The Warren Court

Ever since the 1950s conservatives have railed against “activist judges”. They mean the Warren Court. because it took a broader view of the Equal Protection Clause of the 14th Amendment than the Reconstruction-Era Supreme Court did in cases like The Civil Rights Cases.

The Warren Court said in Brown v. Board that Black kids must get the same education that White kids get, and the way to insure that was to put all the kids together in the same schools.

In Gideon v. Wainwright, the Warren Court said that the right to counsel in criminal cases was meaningless for all of the people who didn’t have enough money to pay a lawyer. It forced states to provide counsel for every defendant who couldn’t pay for one.

The Warren Court established a zone of personal privacy in Griswold v. Connecticut. It established a right to abortion in Roe v. Wade.

These and many other Warren Court cases have a common thread. They all improve our democracy by making sure that more and more people share in the rights and benefits of being an American citizen. Some of them increase our ability to participate in our democracy, as in Baker v.Carr. Some increase our personal freedom. Some insure that everyone receives a greater level of protection from government prosecution or interference. All of them take the Reconstruction Amendments seriously, and try to implement them, as Congress expressly intended.

The Warren Court’s broad reading of the Constitution horrified conservatives because it upset a century of Constitutional decisions and laws designed to insure the suppression of Black people and women and insure White male supremacy.

A very brief discussion of the theory of Constitutional and Statutory interpretation

Over the centuries the Common Law and US jurisprudence worked out a number of theories of interpretation of the Constitution. In 2021, the Congressional Research Service issued nine very short essays under the heading The Modes of Constitutional Analysis. Here’s an index.

1. The Modes of Constitutional Analysis: An Introduction (Part 1)

2. Textualism

3. Original Meaning

4. Judicial Precedent

5. Pragmatism

6. Moral Reasoning and the National Ethos

7. Structuralism

8. Historical Practices

9, The Constitutional Avoidance Doctrine

These essays provide an introduction to the basic concepts with examples, and describe some of the pros and cons of each mode.

In general, SCOTUS decisions and dissents rely on a combination of these modes of analysis. Griswold v. Connecticut, with its concurring and dissenting opinions  is a good example of the application of most of these modes of analysis.

Warren Court Jurisprudence

The Warren Court’s decisions follow a tradition laid down in the English Common Law and imported to the US as part of tour legal system. Courts hear hundreds of cases, and they write down the facts, the decisions and the rationale for their rulings. These accumulate over time, and gradually the courts build up principles which they follow in current cases. These rules are gathered into books and taught to lawyers who can use them to advise clients of likely outcomes. This is what is meant by the terms stability and predictability used in the CRS essays.

Griswold is a good example. The majority held that the Constitution protected a zone of privacy for Americans. The words do not appear in the Constitution. William Douglas, writing for the majority, examined a number of cases construing different parts of the Bill of Rights, and synthesized them into  the proposition that state and federal governments are not allowed to invade people’s personal lives or interfere with their private decisions. Marriage is one of those areas. As Douglas said:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

Conservatives mock the use of the terms penumbra and emanation used by Douglas, but they have-no acceptable answer for this question. Each of the modes of analysis (other than originalism) support this outcome. That didn’t stop conservatives from attacking the Warran Court,  and it didn’t stop them from pushing government into our private lives either.

Conservative Activism

In  the 1970s rich conservatives began to fund efforts to reverse the Warren Court decisions. They set up organizations like the Federalist Society and others led by Leonard Leo to push conservative ideas through law professors and legal think tanks.

These academics produced motivated scholarship aimed at getting rid of any mode of constitutional analysis that could be used to expand rights. Conservatives argued that only textualism and originalism, and perhaps judicial precedents from the 19th and early 20th Centuries, are legitimate forms of Constitutional analysis. Everything else is activist. These conservative academics produced a cadre of movement lawyers who now staff groups funded by rich right-wingers. like Americans Defending Freedom. They generated a roster of potential judges committed to the conservative legal project.

Here’s an explanation from Nelson Lund, a professor at the Antonin Scalia Law School at George Mason University, writing in the New York Times.

The goal of the conservative legal movement has been to replace the result-oriented adventurism of the Warren court during the 1950s and 1960s with respect for the original meaning of the Constitution, including its allocation to Congress of the sole authority to enact and amend statutes. If the government wins either of these cases, let alone both, that movement should recognize that its project has not succeeded.

The two cases Lund is talking about are US v. Rahimi and Garland v. Cargill. Rahimi is the subject of a domestic abuse order under which he may not possess guns. Cargill sells bump stocks which are barred by a federal rule. Lund seems to think it would be “activist” to uphold democratically enacted laws, rules, and court orders restricting violent domestic abusers, and stop the sale of attachments that, as he puts it, “facilitate mass murder.”

Lund’s statement that conservatives want to protect the Congressional power as the sole authority to enact and amend statutes is laughable. His interpretation of the Constitution bars Congress from regulating firearms at all, and from empowering federal agencies to act under statutory limitations.

Lund and the Roberts Court refuse to consider the real-world results of their ideology. It’s nothing to them if women suffer and die, or if not-white votes are suppressed or if domestic violence deaths rise, or mass murders plague churches, schools, concerts, and shopping malls.

The judicial activists on the Roberts Court demonstrate the damage an ideologically-driven and unconstrained SCOTUS can do to democracy.

