Clarence Thomas’s Black Nationalist Jurisprudence

I don’t know a lot about the role of Anita Hill in Clarence Thomas’s Supreme Court confirmation hearings. I was just a bit too young to understand what was happening, and so I’m looking forward to watching the new HBO movie on that topic. Thomas himself famously called it a “high tech lynching.” My suspicion is that Thomas probably was guilty of sexual harassment, but that there was almost certainly a concerted effort to link it to his race in ways that we should find abhorrent. On the other side of the aisle, Bill Clinton certainly seems to have been guilty of similar activities.

In the spirit of preparing for that viewing, I’m revisiting an old post of mine on Clarence Thomas’s Counterrevolution wherein Corey Robin (of The Reactionary Mind fame) discusses the intellectual legacy of Justice Clarence Thomas:

“The first time Clarence Thomas went to Washington, DC, it was to protest the Vietnam War. The last time that Clarence Thomas attended a protest, as far as I can tell, it was to free Bobby Seale and Erikah Huggins.”

Reading Robin’s efforts to make Thomas intelligible always has me worrying about why African-Americans don’t take anti-statist positions more often (libertarianism, anarchism, localism.) After all, you can think that there is a government harm without thinking there is a government solution.

That’s basically the heart of the Black Panthers’ ideology: the white police can terrorize Black communities, but they can’t fix them. On the Black Panther view, only Black people can fix their own communities, because when white people try to do it it’s just as cover for more colonialism. Which is why their most powerful and dangerous program wasn’t the guns, it was the Free Breakfast for School Children program.

Tally up the affirmative action and racialized mass incarceration; the public housing and the brutal policing; the food stamps and the white social workers; the Black Presidency and the decades of shame and racism in every government office; integrated schools and two-hour bus rides that made accountability impossible; racial gerrymandering and the destruction of most of the neighborhood non-religious institutions in African-American communities.

Now ask yourself: did African-Americans come out ahead?

Becky Pettit did the math, and she says no. Lots of African-Americans are skeptical that a white supremacist government will ever offer solutions, simple or complex, that are actually tailored to the needs of their community. Perhaps the skeptics are wrong. Perhaps we can do better. But we haven’t so far. We’re again talking about a New Deal for whites, without ever having had a new deal for Blacks.

Many white conservatives (and more than a few white liberals) think these disparate outcomes can be explained because Blacks are inferior. A lot of movement conservatives follow either Charles Murray or Amy Wax on this: it’s either a natural inferiority (Murray) or a cultural one (Wax.) But Black conservatives like Thomas seem to think it’s something else: they think we white liberals just keep making the situation worse, and that we don’t care so long as we can assure ourselves that we’re well-intentioned.

And our treatment of Thomas is part of the problem: we ignore or disdain him, or worse, insinuate that he’s a race traitor who can’t recognize a simple self-contradiction. How could he come out against affirmative action given that he benefited from it? Consider the Parents v. Seattle concurrence and the Zelman concurrence. These are serious acts of jurisprudence: among other things, Justice Thomas points out that integration destroyed centers of Black excellence, took excellent Black teachers out of Black classrooms and put them in White classrooms, leaving majority Black classrooms with substandard instruction, frequently by whites who didn’t understand the culture and harbored unconscious racism.

On Thomas’s view, the 14th amendment isn’t race blind; it proscribes race consciousness except when responding to state discrimination. In Zelman, Thomas says that the history of poor performing minority schools DOES count as state discrimination in need of remedy; and in Seattle he says that the kinds of remedies that can be used should never include the individual racial classification of elementary school children. Lots of other remedies are still possible, but don’t go creating huge bureaucracies of racial classification, because that hasn’t tended to be a good thing in US history. Thomas’s point is that it’s not enough to say “this time it’s different,” because that’s what whites always say.

Has race-conscious hiring through affirmative action helped African-Americans? Certainly in some cases! And yet at every income level, Blacks have higher levels of educational attainment than whites, while they also have higher unemployment for their educational attainment than whites. Their unemployment rates reflect longer searches, with less success, even with equal or better qualifications. These are facts that should make us blush with shame, and panic that our worldviews and preferred remedies are inadequate.

It’s no better in universities, but here is where I begin to part ways with Thomas. We’ve gotten to such a weird place on the court’s race decisions that we’re forced to debate the benefit to white people of having African-Americans and other racial minorities in the classroom instead of remembering the serious racism that infects all of our institutions.

Cribbing from Elizabeth Anderson here, Fisher and the university-level affirmative action cases are a total muddle for advocating diversity for its own sake. The liberal justices have been backed into a corner and it seems that they know it. The real problem the court faces in cases like Fisher, Zelman, Seattle, etc. is justifying affirmative action or individual racial classification or school choice in the absence of de jure discrimination. Which is dumb, because we had a whole lot of that de jure discrimination not so long ago, and it clearly still echoes into the present.

