What is this "Obligation" You Speak Of?

On the outing-gate scandal that is consuming the blogosphere, Matthew Franck writes something very revealing:

[E]xploding someone's cover and revealing his identity breaches no ethical norm I can think of. Blevins had his reasons for writing as "Publius," but Ed had no obligation to respect those reasons, and he didn't have to catch Blevins in any form of unethical argumentation in order to "out" him. I'm sympathetic to Ed's view that Blevins "smeared" him, but I haven't weighed that matter very carefully, and I don't think it counts for much on the ethical scorecard one way or the other. Ed reported a fact he had a right to tell, for whatever reason it suited him to tell it—including no particular reason at all other than that he found it useful at the moment he did it.

The claim here, that we have "no obligation to respect" the decisions of our fellow human beings; that one's choice over how to present oneself in the public eye can be swatted aside for "no particular reason at all", is astounding to me. It represents one of the attributes I find most distasteful about the modern conservative movement -- the complete dismissal of interconnectedness, solidarity, or even respectful interaction. Anything I have the "right" to do, I should be able to do without criticism or compunction. Free speech means I can make a racist joke about a co-worker. Should I? Who cares -- it's free speech! The mechanics of the law and the marketplace mean that I can make billions of dollars destroying ecosystems and horde the entire thing, spending nary a penny on the public good. Should I? Who cares -- it's capitalism! Freedom is understood to mean not just legal autonomy, but moral autonomy as well -- a kind of sick Nietzcheanism that renders basic ethical interaction superfluous. For those of us who are not only for ourselves, this sort of mentality can't help but repulse.

And that's as a general matter. On the specific point of pseudonyms, Hilzoy's post on the matter shows how spectacularly irresponsible this is. Franck admits he wouldn't out a Chinese dissident who'd be tortured if his identity was revealed. But Whelan had no idea why publius chose to remain pseudonymous. His reasons turned out to be to avoid family strife, to protect the careers of (Republican) operatives in his family, and to avoid any tenure controversies. All solid enough reasons for me. But they could have been considerably more dramatic. He might have had a stalker. He might have a boss who swore never to hire Democratic scum (unlikely given that he was an academic, but a possibility for bloggers in fields without strong norms of academic freedom). The point is, we didn't know. And in absence of that knowledge, Whelan cavalierly decided to roll dice with publius' life. Because he had the right to. And that's all that matters.

Rights and Left

Rights discourse is internally inconsistent, vacuous, or circular. Legal thought can generate equally plausible rights justifications for almost any result. Moreover, the discourse of rights imposes constraints on those who use it that make it almost impossible for it to function effectively as a tool of radical transformation. Rights are by their nature ‘formal,’ meaning that they secure to individuals legal protection for arbitrariness—to speak of rights is precisely not to speak of justice between social classes, races, or sexes. Rights discourse, moreover, simply presupposes or takes for granted that the world is and should be divided between a state sector that enforces rights and a private world of ‘civil society’ in which atomized individuals pursue their diverse goals. This framework is, in itself, a part of the problem rather than of the solution. It makes it difficult even to conceptualize radical proposals such as, for example, decentralized democratic worker control of factories.

Because it is logically incoherent and manipulable, traditionally individualist, and willfully blind to the realities of substantive inequality, rights discourse is a trap. As long as one stays within it, one can produce good pieces of argument about the occasional case on the periphery where everyone recognizes value judgments have to be made. [ Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal Educ. 591, 598 (1982)]

Duncan Kennedy spoke for a large portion of the Critical Legal Studies movement when he wrote these words in 1982. CLS scholars were, at the time, launching a left-wing Marxist attack on the traditional structures and assumptions of legal institutions. Critical Legal Studies attempted to subvert the supposed coherence of our dominant legal categories, exposing them to be actually chaotic and incoherent, and then examine what sorts of entities would have the interest in (arbitrarily) constructing legal reality as we now find it. One of their favorite targets was the idea of "rights", which they thought were (to say the least) overrated. CLSers dedicated themselves, in fact, to "trashing" rights -- exposing them as indeterminate, inchoate, and manipulable to whatever ends desired by the empowered classes.