In the last part of Chapter 9 of The Origins Of Totalitarianism, Hannah Arendt explains her ideas about citizenship as a crucial part of human nature. Arendt was a scholar of the ancient Greeks, and it shows in this section.

A place in the world

In prior posts I looked at statelessness arising from the enormous European migrations during and after WWI. Millions of people were deprived of citizenship in their own nations, or worse, their nations disappeared, leaving them not even subject to deportation. Having no state to protect their rights, they were in effect deprived of all human rights.

The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective. Something much more fundamental than freedom and justice, which are rights of citizens, is at stake when … one is placed in a situation where, unless he commits a crime, his treatment by others does not depend on what he does or does not do. P. 296.

In Arendt’s view, this is the nub of the disaster facing stateless people. They continue to exist, but it doesn’t matter what they say or think or do. They are alive, but they are useless, superfluous. Their treatment by others, the way they are dealt with by the state, has nothing to do with their opinions or actions.

This right, the right to participate in the life of a community, was thought to inhere in people. It has roots deep in human history and far back into pre-history. In earlier times, groups of people driven out of a community might be taken in by another group, or they might be able to live on their own, as shown in the delightful story of the Kimmeri as told by Herodotus in the Histories, Vol. 1, Book IV, ¶ 11 (set out below).

Arendt says that at least since Aristotle, the ability to speak and act was defined as the nature of human beings, and it was Aristotle who called humans “political animals”. Aristotle saw that these were not characteristics of slaves, and therefore slaves were not human. Arendt notes that even slaves had a place in society, and their labor was a valuable asset that remained in their control to some extent. But that wasn’t true of the stateless people. They had no place in society other than whatever charity might hand them.

In the Declaration of Independence, Jefferson says that the Colonies are entitled to “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”. In a passage based on the writings of Edmond Burke about the French Revolution, Arendt asks how we could possibly think a universe which showed no sign of either laws or rights implied anything for us humans.

A return to nationalism

Beginning at page 299, lay out Arendt offers her thought on the best way forward. The argument is multi-layered and not quite clear to me. As I read it, she thinks the solution can’t come from outside us, in history, nature, or from a common humanity. She thinks the solution lies in the laws of each nation. She thinks we are capable of creating laws that define and protect the rights we are willing to extend to each other, nation by nation.

She points to Burke’s rejection of the French Rights of Man And The Citizen. Burke calls these rights “abstractions”, and they are, just as Jefferson’s “life, liberty, and the pursuit of happiness” are abstractions. We can’t govern ourselves with abstractions, we can’t protect abstractions, and we can’t even agree on the meaning of these abstractions because in the end, the meaning is dependent on the context.

According to Burke, the rights which we enjoy spring “from within the nation,” so that neither natural law, nor divine command, nor any concept of mankind such as Robespierre’s “human race,” “the sovereign of the earth,” are needed as a source of law. P. 299, fn. omitted.

She says:

We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights. P. 301.

She offers a pragmatic justification: the abstractions failed the stateless, but the protection of rights by the state worked.

She offers more abstract justifications, based on the notion that we as humans deeply want to be part of societies, and to contribute our ideas and our labor to the general good. She notes that the ancient Greeks,distinguished between the public and private spaces in communal life. Private space is based on individuality and difference. Public life is based on equality of participation and recognition, and this is the sphere of life in which we all want to participate.

Discussion

1. The strength of our rights is based on our ability to work together to achieve a good life. Successful nation-states work to diminish or eliminate the kinds of differences, arising from the private space, that make working together difficult or impossible. Religion is often one of those intractable problems. In the US, the idea was to keep religion our of the public sphere to the maximum extent possible. We put it in the Constitution. In the 14th Amendment we said we wouldn’t deny rights to people on acount of race. Today we see how eroding that principles divides us, and makes solutions to common problems impossible.

2. I started this series saying that we humans create the rights of Man. Our ideas about how to live together have evolved over millennia as our human ancestors worked out ways of living together. Arendt says that the universe does not seem to recognize the categories of rights and laws (p. 298) so that we, who are part of nature, can’t deduce rights and laws about ourselves.

I don’t agree with that. We can and do deduce the actual laws governing nature, even laws we don’t understand, like quantum theory and dark matter. In a similar way, we can deduce laws that will give us the best chance of flourishing. This has already happened in the past when civilizations moved away from animism and paganism.

This transformation occurred independently in four different regions during the Axial Age, a pivotal period lasting from 900 B.C. to 200 B.C., producing Taoism and Confucianism in China, Buddhism and Hinduism in India, Judaism in the Middle East and philosophic rationalism in Greece.

This quote is from a review of a book by Karen Armstrong, The Great Transformation: The Beginning Of Our Religious Traditions, in the New York Times. As I recall this book, Armstrong sees a common strain in these religious traditions that can be summarized as forms of the Golden Rule.

Perhaps it was this common strain that led Enlightenment thinkers like Jefferson to the idea of natural rights, or universal rights recognized by everyone. Those universal rights were, of course, never actually universal: autocratic leaders found multiple reasons to deny them to groups of people.

Each of these great religions co-evolved with a different social structure. Those different structures have lasted several thousand years of material and intellectual changes. Are there signs that those structures are morphing towards greater commonality, at least among the wealthier citizens with access to the world-wide communications platforms? How would rights work in nations with a large number of people who have moved away from traditional structures while another large number remain committed to an older structure? Is there enough commonality among citizens to hold nations together?