The long history of de jure discrimination implicates every US institution, regardless of particulars, but the whole of the Supreme Court has disagreed with that reading. Thus, they’re having a pretty silly argument in cases like Fisher: instead of saying, “Hey, remember slavery, segregation, and the KKK? They’re still relevant here!” the court says, “Well, forget about slavery, segregation, and the KKK: wouldn’t it be nice if we had more skin colors and ethnic groups in Freshman composition?” The real problem is that everyone on the court accepts that “Forget about it!” rubric for thinking through racial remedies. That problem goes back to Milliken v. Bradley and the refusal to enforce interdistrict busing.

Yet Thomas is the one Justice who doesn’t forget about that history and continually brings it up. And what he says in cases like Seattle and Zelman is: as a Justice, it’s my job to keep my eye on the de jure. De jure justifications at the SCOTUS level affect national policy for centuries, and we can’t afford to make exceptions for racialized classifications just because the individuals involved think they’re doing the right thing. After all, that’s how we got segregation and internment camps in the first place.

And here’s where I think Thomas is offering a powerfully Black Nationalist perspective: he seems to me to be saying that as a matter of policy we should remember that we live in a white supremacist society, that Blacks are in the minority and the political institutions will usually be controlled by white politicians and white voters. So always be careful of the tools and remedies you make available to those white racists, because they’ll use the rubric of the white man’s burden to justify all sorts of evils. They’ll use well-meaning liberals as the tip of the spear, like colonial powers used missionaries or US neo-imperialism uses the Peace Corps.

I mean, as a white liberal, I find myself worried about the ways good intentions and reform get twisted into such terrible institutions for non-whites, as they’ve been twisted over and over and over again. We’re often told that when we tally up the costs and benefits of government we should ignore the effects of the police and prisons because they’re not justified in terms of helping African-Americans. But of course they are: law and order rhetoric is popularly justified by pointing to Black victims and support without noting that shock-and-awe policing and mass incarceration are a poor remedy that creates as many victims as it avenges.

Background

Rachel Maddow: “Activism is a very specific and technocratic thing.”

Rachel Maddow’s interview with Ezra Klein on her life and HIV/AIDs activism for prisoners has this amazing extended riff starting around minute 53:

“What I tried to do as an activist was to approach each thing I wanted to get as a math problem.

So, here’s a thing that I think should be different in the world: I want people who are dying of AIDS in prisons to be allowed to die in secure hospices rather than dying in jail infirmaries. That’s what I want. Me just saying that and expressing the moral righteousness of that is not enough.

Who is the person who can decide to make that happen? The hospices need to be good with it, so, okay, let’s go to the hospices. Who is the person who makes the decision about who goes to the hospices? Well, there’s a category of decision-making here that is for people who do not have life sentences; they’re susceptible to these kinds of decision-makers. And then there’s a whole another category of decision-makers who say as a matter of policy … so let’s change the local decision-makers; now let’s change the law.

And just doing it piece by piece by piece, why won’t this law change? Because the committee chairman who is responsible for this as an issue doesn’t care about this. What does he care about? He cares about golf. Okay, let’s find whoever he golfs with’s wife, and find who his pastor is and talk to her about this.

…Activism is a very specific and technocratic thing….

On a lot of the activist issues I worked on it was very important that we get no press. And I think, from the outside, one of the things people assume about activism is that you’re trying to consciousness-raise around an issue, and get public discussion and raise public awareness and raise the profile of an issue–not if you’re talking about the comfort of death row prisoners. You don’t actually want that subjected to a popular referendum, because that’s going to be a kneejerk, regressive response.

And so sometimes what you need for people to be brave is to limit their risk, and some of the ways you limit risk is by keeping things quiet. And that has ended up being an interesting thing to know and thing to believe in, given that I’m now a person who’s in the business of making national news of that stuff.”

Notes on an Auden Poem, “The More Loving One”

I’ve been an Auden fan probably since I first heard his mourning poem in 4 Weddings and a Funeral. (Recall my doggerel.) That he corresponded with Arendt mattered a great deal to my dissertation work; I also quite like the thematic connections between his “The Unknown Citizen” and another favorite poem, “Manifesto: The Mad Farmer Liberation Front,” by Wendell Berry.

Searching online for a W. H. Auden poem to remember a line, I discovered that Rap Genius has a listing of many of his poems, annotated by users of the site. This was to be the original usage of the “hyper-text markup language” that we now abbreviate html: to connect and annotate texts. I’m glad to see the web returning that that usage, and under the auspices of a rap lyrics site, it seems particularly exciting.

Here is the poem I was looking for, “The More Loving One.” I usually remember the poem through its title lines, which occur midway through it:

If equal affection cannot be,
Let the more loving one be me.

There’s something pleasant about the sense of dutiful care in those lines. But perhaps a bit saccharine. And indeed, much of the poem pushes back against the self-abnegating nature of that desire to subordinate oneself to the beloved.

In many ways, the poem is a repudiation of the easy cliche that the line contains: we cannot and should not aim to be always giving more love than we receive. We are always a part of many relationships, not all of which involve “equal affection” and some of which are unequal in the other direction: I love my daughter more than she can love me, and I am loved by my parents more than I can love them.

