Knowledge is authoritarian, even in a democracy.

No one, not even the opportunist hacks of the Texas State Board of Education, can fiat this fact away.

Previously, here at Crib From This, I argued that the so-called "Believers" sitting on the Texas State Board of Education are actually nihilists. This time, I wish to demonstrate that the Texas State Board of Education curriculum overhaul reveals the inherent limits to the habitual over-inflated conservative indictment of 'big government'.

A friend of mine, whose politics are a good deal more conservative than mine, nevertheless is in complete agreement with me that the decision recently handed down by the Texas State Board of Education is embarrassing, wrong, bad for education, bad for the study of history, and bad for the students in Texas—and potentially elsewhere—who are finding themselves shat upon by a gang of anti-intellectual, self-centered and neo-secessionist spoiled brats.

Forget the Gospel of Low Taxes. The conservatives of the Texas Board subscribe to a hyper-culturally conservative brand of Dixiecrat Republicanism that has been forcing increasing numbers of middle class Republicans to look askance at the Grand Old Party of Abraham Lincoln that they thought they had known so well.

Interestingly, as one of those old-fashioned Libertarian-types—whose critique of federal government-overreach has to do with fairly subtle questions of commerce and jurisprudence, and not so much with a plot to take away his guns (especially because he doesn't have any guns)—my friend chalks the Texas folly up to of the the perils of centralized, majoritarian decree. In other words, he sees the disaster as issuing not so much from the fanaticism and ignorance of a gang of inbred would-be messiahs, but, rather, from the fact that Texas operates under a system in which a single school board has the power to make a mockery of an entire state's social studies curriculum with a snap of its Born-Again Christianist, Ayn Rand-praising fingers.* The old-fashioned GOP anti-'big government' critique.

I do have to give him credit for creativity. It is interesting to examine the connections between what Libertarians and old-fashioned economic conservatives of his type call 'Federalism' and what Alexis de Tocqueville described as the "tyranny of the majority." Tocqueville argued that, in order for the great American experiment of republican governance to be successful, the right of the minority to dissent must be protected at all costs:

Several particular circumstances combine to render the power of the majority in America not only preponderant, but irresistible. The moral authority of the majority is partly based upon the notion that there is more intelligence and wisdom in a number of men united than in a single individual, and that the number of the legislators is more important than their quality. The theory of equality is thus applied to the intellects of men; and human pride is thus assailed in its last retreat by a doctrine which the minority hesitate to admit, and to which they will but slowly assent. [...]

In my opinion, the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country as at the inadequate securities which one finds there against tyranny. an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power, it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the measure of which you complain, you must submit to it as well as you can. [...]

I do not say that there is a frequent use of tyranny in America at the present day; but I maintain that there is no sure barrier against it, and that the causes which mitigate the government there are to be found in the circumstances and the manners of the country more than in its laws. (Democracy In America, Book I, Chapter 15)

And, come to think of it, has it not been along this general line of thinking that the premise of "state's rights" has been defended?—from John Calhoun's championing of "nullification," to the South's moral justifications for Secession, to present-day slogans about the "tyranny of big government" among the Republican rank-and-file?

It would seem that the actions of the Texas Board would support this sort of critique of centralized authority, albeit viewing Texas as a microcosm of the federal government. In a way, it does. However, in another sense, it serves to undermine this very critique—or at least it points to spheres of human activity to which this critique cannot be said to apply.

The problem, as I have found myself saying recently, is that knowledge is not democratically constituted. Knowledge is, in a sense (and shall ever be), authoritarian. And, whatever it is that the Texas School Board might want the world to be, there's simply not much that can be done about that.

We cannot approach knowledge itself, for example, in the same way in which we approach law. For example, even Justice Antonin Scalia knows that you can't be a "strict interpretationist" of history. (It's ephemeral enough as a legal philosophy...)

