Postmodern Conservative.

States' Rights or Judges' Fiat?

Thru Ambinder, Jim Antle reveals that Bob Barr is experiencing some cognitive dissonance. As I hem and haw over California's gay marriage ruling, I don't want to come right out and say that the court's holding was legally impossible. I do want to emphasize that the opinion itself is linguistically incoherent -- 'illegal' in that sense. But I also want to admit that the reason why a ruling and an opinion like these have come into being in the first place is because public opinion itself is linguistically incoherent, and the result is that we have no real comprehension of what law means, because we have been diligently deconstructing the convictions and assumptions necessary to support a vocabulary in which the rule of law is possible. Sigh.

Returning to Barr for a minute, the implication here for me is that he is not an intelligent alternative to McCain, although he may be the 'better' alternative.

Execute Child Rapists?

I am untroubled by this, or, rather, more troubled by the incoherent and conflicting mass of arguments colliding around the issue. It's true that there are complexities here, but it's also true that the numbers are vanishingly small, and that the deeper you get into the weeds on this the farther away you get from the lame mushball that's the actual constitutional law test -- 'evolving standards of decency,' or what would honestly be called changing attitudes about attitudes about what makes us uncomfortable. Emotions about emotions: not a good foundation for the rule of law.

Libertarianism: Trivial Pursuit?

Julian hefts the gauntlet:

I'm not sure why James thinks that we libertarians, so unsuccessful in politics, have this kind of outsized influence on the culture, the advent of Reason.tv notwithstanding. I think he means "cultural libertarians," but these are not necessarily the same people who self-identify as "libertarians" simpliciter. If anything, doesn't being a committed member of a political movement mean, more or less by definition, that you're not simply seeking meaning and satisfaction through "trivial novelties"? 

Consider this Point One. Julian's right, here -- at least, the Ron Paul candidacy strikes me as the perfect example of how he's right. But notice who gets bent out of shape when Paul advocates politically libertarian positions but rejects culturally libertarian ones. Yes, there is some overlap -- see, e.g., abortion -- but in order for this conversation to make any sense (Julian also seems to acknowledge this), it must be possible to be a political libertarian in good standing without having to be a full-fledged cultural libertarian. But this reveals a certain tension. Yes, if you're a committed political libertarian active in journalism or even politics, you are eschewing the central cultural libertarian tenet that trivial novelties are in fact way more important and satisfying goods than those you get out of political activity. But let's guess at some percentages. I suspect the number of political libertarians working in politics-related fields is micronically smaller than the number of cultural libertarians leisuring along outside of politics. And this points to me toward the heart of the problem. Political libertarians have an outsized influence on the culture -- outsized, that is, relative to their actual political impact -- because they say 'the law has no right to prohibit you from doing x, y, or z', and oftentimes they are quite right, and what people hear is 'I have the right to do x, y, or z, and if I feel like it, therefore I should', suffering, from my perspective, at least, from not only faulty logic but bad choice making. (You might be surprised how lenient I end up being, here, but that's grist for another post and doesn't affect the argument.) The bottom line here is that, in the culture as it is today, political libertarianism translates, whether it wants to or not, into a line of argumentation that undermines what I think has to be the basic tenet of political libertarianism -- that there are things the government can't stop you from doing which you ought to be stopping yourself from doing. Today that maxim seems stupid to way more people than it seems smart to. That's a big problem for political libertarianism. It's the reason why there aren't any Barry Goldwaters walking around anymore, and it's at the root of the many fissures and weird contradictions within the Ron Paul movement. Moving along:

As for the substance of the claim, it strikes me as rather clearly false.  Yes, an open and pluralistic culture means you can live as a frivolous novelty junkie, but I'm not seeing the case for why it means one must. One might expect, on the contrary, that a wider range of lifestyles and communities of interest would allow each of us to be more fully committed to his own. Similarly, the idea that cultural libertarianism "destroys" political libertarianism is far from obvious to me. Rather, it seems that being able to really feel the pull of diverse conceptions of the good—and perhaps having held a few different ones at different times—might dispose people to be more circumspect about throwing state support behind any one. Perhaps James means that the "habits of the heart" inculcated by cultural libertarianism leave us all so dissolute that we'll end up needing the state to look after us. That's a larger claim than I want to take up here, but I don't think it checks out: As I argue here, for instance, the narrative that blames the collapse of inner-city family structures on the perverse values of latte-sipping elites doesn't really capture what's going on.

