December 7, 2022 / by 

 

Resistance To Power

Index to posts in this series

Related posts

Posts on The Dawn Of Everything: Link
Posts on Pierre Bourdieu and Symbolic Violence: link
Posts trying to cope with the absurd state of political discourse: link
Posts on Freedom and Equality. link

As we saw in the first post in this series, Foucault’s method is to think about power by considering the forms of resistance to power. He chooses three examples, the power of men over women, the power of parents over children, and the power of psychiatrists over mental illness. He identifies six things these struggles have in common.

  1. They are universal; they’re happening around the world. As an example, New Zealand is going to give 16-year olds the right to vote. Across the globe, the very young are leading the charge for climate action.
  2. The struggles are over power itself. His example is that the medical profession is attacked because of its domination of the bodies of others, not because it is a bunch of money-grubbers empowered by the State to suck up all the money.
  3. These are current struggles against an immediate power demanding an immediate solution. Women refuse to be controlled by any man in their lives. Foucault thinks this struggle is not against some distant enemy male, but that seems wrong to me. Male power is entrenched at all levels of society. He adds that women want action now.
  4. These struggles are about each specific individual. They assert the right to be different, At the same time, they rebel against institutional conditions set by the dominant class, conditions which separate individuals from their chosen communities. They resist the power of the government, and of society acting through the government, to tie individuals to an identity in a constraining way. I think this means, for example, that people are not to be identified solely as mentally ill, or children as dependents, when in both cases they can participate in the broader scope of social interactions.
  5. These struggles are against power generated by knowledge, whether that knowledge is arcane, as in the case of psychiatry, or secret and traditional, as in the case of the patriarchy. “What is questioned is the way in which knowledge circulates and functions, its relations to power.”
  6. In each case, individuals assert their right to determine their own identities, free from the claims of other people, either as individuals or collectively in the form of the government or a profession.

Summarizing, he explains that each of these struggles is against one form of power relation.

This form of power applies itself to immediate everyday life which categorizes the individual, marks him by his own individuality, attaches him to his own identity, imposes a law of truth on him which he must recognize and which others have to recognize in him. It is a form of power which makes individuals subjects.

Foucault describes three poles of these struggles.

  1. Struggles against domination, through ethnicity, social class, or religion.
  2. Struggles against exploitation, which means economic domination.
  3. Struggles against being shoved into niches and forced into being submissive.

Most historic struggles can be seen as combinations of these three strains of resistance. For example, Foucault says that the main focus of current struggles is the pressure of the state forcing certain people into subjectification. An example might be the power claimed by the government to prohibit abortion. The state identifies a pregnant adult or child as less than an autonomous person, and forces them to subject themselves to unwanted or dangerous childbirth.

The problem is that the modern state holds both individualizing and totalizing power. It has the power to tie people to specific identities, and to treat them differently based on those identities. It is everywhere, and its power reaches everywhere, a “totalizing” power, as he calls it. He says this developed out of the pastoral power, and we’ll take this up next.

Discussion

1. Once again, I note the relation of Foucault’s ideas to those of Pierre Bourdieu and Elizabeth Anderson. Both identify domination as a central issue. Anderson sees it as a violation of human freedom rightly understood. Bourdieu describes the ways people internalize and justify domination. Links above.

2. Foucault is writing in the 1980s, and things have changed. For one thing, rapid communication makes it possible to speed up and broaden the scope of resistance to power, and to organize it more effectively. Thus, young people have used this technology to force the dangers of climate change into public discourse.

3. On first reading, this paper seems highly abstract. I’m trying to add specific examples to make these ideas more concrete, but it’s not easy. As commenters said in the Introduction to this series, Foucault is writing about the last two centuries. But the lessons seem relevant to what we read in The Dawn Of Everything by Graeber and Wengrow.

For example, they talk about rituals of adulthood, the rites by which young men are incorporated into the group through esoteric knowledge such as the powers of totem animals. This gives young men status in the community. Over time this status may have morphed into male domination of women and children through the possession of esoteric knowledge. This process requires women and children to accept the idea that in fact the special knowledge claimed by men is real. Once that happens, it becomes difficult to throw off male domination.

It’s impossible to use Foucault’s method of considering the history of our ancestors as a way of understanding their cultures. We don’t have nearly enough information. But I remain hopeful we can analogize the formation of recent Western cultures to the formation of earlier cultures. That hope is based on the idea that our ancestors were fully human, doing human things, as Graeber and Wengrow think.

4. Republicans oppose all changes to all social structures, Democrats tend to be more supportive. This is a big difference between the parties. I think it’s ane that has deep roots in individual personalities, an issue neither Foucault nor Graeber and Wengrow discuss. I also think it’s really important. It’s not on topic, but here’s a sketch of one explanation.

I think conservatives operate from a fundamentalist view of the world. Fundamentalists think that there is a single truth, and that they know what it is. Thus, fundamentalist Christians believe that the Bible is the sole source of truth. In exactly the same way Sam Alito and several of his SCOTUS colleagues think the Constitution is the sole source of truth about our rights as citizens, and that their Constitutional role includes stating that truth and correcting the errors made by prior versions of SCOTUS. In the political sphere we can describe the fundamentalist view as the idea that there is only one acceptable form of social structure, that that form existed in the past, and it must be recovered.

I think social structures are created by human beings. They should serve human need. As societies change, and as our understanding of the consequences of existing social structures evolves, we should change social structures to match our values. Following Foucault, the first step would be to examine our social structures from an historical perspective: how did we get the social structures we have now?

I think that will be my next step. One important text is Stamped From The Beginning by Ibram X. Kendi. One possible book is The Nation That Never Was: Reconstructing America’s Story, by Kermit Roosevelt. Here’s an interview of Roosevelt in which he discusses the book.


My Veterans Day

In the Summer of 1964 as I prepared to enter the University of Notre Dame as a freshman, the Army ROTC program sent me something about enrolling. I talked to my Dad, a deeply conservative man who served two years as an Army doctor and five years in the Public Health Service as a doctor in a rural Georgia town. He insisted that I sign up for the first two years, and then make a final choice for the last two years. The War in Viet Nam was nearly nothing, and it didn’t seem like a big deal, so I did.

Then in the Spring of ’66, I had to decide whether to commit to two more years of ROTC and a two-year enlistment, or quit. I talked to my Dad again. He thought it would be best to stay in. Besides the small monthly stipend, he pointed out that I was likely to be drafted, and that serving as an officer was better than being an enlisted man. Officers made more money and had a somewhat larger amount of control over their lives, he said, which was funny because he truly hated being bossed around when he was an Army pediatrician. So I stayed.

In the Spring of ’68, we were all asked to select a branch and a location. I picked Signal Corps, because they had a significant computer-oriented section, and I was good at that; and Germany and Korea as a back-up. A couple of days later Major MacIntosh asked me to stay after class. He said he had noticed my concerns about the War, and wondered if I really wanted to serve. I didn’t. I wanted to go to grad school. But I knew I was likely to be drafted, and I surely wasn’t going to go in as an enlisted man when I had the chance to be an officer. So I made up some mealy-mouthed answer. I got into the Signal Corps, and was assigned to Germany. Frankfurt I think.

I entered in October ’68. I immediately realized how much I didn’t like it. And then I was told I’d have to re-up for two more years to keep the Germany assignment. Eventually I was sent to Sinop Turkey by Betty Sammons of blessed memory.

I was reminded of this by an essay by David French in The Atlantic. I think it’s fair to say that French and I are about as far apart on the political spectrum as it’s possible for two people to be.