We see Donald Trump’s current rhetoric around trade deficits making something like the same mistake: it’s not possible for every country to always export more than we import to every other country. One country’s trade surplus is another country’s trade deficit. Nor is it desireable for the US, a very rich country, to aim to be an industrial powerhouse at the expense of industries in poorer countries. Alongside Japan, Europe, the UK, and China, the US dollar is a reserve currency useful for future spending. Lowering the trade deficit paradoxically would make the US dollar more desirable by lowering the supply. (Ironically the US has lowered its trade deficits lately as other currencies like the euro and China’s yuan have grown in use as reserves.)

Auden’s poem doesn’t just correct the poor math of “the more loving one,” it makes a few interesting points. For instance, Auden begins with the claim that indifference is preferable to many other emotions that human beings offer to each other, like hatred. This seems almost obvious, but it’s worth noting that the celebrated writer Elie Wiesel has claimed that indifference is the opposite of love, recognizing that hatred also shares some of the attachment of loving.

But this can be taken too far. In a plea for action and a praise for the intervention in Kosovo, Wiesel even hyperbolically claimed that indifference to the suffering of victims was almost worse than perpetrating that suffering:

Rooted in our tradition, some of us felt that to be abandoned by humanity then was not the ultimate. We felt that to be abandoned by God was worse than to be punished by Him. Better an unjust God than an indifferent one. For us to be ignored by God was a harsher punishment than to be a victim of His anger. Man can live far from God — not outside God. God is wherever we are. Even in suffering? Even in suffering.

Auden points out quite simply that this is silly; being left alone is better than being persecuted.

But his most damning recognition is that the lover’s love is in some ways selfish: Auden recognizes that for all his efforts, he doesn’t love the stars as much as his poetry would make it seem. He doesn’t miss them when they’re gone during the day, and even were they to be lost forever, he would still find something else loveable. The stars are just one of the beautiful and sublime ways that the world arises.  I suspect that he exercises his poetic will in order to love the world as such, in all its diversity, no matter how it presents itself to him.

Were all stars to disappear or die,
I should learn to look at an empty sky
And feel its total dark sublime,
Though this might take me a little time.

Bonus:

What do Cuba and China tell us about Communism and Infant Mortality Reductions?

The first response to my last post was to point to Cuba’s low infant mortality rate; it is currently below the US’s rate. This seems like a refutation of the claim that competitive markets are a necessary condition for serious public health improvements.

There’s a propagandistic response to Cuba’s numbers, which I think is worth mentioning even if it’s still propagandistic: Cuba maintains its low infant mortality rate by strongly promoting abortions in any case of fetal abnormality. It’s really hard to establish the extent to which that is true, since only one researcher at the University of Oklahoma, Katherine Hirschfield, has claimed it while having her account sited in every case where Cuba’s infant mortality is discussed in the US media. But Cuba does have an abortion rate almost twice that of the US, so it may be a factor.

But Cuba’s pre-revolutionary infant mortality was already quite low: about 3.7% (37 under-five deaths per 1000 live births). These gains from the pre-industrial baseline were achieved under a pretty rotten colonialist capitalism. Thus, it seems to be the case the case that it’s possible to reduce infant mortality under a variety of economic systems. (Which is fine: we probably think too vaguely when we discuss these systems of communism and capitalism.)

I guess I’d add that Cuba does have free trade with everyone in the world who is not the US, so it doesn’t seem like a case of real protectionism. In fact, they actually export medical services in pretty significant ways, as well as benefiting from remittances.

The Chinese case is a more interesting one: the pre-revolutionary infant mortality rate was roughly equivalent to the background “natural evil” rate that I mentioned. Thus, the Maoist revolution drastically improved infant mortality! Through the training of midwives and later “barefoot doctors” rural infant mortality in China was brought from roughly pre-industrial levels (30% of live born children died before the age of 5) to roughly 70 in 1000 (7%) in 1978. That’s massive and worthy of serious praise. It’s also a serious challenge to the claim that only competitive markets can decrease infant mortality. The Chinese Revolution, in aggregate, was able to reduce infant mortality substantially: even including the Great Leap Famines which killed between 22 and 45 million people in three years (and likely increased fetal and infant mortality by similar levels), the gains are substantial.

Because I think capitalism is too highly specific, I often talk about competitive markets in the alternative. But the real key feature, it seems to me, is globalization: free trade with other countries. That is why I particularly balked at protectionism, without having much of a complaint about various ways to pay for medical services like single-payer plans or state-run hospitals.

Yet China reduced infant mortality significantly without free trade, and Cuba reduced it significantly with free trade. A long view obliterates any claim that infant health can be directly tied to any economic regime at all. On this, I was simply wrong, and glad to know it.

I started out to write a neoliberal theo-politics; rough and ready and trying to show where matters of relatively unchallenged beliefs about the world have led me. Challenges and data now force me to revise those beliefs. What could be more neoliberal and technocratic than that?