This is not to suggest that knowledge can be linked definitively, directly or uncritically to specific human beings or organizations, or even to any specific source. The academic disciplines, for instance, are not and don't pretend to be that kind of authority. Quite to the contrary, disciplines are themselves sites of contestation and debate.

When 'experts'—whether they work for an academic institution or for the WMD Committee of the Project For A New American Century—misrepresent themselves, or misrepresent the knowledge in their field, or provide insincere, incomplete or tendentious interpretations of this knowledge, they are—to precisely the extent to which they engage in this behavior—not experts, but merely posing as experts.

In effect, in having pushed the politicization of the curriculum this far, the majority of Texas Board of Education members have exposed themselves not as pie-in-the-sky Fundamentalist Christian-idealists, nor even as Fundamentalist Christian-ideologues. They are simply hacks—up to their earlobes in the toilsome wretchedness of aimless resentment.

We bemused onlookers witness the superficiality of their understanding not only of history but of the political or ideological battles in which they believe themselves to be mired (to say nothing of the empty opportunism of their feigned interest n these subjects). They have taken caricatures of their 'opposition' with total earnestness. Moreover—and even more embarrassing than their threadbare understanding of history—is the sheer self-centeredness and self-entitlement with which they have seen fit to (mis-)interpret any and all 'inconvenient' political and educational tendencies that differ from their own.

Consider the following metaphor. In war, all factions of your opposition are united in at least one significant respect: they are all out to kill you and your fellow soldiers. For purposes of political propaganda and mobilization—the domain in which GOP-hireling Svengalis like Lee Atwater and Karl Rove so excelled—this war-style-worldview can yield some limited successes by fostering solidarity among differing factions within an alliance: the 'enemy' represents a hybrid of characteristics. It's a lowest-common-denominator enemy.

The effectiveness of this approach no longer holds, however, when you are making education policy, nor policy in any domain that deals with disciplines of knowledge and expertise. In this context, undertaking to right all the wrongs of your caricature/hybrid foe leads to disastrous consequences.

Foremost among them is that this foe does not exist.

In my next post, I shall conclude my discussion of the Texas State Board of Education's curriculum guidelines by taking up the questions: (i) Why should we even consider the board's bizarre actions to be "conservative"?, and (ii) When we tacitly accept the self-categorizations of these confused, theocratic would-be secessionists, aren't we letting them frame the debate?



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* The utter incompatibility of the pimple-faced-high-schooler's-simpleminded-version-of-Nietzsche pseudo-philosophy of Ayn Rand (who had zero use for god, religion and the like and said so frequently) with the tenets of Fundamentalist Christianity is an example of a phenomenon to which this post turns shortly: the caricatured/hybridized opponents that so often become invented in the course of forging such unlikely political alliances as the GOP cobbled together in the '80s, '90s and '00s. That is, before the GOP emerged, with the election of Barack Obama to the presidency, as the party of Southern Secession. Ye Olde Abe Lincoln is a-spinnin'-in-his grave. Probably Ye Olde John Brown is, too. (Return to the main text.)

Time for 'liberal' jurisprudence to mount stronger challenge to so-called 'originalism'.

So, The Nation magazine reported the confirmation of Judge Sonia Sotomayor to the Supreme Court. Nothing surprising about that. What interests me at the moment is that the piece quotes a speech in which the deceased Justice Thurgood Marshall cited the centrality of "social transformations" in bringing the United States into alignment with the designs of its written Constitution:

[The] government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.

The more I have read about and from the history of the Early Republic, as they call it, the more proof I have unearthed as to the consciousness of the Founders of the fact that the necessary social and economic conditions for the development of American democracy had not yet been established at the moment of the nation's birth. Many of the Founders commented frequently on the fact that the future was an unknown quantity and that this fact could cut in either direction, negative or positive. An example of the latter is the specter of the apparatus of governance one day falling under the control of greedy, petty or self-interested men. As John Adams put it, during the extensive correspondence he and Thomas Jefferson conducted during the later decades of their lives:

Democracy [...] while it lasts, is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.