In his essay, French says he had been a vocal supporter of the Iraq invasion on the grounds that Saddam Hussein had to go. In 2005, French, then 36 and and out-of-shape activist lawyer, jaoined the Army as a JAG officer, and volunteered for service in Iraq. He served with a forward unit for a year and then in the Reserves. He explains his motivation:

One evening, at home in Philadelphia, I read the story of a Marine officer who had been wounded in Anbar province. He’d used the reporter’s satellite phone to call his wife and two kids and tell them that he was hurt but he’d be okay. At that instant I was hit with a burning sense of conviction. How could I support a war I wasn’t willing to fight?

French knew the Iraq War was a nightmare, but he volunteered to serve at the front. He thinks his service was worth the pain and grief he suffered.

It reminded me once again of my rationale for joining the Army, as best I can reconstruct it through the haze of he decades and many retellings. I know I was opposed to it on the grounds we discussed at Notre Dame, St. Augustine’s Just War Theory. We all talked about it all the time, discussing morality, duty, and options. I was also opposed to getting hurt or killed. I don’t clearly remember other considerations, but as I told the story to others over the years. I usually mentioned a couple of things. The alternative of going to Canada or trying to duck seemed cowardly. It’s my duty to sere my country, even if I thought the War was immoral. And, I didn’t want to make some other person take my place. At least, that’s how I remember it today.

French says his service was worthwhile not because of anything he did that was of benefit to Iraquis or the US, but because of the people he served with, and because of the experiences he had. In the same way, I think I learned a lot about being an adult, and being a leader, and figuring out how to use persuasion, technical skills, and bravado, to achieve decent results for members of my unit and myself.

French writes:

The decision to serve is a tangible declaration that you love your home—the place and its people—enough to bear profound burdens to sustain its existence and its way of life.

I was and am angry about the War in Viet Nam. I know dead and wounded men. I cried the first time I went to the Viet Nam Memorial in DC. and thinking about it chokes me up today. I’ve met men whose lives were wrecked by pain, drugs and alcohol as a result of their service. I knew other men who served, and who came out fine. Very rarely, we talked about out motivations.

But throughout the years I’ve felt two things above all: I was willing to take my turn. I didn’t hide out in the Reserves like W. Bush and Dan Quayle, and I didn’t duck out like Bill Clinton.

And slowly, slowly, I’ve come to agree with French about the decision to serve. I love our country and its people, and our way of life. Even when I when I am certain we need to change.

=======
Update: all of us faced terrible choices in the Viet Nam War era, because of the draft. Everyone has a story about their decisions. This is mine. I hope veterans of all eras will use this post to discuss their stories for the Emptywheel community.


Power And Rationality

Posts in this series
Index And Introduction To The Subject And Power By Michel Foucault

Foucault begins his essay The Subject and Power by telling us that his project is understanding how human beings are made subjects. By this he means both a) objects for others to study, and b) objects for domination and exploitation. We generally study things, including human beings, through methods which “try to give themselves the status of science”; or by dividing things into groups and studying the groups; or by dividing ourselves into parts and studying those parts in ourselves or others.

Foucault describes three of the ways in which people are enmeshed in relations with each other: relations of production, relations of signification (communication), and power relations. He says that economics gives us tools to consider the first, and linguistics and semiotics give us tools to understand the second, but he couldn’t find any similar academic-type disciplines useful in considering power relations. Legal models point us to the proper uses of power, and other considerations point to the role of the state, but these are only small parts of power relations. That awareness pointed him to study of power relations in a broader context.

So, Foucault’s overall project is to create a theory, a systematic way of thinking about power relations. To create a theory, we have to objectify the thing to be studied. That requires conceptualization, through critical thinking. He says he has to check his thinking constantly.

1. He says the conceptualization should not be founded on a theory of the object. That is, we don’t start with a theory of the object. Instead we start with a description of the object in the context in which it exists, and the history of how it came to be. We have to recognize that that history influences our thinking in a deep way. It can make it very hard to see the thing objectively. This ties back to the point I made in the first post in this series: the importance of Foucault’s methods.

2. We must examine the kind of reality we are considering. Power is a matter of lived experience, not of abstract theory. Its manifestations are a central problem of our time. Our recent history includes two “pathological forms” of power relations: fascism and Stalinism. Neither was new. They both used existing techniques of power, existing mechanisms and devices. Despite their internal madness there was a kind of rationality.

We have to limit our rationality to the boundaries given by experience. One possibility is the use of reason. This was the goal of the Enlightenment, to use reason to solve problems, material problems, social problems, and even psychiatric problems. It might make sense to consider the rationality of various subparts of society, as Foucault has done, with sexuality, crime, madness and more.

But Foucault has a very specific idea for studying power:

//It consists of taking the forms of resistance against different forms of power as a starting point.//

This is a smart move, because we do not directly consider an unknown object called power, which we haven’t even defined yet. To do this Foucault will look at ways of identifying resistance, the history of that resistance, its motivations and its goals. The hope is that in the process of considering resistance, we can get a clearer picture of the thing resisted, as if we were defining it by its boundaries.

For example, to find out what our society means by sanity, perhaps we should investigate what is happening in the field of insanity.

And what we mean by legality in the field of illegality.

And, in order to understand what power relations are about, perhaps we should investigate the forms of resistance and attempts made to dissociate these relations.

Here’s my example. We have an enormous code of laws, regulations and procedures. We say we are a government of laws, not men, and that the rules and procedures define legality. But in the real world, we can understand legality better by looking at the parts of that legal structure that we actually enforce, the people we hold accountable and the way we enforce it against different people.

Discussion

1. We generally think of the Enlightenment as leading us to the scientific method, the foundation of all our sciences today. A key element of the scientific method is that we understand things in the context of a paradigm, as we saw in Kuhn’s The Structure of Scientific Revolutions, for example here. The paradigm predicts an outcome so we check to see if that’s what happens. If not it’s possible we have reached the limits of validity of the paradigm.

Foucault is forced to start from the beginning with the theory of power because in his view there are no acceptable existing theoretical frameworks. He needs a method for studying things without a paradigm.

2. But his argument has a broader implication. He writes:

… [S]ince Kant, the role of philosophy is to prevent reason from going beyond the limits of what is given in experience; but from the same moment-that is, since the development of the modern state and the political management of society-the role of philosophy is also to keep watch over the excessive powers of political rationality ….

We saw this idea in Hannah Arendt’s The Origins Of Totalitarianism. Both the Nazis and the Communists carried their theories from their more or less empirical beginnings in Darwin and Marx to murderous extremes, but in an inexorably logical way. Here’s my discussion:

The last chapter of Hannah Arendt’s The Origins of Totalitarianism is devoted to discussion of the totalitarian regime, which comes when the totalitarian movement has taken power. Arendt says that totalitarian movements don’t offer a specific program for government. Instead, they propose to operate under a “scientific” program. For the Nazis, this was the law of nature with its eternal progress towards perfection, which Arendt thinks arises from a corrupted form of Darwinism. For the Communists it was the laws of history as supposedly discovered by Marx. Once in power, the totalitarian regime becomes an instrument for the will of the leader, who in turn is an instrument for imposing and acting out those laws.

