 (8-1, Thomas dissenting) and Wiggins v. Smith, No. 02-311 (7-2, Scalia and Thomas dissenting), overturned lower court rulings in capital punishment cases. These weren't the victories for the anti-death penalty movement I would've hoped for, but they do reflect a heightened concern about the justice -- or injustice -- of particular death-sentences, and a heightened scrutiny of such cases that'll hopefully, in time, make the public more sensitive to the very real dangers of unjustly executing people under our current laws.
Though I consider myself a civil libertarian, I can see the rationale for the Court's moderate position on cross burning in Virginia v. Black, No. 01-1107; I remain ambivalent about the decision, but don't think it's a disaster or a travesty. I'm a bit less sanguine about the Court's ruling in U.S. v. American Library Association, No. 02-361, where the 6-person majority [ad hominem tangent: this term Justice Breyer I think forfeited the right to be called -- or danger of being called -- a liberal] ruled that the Children's Internet Protection Act is constitutional. This act would require -- now, requires -- public libraries to install anti-pornography filters on computers as a condition for receiving federal subsidies. This does address a real 'problem' -- having worked in a public library for a couple of months, I can from personal experience confirm that this will, in fact, affect some people's behaviour. I can also say, from personal experience, that this behaviour didn't cause too much of a problem -- so far as I know, no innocent young cherubs were grossly corrupted. (It did give us library workers something to talk cattily about, though -- 'Hey, look, that sketchy old guy is looking at porn again! Ew!') As for the Court's upholding campaing finance laws and ruling that California can hold Nike accountable for making misleading statements about it's employment practices -- I agree with the Court that free speech isn't/wasn't infringed.
All in all, an interesting – and, on balance, I think a fairly good (so long as you’re not a repeat criminal offender, a former sex offender, or an illegal immigrant) – term.
AT LONG LAST: Ok. After having a long post about Lawrence v. Texas eaten by blogger, and many false starts, I’m now going to get down to posting on the extraordinary spate of decisions that have just come down from the Court. First, though, some recommended links:
To place the Court's recent decisions in a broader context, check out Sanford Levinson's excellent piece in the Village Voice (link courtesy of Brett Marston, whose own response to Lawrence can be found here, and whose especially fine 'curmudgeonly' response to the affirmative action decision is here; also check out his post on the very scary proposed Federal Marriage Amendment). On Lawrence in particular, I've found Jack Balkin's post on the decision and Jacob Levy's posts (here and here) on its political implications especially impressive, and Eugene Volokh's (such as this one) especially provocative. Over at TNR, there's one really good article by Jeff Rosen available to all, and a number of others (linked to the Daily Express piece) available to subscribers (grr.)
Most valuable of all, though, for all those great posts I've overlooked or forgotten to mention, as well as non-blog resources -- the opinions, news coverage, etc. -- are Larry Solum's round-ups of resources for Lawrence and for the affirmative action cases.
I'm now going to try, over the next day or so, to read over the opinions in the cases and post my own thoughts. I'm not sure how much I'll have to say about the affirmative action cases -- Brett's post, linked to above, and Jack Balkin's two posts say most of what I would want to, and far better than I could. But I'll certainly have a tuppence to contribute to the fray over Lawrence. Stay tuned.
To place the Court's recent decisions in a broader context, check out Sanford Levinson's excellent piece in the Village Voice (link courtesy of Brett Marston, whose own response to Lawrence can be found here, and whose especially fine 'curmudgeonly' response to the affirmative action decision is here; also check out his post on the very scary proposed Federal Marriage Amendment). On Lawrence in particular, I've found Jack Balkin's post on the decision and Jacob Levy's posts (here and here) on its political implications especially impressive, and Eugene Volokh's (such as this one) especially provocative. Over at TNR, there's one really good article by Jeff Rosen available to all, and a number of others (linked to the Daily Express piece) available to subscribers (grr.)
Most valuable of all, though, for all those great posts I've overlooked or forgotten to mention, as well as non-blog resources -- the opinions, news coverage, etc. -- are Larry Solum's round-ups of resources for Lawrence and for the affirmative action cases.
I'm now going to try, over the next day or so, to read over the opinions in the cases and post my own thoughts. I'm not sure how much I'll have to say about the affirmative action cases -- Brett's post, linked to above, and Jack Balkin's two posts say most of what I would want to, and far better than I could. But I'll certainly have a tuppence to contribute to the fray over Lawrence. Stay tuned.
SUMMER READING: Seems like an awful lot of people in the blogosphere are posting their summer reading lists. I was at first reluctant to do this, mainly because I thought to myself, 'Posting my summer reading list on the web (or do I mean the net)? How ego-centric is that?! Who the hell would care about what I'm reading this summer?!?' Then, of course, I thought, wait a minute -- who the hell cares about what I think of the latest Supreme Court ruling, or US foreign policy, or the pathologies of the modern academy? (I know who cares about what I think about Strauss and company; thanks for your e-mails, all.) So, realizing that this would be no more ridiculously uninteresting and self-indulgent than the rest of my blogging -- and that I actually found other people's reading lists fairly interesting -- I've decided to follow suit. (Herd of independent minds, indeed. Ah, I remember when I disdained -- and could resist! -- peer pressure).
Thus far (since my summer effectively began a few weeks ago), I've finished War and Peace, started last year. It's as good as everyone says -- better, actually. I was sorry to finish it; I wish there were more; and I hope to read it again. And, since it's something like 1500 pages (in the edition I was reading), that's saying something.
Since then, I've been enchanted by Patrick O'Brian's cycle of novels about the British Navy during the Napoleonic Wars, focusing on the wonderfully contrasting duo of bluff English Naval Officer Jack Aubrey and Naval surgeon, naturalist, linguist, ex-Irish revolutionary and spy Stephen Maturin. Even if I still haven't figured out what all the nautical terminology means, I've enjoyed the wonderful writing, engaging and appealing (and well-drawn) characters, and expertly-paced plots. I highly recommend them to anyone who's already read, or doesn't have time for, War and Peace (though you should really make time).
(I've just realized -- yes, I can be that slow -- that both Tolstoy and O'Brian set their tales during the Napoleonic Wars. Interesting coincidence.) I've also read 3 out of the 6 books in Olivia Manning's colorful series of novels about life among British expats in Bucharest, Greece, and Egypt during World War II, collectively titled Fortunes of War (made into a very good BBC miniseries staring Emma Thompson and Kenneth Branagh some years back.)