If democracy's ideals, continued Adams, were to succeed, this success could and would be obtained only with great effort and with the passage of time:

When people talk of the freedom of writing, speaking or thinking I cannot choose but laugh. No such thing ever existed. No such thing now exists; but I hope it will exist. But it must be hundreds of years after you and I shall write and speak no more.

The awareness among the Founders of the role of contingency and shifts in meaning in history extended beyond their comprehension of the fact that the future was likely to look, as it were, hella different than the Revolutionary Era looked. However: the importance of this understanding in a way can be seen to have been a function of revolutionary action itself, an activity that by definition consists of trading in a world of familiarity and predictability for a world of struggle and unpredictability. This act is one that faces off against the possibility of a future of utter failure in a way that today we are too constitutionally (pun acknowledged but not intended) weak even to ponder.

Our Founders and the Framers of the Constitution also knew that there are limitations inherent to the capacity of words to transmit their "intended" meanings. They understood that words therefore cannot be comprehended exclusively in reference to the context of a specific time and place. They were shrewd enough to know that this was impossible. (Or, maybe "shrewd" isn't the word: maybe it's "thoughtful.") And, therefore, in framing the original articles of the Constitution and the Bill of Rights, they painted with a brush broad enough to inform the interpretive abilities of intellectually honest and morally engaged future stewards of democracy.

Upon reading the actual documents, it is simply impossible to imagine that the Founders would be pleased to see the likes of Dick Cheney in a position of power. But that's an obvious point....

The important point is that Justice Antonin Scalia and other adherents of the judicial philosophy of originalism fail utterly to comprehend the significance of the fact that the Framers possessed this very comprehension of the relations among contingency, meaning, words and history. Scalia argues that, when interpreting the Constitution, as well as federal and state laws, judges must interpret language in a manner that accords with the meanings that the words possessed at the time of their having been written and passed into law.

But: if the Framers were aware enough of these historical processes, if they were conscious and even deliberate in imbuing the language of the Constitution with this cognizance, this anticipation that subsequent readings would bring to bear unimaginable contingencies, then should not the originalist be the first scholar on his block to insist upon granting serious consideration to capacious readings of Constitution language? Especially in tricky and consequential areas of Constitutional law, like its implications for what we would today call 'privacy' rights??

Does this make sense? It's late as I type. I'll maybe explain a bit more when I'm in a lucid frame of mind (should my mind come to be so framed....).

In the meantime: we on the putative "left" side of center should start articulating a couple of easily-identifiable fallacies that are promoted by originalism, as Scalia conceptualizes it. Both of these fallacies have widespread implications for the rule of law in areas of individual liberty and privacy. Scalia's first demonstrated fallacy is that he removes the words of the Constitution from the context of their overriding systems of value and signification, in effect, stripping words of their meanings.

To illustrate this fallacy conceptually, here's an example: Nowhere in the Constitution does there appear the word "abortion." Therefore, to recognize in the Constitution the rights of women to have abortions is to read something into the document that isn't there. Now, don't mistake my example as making the claim that Roe v. Wade was good jurisprudence or even a good idea; let's save that discussion for another day.

Instead, focus closely upon the internal logic of the cited example: Does this reasoning in and of itself indict Roe? No way. Because there is plenty of language in the Constitution that is aimed at protecting spheres of individual prerogative from the intrusion of governmental tyranny. Scalia would say: Well, there's no way the Founders would have imagined the concept of a 'legal right to an abortion'.

True. And, advocates of 'liberal' jurisprudence should respond: To precisely the same extent, the Founders could under no circumstances have imagined the concept of a 'legal prohibition upon abortions'. Only when framed in this manner can the notion of 'originalism' be seen as on 'all fours' with supposedly 'competing' judicial philosophies.