========
The story of the Kimmerians, as told by Herodotus:

There is however also another story, which is as follows, and to this I am most inclined myself. It is to the effect that the nomad Scythians dwelling in Asia, being hard pressed in war by the Massagetai, left their abode and crossing the river Araxes came towards the Kimmerian land (for the land which now is occupied by the Scythians is said to have been in former times the land of the Kimmerians); and the Kimmerians, when the Scythians were coming against them, took counsel together, seeing that a great host was coming to fight against them; and it proved that their opinions were divided, both opinions being vehemently maintained, but the better being that of their kings: for the opinion of the people was that it was necessary to depart and that they ought not to run the risk of fighting against so many, 14 but that of the kings was to fight for their land with those who came against them: and as neither the people were willing by means to agree to the counsel of the kings nor the kings to that of the people, the people planned to depart without fighting and to deliver up the land to the invaders, while the kings resolved to die and to be laid in their own land, and not to flee with the mass of the people, considering the many goods of fortune which they had enjoyed, and the many evils which it might be supposed would come upon them, if they fled from their native land. Having resolved upon this, they parted into two bodies, and making their numbers equal they fought with one another: and when these had all been killed by one another’s hands, then the people of the Kimmerians buried them by the bank of the river Tyras (where their burial-place is still to be seen), and having buried them, then they made their way out from the land, and the Scythians when they came upon it found the land deserted of its inhabitants

There is no doubt the Republicans on SCOTUS (hereinafter R-SCOTUS) are lined up behind Trump in his criminal cases. The timeline in the ridiculous immunity case and the decision in the Colorado ballot case are clear demonstrations of their commitment to his reelection despite his obvious unfitness for office.

The Colorado case

In Trump v. Anderson,  all nine members of SCOTUS agreed that Colorado can not keep Trump off the ballot under the  Insurrection Clause of the 14th Amendment. The per curium opinion offers several weak reasons to support this result.

Barrett and the Democratic appointees expressly dissented from the majority’s holding that only Congress can enforce the Insurrection Clause, and only with the approval of SCOTUS. The majority concludes with this:

These are not the only reasons the States lack power to enforcethis particular constitutional provision with respect to federal offices. But they are important ones, and it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches.

Restrictions on Congressional Enforcement of the Insurrection Clause

That last quote refers to the part of the per curium opinion saying that § 5 of the 14th Amendment

… limits congressional legislation enforcing Section 3, because Section 5 is strictly “remedial.” To comply with that limitation, Congress “must tailor its legislative scheme to remedying or preventing” the specific conduct the relevant provision prohibits. Section 3, unlike other provisions of the Fourteenth Amendment, proscribes conduct of individuals. … Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” Citations omitted.

The women on SCOTUS agree that this is unnecessary for the decision. It’s purely a creation of the SCOTUS men. It prescribes no standards, and it arrogates power to SCOTUS at the expense of Congress.

I note that the claim that the 14th Amendment only applies to the actions of individuals is the invention of an earlier SCOTUS, in cases like US v. Cruikshank and The Civil Rights Cases, which I discuss here and here. The Congress that drafted the 14th Amendment thought it had the power to legislate against the KKK and other violent white supremacists acting in their private capacity. For example, in Cruikshank, SCOTUS said principles of federalism mean that the 14th Amendment only applies to state action. Those early  rancid decisions are never questioned even though we now have thousands of federal laws governing individuals.

The kicker is that any restrictions on Congress say nothing about limitations on the States. And any limitations SCOTUS dreams up to control Congress of power can just as easily be applied to the states, and with just as much historical and legal justification.

Manipulating the ridiculous immunity claim

Trump, who already defied the norm of a peaceful transition of power, also defies the principle that no one is above the law. He says that no president can be prosecuted for crimes committed while in office unless they are first impeached. He agrees with Richard Nixon “Well, when the president does it … that means that it is not illegal.”

This is an interlocutory appeal. The decision of the Circuit Court was clearly right. There was no need for SCOTUS to take this case at this state of the proceedings. No one thinks the president is entitled to blanket immunity. After sitting on it for two weeks, SCOTUS set the case for “expedited” review seven weeks later. Who knows when they’ll issue a ruling.

It would be stupid for SCOTUS to take up the claim that Trump is immune from prosecution for any and all crimes committed in his official capacity. So SCOTUS rephrased the question presented:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

This phrasing enables SCOTUS to screw up the trial by all sorts of legal trickery. For example, Trump is charged with “knowingly” participating in conspiracies. SCOTUS could hold that Trump is entitled to a presumption of immunity, and that the prosecution has the burden of proof on whether Trump intended to take actions outside his official duties. That would dramatically increase the burden on the prosecution.

I’m sure R-SCOTUS can come up with better ideas than mine.

Bad judging

I think R-SCOTUS members are bad at judging. They claim to be originalists, but that’s not what they did in the ballot case. The per curium opinion selectively quotes one iota of the history of the 14th Amendment and ignores the rest. It doesn’t address the mountains of information provided in the two amicus briefs filed by historians. It’s solely based on outcomes.