The Critical Race Theory movement grew out of CLS, and agreed with many of its observations. The writings of Derrick Bell, in particular, took the legal world by storm as an indictment of some deeply held assumptions about the utility of the legal system as a tool for effected civil rights reforms -- particularly given Bell's history as a front line attorney for the NAACP's Legal Defense Fund during the height of the civil rights era. Most Critical Race Theorists agreed with Bell that the efficacy of rights talk had been wildly overstated by self-congratulatory White folks, and that progressives needed to reevaluate their options.

Nonetheless, fissures rapidly began to appear between the largely White CLS movement and the more integrated CRT wing. These came to a head in 1987, when the Harvard Civil Rights-Civil Liberties Law Review published a symposium entitled, simply enough, Minority Critiques of the Critical Legal Studies. One of the primary angles of attack, ironically enough, was that CLSers had gone too far in their dismissal of rights, legal remedies, and formal legal protections. In her contribution, Patricia Williams -- one of the most important contributors to Critical Race Theory -- told the following story, which has stuck with me for a long time:

Some time ago, Peter Gabel [a founder of Critical Legal Studies] and I taught a contracts class together. Both recent transplants from California to New York, each of us hunted for apartments in between preparing for class and ultimately found places within one week of each other. Inevitably, I suppose, we got into a discussion of trust and distrust as factors in bargain relations. It turned out that Peter had handed over a $900 deposit, in cash, with no lease, no exchange of keys and no receipt, to strangers with whom he had no ties other than a few moments of pleasant conversation. Peter said that he didn't need to sign a lease because it imposed too much formality. The handshake and the good vibes were for him indicators of trust more binding than a distancing form contract. At the time, I told Peter I thought he was stark raving mad, but his faith paid off. His sublessors showed up at the appointed time, keys in hand, to welcome him in. Needless to say, there was absolutely nothing in my experience to prepare me for such a happy ending.

I, meanwhile, had friends who found me an apartment in a building they owned. In my rush to show good faith and trust-worthiness, I signed a detailed, lengthily-negotiated, finely-printed lease firmly establishing me as the ideal arm's length transactor.

As Peter and I discussed our experiences, I was struck by the similarity of what each of us was seeking, yet in such different terms, and with such polar approaches. We both wanted to establish enduring relationships with the people in whose houses we would be living; we both wanted to enhance trust of ourselves and to allow whatever closeness, whatever friendship, was possible. The similarity of desire, however, could not reconcile our very different relations to the word of law. Peter, for example, appeared to be extremely self-conscious of his power potential (either real or imagistic) as a white or male or lawyer authority figure. He therefore seemed to go to some lengths to overcome the wall which that image might impose. The logical ways of establishing some measure of trust between strangers were for him an avoidance of conventional expressions of power and a preference for informal processes generally.

I, on the other hand, was raised to be acutely conscious of the likelihood that, no matter what degree of professional or professor I become, people would greet and dismiss my black femaleness as unreliable, untrustworthy, hostile, angry, powerless, irrational and probably destitute. Futility and despair are very real parts of my response. Therefore it is helpful for me, even essential for me, to clarify boundary; to show that I can speak the language of lease is my way of enahncing trust of me in my business affairs. As a black, I have been given by this society a strong sense of myself as already too familar, too personal, too subordinate to white people. I have only recently evolved from being treated as three-fifths of a human, a sub-part of the white estate. I grew up in a neighborhood where landlords would not sign leases with their poor, black tenants, and demanded that rent by paid in cash; although superficially resembling Peter's transaction, such "informality" in most white-on-black situations signals distrust, not trust. Unlike Peter, I am still engaged in a struggle to set up transactions at arms' length, as legitimately commercial, and to portray myself as a bargainer of separate worth, distinct power, sufficient rights to manipulate commerce, rather than to be manipulated as the object of commerce.