The Problem of Natural Evil, Charity, and Free Trade

I’ve recently been arguing for the comprehensible beauty of theological fatalism. The standard response to the problem of evil is that evil is the result of human willing: thus the Holocaust or American racism cannot be laid at the feet of an omniscient, omnipotent, and perfectly benevolent God. But I think this seriously ignores the problem of natural evil.

In a world that is literally full of unexplained and uncontrolled phenomena, there’s something sensible in taking the attitude that God’s will requires submission and respect in the face of suffering. If the best guess you’ve got about the fundamental truths of the universe is that nature (and Nature’s God) is capricious and inexplicable, then your attitude to that caprice is going to matter a lot. Can you love your fate without understanding it? Can you avoid telling just-so stories of desert and blaming the sufferer for her suffering? Non-karmic theological fatalism has the major theme that the world is love-able despite the fact that it is full of mysterious natural atrocities.

The predominance of human-caused evils like genocide and slavery have only rivaled natural evils for a few centuries; the long human time span is overwhelmed with misfortunes that could not be understood or even effectively planned against, only endured. Today, it makes sense to try to give a different account, one that enables intervention and prevention. But that modern perspective is rooted in our relatively limited success in rendering explicable and changeable the tremendous amount of suffering that surrounds us.

And there’s still quite a lot of it. I usually only discuss global poverty in the context of utilitarian arguments for rich-world charity obligations. But in fact there’s good reason to think that these rich-world obligations extend infinitely further to an imnipotent and omniscient God. If I can and should save a child in Pakistan or Nepal by forgoing a cell phone upgrade, think how much greater the obligation would be for an omnipotent God.

In 1990, the global under-five mortality rate was 12.7 million annually. Today it is 6.3 million. Because it’s hard to think in terms of such large numbers, I often describe that change this way: every day in 1990, 34,000 children under five died, mostly from easily-treated poverty-related diseases; today it’s more like 17,000. Nearly half of these deaths are directly attributable to undernutrition; other causes include malaria, diarrhea (from unsanitary water,) and asthma (from dung-based indoor cooking fires.) This is pretty obviously evil.

It is probably the case that the contemporary rich could alleviate much of this through charitable action (although this is significantly less effective than we’d like.) In any case, these child deaths could be attributable to human willing, specifically the inaction of rich countries. Yet, even to the extent that that is true today, humanity has not been rich enough to afford to address poverty-related disease for the vast majority of human history.

While it’s hard to measure historical child mortality, estimates suggest something like 300 to 500 child deaths per 1000 live births in pre-industrial societies. That means the 1/3 to 1/2 of all children born would die before their fifth birthday; this even extends to newly industrializing societies: that’s the rate that was observed in Europe through the 19th Century. For every person born under modern conditions, it’s likely that about 15 were born and died in pre-modern times. So roughly 100 billion people have been born and died before the currently living 7 billion. Probably 30 to 50 billion of them died before their fifth birthday. (It’s somewhat surprising that anyone could believe that their God would deplore abortion, given God’s role in this mass infanticide.)

What’s more, it turns out that even if our newfound global wealth enables charitable alleviation of natural evil, these efforts are themselves quite difficult and expensive, and often have very bad unintended side-effects. Often it seems we are forced to respond to this tremendous evil with very imperfect efforts: gifts tend to be less effective than economic development, and competitive global trade has done more than anything else to reduce under-five mortality.

Here’s a sentence I think most of my readers will reject, but I’m never impressed by their reasons: we’ve never found a compassionate system that is as effective as competitive markets for alleviating the specific evil of child mortality, even if it comes with a host of other evils.

In 1969, China alone had 2.3 million deaths for children under-five. In 2012, only 0.2 million children under-five died. That’s directly attributable to US trade with China. Yet we are frequently reminded of how much disruption and inequality that has caused without celebrating the benefits. These policies are described as “off-shoring” or “exporting American jobs.” It’s almost certainly driven massive domestic inequalities that are currently disrupting our democracies. Yet the role of trade in reducing child mortality strikes me as often ignored in these debates.

This is supposed to be something upon which Bernie Sanders and Donald Trump agree: that we should massively reduce trade with countries like China, not to mention Pakistan, India, Nigeria, and the Democratic Republic of the Congo. Yet those five countries are the ones with the highest child mortality. India and Nigeria alone account for half of the 17,000 under-five deaths each year. Even newly-rich trade-enemy China is still the fifth largest source of child mortality, with twice the under-five mortality rate of most industrialized societies.

Thus, the problem of natural evil strikes me as good evidence that the omniscient, omnipotent, and benevolent God does not exist; such a God would never force us to choose between the evils of capitalism and the evils of watching our children die. Yet if we truly live in such a tragic world, I doubt we should countenance trade protectionism until we can identify an alternate way to address child mortality.