Earlier in the book, Arendt discusses one of the reasons people found this irresistible. She points to their loneliness, their alienation, their rootlessness, their irrelevance, their impotence:

That thought processes characterized by strict self-evident logicality, from which apparently there is no escape, have some connection with loneliness was once noticed by [Martin] Luther …. A lonely man, says Luther, “always deduces one thing from the other and thinks everything to the worst.” The famous extremism of totalitarian movements, far from having anything to do with true radicalism, consists indeed in this “thinking everything to the worst,” in this deducing process which always arrives at the worst possible conclusions. P.477-8.

Foucault’s discussion of rationality is similar to the idea expressed by Oliver Wendell Holmes quoted and sourced here:

… the whole outline of the law is the resultant of a conflict at every point between logic and good sense — the one striving to work fiction out to consistent results, the other restraining and at last overcoming that effort when the results are too manifestly unjust.

I think this is a pretty good description of the political problem we face today. The Democrats at bottom are trying to work with reality, sometimes aware of the limits of theory and sometimes willing to learn from experience. The Republicans at bottom are only interested in their truth: a vile and corrupt form of neoliberal capitalism. They intend to follow this “truth” to the ends of rationality regardless of the consequences in the real world.

And it finds a receptive audience in the mass of alienated people who make up the Trumpian base,


Justice Jackson’s Brilliant Debut

On her second day of oral argument at the Supreme Court, Justice Ketanji Brown Jackson showed the wisdom of her appointment and confirmation. A short clip of one of her questions in Merrill v. Milligan made the rounds on Twitter, giving everyone a taste of her skill and understanding. Her point was so powerful I wondered how the lawyer responded.

The case involves an Alabama redistricting map. Plaintiffs alleged that the map unfairly discriminated against Black voters by reducing the number of majoirity-minority congressional districts unfairly. A three-judge district court ruled that the map violated Section 2 of the Voting Rights Act.

Here’s a fairly neutral discussion of the legal context in which the case was argued. Sec. 2 gives individuals the right to sue to prevent any state action to dilute minority voting power. The leading case on Sec. 2 is Thornburg v. Gingles, 478 US 30 (1986). The case sets out three factors which the plaintiff must prove to establish a violation of Sec. 2.

1.The racial or language minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district”;

2. The minority group is “politically cohesive” (meaning its members tend to vote similarly); and

3. The “majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.”

The colloquy between Justice Jackson and Alabama Solicitor General Edmond Lacour concerns the first Gingles test. Lacour argues that plaintiffs were required to present a race-neutral map as a benchmark to show that Alabama’s map diluted Black voting power. The transcript can be found here. We start at page 52. Justice Amy Coney Barrett asks Lacour this question:

…if you were forced to adopt a map proposed by the plaintiffs that was racially gerrymandered because race was predominant in its drawing, that you would be violating the Fourteenth Amendment.

Therefore, the first factor of Gingles required to get past the hurdle that Justice Jackson was talking about, to get past that hurdle, it required race neutrality.

Is that your central argument?

MR. LACOUR: Yes, that –that is our core argument that it –it cannot be that they can come forward with a map that we would never be allowed to draw, call it reasonably configured and then force us to draw a map we would never be allowed to constitutionally draw.

You can think of that either –the problem is either race predominance or the problem is, when race enters in to the equation, then traditional districting principles necessarily have to yield, which is what the district court found on page 214 of the Milligan stay appendix, non-racial considerations had to yield to race.

He’s saying that the Constitution bars Alabama from drawing a map that uses race to create majority Black districts. After further discussion, Justice Jackson takes over.

JUSTICE JACKSON: Yes. I am so, so glad for Justice Barrett’s clarification because I had the same thought about what you were arguing, and I’m glad that you clarified that your core point is that the Gingles test has to have a race-neutral baseline or that the –the first step has to be race-neutral.

And –and what I guess I’m a little confused about in light of that argument is why, given our normal assessment of the Constitution, why is it that you think that there’s a Fourteenth Amendment problem? And let me just clarify what I mean by that.

I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about and when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way.

That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen in –during the reconstructive –reconstruction period were actually brought equal to everyone else in the society.
So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves.

The legislator who introduced that amendment said that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.”

That’s not –that’s not a race-neutral or race-blind idea in terms of the remedy. And –and even more than that, I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens. So they recognized that there was unequal treatment, that people, based on their race, were being treated unequally.

And, importantly, when there was a concern that the Civil Rights Act wouldn’t have a constitutional foundation, that’s when the Fourteenth Amendment came into play. It was drafted to give a foundational –a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.

So with that as the framing and the background, I’m trying to understand your position that Section 2, which by its plain text is doing that same thing, is saying you need to identify people in this community who have less opportunity and less ability to participate and ensure that that’s remedied, right? It’s a race-conscious effort, as you have indicated. I’m trying to understand why that violates the Fourteenth Amendment, given the history and -and background of the Fourteenth Amendment?

Lacour says:

The Fourteenth Amendment is a prohibition on discriminatory state action. It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.

That contradicts what Justice Jackson just said. She repeats her point using shorter words. Lacour repeats his earlier statement that Alabama shouldn’t have to sacrifice “other redistricting principles” for the sake of racial fairness unless plaintiffs prove Alabama’s map is discriminatory. He says plaintiffs have to prove specific racial discrimination before thay can use race as a factor in drawing lines. That would require plaintiffs to produce a race-neutral map as a matter of evidence. Justice Jackson says that the point of the Gingles test is to make that determination as required by Sec. 2. Lacour says:

Not if they’re allowed to sacrifice our principles to come up with their maps.

“They” refers to the Black Plaintiffs. Justice Jackson pokes at this response and Lacour says some words. Roberts moves to the next lawyer.

Discussion

1. Justice Jackson is right on the original purpose of the Fourteenth Amendment. In The Slaughter-House Cases SCOTUS construed it so narrowly that it became useless for equalizing government treatment of newly freed slaves, or anyone else, except in very rare cases. But recent scholarship has recovered the original intent. See, e.g. R. Barnett and E. Bernick, The Original Meaning Of The Fourteenth Amend: It’s Letter And Spirit (2018). I haven’t read this book, but based on reviews, it generally tries to extricate the original breadth of the Fourteenth Amendment in Line with Justice Jackson’s analysis. Barnett is a well-known originalist.

2. Lacour’s position is absurd. How can you not laugh at the idea that Alabama has sacred principles of drawing district lines? Of course it does: draw the lines so White people always win. Even if we could imagine some other principle, why should it be so important as to justify diluting minority voting power?

3. John Roberts has devoted his career to destroying the Voting Rights Act. The other right-wingers follow him because it suits their own partisan purposes. They all follow in the tradition of the revanchist SCOTUS of the Slaughter-House Cases. The idea that the Fourteenth Amendment is color-blind is madness.

4. The six right-wingers pretend that their decisions are guided by originalism. When this opinion comes out, look for the tortured logic dismissing the originalist argument so clearly laid out by Justice Jackson.

5. The coward Ben Sasse said that he couldn’t vote to confirm Justice Jackson because he only supported originalists. Obviously she is intellectually rigorous, using originalism as one of the tools of interpretation, just as she said in her confirmation hearing. The six right-wingers only care about original intent when it can be made to fit their preferred outcome.

6. The revanchist six claim that their opinions are driven by their judicial philosophy, not by political ends. They scold their critics for questioning their legitimacy. But the reality is that their so-called judicial philosophy is indistinguishable from right-wing Republican ideology.