Less light reading is up ahead. I'm teaching an introductory course on political philosophy in the Yale Summer Programs (as I may've mentioned once or twice -- I'm sort of excited about it), and so am going to have to re-read a good deal of the canon of Western political thought. More specifically, I'll be reading -- and forcing others to read (heh heh heh ...) selections from Thucydides' History, the Apology and Crito (in their entirety) by Plato, Hobbe's Leviathan, Locke's Letter Concerning Toleration, Rousseau's Social Contract, Tocqueville's Democracy in America, The Communist Manifesto, Arendt's Origins of Totalitarianism, and some of Isaiah Berlin's essays. Should be great fun; and I'm hoping to finally understand some of these works ...
Other than that, I hope to get some reading for my graduate work done; this means a good deal more Berlin, and a bunch of other Cold War liberal intellectuals and philosophers, mainly from Britain. I'm also hoping to read some exponents of ethical pluralism other than Berlin -- Gray, Raz, Galston, etc. And since I've agree to write an article on Primo Levi, I'm working my way through the writings -- fiction, memoirs, and essays -- of that most attractive, charming, sane, decent, clear-eyed, much-suffering author, to my great enjoymeny and, I dare say, benefit. I'm also going to be participating in a reading group devoted to Strauss' On Tyranny, so I'll be able to keep my finger in the Straussian pie (ewww), and finally read this central text in Strauss' oeuvre (perhaps once I have, my comments on Strauss may actually have some foundation. Eh.)
How much of this will I actually do? Well, the readings for my course, hopefully. After that ... well, I can but hope. And stay in a lot. And flee my TV.
Thus far (since my summer effectively began a few weeks ago), I've finished War and Peace, started last year. It's as good as everyone says -- better, actually. I was sorry to finish it; I wish there were more; and I hope to read it again. And, since it's something like 1500 pages (in the edition I was reading), that's saying something.
Since then, I've been enchanted by Patrick O'Brian's cycle of novels about the British Navy during the Napoleonic Wars, focusing on the wonderfully contrasting duo of bluff English Naval Officer Jack Aubrey and Naval surgeon, naturalist, linguist, ex-Irish revolutionary and spy Stephen Maturin. Even if I still haven't figured out what all the nautical terminology means, I've enjoyed the wonderful writing, engaging and appealing (and well-drawn) characters, and expertly-paced plots. I highly recommend them to anyone who's already read, or doesn't have time for, War and Peace (though you should really make time).
(I've just realized -- yes, I can be that slow -- that both Tolstoy and O'Brian set their tales during the Napoleonic Wars. Interesting coincidence.) I've also read 3 out of the 6 books in Olivia Manning's colorful series of novels about life among British expats in Bucharest, Greece, and Egypt during World War II, collectively titled Fortunes of War (made into a very good BBC miniseries staring Emma Thompson and Kenneth Branagh some years back.)
Less light reading is up ahead. I'm teaching an introductory course on political philosophy in the Yale Summer Programs (as I may've mentioned once or twice -- I'm sort of excited about it), and so am going to have to re-read a good deal of the canon of Western political thought. More specifically, I'll be reading -- and forcing others to read (heh heh heh ...) selections from Thucydides' History, the Apology and Crito (in their entirety) by Plato, Hobbe's Leviathan, Locke's Letter Concerning Toleration, Rousseau's Social Contract, Tocqueville's Democracy in America, The Communist Manifesto, Arendt's Origins of Totalitarianism, and some of Isaiah Berlin's essays. Should be great fun; and I'm hoping to finally understand some of these works ...
Other than that, I hope to get some reading for my graduate work done; this means a good deal more Berlin, and a bunch of other Cold War liberal intellectuals and philosophers, mainly from Britain. I'm also hoping to read some exponents of ethical pluralism other than Berlin -- Gray, Raz, Galston, etc. And since I've agree to write an article on Primo Levi, I'm working my way through the writings -- fiction, memoirs, and essays -- of that most attractive, charming, sane, decent, clear-eyed, much-suffering author, to my great enjoymeny and, I dare say, benefit. I'm also going to be participating in a reading group devoted to Strauss' On Tyranny, so I'll be able to keep my finger in the Straussian pie (ewww), and finally read this central text in Strauss' oeuvre (perhaps once I have, my comments on Strauss may actually have some foundation. Eh.)
How much of this will I actually do? Well, the readings for my course, hopefully. After that ... well, I can but hope. And stay in a lot. And flee my TV.
Tuesday, July 01, 2003
YES, JACOB: You are indeed responsible for the design-overhaul on my blog.
Which means you're also responsible for the hours I'm having to spend re-doing all my links.
Grrr.
Which means you're also responsible for the hours I'm having to spend re-doing all my links.
Grrr.
ASK ME NO QUESTIONS, I'LL TELL YOU NO LIES: Josh Chafetz asks his 'hawkish Democratic friends' 'whatcha gonna do if your party nominates Dean? And, more immediately, whatcha gonna do to make sure your party doesn't nominate Dean?'
Well, I've been a sort-of hawk at times (though I wouldn't really call myself a hawk -- or a dove -- but a fox. No, not in that way ...) , I've mainly voted Democratic, and I tend to think that, within the Democratic Party, I'm certainly a centrist; so I feel I can answer Josh on this one.
If my party nominates Dean, I'll vote him against Bush. I disagreed with Dean's stance on Iraq before the war, I've found his rhetoric regarding the war over-blown, and I was particularly put-out by his grudging and graceless response to the fall of Saddam's tyranny. But I'm also increasingly convinced that Bush and his cronies' behaviour leading up to -- and leading us into -- war was dubious at best, and that his commitment and ability to carry through post-war reconstruction is less than reliable. And I don't think that a greater respect towards the rest of the world would necessarily constitute a disastrous shift in foreign policy.
Mainly, though, I think that Bush's policies threaten to wreck our country domestically. I'm sick and tired of his short-sighted, foolish, corporate-crony-coddling tax cuts, his pursuit of a conservative social agenda which I find unjust and bigoted, the violations and attempts at violations of basic civil liberties by his Justice Department in the name of security, his effective managing of the media and marginalising and stigmatising of all dissent, the failure of 'compassionate conservatism' to yield much in the way of compassion, or indeed any sort of results, when it comes to serious problems such as poverty, healthcare, and the shipwreck that is American public education.