Civic Death and the Afterlife of Imprisonment

It’s primary season, and once again I am reminded at just how little the rest of the country cares about the disenfranchisement of the District of Columbia. I usually salve my irritation with the knowledge that individual votes are unlikely to sway an election, so I am largely unharmed personally. The problem, of course, is that the disenfranchisement of a large group of people who share some interests does seem likely to have serious policy effects, as those interests are systematically ignored. (Perhaps a more powerful argument defending the loss of DC’s voting rights in federal matters is that it might force us to attend to local politics where decisions are both consequential and close enough to our lives to be noticed. So far, though, I am unimpressed.)

In any case, my neighbors and I are not alone. Vann Newkirk has a piece in the Atlantic challenging felon and prisoner disenfranchisement:

The origins of disenfranchisement as a vehicle of American punishment are likely traceable to some form of the classical notion of a “civil death.” For the Greeks, the punishment of civil death was akin to capital punishment—a complete extinguishing of the civil rights that Greeks believed constituted personhood, including suffrage, landownership, and the right to file lawsuits. English common law borrowed the Greek concept, and civil death was long viewed as a suitable punishment for felony offenses.

But civil death as a formal punishment in the American colonies differed from the English system on which it was based, and from the punishments that would later evolve. Civil death was initially only adopted in America for a very small number of felonies, the most common of which were violations directly connected to voting—for example, fraud or bribery. This paralleled both an expansion of crimes considered felonies and a decoupling of felony punishment from capital punishment. The use of long-term imprisonment, instead of corporal or capital punishment, only came about in fits and starts.

It doesn’t have to be that way. In Maryland, former felons are regaining their voting rights this year, and that affects some of the graduates of the JCI Prison Scholars Program! It’s pretty great.

For too long, we have begun to imagine that violators of the social contract are somehow unable to participate in its revision. In a world without ungoverned spaces, it’s no longer possible to exile our trangressors into the wastes. But what we do instead is significantly more cruel: exiled to social and civil death, prisoners are meant to continue to live in our midst while occupying as little of our time and energy as possible. They’re invisible men whose future is supposed to hold no future except to be ignored.

Yet the fantasies of social death are pernicious precisely because they imagine no return. The reality is that most of these men must someday rejoin the communities from which they have been exiled. People come back. What’s more, they’re never really that far away.

Their lives and ours are still bound together: at the very least we still pay to keep our fellow citizens incarcerated, we still send some of our fellow citizens inside to guard and “correct” them. But it’s also worth remembering that the prison’s walls are remarkably permeable. Guards and visiting family stream in and out. Gang members inside help their outside colleagues agree to cessation of hostilities.

If we were still able to punish our criminals with exile or death, it would be much easier. Instead ghosts still haunt us long after their social death. Fathers and mothers still parent their daughters and sons from within the prison’s walls. Husbands have long arguments and tender reconciliations with their wives as phone calls and letters go back and forth at great expense. And in most cases, the men and women who go off to prison must eventually shamble back from the social death we’ve wished upon them.

I still don’t know if there’s room for prisons in a just society. Our vengeful impulses seem to require some sort of satisfaction, and imprisonment might just be the fairest one remaining. But I do feel confident that those prisons cannot be premised on social death any longer.

The Progressive Case for the Welfare State: A Refresher

Many of my own fellow-travelers police progressivism in a way I sometimes find frustrating. It is de rigeur to chastise neoliberals and technocratic moderates for their lack of radicality. My work tends towards the technocratic/participatory divide around how policies should be made, and so I often don’t have strong policy preferences unless I’ve researched a question extensively. Thus I may be the wrong person to offer a common sense or standardized progressive defense of the welfare state, but I thought I’d give it a shot. Here goes:

Soft-core Case

  1. Taxes are the price of a good society. Many of the benefits that citizens enjoy are the positive externalities of our shared institutions, including safety net institutions. Thus, the wealth we earn in the marketplace is only partly due to our own effort, and largely due to social investments. Taxes are thus dividends owed for those social investments, and also the seed capital of future social investment.
  2. Private charity is laudable, but historically it has always come up short of real need. The welfare state responds to these failures of private efforts to ameliorate real suffering. Meanwhile, public provision of charity has been massively successful at reducing poverty and alleviating suffering. (The measures of poverty that claim otherwise assume away the goods and services supplied by safety net institutions.)
  3. The regulatory state responds to memorable injustices and documented depredations of private institutions and interests. Public regulation of industrial activity has helped to solve large-scale coordination problems, giving us cleaner air, safer drinking water, and lower mortality than countries who do not regulate those goods.
  4. It is no coincidence that the richest countries have more pervasive welfare states. Both serious poverty and large inequalities are inefficient for finding talented workers and ensuring that they are not excluded from sectors of the labor market that the rich might be tempted to monopolize.