Peter, I speculate, would say that a lease or any other formal mechanism would introduce distrust into his relationships and that he would suffer alienation, leading to the commodification of his being and the degradation of his person to property. In contrast, the lack of a formal relation to the other would leave me estranged. It would risk figurative isolation from the creative commerce by which I may be recognized as whole, with which I may feed and clothe and shelter myself, by which I may be seen as equal--even if I am stranger. For me, stranger-stranger relations are better than stranger chattel. [Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401, 406-408 (1987)]

Williams story evokes part of the general CRT discomfort with the CLS/Marxist attack on "rights" as a concept. People of color, Williams argued, are well aware that rights aren't all they're cracked up to be. They are not a panacea, and they can be manipulated to support near-infinite policy ends -- including brutally oppressive ones. But at the same time, Williams knows well the difference between even nominally being part of the rights-world and being excluded from it. One has the luxury to be alienated by legal formalities only when can be secure that informality will still accord you basic respect and dignity -- a luxury not held by people of color of all classes and backgrounds. The right to hold rights at least provides an foothold -- an avenue which the dispossessed can pivot from and assert claims against those wronging them; the pages upon which one can write a counter-narrative to the dominant conception of rights interpreted solely to protect the privileged.

Even losing a rights-claim is superior to not being allowed to assert the claim in the first place. The act of “[n]aming violence inside and outside the courtroom bears witness to it and preserves the possibility of judging it.” Undoubtedly, the forces of the legal system will attempt to refract the claims and stories so as to ratify the existing order. But stories are fickle things – they are not always read the way their authors intended them to be. Martha Minow points out that even losing arguments can still remain quite powerful “if they continue to represent claims that muster people’s hopes and articulate their continuing efforts to persuade.” One can lose a lawsuit, but still win “pages in the works of historians and anthropologists, and a chance at reviving and recasting memories." [ Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 Yale L.J. 1860 (1987); Martha Minow, Not Only For Myself: Identity, Politics & the Law 82 (1997)]

Critical Race Theory today remains a vibrant field; Critical Legal Studies, by contrast, is nearly moribund. The reason, I submit, is because the groups it thought it was speaking on behalf of still saw a use for rights, for legal formalities, for contracts, and for law -- all entities that CLS was seeking to "trash". Elsewhere, Williams wrote:

To say that blacks never fully believed in rights is true. Yet it is also true that blacks believed in them so much and so hard that we gave them life where there was none before; we held onto them, put the hope of them into our wombs, mothered them and not the notion of them.... [Patricia J. Williams, The Alchemy of Race and Rights 163 (1992)]

The promises rights hold out: to speak freely, to bargain equally, to be treated fairly -- these are powerful things. Even when dominant legal discourse seeks to squash them of any life, the concepts they represent do not die so easily. The seeds of life are always there, yearning to germinate.

Hating America

Last year, I wrote a post asking whether or not people would have thought it morally justified for Blacks in 1856 to engage in a full-on revolution in America, violently marching on Washington and overthrowing the government. Most people, somewhat to my surprise, agreed that it would have been.

In my post yesterday on the detainee rights ruling, I noted that -- in response to reports that some released Guanatamo detainees had committed acts of violence against American troops -- it's entirely possible that they were radicalized by their time in American detention. Limitless, lawless detention mixed with torture does tend to have that effect, as countless authoritarian dictatorships can testify.

So off of that, my question for today is: what would have to happen for us to say that an individual person is justified in "hating America", to take up arms against her and seek to ruination (the same way an Iraqi might have rebelled against the Hussein regime)? It seems to me that detaining and torturing someone in an isolated, extra-legal prison with no legal proceedings or due process rights would easily cross that threshold, such that, even if I had no particularly negative feelings towards America prior to the ordeal, I'd sure have some rage at the country afterwards.

The type of activities we engaged in when we authorize these detentions and allow for this torture, these are terrorist methods. They are the sort of things that are worthy of hate. Which means that when we sanction them, we are rendering ourselves worthy of hate. It is terrifying to me to watch as so many in my country -- people who claim to be patriots -- want to make America into an object deserving of contempt and rage.