I discussed good judging in my post on Dobbs.  As I see it, good judging at the appellate level is solving hard problems in the way most likely to produce the best possible long-term results. Past cases and history are not absolutely binding, but provide guidance and wisdom (sometimes) from other judges. For this rule, I rely on Judge Richard Posner’s views, and those of Oliver Wendell Holmes and John Dewey’s pragmatism, but I won’t rehash that here.

What R-SCOTUS does is invent a bunch of reasons why their preferred outcome is right. The per curium opinion is jumbled to the point that they feel obligated to justify its lack of coherence.

The dissent relies on principles of federalism, as the majority claims to do. It then looks at the likely outcomes of the Colorado case and explains why those outcomes are bad for the nation. It says that the Constitution doesn’t require that bad outcome. The dissenters give us exactly what Posner expects: their judgment of what is best for the future. They may be right. They certainly are right to refuse to go beyond what’s needed to resolve the present case; that’s a critical guardrail against overreach.

Why though?

The per curium decision all but insures that Trump will not be subject to disqualification under the Insurrection Clause. The timetable for the absurd immunity claim, and the mischief that awaits us from their decision is additional insurance.

I do not understand why R-SCOTUS is in the bag for Trump. They have life tenure, a decent income, and constant security. They have enormous power, to the point that no law or rule is effective without their consent. They have a long to-do list of laws and rules destined for termination. Why waste any of their muscle on Trump?

The easy answer is that they’re corrupt. There’s plenty of evidence of that. Clarence Thomas? His insurrectionist-adjacent wife? And a free RV? Alito, with his giant salmon? Neil Gorsuch’s house? Brett Kavanaugh’s disappearing debts? John Roberts’ wife with her $10 million from BigLaw for legal recruiting? Their total indifference to ethics and the appearance of impropriety?

But that probably isn’t it, unless Trump or someone else holds receipts for this and whatever else there might be, and made it clear those receipts would become public. And I don’t see why that would benefit the filthy rich donors who put these people into power. They set that to-do list and they don’t need Trump to get it done.

Gratitude? At this level there’s precious little of that.

Is it the purely political calculation that any action taken against Trump is too dangerous? Are they worried that his hard-core followers, armed to the teeth by R-SCOTUS cases, will riot or even attack SCOTUS if they rule against Trump? Do they think that normal people will bitch but still comply with their rulings in his favor and accept his potential election peacefully?

Is there something worse that innocents like me can’t even imagine?

The belief that all humans have certain rights, endowed by the Creator as Jefferson put it, is common. The lesson of Chapter 9 of The Origins of Totalitarianism (“Origins”) by Hannah Arendt is that such rights mean little or nothing if there is no one to enforce them. Realist diplomats after WWI knew that the successor states would not enforce the human rights of minorities and refugees unless forced to do so. They created the Minority Treaties to provide that enforcement, backed by the League of Nations.

It didn’t work. It turns out that the important part of Jefferson’s observation is the next phrase: “that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….“ Absent the protection of the state, the mystical state of having rights is useless. And even having formal rights, like citizenship, is no protection against denaturalization. Arendt provides an example:

Yet, one need only remember the extreme care of the Nazis, who insisted that all Jews of non-German nationality “should be deprived of their citizenship either prior to, or, at the latest, on the day of deportation” (for German Jews such a decree was not needed, because in the Third Reich there existed a law according to which all Jews who had left the territory—including, of course, those deported to a Polish camp—automatically lost their citizenship) citizenship) in order to realize the true implications of statelessness. P. 280, fn omitted.

The problem of statelessness, and thus rightlessness, which runs through Origins is still with us. One salient example today is the Palestinian people. Arendt wrote about the impact of establishment of The State Of Israel in 1947.

The notion that statelessness is primarily a Jewish problem was a pretext used by all governments who tried to settle the problem by ignoring it. None of the statesmen was aware that Hitler’s solution of the Jewish problem, first to reduce the German Jews to a nonrecognized minority in Germany, then to drive them as stateless people across the borders, and finally to gather them back from everywhere in order to ship them to extermination camps, was an eloquent demonstration to the rest of the world how really to “liquidate” all problems concerning minorities and stateless.

After the war it turned out that the Jewish question, which was considered the only insoluble one, was indeed solved—namely, by means of a colonized and then conquered territory—but this solved neither the problem of the minorities nor the stateless. On the contrary, like virtually all other events of our century, the solution of the Jewish question merely produced a new category of refugees, the Arabs, thereby increasing the number of the stateless and rightless by another 700,000 to 800,000 people.

And what happened in Palestine within the smallest territory and in terms of hundreds of thousands was then repeated in India on a large scale involving many millions of people. Since the Peace Treaties of 1919 and 1920 thé refugees and the stateless have attached themselves like a curse to all the newly established states on earth which were created in the image of the nation-state. P. 289 — 90, fn. omitted, my paragraphing.

The problem of the stateless and rightness Arabs described by Arendt has not been solved. The Palestinian Authority has no ability, or will, to protect the human rights of Palestinians and Gazans. Hamas is a terrorist organization, not a government. No Hamas member from top to bottom cares about the lives of the people of Gaza, let alone their rights, though apparently the “leaders” care about their own safety and luxuries, living the rich life in Qatar.

The State of Israel doesn’t care about the Palestinians either. There’s the ruthless bombing. There’s the settler attacks in the West Bank, which go unpunished. Israel has sold oil leases that were thought to be the property of the Palestinians. Even as the war continues, it announced its intention to build 3,000 new housing units for settlers in the West Bank.