Consider this Point Two. Here Julian's not so right, although his argument is a strong one and in order to disagree with me on these issues it has to be made. A 'wider range of lifestyles and communities of interest' do in fact 'allow' fuller levels of 'commitment'. But they do not necessarily encourage, and (following Nozickian logic) they rarely enforce, fuller levels of commitment. In fact, 'commitment' has already emerged as the term by which we designate particularly profound levels of sustainedly consistent choicemaking -- but not necessarily anything more. 'Commitment' designates strong attachment, but still contingent attachment. Libertarianism pleasantly entrusts the duty and the responsibility for maintaining duties and responsibilities to free individuals. But on the cultural back end, it contributes to the erosion of reasons why free individuals conceive of their duties and responsibilities as undroppable. I'd rather have this than despotism, if forced to choose, but my point is we need to avoid forcing ourselves to make that choice, and that the easiest way to fall into that trap is to imagine that that choice is an either/or, binary problem.

But there's another twist too. Commitment itself isn't an on/off switch. So you can be both more fully committed to a lifestyle choice or community of interest while simultaneously amping up your recreational forays into the enjoyment of trivial novelties. Indeed that's the whole idea behind the civilizing effects of commerce. If the public goods we value are deliberately made trivial -- like, say, the Cadillac CTS -- then we may safely proliferate incommensurable and incompatible private goods satisfied by personal commitments without worrying that those desires will spill over into the public sphere and create oppressive, biased rules and regulations that cramp individual freedom. We need the public space to become filled with, or dominated by, trivial novelties in order to both restrain and protect private commitments. At least that's the logic of the argument. Julian is right that having had different conceptions of the good (or jobs, or sex partners, or sexualities, or whatever) at different times inspires a certain circumspection about institutionalizing any particular 'lifestyle preference' in the law. This is naturally because the ability to lifestyle-hop is cramped whenever the law tries to hold any one constant, or even privilege a mere handful. But more importantly, Julian overlooks the way that cultural-libertarian circumspection about importing comprehensive doctrines into politics and law is only one facet of a larger circumspection about the practice of politics generally. The same impulse that leads toward the good idea of not officializing ideologies and doctrines in political regimes leads toward the bad idea of turning over the practice of politics to centralized and efficient neutral political scientists, who will master the systems analysis that can manage the flows of resources that free individuals have permitted the government to worry about for them.

So this is where 'needing the state to look after us' comes in -- not because cultural libertarians are 'dissolute' necessarily -- although some certainly are -- but because cultural libertarianism inspires citizens as a matter of logic to seek goods that require freedom from politics, and, sometimes, the active destruction of politics. Julian's resistance to this pressure -- laudable as it is -- shows up again in his unwillingness to grant what Kerry Howley speaks of flatly as mobility rights. Whereas Kerry is unafraid of affirmatively disintegrating citizenship, Julian wants to keep it more or less intact while also accruing to individuals the material benefits of their moral right to consociate. This fissure among libertarians seems to me to be central to the dilemmas bandied about here. Yet cultural mobility rights language is inescapable, I think, as well, internal to a polity going down the cultural-libertarian road, and so a particular ideology does wind up being imported into the public sphere and institutionalized. The Rawlsian-libertarian argument here (shudder) is yeah, 'neutralism' or whatever may be an ideology, but it's better than all others, and here's an allegedly persuasive argument why. The problem though is that the terms of the plain Rawlsian argument center precisely on justifying cultural neutralism's 'betterness' on political grounds. Cultural neutralism is better because it's better suited to political liberalism. But, again, cultural neutralism pulls us away from the practice of politics. So on the left you get only one right, the right to do as you please, and on the right you get only one right, the right not to be at risk of terrorism. It's startling that conservatives endorse torture only when it's done by the government and liberals endorse it only when it's done by consenting adults. The same minimization of rights, and minimization of politics, is at work, and it's egged on by cultural libertarianism, which is compatible with both government torture and bedroom bloodletting.