Judicial Tyranny And The Atomized Society

Related posts:
The Right Wing Plan To Rig SCOTUS
SCOTUS Is Changing The Definition Of American Citizenship
Alito’s Horrifying Opinion

The arrogance of the judiciary has been rubbed in our faces for several years. SCOTUS members have noticed that people are demanding accountability, and they don’t like it. One member, John Roberts, scolded us:

“The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely appropriate,” Roberts told a gathering of judges and lawyers in Colorado Springs. But he said that disagreement with the court’s role of deciding what the law is has transformed into criticism of its legitimacy.

“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is,” said Roberts, who added, to laughter, “Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

Amy Coney Barrett, speaking at the Mitch McConnell Center at the University of Louisville, demanded that we believe she’s just a simple vessel for determination of the one true law:

“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” the conservative Barrett said, according to the Louisville Courier Journal. She said the high court is defined by “judicial philosophies” instead of personal political views.

“Judicial philosophies are not the same as political parties,” Barrett said.

These two, like other members of the Court, want you to believe that they are not political, certainly not politicians. It’s unfunny hypocrisy that Roberts has pursued a political vendetta against the Voting Rights Act his entire career. They all got their positions through politics, and they all have strongly held ideological views. If Barrett’s “judicial philosophy” isn’t political, why do all her decisions enforce the positions of the Republican Party, its media and donor arms, its think tanks and foundations, and its armed brownshirts?

Barrett asks you to examine her opinions to see if they sound result-driven. This is from a speech at the Ronald Reagan Library.

“Does (the decision) read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” she asked.

Well, I’ve read Dobbs. It’s political hackery. Sure, you can find defenders, like Barrett’s good buddy Richard Garnett, a Notre Dame law professor. But Dobbs has been eviscerated by historians, legal scholars, practicing lawyers, and lay readers. Alito calls the reasoning of Roe v. Wade was egregiously wrong from the start, and says it’s reasoning is exceptionally weak, as if somehow that makes it different from any other decision he doesn’t like. The tone of Dobbs is sneering, condescending, and ridiculous. The opinion ignores the potential impact on the lives and health of women. Only people who like the result will be impressed. Everyone else sees that it solely based on the fact that they have 5 votes to strip our Constitutional rights.

The arrogance of Alito and the other Republican appointees has infected many lower court judges. Let’s look at a couple of cases.

First, in a case in Fort Worth TX, 26 Navy Seals refused to get the Covid vaccine in violation of orders, claiming it was a violation of their religion. Reed O’Connor, a federal district judge. granted a preliminary injunction barring the Navy from enforcing its rule requiring vaccination nationwide, and barring the Navy from taking any action against the plaintiffs. For example, the Navy couldn’t reassign the Seals or take any action to protect other sailors. This was too much for Brett Kavanaugh and John Roberts, who joined the three Democratic appointees in staying the injunction. The injunction was in effect for two months.

Sam Alito, Clarence Thomas and Neal Gorsuch dissented. They think religious freedom, as they construe it, is a higher value than Art. 2 of the Constitution, which provides that the President is the Commander in Chief. The dissenters write “These individuals appear to have been treated shabbily by the Navy, and the Court brushes all that aside. I would not do so, and I therefore dissent.” The dissenters say that the Navy has to find some accommodation for any alleged religious objections at every stage of litigation. The bare assertion of religious claims overrides Art. 2.

Here’s a fun fact about the case:

Ms. Prelogar [the US Solicitor General] wrote that the injunction had already forced the Navy, against its military judgment, to send one of the plaintiffs to Hawaii for submarine duty. In general, she wrote, “Navy personnel routinely operate for extended periods of time in confined spaces that are ripe breeding grounds for respiratory illnesses, where mitigation measures such as distancing are impractical or impossible.”

Another fun fact: in a similar case in the Middle District of Florida, another District Judge, Steven Merryday, granted a preliminary injusntion to a Navy captain who commanded a ship, but refused to get the vaccine on religious grounds. The Navy refused to deploy the ship.

The judge in the first case, Reed O’Connor, in a separate case, ruled that ACA insurance plans didn’t have to cover PrEP, a group of drugs used to prevent HIV infections, because some guy doesn’t want to support a plan that he’s just sure encourages homosexuality which he says is against his religion. This decision is ridiculous. Drugs don’t encourage homosexuality. But Reed O’Connor doesn’t care. Religious claims must be upheld at every stage.

O’Connor also declared that the Congressional system for determining what preventive care must be covered by ACA plans is unconstitutional as a violation of the appointments clause. That’s laughable. We have all kinds of boards to evaluate aspects of health care and other government functions. It takes experts to find objective experts for such administrative tasks. But O’Connor knows best how to anage health care. He’s the guy who declared the ACA unconstitutional.

Other judges have issued nationwide ingjunctions against actions of Congress and the Executive branches with varying degrees of legal merit. For example, a judge in Hawaii enjoined enforcement of the travel ban of the previous administration. Eventually it was upheld in part and stayed in part. Here’s a short neutral discussion.

Now consider the scribblings of Aileen Cannon in the Mar-a-Lago search warrant matter. I have not seen a single reputable lawyer defend her actions. I don’t have words for her absurd interference with the purely executive function of investigating potential crimes.

These cases show a fundamental change in the role of the judiciary in our crumpling government. Courts at all levels now feel free to overturn the decisions of Congress and the Executive Branches for any reason at any stage of the proceedings on any grounds.

Everyone knows this and uses it to stop everything they don’t like. For example, the SEC is making a rule requiring reporting companies to disclose information about their impact on climate. As soon as the rules go into effect the climate-deniers will file suit, and no doubt will find a compliant judge to issue a preliminary injunction which will delay the rules indefinitely. The Guardian explains their legal argument:

Some opponents claim that requiring companies to publish climate-related information infringes on their right to free speech. Others (often the same ones) say that the rule exceeds the SEC’s legal authority.

By accepting facially absurd arguments, and then through years of delay, courts protect the status quo at the expense of democracy. And if the lower courts won’t, you can bet the totally non-political SCOTUS will.

The Atomized Society

Neoliberalism teaches that there is no such thing as society. There is only a group of solipsistic atomized individuals seeking their personal satisfaction without regard to anyone else. It’s a perfect description of the plaintiffs in these cases. The Seals don’t want to get vaccinated, but they want all the benefits of being in the Navy, and claim to be willing to follow all other orders. The anti-gay guy who doesn’t want to participate in ACA plans thinks he should get all the other benefits of insurance plans, but that no one should get any benefit he doesn’t like. The anti-abortion zealots put their moralizing claims over the will of the majority, as polls show repeatedly. Pig-rich corporations think they shouldn’t be subject to democratic rules they don’t like, but want the benefits of operating here.

This is anti-democratic, yes, but it’s also a sign of a failing nation. It is the ultimate triumph of neoliberalism: me first, me only, enforced by the judicial power of the state.


Index And Introduction To The Subject And Power By Michel Foucault

Index to posts in this series
Power And Rationality

Introduction

In this series I will discuss The Subject And Power by Michel Foucault, Critical Inquiry, Vol. 8, No. 4. (1982), pp. 777-795. The motivation is my general sense that The Dawn Of Everything has a pollyannaish take on decision-making in the societies they describe. They think our ancestors were made decisions communally, as if by a town meeting in Old New England. I think that’s wrong in a fundamental way.

I think it’s true, as David Graeber and David Wengrow say in a section heading, that as soon as we were humans we started doing human things. P. 83. One of the things humans do is try to influence the actions of others. Foucault calls that an exercise of power. In this sense, power is central to all human social activity.