Dean's a ways to my left on foreign policy (and to my right on gun control and capital punishment), and I'm less than thrilled by him generally: I'm not sure that he'd be the best candidate to run against Bush on a pragmatic level, and I'm not sure that he's the candidate I'd most like to see elected (though I'm not sure that he's not; I also have problems with Kerry, Edwards, and Lieberman, who seem to me the other viable candidates at this point). But he seems (so far as politicians go) personally honest and intelligent, and decent and sane in most of his positions -- things that Bush, in my opinion, is not.
Now, were Dean to say something about foreign policy which I REALLY thought wrong -- that he would, if elected, pull all American troops out of Iraq and leave the Iraqis to their own devices, or ditto with Afghanistan (not that that'd be SO different from Bush's policy ...), I might reconsider -- to the extent of doing all I could to encourage opposition to Dean within the Democratic Party before the primaries (not that that'd have much effect). But, even so, I'd probably vote for him against Bush. Because I think Bush is that bad for America, and I think Dean would be a damn sight better. And while foreign policy is one of the issues that is particularly important to me, it isn't the only one.
Well, I've been a sort-of hawk at times (though I wouldn't really call myself a hawk -- or a dove -- but a fox. No, not in that way ...) , I've mainly voted Democratic, and I tend to think that, within the Democratic Party, I'm certainly a centrist; so I feel I can answer Josh on this one.
If my party nominates Dean, I'll vote him against Bush. I disagreed with Dean's stance on Iraq before the war, I've found his rhetoric regarding the war over-blown, and I was particularly put-out by his grudging and graceless response to the fall of Saddam's tyranny. But I'm also increasingly convinced that Bush and his cronies' behaviour leading up to -- and leading us into -- war was dubious at best, and that his commitment and ability to carry through post-war reconstruction is less than reliable. And I don't think that a greater respect towards the rest of the world would necessarily constitute a disastrous shift in foreign policy.
Mainly, though, I think that Bush's policies threaten to wreck our country domestically. I'm sick and tired of his short-sighted, foolish, corporate-crony-coddling tax cuts, his pursuit of a conservative social agenda which I find unjust and bigoted, the violations and attempts at violations of basic civil liberties by his Justice Department in the name of security, his effective managing of the media and marginalising and stigmatising of all dissent, the failure of 'compassionate conservatism' to yield much in the way of compassion, or indeed any sort of results, when it comes to serious problems such as poverty, healthcare, and the shipwreck that is American public education.
Dean's a ways to my left on foreign policy (and to my right on gun control and capital punishment), and I'm less than thrilled by him generally: I'm not sure that he'd be the best candidate to run against Bush on a pragmatic level, and I'm not sure that he's the candidate I'd most like to see elected (though I'm not sure that he's not; I also have problems with Kerry, Edwards, and Lieberman, who seem to me the other viable candidates at this point). But he seems (so far as politicians go) personally honest and intelligent, and decent and sane in most of his positions -- things that Bush, in my opinion, is not.
Now, were Dean to say something about foreign policy which I REALLY thought wrong -- that he would, if elected, pull all American troops out of Iraq and leave the Iraqis to their own devices, or ditto with Afghanistan (not that that'd be SO different from Bush's policy ...), I might reconsider -- to the extent of doing all I could to encourage opposition to Dean within the Democratic Party before the primaries (not that that'd have much effect). But, even so, I'd probably vote for him against Bush. Because I think Bush is that bad for America, and I think Dean would be a damn sight better. And while foreign policy is one of the issues that is particularly important to me, it isn't the only one.
NOTICE: Those who've seen this blog before may notice that it looks a bit, um, different. That's because I finally got fed up with the ugliness of the old blog, and decided to reformat. However, in the process, I managed to lose all of my links. I'm currently working on reconstituting them -- a task which will take a little while. So, the site is currently under reconstruction, as it were.
DON'T LET'S BE BEASTLY TO THE GERMANS: The blog Innocents Abroad reports on a truly dreadful-sounding piece from the London Times by one Matthew Parris (link via Steve Sachs, whose blogging away a storm at present -- and all of it is, as usual, good stuff.)
Parris trots out the old Straussian connection again -- despite the fact that Strauss was a Jew who fled Germany, and that many of the 'German-Americans' Parris identifies are also Jews who have no special attachment to Germany (and whose families very likely didn't come to the US from Germany, but rather from Eastern Europe).
There is, however, a greater irony. Parris points to the large number of members of Congress with German names and ancestry. Innocents Abroad, in response, reels off a long list of non-German names from the Senate. Fair, and true, enough, but this is giving in to Parris a bit too much, and letting him off the hook. If Parris really was trying to demonstrate that the Bush adminstration and its policies bear the mark of Prussian-style realpolitik, this was an awfully clumsy point to make.
Let's think for a moment here. Who are the most prominent members of Congress of German descent? Probably Dick Gephardt and Tom Daschle.
You know who are not exactly fans of the Bush administration? Yep. Gephardt and Daschle. (This isn't Parris' only howler. For instance, he identifies the Roosevelts as German -- which the Innocents don't protest. But they should: the Roosevelts were, obviously, of Dutch descent [they also, contra Innocents, weren't New England aristos; they were from NY State])
It would seem that German Americans hardly march in lock-step (which is a relief, since, when Germans march in lock-step ... oh, never mind ...). So, what the heck is Parris' point? Damned if I know.
But, hey, it's nice that some ethnic group other than my own (I think. By the way, so far as I know, my family hasn't resided in Germany for at least 200 years, and probably didn't feel terribly at home if they ever did before that) is getting blamed for Bush's foreign policy.
Parris trots out the old Straussian connection again -- despite the fact that Strauss was a Jew who fled Germany, and that many of the 'German-Americans' Parris identifies are also Jews who have no special attachment to Germany (and whose families very likely didn't come to the US from Germany, but rather from Eastern Europe).
There is, however, a greater irony. Parris points to the large number of members of Congress with German names and ancestry. Innocents Abroad, in response, reels off a long list of non-German names from the Senate. Fair, and true, enough, but this is giving in to Parris a bit too much, and letting him off the hook. If Parris really was trying to demonstrate that the Bush adminstration and its policies bear the mark of Prussian-style realpolitik, this was an awfully clumsy point to make.
