Sunday, February 24, 2008

Of Fugitive Slaves, Gay Rights, and The Line Through My Heart

The latest salvo in my and Mark's ongoing debate on questions of race focused specifically on whether states qua states should apologize for past moral atrocities (slavery, Jim Crow, the "lost generation", Native American genocide, the Holocaust, etc.). I argued that insofar as state actors are often instrumental in the promulgation and implementation of these atrocities, the state bears a share of the responsibility for which it must atone for. This is especially true when the victims conceptualize the wrongdoing as emanating from (at least in significant part) the state, as oppose to disorganized or irregular individuals (as in all four of the examples I mentioned above). Moreover, governmental sanction channels, directs, and legitimates power and violence. I can't sentence a person to jail no matter how snappy a black robe I buy, and I can't keep them there just because I own a natty blue uniform. It is the weight of governmental authority, in the form of a judge or a police officer, that grants me such authority. Indeed, this imprimatur transfers moral authority beyond our own personal knowledge and experience. A prison guard doesn't "know" that his wards deserve to be locked up -- he conducted no fact-finding mission, he held no trial. Yet he is morally allowed to imprison them (through threat of violence) because another governmental actor (a judge) tells him that this one committed murder, that one treason, that one robbery. That transfer of knowledge is only considered legitimate because it is governmental -- if a random person off the street points out a pedestrian and says "he's a murderer", the moral authority does not carry.

Mark responded that states are really just "phantasms", mere collections of individuals, and that there is no absolution or even relevancy in that "the state" (which, Mark would argue, is actually just individual legislators, bureaucrats, judges, etc.) is urging you to kill the Jews. He put forth, once again, his beloved quote by Solzhenitsyn about how the line between good and evil is drawn through every human heart. "[I]t is every human heart," Mark writes, "that needs to repent for things done, not those heartless state organs."

Unfortunately, I had to drop the thread while I was traveling to Virginia. I still think that it is more than obvious that the state in its own right creates power that did not exist before, which is why Judge John Anderson in chambers can sentence me to prison (and the guard will listen) but Mr. John Anderson on the street cannot. But I want to pick up this discussion of state relevancy, and the idea that the only thing that matters is the line through the heart, because I think it will lead to some positions Mark will be quite uncomfortable with.

The one of the main works of the late, great Robert Cover was an exploration of how Northern, anti-slavery judges reacted when they were asked to enforce the Fugitive Slave Act. The Fugitive Slave Act, I think we'd all agree, is an unambiguously monstrous law. It also, at least as far as lower court judges were concerned, was almost definitely constitutional under Article IV, Section 2 of the constitution. What does Mark think that these judges -- in their capacity as judges -- should have done?

One answer is to simply refuse to enforce the law. The law is evil, even if (in the words of Mark Graber) it is a "constitutional evil", and ultimately they must be guided by that line through their heart. If government demands evil, government must yield.

But let's take that idea and apply it to the modern day. I don't know Mark's position on Lawrence v. Texas (which outlawed prohibitions on sodomy in America). I suspect, however, that he does not believe that there is a constitutional right to gay marriage. For my part, laying the legal question aside, I find laws which prohibit gay marriage to be profoundly, monstrously evil. Not evil on the scope of slavery, but comparable to laws prohibiting inter-racial marriage, with the difference being only that of the number of people affected. Many people agree with me. Many people disagree with me quite profoundly -- they find the prospect of gay marriage to be that which is evil. Were I a federal court judge, would Mark advise that I push the legal questions aside and decide a prospective gay marriage case solely based on the "line through my heart" (which would lead me to invalidate the prohibition with extreme prejudice)? What of my colleagues who believe the reverse, and would prohibit gay marriage regardless of law if they follow their own line? Is Mark willing to allow for this sort of legal anarchy? And we could observe this same paradox in other cases -- most notably abortion -- where advocates on both sides see the alternative universe as being not just "wrong" but utterly and profoundly evil.

Of course, the prevailing rhetoric out of the right points in the precise opposite direction. They are outspokenly opposed to deciding cases based on the judge's personal moral precepts. Apply the law, don't make the law. Don't legislate from the bench. Don't impose your agenda on society. Mark has seemed to buy into this theory as presented by Scalia before, albeit more in the context of "dumb" laws than of evil ones (but then, I truly consider the laws at stake in Lawrence, to which he and Scalia were referring, to be evil, not stupid). And yet, as far as I can tell, from Mark's perspective this is letting the mechanics of government supersede the line through my heart. The legislature, the polls, the laws, the precedent, the constitution -- these are all the work of people. They have no special hold on me. Their power is phantasmic. And insofar as they point me towards the evil of anti-gay discrimination, I should simply ignore them.