Graeber and Wengrow are trying to understand how we got stuck in this current nearly universal set of social relationships. I won’t try to define that set, but one of the central characteristics is that the preferences of a very small number of people are enforced on the rest of us. Normal people know that we have critical problems, and that we generally know how to solve them. That tiny number of people don’t want us to carry out the solutions because it will reduce their wealth, and their control over their wealth. Their wealth translates into power in our stuck social structure, and problems aren’t being solved.

I don’t think we can find the answer in The Dawn Of Everything. That’s not to devalue the book. I think it performs a valuable service by painting a different picture of the development of human societies, and thus enables us to imagine a different future. Surely that’s reason enough to study the book.

Foucault gives us tools to examine the power relations that underlie our social development right up to today. Maybe that will help us figure out how to implement a better future.

Foucault’s Methodology

At the beginning of the essay, Foucault explains his project.

My objective, instead, has been to create a history of the different modes by which, in our culture, human beings are made subjects.

He’s not talking about a history in the high school sense of a sequence of events and ideas, dated, arranged, and conveying an implicit sense of linear progress. He isn’t talking about the history of the Civil War as a series of battles, or speeches of leaders.

Foucault’s history project begins with his idea of the archaeology of ideas, and moves to a genealogy of ideas. My source for this is an essay by Gary Guttig and Johanna Oksala, “Michel Foucault”, The Stanford Encyclopedia of Philosophy (Fall 2022 Edition), Edward N. Zalta (ed.),

Conceptual frameworks aren’t facts, like the dates of the Civil War. The notion of ourselves as subjects is a construct, a framework, a formulation of a perspective and much more. The words we use when we think are themselves imprecise. Consider connotation. As an example, defenders might use a word like scofflaw to describe Donald Trump’s misappropriation of government documents. I might use the word thief, possibly with adjectives. The connotation of the former is trivial offense. The connotation of the latter is condemning. Word choices frame our discourse on every subject, and to a large extent govern the range of our thinking.

Here’s another example. When I was a kid, we looked at the night sky and saw a lot of stars. That gives one idea of the size of the universe. Suddenly ti turned out that practically all those stars are galaxies, and that there are billions more not visible to the naked eye. That gives me a completely different understanding of the scale of the universe.

Here’s how Guttig and Oksala put it:

The key idea of the archaeological method is that systems of thought and knowledge (epistemes or discursive formations, in Foucault’s terminology) are governed by rules, beyond those of grammar and logic, that operate beneath the consciousness of individual subjects and define a system of conceptual possibilities that determines the boundaries of thought in a given domain and period.

I think this is close to Pierre Bourdieu’s concept, habitus, which I discuss in detail here. This describes the cultural knowledge and expectations that guide our everyday interactions, it is the set of preconceptions we use to get along in the world. It is a form of knowledge of the world. We rarely question this knowledge because it almost always works. We use it because it makes our world predictable. In the usual course we’d be hard-pressed to state any part of it clearly.

Foucault thinks that because so much of our thinking lies below our conscious control, we can study these frameworks without considering any particular person. Our conceptual frameworks are universals, generally shared across our society. Foucault doesn’t take the perspective of any particular person. Instead, he looks at many different sources of information, not least of which is relevant social structures. As an example, Foucault wrote a book titled History of Madness. He discusses theories of madness and the languange people used to talk about it. He also examines the ways people dealt with people considered crazy, the institutions people set up to deal with them, and the treatments. This history reveals the changes in society’s perception of madness versus sanity over several centuries.

But histories don’t explain why conceptual frameworks change. For that Foucault turned to genealogies. These are efforts to explain how change happens in the discursive formations societies use to deal with madness, sexuality, and more. His work demonstrates that there is no orderly progress toward some progressive goal, just typical human evolution, some good, some bad, some impossible to evaluate.

Discussion

1. This essay is more difficult than I thought on first reading. I hope this background provides some context for the ideas we’ll be examining. Specifically, we’ll be looking at relations of power. Foucault writes about changes over the past two or three centuries, but I assume that power relations played the same roles throughout human history. I might be wrong, but it seems plausible.

2. Graeber and Wengrow show that human societies did not evolve out of an organized plan to proceed to a brilliant future. They think social evolution is the result of the actions of a lot people trying to cope, dominate, control, adapt, invent, share, take, and all the other things people do. This leads them to believe that we can change things to suit our desires and make life better for all of us. But how can you think that without considering the role of power relations?


Women Led The Move To Farming

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In Chapter 6 of The Dawn Of Everything, David Graeber and David Wengrow describe the gradual move of Neolithic people to farming, and explore its relation to egalitarianism. The usual story is that our ancestors were roughly egalitarian from the beginning to the Neolithic era 10 to 12,000 years ago. Then we discovered farming, took it up wholesale in what is called the Agricultural Revolution, and almost immediately men took over and excluded women from significant participation in governance. The story has a ring of the Garden of Eden story, in which the sudden possession of knowledge is the end of a golden age.

This story is wrong in almost every detail. Obviously it’s wrong because we have practically no information about social organization among people before the Neolithic. The authors think it’s likely that there were many different forms of social organization, including those which operated differently in different seasons and for specific purposes.

Another issue lies in the definition of farming. We have a single word for this, but all the evidence is that there are gradations of cultivation of plants and animals for human purposes. Foragers certainly observed the plants that kept them alive. It’s easy to imagine that they protected plants that produced fruits and vegetables they liked, and took steps to help them grow. They may have cleared out space for them, pruned them back, and maybe even carried water to them in dry periods. Simple observation and a bit of work would improve the yield and made their lives easier.

In the early Neolithic, beginning perhaps 10-12000 years ago a more organized way of farming developed in the Fertile Crescent. Here’s a useful map identifying some of the sites mentioned by the authors. The authors divide this area into the lowlands towards the South and the uplands and high steppes towards the North and East.

By GFDL, CC BY-SA 3.0, https://commons.wikimedia.org

The Lowlands

The Lowlands include a lot of marshy muddy areas near rivers and lakes and artesian springs. Lowlands People used mud and clay for building. This created a use for straw, which comes from the stalks of various wild grasses, including wheat, barley and rye. These grew wild in the Uplands. The Lowlands peoples traded shells and other goods from the South for the wild grasses. This gave them both straw and a new source of food, from the seeds.

Lowlands people foraged and hunted, and kept domesticated sheep and goats. They were adept at flood retreat farming. In the spring the rivers, lakes and marshes overflow, and lay down layers of fertile and wet alluvial soil. People just threw seeds on the new soils and crops would grow quickly with minimal labor. There’s no need to till, weed, or water.

Flood retreat farming doesn’t rely on ownership of property, because the fertile areas change from year to year. It also doesn’t require a lot of centralized organization, merely some rules for sharing the crops. Then, over time, people gradually figured out how to domesticate the grasses to produce more of the edible seeds.

The authors point out the gendered assumptions behind the standard story: the idea that it was men who led the move to farming, because farming is hard work, too hard for the ladies. There are other weird reasons based on Genesis and endemic patriarchy.

Consciously or not, it is the contributions of women that get written out of such accounts. Harvesting wild plants and turning them into food, medicine and complex structures like baskets or clothing is almost everywhere a female activity, and may be gendered female even when practised by men. This is not quite an anthropological universal, but it’s about as close to one as you are ever likely to get. P. 237.