Let's think for a moment here. Who are the most prominent members of Congress of German descent? Probably Dick Gephardt and Tom Daschle.
You know who are not exactly fans of the Bush administration? Yep. Gephardt and Daschle. (This isn't Parris' only howler. For instance, he identifies the Roosevelts as German -- which the Innocents don't protest. But they should: the Roosevelts were, obviously, of Dutch descent [they also, contra Innocents, weren't New England aristos; they were from NY State])
It would seem that German Americans hardly march in lock-step (which is a relief, since, when Germans march in lock-step ... oh, never mind ...). So, what the heck is Parris' point? Damned if I know.
But, hey, it's nice that some ethnic group other than my own (I think. By the way, so far as I know, my family hasn't resided in Germany for at least 200 years, and probably didn't feel terribly at home if they ever did before that) is getting blamed for Bush's foreign policy.
Monday, June 30, 2003
GOTTA LOVE THOSE WACKY NEO-CONS: I'm inclined to agree with Josh Chafetz that this is the funniest Weekly Standard parody ever (it's also scary how much I get, and appreciate, all the references).
It does raise a question, though, for those of us who wouldn't be able to resist nausea (not just due to sea-sickness) of being cooped up aboard a ship with the denizens of either the Standard or the Nation: with TNR's first planned cruise cancelled, what hope is there? When can we look forward to the first Dissent cruise? (which, I imagine, would never leave New York Harbour, and would be attended by only about a dozen people -- Dissent's subscription list -- most of whom either speak Yiddish, work for a labour union, or teach or have taught politics at Princeton, and nearly all of whom knew Irving Howe, and indeed Max Shachtman, personally -- and threw soup at one or the other during a heated fight in a Greenwich village restaurant in 1947. Which actually sounds like my idea of a good time.)
Actually, come to think of it, I'd jump at a chance to go on the Weekly Standard Cruise -- it could be my one chance to chuck Dick Cheney, Donald Rumsfeld, Elliot Abrams, Ariel Sharon, and Richard Perle into the brimy deep while they're in a state of post-prandial unwariness (thus getting to see which of them would float). Who could pass up a chance like that? To whom can I make out my cheque?
It does raise a question, though, for those of us who wouldn't be able to resist nausea (not just due to sea-sickness) of being cooped up aboard a ship with the denizens of either the Standard or the Nation: with TNR's first planned cruise cancelled, what hope is there? When can we look forward to the first Dissent cruise? (which, I imagine, would never leave New York Harbour, and would be attended by only about a dozen people -- Dissent's subscription list -- most of whom either speak Yiddish, work for a labour union, or teach or have taught politics at Princeton, and nearly all of whom knew Irving Howe, and indeed Max Shachtman, personally -- and threw soup at one or the other during a heated fight in a Greenwich village restaurant in 1947. Which actually sounds like my idea of a good time.)
Actually, come to think of it, I'd jump at a chance to go on the Weekly Standard Cruise -- it could be my one chance to chuck Dick Cheney, Donald Rumsfeld, Elliot Abrams, Ariel Sharon, and Richard Perle into the brimy deep while they're in a state of post-prandial unwariness (thus getting to see which of them would float). Who could pass up a chance like that? To whom can I make out my cheque?
RETURN OF THE PRODIGAL -- SORT OF: My dear friend and former co-blogger (and the man responsible for the 'aesthetic horror' that is this blog -- thanks for taking responsibility, Jacob -- and for pointing it out) Jacob Remes has returned to the blogosphere with his own blog, Waldheim . Jacob was apparently motivated to leave blogging in part because of the acrimonious tone of many of our exchanges on this blog when he was part of it -- and has been motivated to return in part out of envy of the great 'success' of the blog. I'm very sorry to think that I was instrumental in driving such a talented and -- er -- vehement voice from the blogosphere; and a bit bemused that Jacob thinks this blog is such a success (of course, he seems to know more about it than I; but, given that over the course of two or so weeks, I've gotten less traffic than my good friends at OxBlog get in a day, I don't know that I'd say I've made it to the big league -- or even the middle-league -- of blogging). In any event, I'm very glad that Jacob, perhaps against his better judgment, has returned to blogging; and strongly encourage anyone reading this to give his site a gander.
(Jacob also says that he's returned to blogging because, well, he lives alone, and seems to feel a bit isolated. This concerns me a bit. Listen, Jacob, buddy, give me a call -- I'm home now, there are no long international codes or fees -- don't let blogger become your only friend!)
While I hope you'll read over all of Jacob's posts, let me highlight a few I think particularly good. These include Jacob's post on recent unrest in South Korea, in which he manifests the somewhat nostalgic and idealistic conception of the role and importance of the univeristy in relation to society that we (despite some strong differences) essentially share; and his belated response to a question posed by his former teacher at Yale, Jim Sleeper (with whom, as Jacob's tone at the beginning of the post suggests, he did not get along very well). Jacob also has a defense of Howard Dean, which more or less turns into a gloomy evaluation of the current situation in Iraq. I basically agree with Jacob, as against the doggedly optimistic and ingenious insistence by David at OxBlog that everything's basically ok, even though David does make some good points (and I’m glad that David is thinking about the [as he says, dubious] Vietnam-Iraq analogy in light of Neil Sheehan's book A Bright Shining Lie. What a good idea! And a strangely familiar one ... [Explanation: Josh is here obscurely and obnoxiously harping on this because at a public forum on the then-imminent war in Iraq, at which David was speaking, he recommended that proponents of the war read Sheehan's book - which David already had at that point, btw. -- ed.]) Still, I can’t help but think – as I usually do – that Jacob goes a bit overboard in some of his assertions (NB: Not that I want to get into a drawn-out quarrel with Jacob here – as he says, we’ve already had more than enough of that.) Though triumphalism is certainly not warranted at this point, I do think that the first phase of our operations in Iraq – the toppling of the Ba’athist regime – went pretty well, and certainly far better than critics of the war predicted it would. I do tend to think, as Jacob does, that guerilla operations against the occupying forces will get worse. But, then, I thought it would take us several weeks to take Baghdad. And Jacob’s statement that we haven’t ‘found the Iraqi government to give us our surrender’ seems to me a strange phrase expressing a strange idea. I think that the de facto surrender of the Iraqi ‘government’ is a fait accompli: they’ve relinquished power and run away. I’d rather like us to catch Saddam Hussein and put him on trial (I also wouldn’t be too sorry if the Kurds could get their hands on him); but I don’t think the failure to do so negates the fact that we have, in fact, decisively deposed him. As for whether recent terrorist attacks suggest that there is more general opposition to the US-led occupation – well. Of course there is plenty opposition, of varying degrees, from varying quarters. As yet, though, I don’t see this opposition coalescing into a major, concerted, co-ordinated uprising. And I think it’s a mistake to talk, as Jacob seems to, of ‘Iraqis’ as a whole; it would seem that the people of Iraq are deeply divided in their views. As for the guerilla attacks, at least those by Ba’athists, they don’t necessarily indicate broad support for the guerillas or opposition to the US. They do suggest that remnants of the fedayin Saddam and the Republican Guard, as well as less formal bands of Ba’athists, remain in Iraq, and remain capable of inflicting damage on the occupying forces. We knew this would be so. We also know that these people have a long history of using terror to make the Iraqi people cooperate. It seems perfectly credible to me that they could be effective with the help of a small but stubborn segment of the population that does still support Saddam, and the collaboration-by-silence of a larger number of Iraqis who never loved the Ba’ath, but still fear it – and don’t trust us, after our behaviour in 1991, to keep the Ba’ath at bay. And it seems to me that the best way of dealing with this fear is acting in such a way as to show that we are in fact serious about – and capable of – wiping the Ba’ath out for good.