But I do believe that I-as-a-judge have some obligation to the government, of fidelity to my position. It is a fidelity with limits, but it does exist, it is not a phantasm, and at times it will force me to write decisions I think are at odds with my vision of a moral society. And it is because of that, that I do not believe we can simply push away the question of governmental responsibility. The line may be through my heart, but government can influence the stroke of the pen. At the very least, governments know that their status as government is almost assured to alter the course of history. That's power. Power can be abused. And abuses require apologies and atonement.


PG said...

I think the issue of judges is not quite the right one to raise here, because in the conservative view judges should have no part in making law; they are intellectual automatons into which you put the law and out of which spits a decision. The only good or evil heart is the one that made the legislation in the first place, and in a democracy, that of the citizen who supported the legislator who did.

But the reification of the state exists for a reason: because neither the citizen nor the legislator enforces the law, and as you say, it's the men with guns who do. For their use of force to be legitimate, it must come from the state.

It comes back to the concept of civil disobedience: do you fight the police when they come for you after you have disobeyed an evil law like that of segregation, or do you submit to their authority and get dragged off the jail? Are you MLK or the Black Panthers?

Or for one of my favorite examples of how most of the people who claim to believe in the 2nd Amendment as a bulwark of liberty are full of shit: when the government came to put the Japanese in internment camps, should the Japanese have defended their rights at the point of a gun -- or was it better for them to have submitted, waited out the war and ultimately been vindicated? (Speaking of state action and government apologies...)

I think it is a very good thing about America that we do reify the state and understand that it has both powers and duties, and when it misuses its power, it is responsible. It is a very good thing that the Japanese neither tried to fight the soldiers nor their fellow citizens who supported the laws that put them in camps, but instead applied to the court, and when the courts failed them, waited for the apology.

Incidentally, if you have not read this review, I think you would enjoy it. I hope someone will revive the Public Interest's old mission -- it appeals to the economics student in me. Then again, I'm almost alone in thinking it was very stupid of Columbia to stop requiring Foundations of the Regulatory State for 1Ls.

Mark said...


I had a follow up post of sorts, here.

Yes you can't "sentence a person to jail no matter how snappy a black robe I buy, and I can't keep them there just because I own a natty blue uniform." but you can refuse, when wearing blue as a legit policeman to herd Jews into cattle cars, or as an engineer to drive that train, and to not refuse is evil.

You do realize that judges have an avenue to take, when they strongly object to laws, they often recuse themselves from cases when they feel prejudiced against a case for personal reasons? Juries as well, it has been intimated can take their own part in enforcing justice in the face of unjust laws.

Let me ask you this, take the case of the "judges" in Stalin's show trials? What should they have done? Are you suggesting that "fidelity to the position" would hold that your participation in that is not evil?

You seem to be taking up Eichmann's defense from Ms Arendt's book, that your morals don't matter if you are working for the state. I seem to recall you are Jewish. Utilizing Mr Eichmann's defense seems an unusual tack, in that light. One of the claims Ms Arendt made that Jews worldwide at the publishing of her book objected to strongly, was claim that in their law abiding desire for order, German Jewry contributed in part to their own destruction by not resisting. You seem to be of like mind, that not resisting is correct, and that the state, not individuals are responsible. I think both Solzhenitsyn in his corpus of work and Ms Arendt have shown that view, bankrupt.

And you are largely right, I don't think there is a Constitutional right to gay marriage (or a that Constitutional Amendment banning it would be right for that matter). You actually know what my view on that is/would be, i.e., that it should be left to the local level, village and precinct to decide as they will.

David Schraub said...

Do you seriously think that an SS officer exhausts his moral obligations via recusal? Just making a different officer be the herder? Or to use your gay marriage argument (let the localities decide), should I let the individual states decide the slavery question? Are we really reviving the Kansas-Nebraska act on this thread?

I do not think the SS officer should acquiesce to the Holocaust ("It is a fidelity with limits..."). In fact, I think the SS officer has an obligation to be a rescuer. The German citizens who were bystanders are guilty too; they watched as their brother's blood was spilled. If I as a judge simply refused to rule on whether slavery was just (thus knowingly passing the baton to someone who would explicitly sanction it and interpret the law far more harshly than I would), am I really behaving morally? Do I not have an obligation to use my position of power to actively resist the evil? And why is this resistance (from my perspective) not equally mandated for the evil of genocide as to the evil of slavery as to the evil of anti-gay discrimination?

The point is that these are tough questions, and tutting about how they're oh-so-easy if we know what our individual moral lines are is far too simplistic. Sometimes I need to push my moral commitments aside and have fidelity to my position, democratic norms, etc.. I can't always violently revolt every time somewhere a government enacts a law I find unjust. And sometimes I need to put my position and order aside and follow the lines -- I can't blindly obey an official order to commit mass murder. It's hard to figure out what's what, and that's one of the key consequences of state action -- it really slants the playing field in favor of particular results.