None of which is to say that Julian's guilty of helping America turn into an S&M society. I instinctively agree that the values of the latte class are not to blame for the decay of the urban environment. But simply because the values and interests of the urban lower class and the values and interests of the urban upper class are different does not mean that they both don't translate into an active vested interest in minimizing political liberty and turning it over to administrative despotism, which, I would argue, they do.

And on one final note, just as I alleged that cultural libertarianism tends to undermine political liberalism, there is a strong case to be made that cultural liberalism likewise erodes political liberalism (as I've just suggested) and moreover that cultural conservatism damages the integrity of the premises of political conservatism. But that's another story.

Mukaseyboarding

The good Prof. Arend has a nice series of posts/pictures/paintings confronting Mukasey's apologetic demurral on the question of whether waterboarding is torture. I've been meaning to discuss this for some time because I think somewhere along the line I made some kind of similar demurral while nonetheless strictly rejecting torture. That line of thinking, and Mukasey's, is ethically and analytically incomplete, and I try to bring it to completion here.

As I continue to think about it I conclude that ten consecutive waterboarding sessions sounds like a blatant case of torture and one waterboarding session sounds like definitely not torture. I want to be clear that even six waterboarding sessions in a row sounds a very much lot like torture -- especially if we presume that the tortured has no idea how much longer this could go on, either consecutively or spread out over a nice series of days or weeks or months. But just as obviously we could all endure one good waterboarding and come out shaken but nowhere near the broken condition that we all think of when we think of torture -- even if caught rather by surprise. This of course is the 'diabolically humane' genius of waterboarding. If one waterboarding session is torture, why then so are a lot of other relatively quick and transiently horrifying experiences, like having a gun pressed to your temple for ninety seconds.

I can't persuade myself that we get anywhere ethically or analytically by trying to parse out at what point the feeling aroused by one waterboarding is converted by circumstance, repetition, and prior senses of powerlessness into torture, which I feel confident it fairly rapidly does. So in strictly legal terms Mukasey is not, I have to admit, saying something screamingly incorrect by dodging this important question.

Nonetheless it does not suffice to say that the only reason I can answer it and he cannot is he is about to be made Attorney General and I am not.

The answer here to my mind has to be that waterboarding, like a lot of things, becomes torture the more you do it, and because it is a brief and (at least for the first time around) self-contained procedure it conduces toward the kind of repetition that can therapeutically evade in the mind of the interrogator the sensation of really torturing somebody. And in that manner its 'abbreviated non-torture' character actually corrupts it; though 'a waterboarding' may not be torture, the practice of waterboarding tends toward torture, and that should be sufficient for us to make some kind of rule about it, because torture is an inefficient and often counterproductive to the point of self-defeating exercise for the purposes that we avowedly interrogate aggressively or 'enhancedly' or whatever.

On the one hand, this analysis itself is a little contorted. I do not think it is tortured. I think it is important to walk through the argument patiently and without skipping steps we feel too unsure or too sure of ourselves to do one at a time. We need to provide not just plausible but roundly convincing accounts to ourselves about what torture is and what torture is not, what we may do and what we may not. Waterboarding merits extra careful attention because it has come down to us as the product of a science of coercion designed to inflict maximum short term distress and minimum lasting harm. As such its therapeutic value to the guilty conscience of the interrogator is profound. Rather than a cowardly act of semantics, I think the hair-splitting here -- which importantly winds up resulting in rulemaking that is disinclined to split hairs -- involves the moral bravery required to etch firm interdicts against bad conduct in a realm where we by nature and by law attempt to press right up against the limits of good conduct. And limits, unlike prohibitions, can be shifted under pressure with less stress to the shifter. Waterboarding is a science of pressing on limits without breaking prohibitions, and in that manner its real danger is clear.

It can be simultaneously true that waterboarding as such is not necessarily torture and that its practice should be banned. A 'one-dunk' rule would, in my judgment, keep the waterboard while prohibiting torture. But does that seem like a worthwhile policy that's better than the alternatives? My conclusion, and, hopefully, yours too, is that it doesn't.

Eww

Something that should never have been named and should not ever exist: law porn.

Lincoln as Gimp

A few more final words, for now, putting these earlier on Lincoln in sharper relief. There is the strange phenomenon today of Lincoln both disappearing generally and becoming ever-more-totemic specifically. As he ascends to uncriticizable heights among those who think at all well of him, and becomes all-too-easy to kick around for his dwindling detractors, he slips like a receding ghost out of the truly public eye. Why?