Stuff That Gets People Killed

Tom Lasseter's report on innocent people detained by the United States in our war on terror (remember this case?) reminds me of my reaction how Scalia characterized the majority's ruling in Boumediene. He said that the court's ruling, giving detainees Habeas rights against their indefinite detentions, "will make the war harder on us. It will almost certainly cause more Americans to be killed."

He might be right. He might not be -- I'm skeptical there is no trade-off by which our continued flouting of human rights doesn't redound back against us in the form of more violence (when Scalia pointed to several released detainees who engaged in acts of violence against American troops, my response was "well sure -- if they didn't hate America before, they sure as hell do now!"). But he might be right. It is entirely possible that, in the wake of this decision, our jobs will become harder, and more Americans will be killed.

You know what else has that effect? Rights. The fact that the police can't just bomb apartment buildings with suspected criminals inside puts officers at risk. Some, inevitably, will be wounded or killed as a result. Yet, we restrict ourselves anyway. Every right afforded to criminal suspects (a significant concern of our bill of rights) could be cast as putting Americans at risk. The "safe" thing to do would be to shell "bad" neighborhoods into submission and then round up the survivors and place them in internment camps. That would keep Americans alive. It would just be hideously immoral, so we don't do it.

The point is that being a moral human being means that there are some things we can't do, even if they're in our immediate security interests, because they're wrong. In the context of war, certain tactics definitionally cause us to lose the war even if they help an individual battle. When Scalia makes this sort of argument, he betrays a basic misunderstanding of what it means to live in a free society -- in a society that cares about morality, in a society that is constrained by the constitution. "Security" simply does not give us free license to do whatever we want. What Scalia wants is for America to have the liberty to become terrorists. Our founders were wise enough to chart a different course.

Breathing Life

There was just one more thing I wanted to follow up on with regards to my S-V-S post. I had asked whether or not The Apostate had used the critical language in her post ("erase", "lived experience", "silenced") sarcastically or not. I could certainly see it, though what I was hoping for was ironic. In my comments, she told me she was "half-sarcastic."

This matters to me because, as I said, I do not want the tools and rhetoric I value so much to be seen as an adversary, as an enemy, to those who need it. But of course, often they are. The question is, can they be reclaimed?

Post-modernists will tell you that every narrative, every tale, contains within it the seeds of its own destruction -- or at least subversion. In The Alchemy of Race and Rights, Patricia Williams wrote:

To say that blacks never believed in rights is true. Yet it is also true that backs believed in them so much and so hard that we gave them life where there was none before; we held onto them, put the hope of them into our wombs, mothered them and not the notion of them.

On the one hand, the language of law has for much of American history been the enemy of Blacks, and the rhetoric of rights mocking. Nobody, more so than African-Americans, would have more justification to be cynical about law's capacity for justice, or the ability of "rights" to protect.

But Blacks did not abandon rights. They did not abandon the language that had tormented them for so long. They clung to it harder. They squeezed rights so hard that they breathed life into what was a hitherto dead concept. Rights talk, even though it was for so long a hollow hope, also had a kernel of hope contained into that Blacks grasped onto and made into something real.

Likewise, I believe that within the critical concepts The Apostate uses -- the demand for space and recognition, the protest against privilege and presumption, the refusal to be erased to fit some master narrative -- there is a spark of truth. It is a spark that we cannot cede if we want to be truly free. The only reason the enlistment of these terms feels so mocking, I dare say, is because of that spark. Because even though they represent our truth and our needs and our very lives, they often as not are found on the other side from ourselves. And that hurts.