Medium-Core Case

  1. There is a plausible case to be made for free markets: they tend to allocate resources more efficiently than alternative institutions when there’s a method for increasing the supply of that good. But free-market principles tend to fail where there are prospects of monopoly, including in situations of desperation where price-gouging becomes possible. Rent-seeking can happen both privately and publicly, but private rent-seekers tend to extract more value from those they exploit than public rent-seekers do.
  2. When users share a common-pool resource, they gain an incentive to maintain it, punish overuse and free-riding, and invest in future development. Economists have claimed otherwise for years, but eventually they gave Elinor Ostrom a Nobel Prize for her work showing that the so-called “tragedy of the commons” is avoidable.
  3. The safety net is properly understood as a common-pool resource, in specific, as a kind of infrastructure improvement. A functional public schooling system enhances human capital and makes workers more productive. A functional safety net for the very poor prevents the loss of human capacities to bad luck.
  4. Thus, there is good reason to choose mixed institutions (polyarchy) where markets and governments work together and in competition, with governments preventing the worst excesses of markets, and exercises of liberty (through exit, voice, collaboration, and innovation) preventing the worst excesses of governments.

Hard-Core Case

  1. We have stronger obligations to our fellow human beings than our moral psychology is equipped to recognize. The same part of our psyche that ignores the needs of strangers also hates other races and cultures. Group loyalties should be expanded as much as they can be.
  2. The nation-state partially corrects for flaws in our individual moral psychology. It generates the conditions under which we can recognize a limited set of our collective obligations that transcend our family and friends, making it possible to care for distant strangers, though not yet indiscriminately. We still feel stronger obligations to our co-nationals than to citizens of other countries; we have not yet discovered institutions that can produce recognition of cosmopolitan obligations. These obligations to co-nationals includes duties of care, reciprocity, and non-domination.
  3. Care and concern require us to seek both institutional arrangements and personal opportunities to engage with our vulnerable neighbors. Reciprocity requires that we ensure that capabilities and vulnerabilities are distributed in an egalitarian manner. Non-domination requires not just that we personally forgo interfering with each other, but that we reject institutional arrangements that allow other parties to arbitrarily and capriciously coerce our fellow human beings.
  4. Universal welfare programs, like universal infrastructure programs, are better at generating a shared sense of care, reciprocity, and solidarity.
  5. Universal programs are also more efficient than need-based programs. Universal programs don’t generate perverse incentives and poverty traps. Universal programs also don’t require resources be spent on civil servants to determine eligibility or investigate potential misuse.

Super Hard-Core Case

  1. Throughout much of our history, the state and private organizations have worked together to create conditions of exploitation. This includes colonialism, slavery, and the successors to slavery, and legalized discrimination against women, homosexuals, and indigenous peoples.
  2. Most large pools of intergenerational wealth are the product of those or other abuses, and most people earning above the median income are benefiting from that history of plunder as well. Other larger pools of wealth are primarily due to the financial sector which is propped up by the public regulatory state and through corporate capture of the state’s policies. Thus taxes and social spending are usually-inadequate efforts to repay those debts.
  3. Libertarians are right to note that redistributive efforts have usually failed to change the basic inequalities of distribution in our society, and that large regulatory states provide ample opportunities for regulatory capture and rent-seeking. But the answer is not to give up on reclaiming what has been expropriated, allowing the bandits to keep what they have stolen so long as they promise to raid no more! The answer is to redistribute more effectively, regulate more intelligently, and continue to target the ways that governments and regulators become captured by the interests of the wealthy.

I’ll note that I think the “soft-core” case is somewhat at odds with the “super hard-core” case, which is what often generates divisions between liberalism and progressivism. Yet I think this basically outlines my reasons for a commitment to the welfare state.

My friends who worry about moderate and technocratic ideological inconsistency are wrong, though. I think progressives should worry about governments, a lot. Governments do a lot of bad things, including a lot of things libertarians are good at recognizing and pointing out.

And really, this post was inspired by a libertarian. Over at EconLog, Bryan Caplan offers a “refresher” designed for libertarians who find Scandinavian welfare alternatives appealing. It’s a kind of intervention for prodigals. It works primarily as a reminder to those who are supposed to have known those things, but it works well. In a few short paragraphs, Caplan combines empirical claims about the efficacy of libertarian policies with principled objections (to borders and to the coercion of taxation.) It’s not exactly an argument: more a statement of premises, with an argument perhaps taking the form of a longer book like Michael Huemer’s The Problem of Political Authority.

Yet it’s still enough to provoke debate with other libertarians. And in my view, arguments with one’s fellow-travelers can be helpful for your collective projects. As is not-often-enough-the-case, we are currently contesting the nature of the progressive/liberal divide during the primary contest between Hillary Clinton and Bernie Sanders. It’s worth remembering our basic commitments to public and participatory institutions, as well as to just and competent government.

(Post updated March 8th)

What kind of right is the right to film police?

It is pretty clear to me that there ought to be some kind of right to photograph and film police, especially arrests. And yet, at least one US District Judge Finds no First Amendment Right to Film or Photograph Police:

We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct. (Fields and Geraci v. City of Philadelphia et al)

Here’s the problem: the First Amendment protects expressive conduct. We often think of the main role of the photographer as quietly observing and recording; their expressive conduct comes later, when they publish that record. Of course, there’s some reason to think that that required action is thus equally-well protected: I can’t publish a video of police if I’m not allowed to film a video of police.