The failure of assimilation

In earlier chapters of Origins, Arendt discusses the history of anti-Semitism in Europe, especially France. She tells the story of Alfred Dreyfus. But probably she wasn’t aware that the French Vichy government deported Dreyfus’ granddaughter, Madeleine Levy, to Auchwitz, where she was murdered in the Holocaust. Nor does she mention the deportation and murder of other assimilated French Jews such as the family of Nissim de Camondo; there are monuments to these dead all over France. I read this part of Origins as saying that assimilation of Jews into European society was a failure, at least up to then.

Arendt was herself a Jew and stateless, and worked for Zionist organizations in the early 1930s in Germany and then in Geneva. Given her premise about human rights, it’s easy to understand why she might favor the goal of Zionism to establish a home state for Jews. If the Jewish people are to have rights they need a state that is willing and able to protect those rights. This is the founding goal of Zionism.

Revisionist Zionism

Rick Perlstein wrote an essay for The American Prospect discussing a book by Eram Kaplan, The Jewish Radical Right: Revisionist Zionism and Its Ideological Legacy. According to Perlstein, Kaplan says that there were two factions in the Zionist movement, Labor Zionism and Revisionist Zionism. Labor Zionism is the faction that seemed to prevail. It’s the faction of the Kibbutzim, people working the land to make the desert bloom. It’s the faction for which Jewish kids collected dimes to plant trees. It’s the founding story of Israel I learned growing up in the 50s.

Perlstein’s essay focuses on Revisionist Zionism. He begins with a discussion of an interview by the excellent Isaac Chotiner of a leader in the settlement movement. Chotiner talked to Daniella Weiss, a leader in the settlement movement for over 50 years. Weiss believes that the State of Israel should include all the land from the Euphrates to the Nile. She says Arabs and other non-Jews who live there now have no political rights:

Q. When you say that you want more Jews in the West Bank, is your idea that the Palestinians there and the Jews will live side by side as friends, or that—

A. If they accept our sovereignty, they can live here.

Q. So they should accept the sovereign power, but that doesn’t necessarily mean having rights. It just means accepting the sovereign power.

A. Right. No, I’m saying specifically that they are not going to have the right to vote for the Knesset. No, no, no.

Weiss may seem like an extremist, but Perlstein tells us she’s stating the ideological position of Revisionist Zionism. Perlstein writes that Kaplan says that the Revisionist faction was a fascist ideology, based on Italian Fascism.

Perlstein describes the ideas of a founder of this faction, Ze’ev Jabotinsky, showing the connection to Benito Mussolini’s fascism, including its emphasis on violence and moral purity as a means of returning to a former glory. Perlstein says the language used by Weiss in the Chotiner interview is the doctrine of Revisionist Zionism.

And make no mistake: What this settler told [Chotiner] was doctrine. “For Jabotinsky,” Kaplan writes, “human rights, civil equality, and even political equality could not create harmony among individuals. Only the common ties of blood, history, and language could bring people together.”

Perlstein tells us that Benjamin Netanyahu’s father was an associate of Jabotinsky, and argues that Netanyahu carries the entire tradition of Revisionist Zionism forward.

Discussion

1. The blithe disrespect for the human rights of Palestinians in Gaza and the West Bank is shocking. You have to read it to believe it.

2. Perlstein’s essay is a bare introduction to Revisionist Zionism, and it’s the first I ever heard of it. It’s also shocking.

3. One of the many issues Perlstein discusses is the way his understanding of the history of the State of Israel has changed since he was a child. Perlstein is a historian, but he tells us he never heard of the 1946 bombing of the King David Hotel in Jerusalem until he was 30. Well, I never heard of the Tulsa Massacre until I was in my 60s.

Migrations during and after WWI

In Chapter 9 of The Origins of Totalitarianism, Hannah Arendt describes the vast migrations set off by WWI, and the further migrations driven by the  successor states. These were the new national boundaries set by the victors in WWI, primarily England, France, and the US. They’re located along the eastern side of Europe, extending past Turkey into the Levant The victors put a single national/cultural group in power, even though there were large numbers of people of other nationalities and cultures in those states. Most had significant numbers of Germans and Jews.

As the migrating minority populations in the successor states grouped together, the new states increasingly considered them a threat. This became a greater problem as Germany recovered from defeat and particularly with the rise of the Nazis. Anti-Semitism was rife across Eastern Europe, adding to the distrust of their Jewish population. Other large minority groups, such as Poles, Ukrainians, and Armenians, were also distrusted. In all cases the concern was that these populations would take the side of countries controlled by their nationality against the successor states.

Arendt says the victor nations saw themselves as having evolved legal regimes to replace arbitrary rule of kings and other despots, and that this was done so long ago that the presence of subgroups and migrants was not an existential threat. I think Arendt accepts their view that Internal rivalries in these countries were sufficiently tamped down that they would accept the legal institutions, and even the language and culture, of the dominant group. Creating new nation-states from scratch lacked the evolution that would legitimize the new governments.

So that when the precarious balance between nation and state, between national interest and legal institutions broke down, the disintegration of this form of government and of organization of peoples came about with terrifying swiftness. P. 275.