But that's just one quibble; and even when he expresses views that I think are flawed, or even outright wrong, I'm very glad to have Jacob back in the blogosphere expressing them.
Welcome back.
(Jacob also says that he's returned to blogging because, well, he lives alone, and seems to feel a bit isolated. This concerns me a bit. Listen, Jacob, buddy, give me a call -- I'm home now, there are no long international codes or fees -- don't let blogger become your only friend!)
While I hope you'll read over all of Jacob's posts, let me highlight a few I think particularly good. These include Jacob's post on recent unrest in South Korea, in which he manifests the somewhat nostalgic and idealistic conception of the role and importance of the univeristy in relation to society that we (despite some strong differences) essentially share; and his belated response to a question posed by his former teacher at Yale, Jim Sleeper (with whom, as Jacob's tone at the beginning of the post suggests, he did not get along very well). Jacob also has a defense of Howard Dean, which more or less turns into a gloomy evaluation of the current situation in Iraq. I basically agree with Jacob, as against the doggedly optimistic and ingenious insistence by David at OxBlog that everything's basically ok, even though David does make some good points (and I’m glad that David is thinking about the [as he says, dubious] Vietnam-Iraq analogy in light of Neil Sheehan's book A Bright Shining Lie. What a good idea! And a strangely familiar one ... [Explanation: Josh is here obscurely and obnoxiously harping on this because at a public forum on the then-imminent war in Iraq, at which David was speaking, he recommended that proponents of the war read Sheehan's book - which David already had at that point, btw. -- ed.]) Still, I can’t help but think – as I usually do – that Jacob goes a bit overboard in some of his assertions (NB: Not that I want to get into a drawn-out quarrel with Jacob here – as he says, we’ve already had more than enough of that.) Though triumphalism is certainly not warranted at this point, I do think that the first phase of our operations in Iraq – the toppling of the Ba’athist regime – went pretty well, and certainly far better than critics of the war predicted it would. I do tend to think, as Jacob does, that guerilla operations against the occupying forces will get worse. But, then, I thought it would take us several weeks to take Baghdad. And Jacob’s statement that we haven’t ‘found the Iraqi government to give us our surrender’ seems to me a strange phrase expressing a strange idea. I think that the de facto surrender of the Iraqi ‘government’ is a fait accompli: they’ve relinquished power and run away. I’d rather like us to catch Saddam Hussein and put him on trial (I also wouldn’t be too sorry if the Kurds could get their hands on him); but I don’t think the failure to do so negates the fact that we have, in fact, decisively deposed him. As for whether recent terrorist attacks suggest that there is more general opposition to the US-led occupation – well. Of course there is plenty opposition, of varying degrees, from varying quarters. As yet, though, I don’t see this opposition coalescing into a major, concerted, co-ordinated uprising. And I think it’s a mistake to talk, as Jacob seems to, of ‘Iraqis’ as a whole; it would seem that the people of Iraq are deeply divided in their views. As for the guerilla attacks, at least those by Ba’athists, they don’t necessarily indicate broad support for the guerillas or opposition to the US. They do suggest that remnants of the fedayin Saddam and the Republican Guard, as well as less formal bands of Ba’athists, remain in Iraq, and remain capable of inflicting damage on the occupying forces. We knew this would be so. We also know that these people have a long history of using terror to make the Iraqi people cooperate. It seems perfectly credible to me that they could be effective with the help of a small but stubborn segment of the population that does still support Saddam, and the collaboration-by-silence of a larger number of Iraqis who never loved the Ba’ath, but still fear it – and don’t trust us, after our behaviour in 1991, to keep the Ba’ath at bay. And it seems to me that the best way of dealing with this fear is acting in such a way as to show that we are in fact serious about – and capable of – wiping the Ba’ath out for good.
But that's just one quibble; and even when he expresses views that I think are flawed, or even outright wrong, I'm very glad to have Jacob back in the blogosphere expressing them.
Welcome back.
HUMANITARIAN INTERVENTION: It may be a self-serving and egotistical fancy of mine, but I often get the feeling that I'm one of the few bloggers who both spends time defending Leo Strauss and followers, and still bothers to read the Nation from time to time (and not just for the pleasure of being disappointed by Katha Pollit).
It's too bad that my centrist and neo-con fellow-bloggers seem to disregard the Nation. Even if it's sometimes difficult to take the editorial stance of that venerable organ of Leftish opinion seriously, a strong, even strident Left opposition voice is important, both to have, and to listen to -- especially in light of the conservative ascendancy in American politics. And the Nation does regularly publish some very good writers, such as David Corn and Eric Alterman. This may not be enough to make up for the predictable and knee-jerk nature of much of what gets said in the magazine, or its generally less than dazzling books section, or the uninteresting ravings of some writers, such as Alexander Cockburn. But it does make it worthwhile to sometimes take a gander.