In the Lowlands, women were deeply involved with flood retreat farming and other aspects of economic life, and these contributions were recognized in the artifiacts discovered in recent escavation. One example is Çatalhöyük, a town on the above map. It was founded around 7400 BCE and was occupied for about 1500 years, with a population of about 5000. There are no monumental structures or other buildings typical of hierarchical societies. There are a whole lot of small clay figurines of women. These used to be interpreted as goddesses, but that was mostly because of weird projections of Victorian scientists. The authors think they honor the role of women, including old women, in the society.

The authors think that Lowlands men hunted wild beasts particularly in the colder months, and the women ran the forager/planting economy which ran most of the year. This is similar to other societies in which seasonal changes brought social change. The visual arts support the idea that women played a central, if separate, role in economic matters as well as leadership. The authors call it as ‘gynarchy’, or ‘gynaecocracy’. P. 218.

The Uplands

The people of the Uplands, mostly in what is now Central and Southeastern Turkey, relied on foraging and some management of wild crops, and the same domesticated animals as the Lowlands people. But the overall culture was very different. They used stone, not mud and clay, and built monumental structures with violent images carved in relief. Here is a description of the imagery at Göbekli Tepe, which is on the map.

Carved on these stone pillars is an imagery dominated by wild and venomous animals; scavengers and predators, almost exclusively sexed male. On a limestone pillar a lion rears up in high relief, teeth gnashing, claws outstretched, penis and scrotum on show. Elsewhere lurks a malevolent boar, its male sex also displayed. The most often repeated images depict raptors taking human heads. One remarkable sculpture, resembling a totem pole, comprises superimposed pairings of victims and predators: disembodied skulls and sharp-eyed birds of prey. Elsewhere, flesh-eating birds and other carnivores are shown grasping, tossing about or otherwise playing with their catch of human crania …. P. 242.

There is a lengthy discussion of the treatment of human skulls, a practice followed in the Lowlands as well, but very differently. This site shows some of the materials excavated in this region, including the characteristic T-shaped carved megaliths. Wikipedia has several interesting pics here.

There is no reason to think Uplands women did any less work, including foraging, farming, textile-weaving and basketry, than Lowlands women. But the visual culture ignores them almost completely, and the authors seem to think Uplands women were excluded from governance entirely.

Schismatogenesis

The people of these two regions, Uplands and Lowlands, were trading partners, so they knew about each other’s cultures. They had roughly the same kinds of foraging, cultivation, and herding techniques. But their visual culture shows vast difference. The Uplands were as the authors put it “predatory male” and the Lowlands were roughly egalitarian, treating women’s concerns equivalent to men’s. The authors think these cultural differences are the result of schismatogenesis, discussed in the previous post.

The differences between Uplands and Lowlands cultures show that the rise of farming didn’t lead to creation of gender differences, or hierarchical structures. This is another way the the traditional story is wrong.

Marija Gimbutas

This brings us to the work of Marija Gimbutas, an expert on the pre-history of Eastern Europe starting in the 1960s.

Gimbutas was largely concerned with trying to understand the broad contours of a cultural tradition she referred to as ‘Old Europe’, a world of settled Neolithic villages centring on the Balkans and eastern Mediterranean (but also extending further north), in which, as Gimbutas saw it, men and women were equally valued, and differences of wealth and status were sharply circumscribed. Old Europe, by her estimation, endured from roughly 7000 BC to 3500 BC – which is, again, quite a respectable period of time. She believed these societies to be essentially peaceful, and argued that they shared a common pantheon under the tutelage of a supreme goddess, whose cult is attested in many hundreds of female figurines – some depicted with masks – found in Neolithic settlements, from the Middle East to the Balkans. P. 216, fn omitted.

Old Europe was destroyed by cattle-herding invaders from the East. By the 1990s Gimbutas’ ideas had fallen into disrepute because they were adopted by Wiccans, pagans and other disfavored groups. The criticism came from men, not from women anthropologists or feminist scholars. Recent studies in population genetic supports Gimbutas’ theory. The treatment of Gimbutas parallels the erasure of the work done by Neolithic farming women.

A Slight Change of Subject

I’ll be taking up a side reading for this series, an essay by Michel Foucault, The Subject and Power, Critical Inquiry, Vol. 8, No. 4. (Summer, 1982), pp. 777-795. It’s 20 pages long, not too difficult, but it will help flesh out some of Graeber and Wengrow’s ideas about group decision-making by our ancestors. There’s a discussion of the key ideas in a series of short podcasts by Greg Sadler on Apple Podcasts .


Cultural Differentiation In Non-Agricultural Societies

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Chapter 5 of The Dawn Of Everything By David Graeber and David Wengrow examines cultural differentiation between the peoples of Northern California and the peoples of the Pacific Northwest (the “PNW”) in the centuries before the arrival of White people. They argue that societies define themselves by opposition to other nearby societies. This they call schismatogenesis, a term I discuss here. They use the term culture areas to describe areas where inhabitants share a similar culture.

Cultural differentiation is the process by which the culture of a group of people evolves over time to be less like their neighbors. For example, the people of Northern California did not adopt agriculture, even though they were aware of the practice through contacts with nearby people who grew maize, squash and beans. They themselves grew tobacco and a few other crops, and the lands they occupied would easily have supported the practice. Similarly, they did not adopt a fishing life, as their neighbors to the north did. This process extends to things that have obvious utility. One group of Alaskans refused to adopt Inuit kayaks, while the Inuit refused to adopt their neighbor’s snowshoe technology.

The authors do not offer an explicit definition of culture, but generally it means such things as “… characteristic customs, aesthetic styles, ways of obtaining and preparing food, and forms of social organization.” P. 171. It also includes concepts of the sacred, and moral structures including ideas about how humans should live.

The dividing line between the Northern Californians and the PNW is approximately at the Klamath River which flows from southern Oregon through northern California out to the Pacific. The authors prefer to think of the Californians nearest to this border as living in a shatter zone, where the two main culture areas meet. This area evolved its own culture, radically different from its neighbors to the North and somewhat different from its neighbors to the South and East.

The cultural differences between these two groups are profound, perhaps in part because they evolved over several thousand years. The PNWs lived on salmon and other fish. They were experts at wood carving; their totem poles and war canoes are magnificent. They were boastful and status-hungry. The staple foods of Northern Californians were tree products, nuts and acorns. They were hard-working, self-reliant and abstemious. They were obsessed with money. Their decorations were primarily textiles and basketry. The differences go on and on.

One central difference is that the PNW raided other tribes for slaves who were put to work so that chiefs and nobles were able to live indolently. The Northern Californians rejected slavery, presumably because they believed in self-sufficiency, and living off the sweat of other people would be an affront to their honor.

The authors attribute this to intentional choices by each group. We are not people who keep slaves says one group. We are not people who work like dogs to make porridge says the other.

The authors say that cultural differentiation is a dominant theme in the history of human societies:

Ever since Mesolithic times, the broad tendency has been for human beings to further subdivide, coming up with endless new ways to distinguish themselves from their neighbours. P. 166.

The authors believe that we do this differentiation intentionally; that we think about the ways we are not like others, and that we emphasize and expand on those differences. Over time this leads to vastly different cultures. The effects are both significant, as slave-holding, and seemingly trivial, as the use of chopsticks instead of forks.