Denationalization

After WWI, there were revolutions in a number of countries. The winners then promptly denaturalized all the losers and evicted them, adding to the vast migrations. Some of these people were able to return to their home nations, but most weren’t. Many had assimilated to the extent that they no longer identified with their native nation. Others had fled from oppression in their home country. In many cases, the home countries didn’t exist, or their homelands had been under so many regimes they couldn’t claim any single home country. This was the fate of millions of Russians and Armenians, Hungarians and countless others.

Arendt seems to accept the right of a sovereign nation to denaturalize its own citizens:

Theoretically, in the sphere of international law, it had always been true that sovereignty is nowhere more absolute than in matters of “emigration, naturalization, nationality, and expulsion”…. Fn. omitted, p. 278.

Obviously large-scale denaturalization would be disruptive to other nations, and could easily lead to retaliation. For this reason it was not used on a mass basis. Arendt associates large-scale denaturalization primarily with totalitarian states, Italy, Germany and Russia. But almost all European countries adopted and used some form of this tool.

Denaturalization led to terrible problems after World War II. The term stateless people gave way to a new term, displaced persons. This term carries the implication that as soon as things calm down, these people will be returned to their home countries. In other words, it simply ignores the reality of their status.

Asylum

Arendt says that asylum has a long history.

Since ancient times it has protected both the refugee and the land of refuge from situations in which people were forced to become outlaws through circumstances beyond their control. P. 280.

The concept of asylum as a human right, or a Right of Man, dates back to Medieval times, when people were held to be subject to the laws of whichever state they might find themselves in, and were entitled to the protection of that state. In our terminology, simply being in another country entitled you to be treated as a citizens of that country, and your home nation had no duty towards you. As the nation-state developed, asylum came to be seen as a derogation of the duty of the state of citizenship to protect its own citizens when they were beyond its borders, and thus was somewhat anachronistic.

When Arendt was writing (the mid-1940s) the right of asylum was a remnant of the Rights of Man, but was not part of international law, and was not written into national laws either, That has been remedied. Here’s the Wikipedia discussion of the legal situation. https://en.wikipedia.org/wiki/Right_of_asylum

In any event, the right of asylum wasn’t much help to stateless people who didn’t get to England or the US.

Arendt’s personal experience

Arendt hereself was one of these stateless people. Wikipedia tells us that while still in Germany in the early 1930s she was arrested on account of working for a Zionist organization. She was released pending a hearing and fled the country over the mountains into Czechoslovakia, then on to Prague before settling in Geneva. She found work there, and eventually found her way to Paris. In 1937 she was stripped of German citizenship.

In 1940 she and all German ex-pat Jews were interned in the South of France. She managed to obtain papers of liberation. She was now a stateless person. Eventually with the aid of Varian Fry and others she was able to escape France and move to the US.

Discussion

1. Arendt politely doesn’t mention that her new country, the US, turned away Jews seeking asylum during and after WWII.

2. The US had no definition of citizenship until the 14th Amendment set a baseline. We’ve had a number of laws on immigration, and we have naturalization laws. We have laws governing asylum seekers. We have the Emma Lazarus inscription on the Statue of Liberty as an aspiration. And for all the shrieking from right-wing scaremongers and their fear-junky followers, immigrants built this country.

Even the flow of immigrants and asylum-seekers into the US over the last few years doesn’t compare to the tsunami of people on the move in Europe during and after WWI. Migrants continue to enter Europe today.r I took the picture associated with this post at the Vienna train station in mid-September 2015. It shows a large crowd of Syrians, I think, fleeing the war there. In 2015, about 1.3 million people migrated into Europe.  The latest wave is Ukrainians and others fleeing the Russian invasion.

And it’s going to get worse as climate breakdown continues. Side note: Lake Michigan didn’t ice over once in Chicago so far this year, despite several days of polar vortex. It’s 61 as I write this.

3. In a fortunate synchronicity, Heather Cox Richardson just wrote about the ugly history of US anti-Asian immigration laws. For a fascinating look at immigration, watch Celine Song’s directorial debut film Past Lives. People move for many reasons besides climate breakdown, war, and famine. In another book, Eve, by Cat Bohannon, there’s the suggestion that migrating played a large role in our evolution as a species.

4. Right wing provacateurs are riling up the rubes with pro-denaturalization andi-asylum rants. Corporate media respond with mindless drool like Pavlov’s dogs. For a sane look at the problem, try this.

The text for the next posts is Chapter 9 of Hannah Arendt’s The Origins Of Totalitarianism, titled “The Decline of the Nation-State and the End of the Rights of Man”. It’s a short chapter, 37 pages, and can be read as a stand-alone essay. I didn’t discuss it in my series on the book, partly because I didn’t think about its relevance to our current situation. I did remember her discussion of the Rights of Man; and rights are the subject of the current series.

Pre-WWI context

The book focuses on Europe, and ignores much of the rest of the world. The first chapters discuss anti-Semitism and imperialism. Both cover the period from the mid-19th Century and the early 20th. During that time most of Europe coalesced into one of two types of states, nation-states and empires, with the boundaries created by the 1815 Treaty of Vienna as a starting point..

Western Europe was mostly organized into nation-states. Here’s the Wikipedia definition:

A nation-state is a political unit where the state, a centralized political organization ruling over a population within a territory, and the nation, a community based on a common identity, are congruent.