There is a second fallacy upon which Scalia's originalism is premised. I would argue that Scalia accords an overabundance of meaning/significance to perceived connections between the words of the Constitution, including its early amendments, and the 'actual thinking' of those who wrote these texts. This is first because the notion of these texts as having been 'written' is in itself potentially misleading: The documents themselves are compromises, at which the Framers arrived only after extensive debate, and -- more importantly -- the brokering of deals.

There is no doubt that the Framers themselves often interpreted the same language differently.

Thomas Jefferson, who was in France being a diplomat during the Constitutional Convention and subsequent passage of the Bill of Rights, probably interpreted the separation of Church and State as something akin to what he had described in his correspondence as a "wall of separation between Church and State." Others may have understood the First Amendment differently. In other words, the Founders were in many respects engaged in the very same debates in which we are engaged today.

So, one response to Scalia is to point out: To appeal to the Early Republic for definitive guidance in interpretation is to appeal to an era that possessed a diversity of interpretations equivalent in extent to -- if not exceeding -- the diversity of opinions that we possess today.

Whereas Adams hoped for a future of greater human liberty and happiness, Jefferson was always at least slightly -- and often exceedingly -- more optimistic than was his friend. For all of the trouble it's brought us, you've gotta show the love for The Enlightenment (somebody: cue up a vinyl copy of Beethoven's Ninth!) and give Jefferson his due for being such an Enlightenment fundamentalist.

He probably would have preferred conscientious, ethical and -- yes -- empathic Supreme Court justices to Scalia's dry, supposedly technical, and operational jurisprudential ideal:

When I contemplate the immense advances in science and discoveries in the arts which have been made within the period of my life, I look forward with confidence to equal advances by the present generation, and have no doubt they will consequently be as much wiser than we have been as we than our fathers were, and they than the burners of witches.

The fallacies I have identified are not only general characterizations of originalist jurisprudence. Instances of these fallacies can be spotted in many specific legal opinions. To the degree to which the legal opinions can be described as relying upon fallacious premises, 'originalism' itself is exposed as a tactic by which its adherant convinces himself and others that his judgments do not rest upon (or emanate from) ideological and political premises. Sorry, Justice Scalia: Guess you'll just have to begin formulating actual justifications for your interpretations and stop seeking the shelter of quote-unquote originalist legal philosophy.

At some point I want to explain why I belief the prevailing explanations/justifications for 'liberal' jurisprudence to be flawed. But maybe I'll have to use more brevity and not be such an insufferable pedant. Because I'll bet you twenty dollars that you haven't read this far into the post.

Washington Post: The White House endorsed CIA waterboarding policy in classified memos in 2003-2004

Condoleezza Rice:
Authorize torture?

No problem! Where do I sign?

Richard "Dick" Cheney: The Constitution
exists solely to make it easier for me to
lie. Disagree? Let's see if you disagree
under torture, muthafucka!

According to the Washington Post, the George W. Bush White House gave the explicit thumbs-up to the secret CIA torture of terrorism suspects:

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency's use of interrogation techniques such as waterboarding against al-Qaeda suspects -- documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

The classified memos, which have not been previously disclosed, were requested by then-CIA Director George J. Tenet more than a year after the start of the secret interrogations, according to four administration and intelligence officials familiar with the documents. Although Justice Department lawyers, beginning in 2002, had signed off on the agency's interrogation methods, senior CIA officials were troubled that White House policymakers had never endorsed the program in writing.

The memos were the first -- and, for years, the only -- tangible expressions of the administration's consent for the CIA's use of harsh measures to extract information from captured al-Qaeda leaders, the sources said. As early as the spring of 2002, several White House officials, including then-national security adviser Condoleezza Rice and Vice President Cheney, were given individual briefings by Tenet and his deputies, the officials said. Rice, in a statement to congressional investigators last month, confirmed the briefings and acknowledged that the CIA director had pressed the White House for "policy approval."

The rest of the article documenting this charming matter can be found here.