The last section of Chapter 5 lays out three conclusions.

a) The authors recognize that there isn’t just one cause for cultural differentiation. Economic constraints encourage or even necessitate certain choices. Language structures might play a role. But also, human agency (“the preferred term, currently, for what used to be called ‘free will’” p. 206) plays a part. In a book primarily about human freedom, it seems reasonable to give human agency a bigger role than others might suggest.

b)

Slavery, we’ve argued, became commonplace on the Northwest Coast largely because an ambitious aristocracy found itself unable to reduce its free subjects to a dependable workforce. The ensuing violence seems to have spread until those in what we’ve been calling the ‘shatter zone’ of northern California gradually found themselves obliged to create institutions capable of insulating them from it, or at least its worst extremes. A schismogenetic process ensued, whereby coastal peoples came to define themselves increasingly against each other. P. 207.

Then they draw the broader conclusion that slavery is a perversion of domestic life, the opposite of care, nurture and love that characterizes the home.

c) They say that hierarchy and equality emerge simultaneously. The Northern Californians practiced a form of equality where status was solely the outcome of living in a certain way. The PNW had a hierarchy based on treasures and hereditary titles. The two groupings emerged together.

Discussion

It does seem that people want to find markers to distinguish themselves from other people and at the same time connect themselves to their group more tightly. This is a plausible explanation for the Alaskan groups who refused to adopt kayaks and snowshoes despite their utility. Maybe we can see it in the anti-vaxxers who risk a sickening disease and even death rather than separate themselves in any way from their political comrades. The need for connection overwhelms the rational consideration of the evidence, maybe?

Maybe we can see it in the Protestant Reformation. In Northern Europe the religious revolution begun by Martin Luther was a way for people to separate themselves from the corruption and greed of the institutional Catholic Church which was increasingly obvious and oppressive. The schismatics claimed to be returning to true Christianity.

At the same time, elites saw the utility in using the fervor of rejection of the Temporal Power of the Vatican as a way to strengthen their own positions as the leaders of rising nation-states.

The authors use language that suggests something like town meetings to make decisions about adopting cultural changes. But it seems likely to me that a good bit of this kind of separation is driven by the preferences of elites. For example, Northern Californian elites show themselves through their accumulation of wealth by individuals. At death, wealth was destroyed, not passed to the next generation. These elites argue against slavery, and encourage others to work hard themselves, to be self-sufficient like the elites. This would provide a psychological boost to these elites and justify their choices.

On the other side, the PNW elites are identified by their hereditary wealth and titles, their prowess at war, and their their largesse in the potlatch. They use their own status and the glory of war to encourage the behaviors that benefit them materially.

I’m surprised that the authors don’t identify the elites as a major driver in this kind of differentiation. We’ll see this more clearly in future chapters.


The Sophistication Of Forager Societies

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Chapter 4 of The Dawn Of Everything by David Graeber and David Wengrow dispels myths about hunter-gatherer societies, the normal state for humans until the last few thousand years. The standard image is that these were small bands who roamed about looking for nuts and berries and killing small game. They were egalitarian in the sense that wealth and power were shared among all the mature members of the group. Then they discovered farming and began to develop civilization, hierarchies and bureaucracies.

Evidence of Sophistication

The authors have a more interesting story. For most of human history humans were foragers, hunter-gatherers. But they weren’t all roaming around. They lived in coastal plains, along rivers, and in fertile woodlands, mostly settled, but moving about from time to time. We don’t have any direct evidence of their lives or social structures, but we can speculate based on tools and other archaeological evidence.

We do know that they were travelers. There is evidence that some of them covered great distances at least once in a while to gather stones, shells, different foods. We also know they gathered together in relatively large numbers once or twice a year to build immense structures for unknown reasons. They transported huge stones over great distances,and moved enormous amounts of dirt in what had to be a coordinated effort That implies a lot more organization and planning than the simple-minded myth suggests.

One example I’ve actually seen is the Carnac Alignments, near Carnac in Brittany. Large stones were transported from far away and arranged in neat lines in increasing heights over about two kilometers from North to South. At the South end there is a circle of stones about 50 feet in diameter, each about 20 feet high, close together. Here’s a blog post by my fellow traveler with lots of pictures and description. There are similar sites all across Europe. No one has a clue why our ancestors thought doing this was a good idea.

Forager societies built enormous earthworks at sites around the world. One of the largest is at Poverty Point, Louisiana. There are a number of very large mounds, the significance of which is unclear. The authors think the construction relied on sophisticated geometrical knowledge. There are somewhat similar mound sites in Ohio.

Hunter-Gatherer Egalitarianism

The authors think we can gain insight into these early cultures by looking at ethnographic studies dating back to the earliest European newcomers, as well as studies of African, Australian and other forager societies that persisted into the 20th C.

The usual story about forager societies is that they are egalitarian in most respects. One theory is the simple idea that there is no property so everyone is equal. This ties neatly into the rest of the standard story of the evolution that Brought human beings to the present. Before farming was invented, it was very difficult to create the kinds of surpluses of material goods and food considered necessary for a complex society.

That doesn’t explain how our ancestors journeyed across the US Southeast to build those enormous mounds at Poverty Point. They must have been able to feed themselves, even without organized farming. Similarly, how did the Carnac culture get the food and shelter needed for the transport and construction of their site? Obviously there was enough food and material for shelter during travel and construction and return travel.

There was also some kind of organization sufficient to keep the construction going. It may not have been run by authoritarians. Perhaps it was consensual, or short-term hierarchies were created. We don’t know. But it’s a lot more than we attribute to forager societies in the usual telling.

Another idea about egalitarianism is that people insisted on personal autonomy.

What matters to Montagnais-Naskapi women, for instance, is not so much whether men and women are seen to be of equal status but whether women are, individually or collectively, able to live their lives and make their own decisions without male interference. P. 130.

This is egalitarian in the sense of personal liberty, personal freedom. It begins with the freedom from other people bossing one around.

Most people today also believe they live in free societies (indeed, they often insist that, politically at least, this is what is most important about their societies), but the freedoms which form the moral basis of a nation like the United States are, largely, formal freedoms. American citizens have the right to travel wherever they like – provided, of course, they have the money for transport and accommodation. They are from ever having to obey the arbitrary orders of superiors – unless, of course, they have to get a job. In this sense, it is almost possible to say the Wendat had play chiefs and real freedoms, while most of us today have to make do with real chiefs and play freedoms. P. 130-1; fn omitted.

The Origin Of Property Rights

At the end of Chapter 4, the authors offer a theory to explain the origin of private property. They say that our ancestors as far back as we know had only one type of property not shared in common: sacred objects and knowledge. These things are set apart from all others. In European culture private property is held against the whole world. No one is allowed to interfere with one’s ownership of private property. In that sense, the authors see a connection to the sacred.

…[W]e take this absolute, sacred quality in private property as a paradigm for all human rights and freedoms. ,,, Just as every man’s home is his castle, so your right not to be killed, tortured or arbitrarily imprisoned rests on the idea that you own your own body, just as you own your chattels and possessions, and legally have the right to exclude others from your land, or house, or car, and so on. P. 159; fn omitted.

Discussion

1. I shortened the discussion of the sacred on the ground that ethnographic data won’t translate back to our distant ancestors. The fact is that I don’t think much of the connection between the sacred and private property.

2. The idea of autonomy seems fairly close to Elizabeth Anderson’s ideas of freedom, which I have discussed in several posts in this series; see also links above.

3. The authors are looking for an explanation of how we got stuck in the present set of hierarchical arrangements dominated by a small number of people.

Ruling classes are simply those who have organized society in such a way that they can extract the lion’s share of that surplus for themselves, whether through tribute, slavery, feudal dues or manipulating ostensibly free-market arrangements. P. 128.

They also observe that a strong sense of personal freedom, of personal autonomy, seems to be the dominant trait of most hunter-gatherer societies. So, another way of defining the “stuck” problem might be ask how we acquiesced to our loss of personal freedom.