Those who criticize Lincoln sometimes have a difficult time countenancing his greatness of soul; they want him to be not just a tyrant but a petty tyrant, and then only a petty tyrant. The cognitive dissonance aspect of this is clear, but there is something more. Those who praise Lincoln most praise him politically, thereby, imaginatively, praising him best. It's uncomfortable enough a reckoning nowadays with the awesome depths of his Christianity, only in which context can we understand his fakir-like faith in America, and thus too the astonishing capacity of his soul to take up -- and set up others upon -- the political crosses of the suffering sovereign.

And this is what Lincoln's small-l liberal fans least want to acknowledge: the suffering of the scourge. War in the terms of the Lincoln myth acknowledges suffering only insofar as it is purified through the greatness of Lincoln's, the slaves', and the 'volunteered' Union Army's glorious political heroism. The movie's called Glory for a reason, Halleluja neatly repressed; the 'local flavor' of the Colored Regiments' hosannahs are clearly staged to give whiteys everywhere a satisfyingly vicarious experience of visceral communal rhythm. The solidarity that Christianity provided slaves and ex-slaves, thin gruel that it was among solid humans deprived of all other (the insinuation is fuller) tools to develop the capability of human solidarity, serves in this fashion as merely the motif of what really matters: political freedom, won by blood against its foes. O happy day.

But of course for Lincoln it was no happy day at the last moment of triumph he could politically enjoy -- his re-inauguration, and from beginning to end his administration brought horrible after horrible year, because Lincoln decided to act as he did. Only Providence could account for the particular horror that the horror played out as long and deep as it did, but Lincoln's courage of action, though he acted politically, was not political courage, at least not as someone who won't cheerlead both for Lincoln and Machiavelli (and a certain, unpopular kind of Machiavelli at that) can understand it. This is because Lincoln's courage to scourge was sacred, not political; that he was President when presented with an inescapable crisis of American legal, political, and moral epistemology meant that the vertical distance between the sacred and the political collapsed in the vacuum of power and authority, which stand in truth in a hierarchical relationship which can only be restored by its reassertion, this even if by force.

The complexities and uncompromising reckonings of this fact -- and, most, its inescapability, unchanged since Lincoln though diligently and ever-more-expertly repressed -- are offputting to moral pragmatists elite and common alike. What Alasdair MacIntyre called a pragmatism and a nominalism of the philosophers and a pragmatism and a nominalism of everyday life takes in the first case "the form of theories" and in the second case "the form of a socially powerful way of reimagining the self." The theory that we may become what we imagine is anti-Lincolnian in every sense -- the strongest in its parodic and lying appropriation of Lincoln's theology of redemption. So the strange complementary hardening of Lincoln worship and disappearance of the public Lincoln looks specifically like what I have started to discuss generally -- Constantian usurpation, which teaches itself that most modern lesson most useful to moderns: the best way to seize power away from those whose power is authorized and to seize the appearance of authority from authority itself in a single stroke is to invert the hierarchical relationship of authority to power. In short, make authority the slave of power, the flattering subject at your royal court, just one of several noble fops among the courtiers, indeed, one with a special little booster seat at the royal table, a special name, that is, conferred title. When authority becomes Polonius, the Claudine usurper has usurped. Lincoln-worship becomes a certain form of court etiquette within the salon society of (small-l) liberal Americanism meant to flatter the particular power of the American political creed.