The term “common identity” means roughly cultural homogeneity, so I use the term cultural group instead of nationality. The term nation-state itself isn’t widely used today, perhaps because there aren’t many, if any, today.

The other form, empire, included Austria-Hungary; the Czarist Empire; and, thought it’s not wholly in Europe, the Ottoman Empire. Each of these included a large number of culturally dissimilar groups, including different language groups. Many of these groups had at one time lived in their own Nation-States, including, for example, Poland and Ukraine. Cultural groups in these empires did not have national sovereignty, and often were mixed in with other groups or jammed up against others without formal borders. Ancient animosities persisted for generations. We can see it in recent history, as the break-up of Yugoslavia and Czechoslovakia after the fall of the Soviet Union.

WWI and its aftermath

Arendt describes the impact of World War I as an explosion. I usually think of WWI as a trench warfare stalemate between the English and French and later the Americans against the Germans, but across the European continent and into what we now call the Middle East, there were battles among all of the smaller cultural groups, and destruction aimed at revenge for ancient, if not forgotten, insults. Among the larger groups on the move were Armenians facing genocide by the flailing Ottoman Empire, Poles, Ukrainians, Balkans, the list is endless, and that’s just in Central and Southern Europe. Many Germans lived in the outskirts of the Austria-Hungary Empire, and they were forced out or ran for their lives. And, of course, Jews across the continent were assaulted and expelled.

The war ended in 1918, and the struggle to reorganize European states began. The basic idea was to create nation-states for the large populations, giving them defined borders and international recognition. This animated map gives an idea of the major changes in Europe. One group of people in each successor state was put in charge, and the other large minorities were assumed to somehow participate in the government, as, for example, the Slovaks in Czechoslovakia.

The enormous numbers of migrants were to be protected by the Minority Treaties, which all the new nations except Czechoslovakia signed. These offered some protection, enforceable by the League of Nations. That didn’t happen. The choice faced by the migrants was to assimilate, or to be treated as stateless people. Naturally, many didn’t like that choice.

There were two groups of stateless people: those whose nations had disappeared, like the people formerly in the Austria-Hungary Empire, and those who could not return to their homelands because they’d be murdered, like the Armenians. The Jews fell into both camps.

The entire approach was, in Arendt’s word, “preposterous”. The outcome was obvious. The minorities and stateless peoples were horribly mistreated by the dominant group. At best the minorities were forcibly assimilated, their own culture lost. At worst they were preyed on by an unchecked police force and their new neighbors. The demands of cultural groups, many of which had never controlled their own states, for self-determination were frustrated. This project was doomed, as was the whole idea of a viable nation-state for every aspiring national group.

Ultimately, the interests of nationality dominated the states across Europe. Law itself became subordinate to the demands of dominant nationalistic cultural groups. And the odd part is that across Europe about this time, the idea of self-determination for these cultural groups was gaining ground.

The Rights Of Man

The concept of the Rights Of Man springs from the American Declaration of Independence and the Declaration of the Rights of Man and the Citizen, a document of the French Revolution.  The idea is that from birth all men are equal before the state, all are entitled to certain rights, including life and liberty, and participation in self-government. This last is critical: the state exists to insure the Rights of Man to all. As Jefferson put it: “… to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”.

The Rights of Man is a lovely sentiment. But it turns out that the second part is crucial: there are no Rights of Man without a state that can and will enforce them. High-minded principles are useless in the face of a marauding police force.

Discussion

Several of the books I’ve been writing about here, and reading but not writing about, provide evidence that in-group/out-group hostility has roots in our evolution. For example, Michael Tomasello in The Evolution of Agency says that socially normative agency, the kind he attributes to human beings, is tied to the community of which our ancestors were members. Tomasello says that individual humans can’t survive on their own, that they must belong to a group for survival. He attributes this to the inter-group struggle for scarce resources.

Even if this were true for our ancient ancestors, it doesn’t explain the hatreds we see today. Conflicts over religion, national origin, racial differences, aren’t about resources or physical needs. They’re purely abstract, purely created by us humans. Of course it matters to the rich and powerful. But why would it matter to an IT professional or a goat farmer?

What difference does it make to me who you worship or whether you worship anyone or anything? Why would it matter if long ago some Armenian Hatfield got cross-ways with some Turkish McCoy? Why does some Dublin Catholic boy care who some Derry girl worships or how? Name an inter-group conflict and ask what its basis is. It’s not going to be about whether there’s a tree with ripe fruit or a river full of fish. It’s going to be some mental construct.

It seems to me there’s a deeper issue here. If you were to go to Beijing or Delhi or Harare or Buenos Aires and pick a pair of twenty-somethings, I bet you could plop them down in Pittsburg or Mexico City and except for language you wouldn’t notice them as you walked by. They’d have no problem finding food they liked, and they might even learn to love brats or pork in molé sauce.

Killing people over abstract ideas is stupid and pointless. Worse, it’s going to make it impossible to solve the worldwide problems we’ve created with climate breakdown. Right now, there’s pressure on the poor in equatorial regions to move to more temperate climates. Some of the pressure is grotesque governments, some is hunger, some is massive climate change. Think what will happen when the gulf stream stops. The pressure will be the other way, people from the north will want to move south. These problems aren’t solvable if we don’t grow up as a species. These are real problems, not the fake culture war gibberish spouted by the right wing, not abstract ideas about the proper way to worship the proper Deity.