Doing so, I came across this online forum on 'humanitarian intervention'. I haven't had a chance to read the whole thing carefully; and from what I've read thus far, I probably disagree, sometimes strongly, with most of the contributors, who in most cases say -- well, the sorts of things you'd expect people asked by the Nation to comment on humanitarian intervention to say (not that predictability, or reflexive multilateralism and antoi-Bushism, are necessarily bad things -- though naive Utopianism and anti-Americanism probably are). But there are also some excellent pieces, such as the thoughtful, clear-eyed, and sensible piece by Samantha Power, David Rieff's and Ronald Steel's rigourously dour and tough-minded contributions, and Stephen Holmes' vigourously polemical blend of cynicism and commitment. Even if one doesn't agree with these pieces -- and I don't agree with much of what Holmes, for one, says -- they're all thought-provoking, confronting important questions head-on, in a way that has been all too rare of late.
It's too bad that my centrist and neo-con fellow-bloggers seem to disregard the Nation. Even if it's sometimes difficult to take the editorial stance of that venerable organ of Leftish opinion seriously, a strong, even strident Left opposition voice is important, both to have, and to listen to -- especially in light of the conservative ascendancy in American politics. And the Nation does regularly publish some very good writers, such as David Corn and Eric Alterman. This may not be enough to make up for the predictable and knee-jerk nature of much of what gets said in the magazine, or its generally less than dazzling books section, or the uninteresting ravings of some writers, such as Alexander Cockburn. But it does make it worthwhile to sometimes take a gander.
Doing so, I came across this online forum on 'humanitarian intervention'. I haven't had a chance to read the whole thing carefully; and from what I've read thus far, I probably disagree, sometimes strongly, with most of the contributors, who in most cases say -- well, the sorts of things you'd expect people asked by the Nation to comment on humanitarian intervention to say (not that predictability, or reflexive multilateralism and antoi-Bushism, are necessarily bad things -- though naive Utopianism and anti-Americanism probably are). But there are also some excellent pieces, such as the thoughtful, clear-eyed, and sensible piece by Samantha Power, David Rieff's and Ronald Steel's rigourously dour and tough-minded contributions, and Stephen Holmes' vigourously polemical blend of cynicism and commitment. Even if one doesn't agree with these pieces -- and I don't agree with much of what Holmes, for one, says -- they're all thought-provoking, confronting important questions head-on, in a way that has been all too rare of late.
TRUTH, METHOD, AND TYRANNY, CONT’D
Which brings us to the question of Gadamer's behaviour under the Nazis. Wolin shows that Gadamer did not protest against or actively oppose the Nazis; that, in fact, he went along with them, even trimming his sails to their wind, giving lectures that could be seen to support their program. However, the lecture that Wolin cites doesn't approach Heidegger's infamous statements in glorifying Hitlerism. Indeed, Gadamer's incriminating lecture, as described by Wolin, seems to me a decidedly equivocal one. In it Gadamer chose to focus on Herder, the philosophical father of German nationalism (and, to a large extent, historicism). Yet, as another great student of Herder, Isaiah Berlin, has pointed out, Herder’s nationalism was not political, much less racial, but cultural; and it was not aggressive or expansionist – indeed, quite the opposite: it insisted on the equality of different cultures, and the rights of peoples to self-determination and respect. Wolin’s account suggests that Gadamer twisted Herder’s ideas for politically opportunist purposes – which constitutes a double offense. Yet it is interesting that Gadamer should have appealed to Herder, rather than to a truer forefather of Nazism. Why he did so, and what it means, I don’t know; but it’s a question I think Wolin should have spent more time considering.
Gadamer seems never to have been an ardent Nazi; in Wolin’s account, his crimes and failings seem to have been complacency, careerism, and perhaps cowardice, being willing to go along with the system in order to get ahead. These are personal failings, but they needn’t have intellectual implications; there are plenty of scholars and thinkers who are personally rotters, but whose work is free from their personal vices (and many well-meaning and kind people whose thinking is muddled or deeply flawed).
However, I’m not sure if Wolin doesn’t, in his own possibly excessively hostile way, get at a real problem with Gadamer the man, which also affected Gadamer the thinker (the distinction is important, but imperfect, since the two are always connected).
One thing that struck me, reading an interview with Gadamer concerning Nazism (dating I believe from the 1990s – I’m afraid I don’t have the interview, or the name of the book in which I read it, at hand at present), was Gadamer’s readiness – even eagerness – to give their due (arguably more than their due) to other scholars who sided with the Nazis. Gadamer repeatedly insisted on distinguishing shades of gray – failure to oppose Nazism from embrace of it, mere conservatism from being part of the radical Right, even scientific racism from acceptance of Nazi doctrines (in the process, Gadamer suggested that the ‘scientific’ study of racial differences was a valid subject of academic inquiry, which appalled his right-thinking German interviewer, who said that surely racial difference was a harmful myth. Not at all, replied Gadamer, race is a real fact, which involves real differences – ‘Indians are not Japanese’. Now, again, I’m not sure how important this is to an evaluation of his ideas, but this does cause misgivings on my part about Gadamer’s intellectual qualities).
It seems to me that one of Gadamer’s greatest personal virtues was also a part of his greatest moral failing, and that this same double-edged quality accounts for both an attractive strength, and a worrying weakness, in his work. Gadamer seems to have suffered from an excess of indulgence, of generosity, of tolerance; he was too charitable, at the time and afterwards, to colleagues who believed and did appalling things (though not towards certain fanatical out-and-out Nazis, whom Gadamer did distinguish from their milder colleagues and condemned). It wasn’t that Gadamer refused, or was even reluctant to, pass judgment; he did. But his judgments with regard to the behaviour of German academics under the Nazis strike me as too indulgent towards others – and towards himself. It was a tough situation, and we should indeed avoid passing hasty and arrogant judgment on those faced with a very hard decision. But I do think we can say, as Wolin does, that the right thing to have done would have been to oppose the Nazis, or at the least not to go along with them quite so easily.
Gadamer’s thought, to the very limited extent I understand it, seems to me animated by his attractive and admirable commitment to dialogue and understanding, which Wolin notes at the beginning of his review. This is worth emulating and fostering. But, as Wolin also notes (and quotes Adorno to the effect of), we are also faced with a moral imperative to avoid repeating the horrors of Nazism – and to oppose those who would seek to repeat them. To the extent that Gadamer inspires us to greater humanity, humility, tolerance and understanding, he is a worthy ally in this project; but to the extent that adopting his philosophy and method may inhibit our ability to make tough judgments and take difficult stands, he may also be a sometimes unreliable and even dubious one.
