Harper's piece on "The Vanishing Liberal."

Frequent Harper's contributor Kevin Baker—who, according to his byline, is actually a novelist—has a couple of great things to say in an essay in the magazine's April issue (which non-subscribers like Your Humble Blogger will simply have to go out and buy in order to read). The essay's subtitle—"How the left learned to be helpless."—is somewhat misleading, or in any event insufficiently specific. Let's face it, the contention that the left is helpless can in and of itself be said to be controversial only in the sense that it assumes that the left exists. 

What's important about Baker's argument as regards this helplessness is the comparison he posits between today's thoroughgoingly lost and disillusioned left—a group among which I suppose most normal (or even semi-normal) people under the age of 40 must by definition count ourselves—and its intellectual and spiritual forbears in American history: the Populist and and the Progressive movements. Those movements, for all of their flaws, had gravitas. Vitality. Rocks. You get the picture.

It should not be surprising that contemporary left/liberalism/whatever pales in comparison to those often quite radical historical movements. But what's nice is that Baker's piece offers more than the usual woe-is-us routine.

(Not that it's bad to say "woe is us." It's actually necessary for us to say it. However, the usual plodding, overlong and doom-and-gloom-laden fare does tend to get annoying. For example, see the final rant that now-former Harper's Editor-in-Chief Roger Hodge contributed to the magazine before he was—shockingly, and in an ominous sign for the mag's future, as Hodge was an intelligent and ballsy editor—sacked.)

Instead of simply throwing up his hands in despair (although he does do that), Baker threads together a political-historical narrative that serves as a call for genuine grassroots action of an order that we've not seen in this country in generations. He sets the scene by lamenting the fact that President Barack Obama,

[o]ne of the most charismatic politicians of his time, a man who was able to raise the most money and draw the biggest crowds in American political history has apparently decided that his new job is to fluff up the generals and bankers and politicians who not very long ago were in panicked disarray. Armchair psychologists from the Maureen Dowd school of political commentary like to analyze this conversion in terms of the elusive personality of Obama himself. Others prefer to dwell on the surprising ineptitude of his administration. And some simply accept his about-face in terms of the political exigencies of an essentially conservative nation, concluding wistfully that Obama is confronted by so many barriers to change—Republican obstructionism, the treachery of this or that Democratic senator, the nature of the Constitution itself—that the country is now ungovernable.

All of which may be true. But it only skims the surface of a greater tidal shift, one that has little to do with Obama himself and in fact has inundated the whole of our democratic process. This shift, which is subtle and has been many years in the making, might best be understood by considering a design underlying many of the interrogation techniques we employ at the (still-unclosed) prison at Guantánamo or at the black sites we still maintain, wherever they are. That is, bringing about the state known as learned helplessness.

The expression dates from a famous set of experiments by Martin Seligman some forty years ago, in which he found that dogs exposed to repeated and seemingly random electric shocks eventually stopped trying to escape those shocks, even when they could very easily do so. This insight gave rise to “no touch” torture, pioneered in large part by the CIA, whose efforts to “break” prisoners involved all manner of techniques, from the unsavory to the absurd, such as depriving prisoners of sleep for weeks on end, bombarding them with ear-splitting noises, exposing them to extreme heat and cold, shackling them in “stress positions,” tying bras to their heads, making them bark like dogs, and waterboarding them. There is no evidence that such practices enhance the odds that prisoners will provide more useful information to interrogators. It is well established, though, that they will make prisoners docile, and so the techniques remain popular.

For decades now, as our public discourse in general has become more scattered, random, and irrational, Republicans—funded by corporate and other elites in the private sector—have stunned Democrats with absurdist attacks that have proved to be effective at garnering votes and, more important in the long term, at hampering Democrats even when they hold the majority. Democrats have been reduced to a state of psychological helplessness, one in which any political obstacles—ranging from the prevarications of stalking horses like Senators Joe Lieberman and Ben Nelson, to the plaintive cries of the tea-baggers out in the streets, to the sterner demands of the Joint Chiefs of Staff or Big Pharma—are transformed into insurmountable organic obstacles.

We have learned to be helpless. And in this state of political depression, it no longer matters how many elections liberals win for the Democrats, or how badly Republican, right-wing policies fail or how much damage they do to the country or the world. There is simply no way to do anything differently.

Such hapless fatalism is, of course, in direct opposition to every tenet of American liberalism, which is rooted in the idea that human agency is still possible in the modern world—that democratic action can make a difference when ranged against vast, impersonal forces and supposedly immutable “laws” of human society. Liberalism’s antecedents lie in one nineteenth-century rebellion after another—against laissez-faire capitalism, patriarchy, slavery, Social Darwinism, and other efforts to transmute political dispositions into irrefutable “social science.” American voters of the time were regularly assured by authoritative voices that “hard money” was an indispensable economic principle; that women, people of color, and many varieties of European immigrant were inherently inferior; that any attempts to regulate the “natural” workings of the economy, even private charity, would thwart human progress because they interfered with the culling of those who, in Herbert Spencer’s description, were not “sufficiently complete to live.

[...]

And so we arrive at the present moment, in which the people are not asked to do anything. The fine words and able presentation of Obama, whether delivered at West Point or on Wall Street or in the well of the House of Representatives, obscure the fact that they are subtle parodies of a century of liberal argument. Whereas the Populists’ soapbox lecturers or the Progressives’ magazine exposés or FDR in his radio “fireside chats” explained the way of the world to the people and argued for why and how that way must change, Obama—like most Democratic leaders—concedes that the way of the world is wrong but tells us why it must stay that way because, some time in the past, powerful interests decreed it so.

[...]

Now, to be sure, there are problems with Baker's narrative—especially as regards sympathies within some manifestations of historical Progressivism itself toward Social Darwinism and other 'social scientistic' gobbledygook that he ignores completely—but no matter. It's worth a read. And one of its themes—the notion that human beings can and/or should always work to improve the world in which we live, to make it more fair and just, etc.—is a very interesting one about which I intend to say more in the near future. Specifically, I think there are some important details of this Enlightenment spirit that a rejuvenated left-populism needs to get right intellectually and rhetorically.

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.