But we don’t really think this is a generic right. We usually assume that ordinary folks have some right to their likeness and some expectations of privacy. Police are special, and we need enhanced rights to record their activities. Yet the First Amendment might not be designed to cover that special instance. I suspect that the right to film police would best be understood as one of those old penumbral rights no longer in fashion: a living update of the implications of the First, Fourth, and Fourteenth.

I think of filming the police sort of like I think of election monitors: the right to free and fair elections occasionally requires an ancillary right (to monitor elections and note violations) to preserve that primary right to vote. This is always a strategic or practical question, though: you wouldn’t need election monitors of the ordinary sort in Oregon, where all voting is done by mail. Under those circumstances, it would be odd for an election monitor to shove his way into your living room to make sure your postal ballot was properly prepared. But we do need some form of accountability in these matters, and under the current circumstances, photography is a good check on police abuses.

You can’t guarantee due process, reasonable search and seizure, or free expression of dissent without the ability to record interactions with police. And yet, this would fail any originalist’s test, for how can there be an implied right in an 18th century document that can only be exercised with 21st century technologies? It’s not like firearms or the printing press, where some version of the technology existed and it has merely become more effective.

Alternatively, the courts should recognize a First Amendment right to observe and record police as a variety of assembly. This, though, would subject it to much more exacting restrictions on the time, place, and manner of the recording. Legislatures might even be able to curtail filming police arrests entirely under this understanding of the right! Consider that even with a constitutional right to assemble, a city may appropriately require permits for rallies and even restrict the spaces where protests can occur. Would we accept restrictions on observing and recording police such that only credentialed journalists could do it? I think not: the power of the camera phone is that anyone can act as a citizen journalist when they see police engaged in potential misconduct.

Of course, my real problem with original meaning arguments is that they assume the framers were godlike or genius-like in their pronouncements. They certainly weren’t. We should have a lot less respect for them, a lot less of a tendency to call them Founding Fathers with capital letters. They were men, and venal ones. Most of them had slaves, and large parts of the Constitution and the Bill of Rights were designed to help them keep their slaves. When we help people draft their own constitutions–like in Iraq or East Timor–we always make sure they don’t repeat the model in the US Constitution, because it’s antiquated and usually leads to massive constitutional crises in short order. Most of US politics is basically an elaborate work-around for that; a patch on a patch on a patch of broken code.

That’s why I hope that the Supreme Court will eventually recognize filming the police as an act of expressive conduct worthy of protection under the First Amendment: not because that’s the best analysis of such cases, but because our system increasingly needs such “cheats” just to function.

Self-Esteem and the Death of the Subject

I have written here repeatedly about the problems with person-oriented reactive attitudes and character skepticism. But recently I came across the work of the psychologist Albert Ellis, whose work is at the intersection of therapeutic psychology and philosophy. His work on self-esteem and person-oriented assessment suggests an interesting new direction for the general insight that we are in error when we attribute actions, habits, and tendencies to a self or a subject.

Ellis calls this “unconditional self-acceptance.” Where the psychology of self-esteem encourages us to continually affirm (perhaps daily) propositions about how lovable and capable we and others are, Ellis’s unconditional self-acceptance instead suggests that we forgo these exercises and the global evaluations they require for more careful assessments of acts and behaviors. The same applies to our assessments of others, and thus he offers a good case study of the attempt to operationalize a rejection of person-oriented reactive attitudes through “unconditional other-acceptance.”

Ellis’s student David Mills summarizes the argument like this:

  1. Most people unfortunately believe that self-esteem must, in some way, be earned through accomplishments.
  2. When self-esteem is based on accomplishments, it must be earned repeatedly. It is never permanent.
  3. The concept of self-esteem leads intermittently to self-damnation.
  4. The concept of self-esteem usually promotes social and behavioral inhibition.
  5. A compulsive drive for self-esteem leads to frequent anxiety. And self-esteem-related anxiety is an obstacle to achieving those goals essential to our self-esteem!

Now, I think there’s a lot of truth in Ellis’s diagnosis. We have good reasons to believe that our acceptance within the community is predicated on the judgments of our peers. So we are right to self-monitor the likely assessments of others, to avoid transgressing crucial communal norms, free-riding on the efforts of our collaborators, or running afoul of the unwritten standards of behavior and comportment. There’s some reason to believe that this monitoring is the basis for person-oriented status judgments: we assess others and ourselves in order to determine the standards for preserving our group membership, and the continued existence of social exclusion and individual choice proves that we’re not living under conditions of unconditional acceptance.

Yet at the same time, we also know that our assessments and attributions suffer from serious errors and biases. Psychology has begun to catalog these biases and give them catchy names like the spotlight effect and fundamental attribution bias, but the basic insight is just that we’re often very deeply wrong about these assessments.