Which brings us to the question of Gadamer's behaviour under the Nazis. Wolin shows that Gadamer did not protest against or actively oppose the Nazis; that, in fact, he went along with them, even trimming his sails to their wind, giving lectures that could be seen to support their program. However, the lecture that Wolin cites doesn't approach Heidegger's infamous statements in glorifying Hitlerism. Indeed, Gadamer's incriminating lecture, as described by Wolin, seems to me a decidedly equivocal one. In it Gadamer chose to focus on Herder, the philosophical father of German nationalism (and, to a large extent, historicism). Yet, as another great student of Herder, Isaiah Berlin, has pointed out, Herder’s nationalism was not political, much less racial, but cultural; and it was not aggressive or expansionist – indeed, quite the opposite: it insisted on the equality of different cultures, and the rights of peoples to self-determination and respect. Wolin’s account suggests that Gadamer twisted Herder’s ideas for politically opportunist purposes – which constitutes a double offense. Yet it is interesting that Gadamer should have appealed to Herder, rather than to a truer forefather of Nazism. Why he did so, and what it means, I don’t know; but it’s a question I think Wolin should have spent more time considering.
Gadamer seems never to have been an ardent Nazi; in Wolin’s account, his crimes and failings seem to have been complacency, careerism, and perhaps cowardice, being willing to go along with the system in order to get ahead. These are personal failings, but they needn’t have intellectual implications; there are plenty of scholars and thinkers who are personally rotters, but whose work is free from their personal vices (and many well-meaning and kind people whose thinking is muddled or deeply flawed).
However, I’m not sure if Wolin doesn’t, in his own possibly excessively hostile way, get at a real problem with Gadamer the man, which also affected Gadamer the thinker (the distinction is important, but imperfect, since the two are always connected).
One thing that struck me, reading an interview with Gadamer concerning Nazism (dating I believe from the 1990s – I’m afraid I don’t have the interview, or the name of the book in which I read it, at hand at present), was Gadamer’s readiness – even eagerness – to give their due (arguably more than their due) to other scholars who sided with the Nazis. Gadamer repeatedly insisted on distinguishing shades of gray – failure to oppose Nazism from embrace of it, mere conservatism from being part of the radical Right, even scientific racism from acceptance of Nazi doctrines (in the process, Gadamer suggested that the ‘scientific’ study of racial differences was a valid subject of academic inquiry, which appalled his right-thinking German interviewer, who said that surely racial difference was a harmful myth. Not at all, replied Gadamer, race is a real fact, which involves real differences – ‘Indians are not Japanese’. Now, again, I’m not sure how important this is to an evaluation of his ideas, but this does cause misgivings on my part about Gadamer’s intellectual qualities).
It seems to me that one of Gadamer’s greatest personal virtues was also a part of his greatest moral failing, and that this same double-edged quality accounts for both an attractive strength, and a worrying weakness, in his work. Gadamer seems to have suffered from an excess of indulgence, of generosity, of tolerance; he was too charitable, at the time and afterwards, to colleagues who believed and did appalling things (though not towards certain fanatical out-and-out Nazis, whom Gadamer did distinguish from their milder colleagues and condemned). It wasn’t that Gadamer refused, or was even reluctant to, pass judgment; he did. But his judgments with regard to the behaviour of German academics under the Nazis strike me as too indulgent towards others – and towards himself. It was a tough situation, and we should indeed avoid passing hasty and arrogant judgment on those faced with a very hard decision. But I do think we can say, as Wolin does, that the right thing to have done would have been to oppose the Nazis, or at the least not to go along with them quite so easily.
Gadamer’s thought, to the very limited extent I understand it, seems to me animated by his attractive and admirable commitment to dialogue and understanding, which Wolin notes at the beginning of his review. This is worth emulating and fostering. But, as Wolin also notes (and quotes Adorno to the effect of), we are also faced with a moral imperative to avoid repeating the horrors of Nazism – and to oppose those who would seek to repeat them. To the extent that Gadamer inspires us to greater humanity, humility, tolerance and understanding, he is a worthy ally in this project; but to the extent that adopting his philosophy and method may inhibit our ability to make tough judgments and take difficult stands, he may also be a sometimes unreliable and even dubious one.
TRUTH, METHOD, AND TYRANNY, PART I: Among the many items of old blogging business I'm trying to catch up with is this review by Richard Wolin of a recent biography of Hans-Georg Gadamer. Wolin, following up the preoccupations of an article he published a few years back in TNR, dwells on Gadamer's relationship with Heidegger, and his behaviour under Hitler. This has prompted Micah at Political Theory blog to ask, 'Was Gadamer a Nazi?'.
I really don't know anything about Gadamer -- and know less about his work. The connections between his thoughts and Nazism is therefore a topic I'll leave to those who actually know his work well (Mr Chafetz, that means you ...) But I do have a few remarks in response to Micah's question -- thoughts about Gadamer, thoughts about the biography as described by Wolin, and thoughts about Wolin's own take.
Before I say any of this, however, two further caveats. First, although I have problems with Wolin's article -- and it will be the problematic parts on which I focus -- I also think it's very interesting, and raises a lot of important issues in a clear, informative way. I'd like to discuss more of these issues; but for the time being, can only point the reader to Wolin's article. Second, what I say about Gadamer is largely speculative, based on my own perception of his attitude to and behaviour under Nazism, as he himself later expressed it. Third, I haven't read Jean Grondin's biography, so I don't know to what extent Wolin's criticisms of it are valid.
If they are, however, then it does sound like the book is flawed. Wolin accuses Grondin of being insufficiently critical, and of special pleading regarding Gadamer's behaviour under the Nazis. At the same time, Wolin claims that Grondin's use of Gadamer's hermeneutic approach to justify the support of reasonable Germans for Nazism seems to me unfounded. There's a difference between trying to understand the mindset of those who supported the Nazis -- to try to see their own actions through their own eyes -- and accepting that account as morally valid; understanding should preceed judgment -- but in most cases judgment, sometimes harsh judgment, must follow understanding. If Wolin is fair to him, it sounds like Grondin fails to take the second step, and in exploring, in order to explain, the way in which Germans saw their own support for Hitler, explains it away. This does seem to me an error; but the error is not in the method itself -- but rather in the way that the author allegedly employs the method.