Quote of the Evening: Rights Talk

From the ever-brilliant Martha Minow:

"Rights" can give rise to "rights consciousness" so that individuals and groups may imagine and act in light of rights that have not been formally recognized or enforced. Rights, in this sense, are neither limited to nor-coextensive with precisely those rules formally announced and enforced by public authorities. Instead, rights represent articulations -- public or private, formal or informal -- of claims that people use to persuade others (and themselves) about how they should be treated and about what they should be granted. I mean, then, to include within the ambit of rights discourse all efforts to claim new rights, to resist and alter official state action that fails to acknowledge such rights, and to construct communities apart from the state to nurture new conceptions of rights. Rights here encompass even those claims that lose, or have lost in the past, if they continue to represent claims that muster people's hopes and articulate their continuing efforts to persuade.

Martha Minow, Interpreting Rights: An Essay for Robert Cover, Yale Law Journal 96 (1987): 1860-1915, 1867.

UPDATE: I should clarify that this is not the rights conception "from the left" -- it is part of the conception by Minow, and presumably some fellow travelers (which, in turn, includes me to some extent) -- most of whom, I admit, are "from the left" to greater or lesser degrees. We are, alas, not all that powerful people -- certainly, we are not the shadowy cabal that controls "the left" and dictates its opinions.

Pluralism at the Founding

Georgetown Law Professor Nicholas Quinn Rosenkranz has a paper coming out in the Stanford Law Review that proffers some interesting history regarding the history of the American political institutions. He is responding to Cass Sunstein and Eric Posner's use of Condorcet's Jury Theorem in support of citations to foreign law:

It turns out that Condorcet's vision of law and politics was distinctly "universalist," imagining all people everywhere seeking the correct answer to questions of law and policy. This universalist vision is central to the Jury Theorem, the most basic condition of which is that each "juror" answer the same question. And it is also essential to the Posner-Sunstein application of the Theorem, which posits that questions of law will often be relevantly similar from country to country. But the Framers' vision, as reflected in many of the Constitution's textual and structural features, was distinctly more localist. As careful analysis of features like bicameralism, federalism, juries, and the amendment mechanism demonstrate, the Constitution favors decision-making mechanisms that harness multiple collective bodies with distinctly varied geographic and institutional perspectives, each answering subtly different questions. In short, despite Condorcet, the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states.

The emphasis is my own. I venture no opinion on the impact of Rosenkranz's analysis on his topic of choice. But I am intrigued by how this provides a historical root to the importance of the pluralism of perspective in the American political tradition. My fellow travelers in the more post-modern strains of contemporary liberalism have pushed this mantra. Iris Marion Young argued in her book Intersecting Voices that "Normative judgment is best understood as the product of dialogue under conditions of equality and mutual respect. Ideally, the outcome of such dialogue and judgment is just and legitimate only if all the affected perspectives have a voice." Justice demands that those we are affecting get to input the process. But it isn't just an obligation--it also seems likely that hearing from diverse perspectives will lead to better policymaking. One group may have insight where another might be blind.

Traditionally, the analysis by Young and her peers has been seen as a radical break from dominant American political thought--emphasizing the plural over the universal. As Rosenkranz demonstrates, however, this is not entirely accurate. Though the unifying language of "We the People" has come to dominate our historical memory of the founding generation, there was quite a strong emphasis by the founders that recognized the distinctiveness of persons and groups and celebrated what each could bring to the table. John Jay in Federalist #2 buttressed the legitimacy of the Continental Congress by noting how "being convened from different parts of the country, [the delegates] brought with them and communicated to each other a variety of useful information." Madison's work in Federalist #10 made group differences the prime defender of American liberty, hoping that a diverse array of factions would play off each other to insure everyone's rights are protected. The large union was instrumental to insuring that a diverse array of views and interests were represented, while smaller communities were understood to be more segregated and homogeneous.

The smaller the society, the fewer probably will be the distinct parties and interests composing it, the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or even if such a common motive exists, it will be more difficult for all who feel it to discover their won strength, and to act in unison with each other.

The good being pursued here is diversity and plurality. "We the people" is in some ways an outlier. Though we are united under banner, our strength comes from our varied perspectives--that which makes us different. E Pluribus [Voces], Unum.

PS: I apologize for my guess at Latin in advance.