As a result, Mills (following Ellis) recommends an elegant solution:

  • To overcome self-esteem-related anxiety and inhibition, recognize that your choice is not between self-esteem and self-condemnation. Your choice, rather, is between establishing an overall self-image and establishing no self-image. That is, you can choose to view your external actions and traits as desirable or undesirable, but abstain from esteeming or damning yourself as a whole.

This is a philosophically dense proposal, one that assumes that by changing our metaphysical orientation to persons, we can overcome the pernicious (and importantly false!) habits of anxiety, self-blame, and self-destruction. In so doing, we can also develop a more sensitive and sophisticated attitude towards our neighbors and fellow citizens.

Of course, the practical efficacy of these attitudes are difficult to measure; apparently there’s been little empirical work on the topic, but to assess the model it helps to think through the best case scenario. Let’s assume that forgoing global evaluations of self and other has the effects promised: less anxiety, fewer fundamental attribution errors, improved mental health outcomes, etc.

Yet as we think about these themes, and especially about prescriptive metaphysics required for this to function, I wonder if we can preserve the sense of accuracy. Is this merely an exercise or is it meant to actually be supplying more accurate claims about the world? Is it convenient or true?

Academics of a certain stripe have been rehashing the “death of the subject” for a while now. The best reasons for rejecting person-oriented reactive attitudes seem to follow in this mold: one cannot judge a person without judging her acts, yet single acts are insufficient for a whole judgment of her person. Her acts are multifarious and varied, yet domain-specific judgments are subject to contextual factors. She is the agent of her acts, yet agency is empirically undermined by context.

Ellis himself claims the mantle of truth for this rejection of global judgments, but since his primary work is with patients who aren’t all willing to accept the full set of metaphysical presumptions here, he also suggests a “pragmatic” and “inelegant” alternative:

“If, however, you have difficulty refusing to rate your self, your being, you can arbitrarily convince yourself, ‘I am “good” or “okay” because I exist, because I am alive, because I am human.’ This is not an elegant solution to a problem of self-worth, because I (or anyone else) could reply, ‘But I think you are “bad” or “worthless” because you are human and alive.’ Which of us is correct? Neither of us: because we are both arbitrarily defining you as ‘good’ or ‘bad,’ and our definitions are not really provable nor falsifiable. They are just that: definitions.

Defining yourself as ‘good,’ however, will give you much better results than believing that you are ‘bad’ or ‘rotten.’ Therefore, this inelegant conclusion works and is a fairly good practical or pragmatic solution to the problem of human ‘worth.’ So if you want to rate your self or your being, you can definitionally, tautologically, or axiomatically use this ‘solution’ to self-rating.”

This was always the real problem with the self-esteem movement and with the two kinds of respect Stephen Darwall identified; it’s very difficult to preserve recognition respect, a sense of respect-for-persons that rates them higher than chairs, concepts, or other animals while simultaneously pretending that there are no further forms of appraisal like their skills, competences, and morally salient decisions.

We sometimes pretend that maximal attention to the norms of recognition respect eliminate the room for appraisal respect. Thus, because humans all have this recognition respect in the form of what Kant called “dignity” there’s no room for social status differentiation. But we play favorites. I have favorite people (friends), favorite scholars (idols?), favorite religious groups (Quakers!), and even favorite politicians (Elizabeth Warren, who was once a favorite scholar!) What’s more, I have good days and bad days, days where I’m proud of my teaching and writing, and other days where I feel like I failed to live up to my own expectations.

Ellis claims that we should actively resist any effort to assemble all these appraisals into a complete picture of the person. That we can assess the actions without making all the troublesome metaphysical assumptions required to attribute those actions to a person. Indeed, perhaps I shouldn’t give Elizabeth Warren the Senator so much credit for the work of Warren the Law Professor.

But I’m still giving Warren credit. And that’s the problem. I’m starting to think we can’t duck person-oriented reactive attitudes by merely reducing them to action-oriented reactive attitudes. Going back to the original Strawson paper, we don’t get angry at the painful blow, or fall in love with the witty reply. We get angry at the person who lands the painful blow; we fall in love with the person who offers the witty reply.

So how can we avoid the Nietzschean invention of a doer for every deed? Can we stop ourselves from filling in the back story of the driver who cuts us off in traffic to show that he is a terrible human being? And if we can, should we? Or should we continue to pretend?

We still might want to say that global judgments are a mistake. The person who offers you witty replies on a first date may also be kind of boring sometimes. The person who assaults you may also be a loving father or an honor roll student. It may well be that we learn remarkably little about most people from what we see of them, and that we fill in this ignorance with heuristics and biases that are more rough than ready.

It’s hard not to equate Nietzsche and Ellis here with Buddhist reflections on the illusory nature of selfhood. And it’s hard, too, not to think that this demand that we amend our syntax and our ethics begs the question.

Are we merely doing this to get off the treadmill of anxiety, to overcome maladaptive perfectionism? Is all this elaborate metaethical reflection really just therapeutic? Is it the philosopher’s obsessive #actually that demands we reassess the common sense for no other reason than to avoid imprecision? Is there a pragmatic upshot? What’s the cost of self-esteem? And what are its benefits?