I don’t think we can find an answer to the author’s question in their book. I think we need a broader look. I wrote several posts at FireDogLake about Michel Foucault’s Discipline and Punish: here and here. I think these help us get at the problem.

Maybe we’re stuck beause the ruling classes benefit are focused on preventing change that might inconvenience them and have arranged social structures that make that easy for them.


Alito’s Horrifying Opinion

1. The only really important point in this post.

It is crucial to remember that this disgusting diatribe is the real opinion of Alito and his co-conspirators. They intend to force you to submit to this power grab and all the sickening changes it makes in our democracy. To them the opinions, the morals, and the sense of civic virtue of the vast majority of Americans are meaningless. Only they and their tiny minority are right.

The formal opinion may be substantially different in form, maybe even to some extent in substance, but this is the unvarnished opinion of Alito, Thomas, Gorsuch, Barrett and possibly Roberts. Do not be fooled by a milder version of this screed. Do not forget they will happily hand you over to the Red State version of the Inquisition.

2. Alito is a bad judge.

Alito’s draft is an attack on judging as a human intellectual activity. It’s an assault on the very nature of good judging. In the less important part of this post, nearly unimportant, I explain my thinking on this point.

Here’s a summary of Alito’s opinion, selected sentences from the beginning of the opinion.

1. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions (my numbering and paragraphing).

2. In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish.

3.The Con­stitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, in­cluding the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s his­tory and tradition” and “implicit in the concept of ordered liberty.”

4. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.

Therefore they reverse Roe v. Wade and while they’re at it, they reverse Casey v. Planned Parenthood; and say that the standard for review of a state law concerning abortion is whether there is a rational basis for the law.

Here’s a summary by Jeanne Suk Gerson in the New Yorker, laying out the general form of the argument.

Let’s begin with this question: at this time two years was there a Constitutional right to an abortion as set out in Roe and Casey? The answer is clearly yes. The proof is that courts enforced it, and people complied. It can’t possibly be that Alito’s decision, in whatever form it is finally rendered, makes it so that there was never a Constitutional right to an abortion. The Constitution is what five people say it is. The majority in Roe and Casey both said there is a Constitutional right to an abortion, and so it was.

Lots of SCOTUS cases are wrong at least to a large number of people. Why is it necessary to overrule this one? Why not leave it in place, even if Alito and his allies don’t like the reasoning. Alito doesn’t address that question. Stare decisis and reliance on precedent are crucial elements in judging. They give stability to our law.

Consider, for example, Plessy v. Ferguson and Brown v. Board of Education. In overruling Plessy, the Brown Court found that separate schools for White and Black kids seriously damaged Black citizens in ways that didn’t exist at the time Plessy was decided. Changes in society were so great that separate was inherently unequal by the time of Brown. Therefore it was necessary to overrule it.

How does Alito explain why Roe should be reversed? This is all I can find:

Its reasoning was exceptionally weak, and the decision has had damaging consequences.

Overturning Roe will also have terribly damaging consequences. A good judge would address this plain fact.

One possible answer is that Alito is a true believer in originalism, a theory created by conservatives to combat the Warren Court’s “liberal” decisions. He believes that there is a True Constitution from which all law springs. That law is encapsulated in the public meaning of the words in the Constitution as they were understood at the time of adoption. Alito and his colleagues are guardians of that True Constitution, and it’s their sworn duty to insure that it is not distorted by bad cases. Using that theory, Alito can and must speak truth about the Constitution, regardless of the consequences. As he puts it:

The Casey plurality was certainly right that it is important for the public to perceive that our deci­sions are based on principle, and we should make every ef­fort to achieve that objective by issuing opinions that care­fully show how a proper understanding of the law leads to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. That is true both when we initially decide a constitutional issue and when we consider whether to overrule a prior decision.

“Proper understanding”? Concerns about “the public’s reaction”? His “work”? For Alito judging isn’t about people, or society. Real judges don’t act like that. Let’s see what traditional jurisprudence says about judging.

In a paper titled Logical Method and Law (1924) the American pragmatist philosopher John Dewey describes good judging. He quotes Oliver Wendell Holmes from a paper on agency law in The Collected Legal Papers, p. 50.

… the whole outline of the law is the resultant of a conflict at every point between logic and good sense — the one striving to work fiction out to consistent results, the other restraining and at last overcoming that effort when the results are too manifestly unjust.

Dewey’s pragmatic theory is that the act of thinking only occurs in the face of doubt. At that point we are forced to proceed to inquiry. Over centuries of trial and error that continue to the present, we human beings have developed ways of investigating and collecting information, evaluating it, checking and rechecking, and ultimately forming conclusions. Then we observe the results and make adjustments to achieve our goals in the best way possible, knowing that we cannot be sure we are right. This method, more fully developed in other writings, applies to solving the problems presented to judges.

I read Dewey to say that judges should start with inquiry, and collect the facts in the messy circumstances of the case before them. As they do so they reach tentative conclusions about the best solution to the problem presented. Then they consider the general legal principles which might act premises for forming a conclusion that will be best for the case in front of them. He thinks inquiry is a logic of consequences, not antecedents. Once the consequences become reasonably clear, it is possible to consider relevant general principles. The selection of the relevant premises becomes crucial only at that point. We’ll see that when we see the dissents which we can expect from three members of the Court.

Then the judge writes down an explanation based on the general principles and tries to justify the decision. This logic is different from the logic of inquiry and the formation of conclusions. It is designed to appear as impersonal as possible while being persuasive. That’s why formal syllogistic logic is the model for many opinions. It conceals the messy process of inquiry, and it hides the uncertainty which has to exist in all really hard cases.

To see how Dewey’s thinking works in practice I turn to a modern thinker and appellate judge, Richard A. Posner. In a paper titled Pragmatic Adjudication Posner writes

But if his definition is rewritten as follows-“a pragmatist judge always tries to do the best he can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past” — then I can accept it as a working definition of the concept of pragmatic adjudication.

He explains that the function of precedent is to provide the current judge with information and principles that might be helpful in deciding the current case. The point is that precedent does not supply Judges with a single answer to the determination of the proper rule to govern the case before them. Judges should consider sources that help understand the wisdom of the possible rules. The role of the judge is to end the fiction when it conflicts with good sense.

That’s what Alito doesn’t do. In this opinion, the question is whether Roe and Casey should be reversed. But Alito doesn’t explain why overruling Roe and Casey is better than leaving them in place even though the reasoning in his view is flawed.

Let’s grant for the sake of argument that Roe “had damaging consequences”, which Alito asserts as a fact with no evidence. It also caused heart-burstingly wonderful outcomes for millions of living women and their families. Why doesn’t Alito consider that benefit? He doesn’t explain why reversing Roe and Casey is the best outcome for the present and the future; in fact he says that isn’t relevant.

In my jurisprudence, he would at least address it. In his, it’s irrelevant, trivial, meaningless. For me and the majority of Americans, Alito’s originalist fiction imposes an unjust outcome with no explanation. It can only be a political act, an act of power.

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Here are a few of the essays I read on the draft opinion.

Rebecca Traister

Ian Milheiser

Alex Parene

Jessica Valenti

Molly Crabtree

Zachary Carter

Melissa Murray and Leah Litman

Barry Friedman,Dahlia Lithwick, and Stephen I. Vladeck

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Originally Posted @ https://www.emptywheel.net/author/masaccio/