This is not to be confused with the phrases 'meant to send a message about' or 'meant to send a strong signal about' the 'sense of respect' paid to the particular power of the American political creed. This is real fealty to real power, the political power of enforcing political freedom, the ass-kicking quality of progressive American perfectionism that sees its eternal and present common configuration among optimistic interventionist internationalist neoconservative-neoliberals and neoliberal-neoconservatives. How much do these people really have a repressed disgust for authority? Sometimes only the practical reasons are thought through -- look over there, some human beings just as human as you and I are suffering under the yoke of absurd, primitive, false, and crippling doctrines -- but sometimes it's more than that, a bedrock conviction that all authority external to human power is a fraud and a lie cooked up to keep people from learning and actualizing their full capabilities. All this is inimical to Lincoln, who set the terms of the good life not according to full human capacity but far beyond it and thus beneath it, at the Godly life. As President he could think but not act solely in those terms, and as politician he thought politically too anyway. But saving the union was a frankly Providential mission for Lincoln; he inherited an American political creed as much as through him it was born again. His sacred truths that have now been studiously half-translated (so as to encompass and domesticate the sacred as 'religious-ness', just one of many aspiration-based sets of attitudes about the choices we should make together on Earth) into political optimism, political interventionism, and so forth, and the result of this is that Lincoln is both necessary to have around in a token sense -- in a pinch the gimp of authority may always be trotted out -- and also necessary to keep locked up and gagged in the basement, where in 'normal life' he is of little use and some guilty embarrassment.

* * *

All of this is a particularly pulpy factual exegesis of Philip Rieff's diagnosis of Lincoln as contemporary Polonius in My Life among the Deathworks (2006). "Lincoln suffers for being a scourge and minister of the American social order," he wrote.

[...] He knows that he must pay for the massive bloodletting he has released. Lincoln is still, 140 years after his death, being scourged. Lincoln is the last, and perhaps only, sacred messenger and figure of grace in U.S. history. His memory is a casualty of the war against sacred order and its embodiments. He has been wiped out, replaced by President's Day. The displacement of Lincoln by such a vaguery, meaningless to most Americans, is part of the kulturkampf.

Cultures without sacred messengers are in trouble. Lincoln himself rose from the lowest social classes -- his parents could not read. How is the population to understand the vertical, the rise that is always possible, without the supreme figure of Lincoln?

Lincoln's removal from American mythology -- the elimination of his birthday, the typical criticisms in contemporary documentaries -- is part of a scourge of Lincoln, the minister of highest authority. [...] ironically, this tragedy inverts the real tragedy of the Civil War. It is as a scourge that Lincoln is scourged by highest authority; he pays for the war he believed was just and necessary, as it may have been. Nevertheless, like Moses, he must be scourged. To unleash mass killing, whether just or not, is to be a scourge, which is inevitably transgressive because it is uncontrolled and allows human vanities and excesses to be expressed. But Lincoln's present scourging by [contemporary] elites is for his office of minister, not scourge (171-2).

So can a person rightly and truly mourn the murder of Lincoln in turn while also rightly and truly confessing "sic semper tyrannis." The crucial line between religion/authority and politics/power is kept intact -- not a horizontal Berlin Wall but a vertical chain link that separates in hierarchy. But this mode is entirely inimical to moral pragmatists of the town or gown variety.

Battered Justice Syndrome

Apparently, the book also repeats  something I've discussed before -- Ginsburg circulated an appropriately tough dissent in Bush v. Gore but immediately withdrew the passages that offended Scalia after he complained. (Coming from Scalia, these complaints about tough rhetoric exposing the illogic of a majority opinion are especially ridiculous, and I still can't believe that Ginsburg would give in to the bullying.) -- Scott Lemieux, Lawyers, Guns and Money

What a dago thug that Justice Scalia is! And all the while I'd though Jeff Rosen was not on crack when he wrote in the New York Times what's been, then and since, common knowledge in DC:

Ginsburg's emphasis on procedure has no doubt helped to sustain her longtime friendship with Antonin Scalia, which dates back to their days together on the U.S. Court of Appeals for the D.C. Circuit. For years, the Ginsburg and Scalia families have gathered together for a black-tie New Year's dinner at the Ginsburgs' elegant apartment in the Watergate. (Martin Ginsburg and Maureen Scalia share the cooking.)

Just another married bully and his submissive galpal, carrying on another enduring one-way relationship of abuse. Over asparagus spears. Souter wept.

Emphasis on 'Combatant'

Federal investigators found credit card numbers on Al-Marri's laptop computer and charged him with credit card fraud. Upon further investigation, the government said, agents found evidence that al-Marri had links to al-Qaida terrorists and was a national security threat. Authorities shifted al-Marri's case from the criminal system and moved him to indefinite military detention. -- Breitbart / AP

So this guy al-Marri cannot, for now, be held as an enemy combatant; but why isn't the judicial opinion a one-liner, to wit, Someone who commits credit card fraud and has friends in al Qaeda isn't a COMBATANT. Far too obvious and minimalist for courts these days, that sort of 'ruling' -- which is really just an observation of fact matched with a flip through the dictionary -- falls away in favor of hot-under-the-collar pronouncements on Rights and Security. Disastrous consequences! Stealth warriors! One needn't lapse into gavel-pounding to avoid trivializing both law and jihadery.