No one can apply Wolin's charge of excessive sympathy and insufficient critical judgment to Wolin himself. In his TNR article Wolin took on the role of prosecutor with regard to Gadamer, and he continues it here. In that case, he sought to demonstrate connections of affinity, influence, and motivation between Gadamer and a certain strain of German classical scholarship -- and between this strain, and support for Nazism. In this case, Wolin points, somewhat more convincingly, to Gadamer's own actions under the Nazis. He also points to the influence of Heidegger, who was, of course, for a time an ardent, and for a far longer time and unrepentant, Nazi. Wolin has spent quite some time and effort showing how deep Heidegger's Nazism went, and has been predictably lambasted by Heidegger's admirers. I think that Wolin is right that Heidegger's Nazism was not incidental. That said, he doesn't seem to me to offer an adequate account of how that which Gadamer took away from Heidegger -- an appreciation for 'facticity' -- led to support for Nazism.
I really don't know anything about Gadamer -- and know less about his work. The connections between his thoughts and Nazism is therefore a topic I'll leave to those who actually know his work well (Mr Chafetz, that means you ...) But I do have a few remarks in response to Micah's question -- thoughts about Gadamer, thoughts about the biography as described by Wolin, and thoughts about Wolin's own take.
Before I say any of this, however, two further caveats. First, although I have problems with Wolin's article -- and it will be the problematic parts on which I focus -- I also think it's very interesting, and raises a lot of important issues in a clear, informative way. I'd like to discuss more of these issues; but for the time being, can only point the reader to Wolin's article. Second, what I say about Gadamer is largely speculative, based on my own perception of his attitude to and behaviour under Nazism, as he himself later expressed it. Third, I haven't read Jean Grondin's biography, so I don't know to what extent Wolin's criticisms of it are valid.
If they are, however, then it does sound like the book is flawed. Wolin accuses Grondin of being insufficiently critical, and of special pleading regarding Gadamer's behaviour under the Nazis. At the same time, Wolin claims that Grondin's use of Gadamer's hermeneutic approach to justify the support of reasonable Germans for Nazism seems to me unfounded. There's a difference between trying to understand the mindset of those who supported the Nazis -- to try to see their own actions through their own eyes -- and accepting that account as morally valid; understanding should preceed judgment -- but in most cases judgment, sometimes harsh judgment, must follow understanding. If Wolin is fair to him, it sounds like Grondin fails to take the second step, and in exploring, in order to explain, the way in which Germans saw their own support for Hitler, explains it away. This does seem to me an error; but the error is not in the method itself -- but rather in the way that the author allegedly employs the method.
No one can apply Wolin's charge of excessive sympathy and insufficient critical judgment to Wolin himself. In his TNR article Wolin took on the role of prosecutor with regard to Gadamer, and he continues it here. In that case, he sought to demonstrate connections of affinity, influence, and motivation between Gadamer and a certain strain of German classical scholarship -- and between this strain, and support for Nazism. In this case, Wolin points, somewhat more convincingly, to Gadamer's own actions under the Nazis. He also points to the influence of Heidegger, who was, of course, for a time an ardent, and for a far longer time and unrepentant, Nazi. Wolin has spent quite some time and effort showing how deep Heidegger's Nazism went, and has been predictably lambasted by Heidegger's admirers. I think that Wolin is right that Heidegger's Nazism was not incidental. That said, he doesn't seem to me to offer an adequate account of how that which Gadamer took away from Heidegger -- an appreciation for 'facticity' -- led to support for Nazism.
Sunday, June 29, 2003
AGREEING WITH SULLIVAN; ADMIRING BELTON: I'm hoping to get around to posting on the Supreme Court's landmark decision in Lawrence v. Texas (I wrote a long, triumphant, screedy one, which Blogger ate) soon. For the time being, though, I just want to register my agreement with Andrew Sullivan's criticism of Antonin Scalia's dissent, which identifies -- it seems to me correctly and incisively -- Scalia's main points, and why they're legally shoddy and morally/politically dubious. [UPDATE: And now Andrew's done it again, with this sharp post on why, aside from his ideological or philosophical views, Scalia's behaviour as a Justice is so troubling]
I also note this post of Sullivan's; interestingly enough, my father and I -- inveterate liberals both -- had the same thought, independently (though we also thought that the affirmative action decision might've had a role in it, too.)
Incidentally, speaking of ol' Strom, Patrick Belton has a handsome tribute to the man. That Patrick can see worthwhile virtues in even Thurmond is evidence of what a fine, overflowingly generous and overwhelmingly kind person he is (as was, on a more personal level, his [and Josh Chafetz's] helping me with my suitcases as I left Oxford yesterday -- thanks guys! [This, of course, was an example of the glories of neo-conservative conspiracies at work.]) I'm afraid that, not possessing such a good nature myself, my own thoughts about Thurmond and his demise are rather less gracious or admirable. But I do think that Patrick's post is a good sign that some of us, at least, have managed to both retain the best of the past, its 'charm, honor, and graciousness', while not falling prey to any of its evils.
Indeed, the decision of the Court in Lawrence v. Texas; and the transition or transformation, as it were, from Thurmond to Belton, are two hopeful signs of the moral progress of our country, and give heart even to such a pessimist as I.
I also note this post of Sullivan's; interestingly enough, my father and I -- inveterate liberals both -- had the same thought, independently (though we also thought that the affirmative action decision might've had a role in it, too.)
Incidentally, speaking of ol' Strom, Patrick Belton has a handsome tribute to the man. That Patrick can see worthwhile virtues in even Thurmond is evidence of what a fine, overflowingly generous and overwhelmingly kind person he is (as was, on a more personal level, his [and Josh Chafetz's] helping me with my suitcases as I left Oxford yesterday -- thanks guys! [This, of course, was an example of the glories of neo-conservative conspiracies at work.]) I'm afraid that, not possessing such a good nature myself, my own thoughts about Thurmond and his demise are rather less gracious or admirable. But I do think that Patrick's post is a good sign that some of us, at least, have managed to both retain the best of the past, its 'charm, honor, and graciousness', while not falling prey to any of its evils.
Indeed, the decision of the Court in Lawrence v. Texas; and the transition or transformation, as it were, from Thurmond to Belton, are two hopeful signs of the moral progress of our country, and give heart even to such a pessimist as I.