Our United States President: Never seen a torture I didn't approve of -- in writing!

Stop the creeping fascism of the GOP! Seriously. Let's stop these cynical, racist, authoritarian, totalitarian motherfuckers before it's too late. Who else is going to stop them? Antonin Scalia?

Boumediene v. Bush: The moral legitimacy & political sustainability of America (i.e.: a future for her citizens) preserved by a narrow margin.

The decision of the Supreme Court's decision in Boumediene v. Bush has preserved the commitment of the United States of America to the rule of law, albeit by the narrowest of margins.

Justice Anthony Kennedy's majority opinion has of course provoked outraged sophistry, whiny self-righteousness and reckless hyperbole among the hired goons of the far Right. That's to be expected. Also to be fully expected is Justice Antonin Scalia's reckless, hyperbolic, whiny, self-righteous and outraged dissent. Scalia's dissent claims that Americans will certainly die as a consequence of the recognition of habeas corpus rights with respect to Guantánamo Bay detainees.

Uh. Even if Scalia's proclamation were somehow true -- which it isn't -- is Scalia asking us to accept a choice between (1) risking death as citizens of a nation that protects our civil liberties and (2) enjoying a marginally smaller risk of death as citizens of an authoritarian/totalitarian state in which our civil liberties can be brushed aside?

Scalia's not just a bully, but he's also a bully who's wrong. Moreover, he's hypocritical. For all of his rhetoric that his supposedly "originalist" jurisprudence somehow preserves political disinterestedness in Supreme Court decisions -- which he repeatedly claims to distinguish his jurisprudence from that of his colleagues -- his dissent is so brazenly political that Fox News/the Washington Times/the Weekly Standard/Rush "Pill-Popper" Limbaugh won't even need to ask their interns to "massage" the text of his incendiary remarks in order to fashion them into highly charged pieces of hard-Right propaganda. You can almost hear John Williams's fanfare-for-evil "The Imperial March" from The Empire Strikes Back.

Anyway, re the choice between liberty and life, I believe that we Americans were presented with a fantastic moral calculus in sixth grade history class:

Give me liberty, or give me death!

You know what? We should wake up and start addressing the real national security problem, which is that the Republican Party believes that the moral, legal and political authority of the United States can and should be bought and sold in times of national crisis or emergency.

Our future hinges on the durability of the rule of law, of civil rights. Without those things, all is lost. Fuck anyone who says otherwise. No one over the age of 50 had better dare to tell me otherwise, because this is an issue that concerns my future children. It's not about Scalia, nor is it about his children, nor is it about George W. Bush.

These people will all be dead and gone by the time the true ramifications of their negligence are felt, and most of their money will be gone with them. When the dust settles, the only thing that will matter to me, my loved ones, and to my children is whether or not I live in a nation of laws, in which civil liberties, due process and constitutional rights remain intact.

And so I take it very personally when Scalia mouths off about overriding these constitutional protections in order to preserve human life. Without our constitutional rights, we have no life, and we certainly can't in good faith expect to provide any kind of life for our children. Fuck you, Scalia: what about preserving my life? What about preserving the possibility of the lives of my children?

But, alas, Scalia's dissent isn't about me. And it isn't about you, Dear Reader. It has nothing to do with the document that protects us from totalitarianism and tyranny: U.S. Constitution. No, Scalia's dissent is about politics. More specifically: cultural politics. More specifically: the right of a small vanguard of ideological Executive Branch wackjobs to exercise unchecked power to break the law and violate the Constitution -- all of this under the cover of secrecy and without the slightest worry of ever having to be held accountable for chopping down the few remaining bulwarks that hold the tatters of our country aloft.

A succinct New York Times editorial gets it right: "Justice 5, Brutality 4." I had all but given up on the rag.

Seriously: why don't you read the opinion? Also, give a listen to the oral arguments, in which the razor-sharp questions posed by Justices Souter and Breyer will make you want to stand up and cheer.