It seems clear on its face to me that anyone in this country, resident, citizen, or otherwise, who began running around out of uniform making impromptu war upon the United States and its legal beneficiaries would at once qualify as an enemy COMBATANT, i.e. someone participating in combat against Us. How is this different than mere mass murder? I think we are clever enough to know, and I wonder how many people would have been bent out of shape if Tim McVeigh were caught in the act and thrown in the Brig. Whether or not the law is clever enough to know anything is beside the point, when our legislatures and judiciaries seem persuaded that one must be all or nothing about these things, a sure recipe for stealth disaster if I've ever heard of one.

That Abortion 'Ruling'

I'd like to write a nice long legal discussion of the merits and demerits of Carhart. But then I come across something like Ruth Marcus' anguished collection of snide potshots and lip biting and realize this probably wouldn't do any good at all, first because our abortion jurisprudence seems to be officially incoherent and second because the source of that incoherence is the practical and theoretical inability of constitutional jurisprudence to carry out its function with regard to this particular task without relying upon irrevocable decisions of law made by other organs of government or even the people themselves.

Sandra Day O'Connor notoriously declared that the Court couldn't overturn Roe because it would look like they were pandering to public opinion. Of course, in so saying, O'Connor made it clear that she -- plus the two others making up the wretched and useless plurality opinion of Casey -- was indeed pandering, but, worse, to hypothetical public opinion, rather than the real thing. She was right that abortion had become politicized, and wrong that that mattered a damn to how a case ought to come out, especially at the tippy-top of the adjudicatory mountain.

There are no constitutional grounds I can think of that would be adequate to ban partial-birth abortion, unless you think of the constitution as embedded with or not overriding certain other grounds, moral-ontological grounds, and for those, like Marcus, who seem convinced that Carhart is beholden to a particular moral view of the world -- one which we'd best leave out of our lawmaking -- then I'm at a loss as to why or how countervailing concerns, like the value of 'freedom,' 'choice,' 'personhood,' and 'ownership of one's body,' make any sense at all other than as moral claims.

We Should Slaughter Proliferation, Wright?

Making nuclear transfer a crime against humanity captures the enormity of the offense and would dramatically increase the cost of getting caught. Nuclear transfer threatens the lives of millions of people. It merits a place in infamy alongside genocide and other evils. Creating a nuclear transfer taboo would strip away feigned protestations of innocence and illusions of a victimless crime. It would stigmatize black-market financiers and other facilitators of nuclear transfers as the ultimate merchants of death. -- Anne-Marie Slaughter and Thomas Wright

"Taboo" is absolutely the wrong word choice but Slaughter and Wright are on to something. Usually I hate the instrumentalization of law for blatantly political purposes, or, worse, social ones. And international law, as I see it, is usually best shaped by strict standards unenforced and unenforceable.

But I can't cook up a single reason why nuclear transfer isn't always a bad thing given its current distribution. The only explanation I can come up with for why the Slaughter-Wright plan might not be the silver bullet we're all looking for is the problem of enforceability. Namely: would we punish Iran under this framework? (Apparent answer: yes.) If so, HOW?

I wonder if they are prepared to face the music of that particular tune. But throwing this putative solution out into the public prints is very evocative and, I think, useful. Standing international law must stand or fall on its own terms, and The International Community's record on genocide, for instance, is woeful. Someone might say, well, if you're looking for strict unenforced standards, there's one, but the injunction against genocide is a CODIFIED LAW. Flouting an agreed-to text does far more damage than leaving firm norms unenforced. If you have a written law you have an obligation, all things considered, to uphold it. Sometimes interpretation becomes necessary, but everyone knows what genocide means. Just like everyone knows what nuclear transfer means. Such bare-bones factual events seem to me ripe for plainly codified treaty bans. But again, we cycle back to the issue of enforcement; again neocons look like very vanguard constructivists.