We’ve been fogged in here in Chicago for the last five days, after a week of brutally cold weather: perfect for reading. And a good time, too. My family’s go-to Christmas gifts are books, and I have a bunch of new ones, so here’s some of what I’ve been reading.

Current and recent books

1. The Tyranny of the Minority by Steven Levitsky and Daniel Ziblatt. This was the choice of a member of our book club, not a personal choice. It’s a discussion of the counter-majoritarian provisions of the Constitution and the counter-majoritarian norms and institutions that it spawned. It’s a depressing list, especially because the authors contrast it with the rules of other democracies.

The authors think the Republican Party is in the hands of people who oppose democracy because their  policy views are anathema to the vast majority of Americans. They don’t go into the question of why this is so, which means they don’t emphasize the role of the filthy rich and their lunatic goals.

The last chapter of such books is supposed to be the hopeful part filled with solutions. But it’s just as depressing as the rest of the book.

2. The Secret Lives Of Colors by Kassia St. Clair. This is a collection of 75 short essays on 75 different colors. St. Clair wrote them for British Elle Decoration. Each gives us some idea of the origin of the color, how it is made, it’s uses and other things she thinks are interesting. Puce was named by Louis XVI. Marie Antoinette wore gowns of puce in the summer of 1775, and he supposedly said it was the color of “puce”, the French word for flea. Scarlet isn’t the color I think of either. Here’s a link to the .pdf color chart.

The first time I went to the Pompidou I saw one of the works of the post-WWII artist Yves Klein: a flat canvas in the color he patented called International Klein Blue. It was entrancing. Also hilarious. Klein patented the color. Here’s the Wikipedia entry, with a swatch of the color.  It merits notice in St. Clair’s book.

3. Eve by Cat Bohonnan is an exploration of the evolution of the female human body. Bohannon is a terrific writer, as ready with a smart-ass quip as she is with a lucid description of recent research on oligosaccharides. I’m in the chapter on mother’s milk, and can talk your ear off about the marvelous fluids that create babies and the interactions between mother and baby created by this feature of all mammals. But I won’t.

Bohannon studies the evolution of cognition and narrative, about which she says “my field of research required I read regularly in at least three different disciplines (cognitive psychology, evolutionary theories of cognition, and computational linguistics)”. It shows. The problem she saw is that science treats the male body as the norm, ignoring the important fact that it’s women’s bodies that make the babies. Bohannon has two offspring (as she puts it on her personal webpage), and tells us a little about her experiences. The result is a wholistic narrative that keeps me involved in what might otherwise be a technical explication.

4. The Marquis Who Mustn’t by Courtney Milan. This is an entry in a series about a 19th C. English village populated by Asian immigrants. I really liked Milan’s earlier books, especially the series The Brothers Sinister. This one uses a technique common in romance novels: of constant repetition of the problems of the main characters. It feels like padding when we are reminded for the 25th time that the woman thinks she’s ugly and no one will love her. I did learn a bit about pottery-making, but I admit to skipping a number of pages that felt repetitive.

Other books of interest

1. The Education of a Golfer by Sam Snead and Scott Carter. I saw a tweet about books you read as a 12-year old more than once, and after a bit of thought I remembered this book. I was an avid golfer starting in 6th grade. I played with my dad and we often watched golf on TV, so I knew about Slammin’ Sammy Snead, Arnold Palmer and the great Julius Boros, who had the most beautiful swing I ever saw. I don’t remember how I found it, but I must have read it over and over, because when I saw that tweet I remembered the story about the chinchillas.

2. I’ll be re-reading Possession by A. S. Byatt, a book I’ve read at least 10 times since seeing a review in the New York Times book section. This book is a mixture of action, romance, feminist theory, 19th C. Poetry, and much more, told in multiple voices and through many eyes. Each thread of the storyline feels real and each reading has revealed a new aspect.

The book was made into a 2008 movie starring Gweneth Paltrow, Aaron Eckhart, Jennifer Ehle and Jeremy Northam, not to be confused with the horror flick of the same name. It necessarily leaves out most of the stuff that makes the book so fascinating. Eckhart is too handsome and self-assured to be a good Roland, but the other three characters are very good. I’d forgotten that Paltrow could act.

3. Among the books I gave as gifts at Christmas was Lessons In Chemistry by Bonnie Garmus. it’s a delightful book, inspired by a galling event in Garmus’ life. I think my spouse read it for a book club focused on fiction by women, and I found it in our shared Kindle library (my eyes are bad, and I can only read in e-formats.) It’s a sort of feminist romance novel, but it’s much more. I couldn’t help but think a bit about my own mother, who did graduate courses in modern literature, focusing on Faulkner, while raising seven offstring.

4. I’ll be re-reading chapter 9 of The Origins Of Totalitarianism by Hannah Arendt for the next entries in my series on rights. It’s titled “The Decline of the Nation-State and the End of the Rights of Man”, and can be read as a stand-alone essay on the subject. I didn’t discuss this chapter in detail when I did my series on this book, but it’s a good way of thinking about rights from a practical standpoint without focusing on current right-wing claims of rights like the right to force other people to give birth or the right of every gun shop to sell to every loon who walks in.

So, that’s me. What are you reading? What do you have on your table waiting to be read?

Index to posts in this series

Agency

Michael Tomasello didn’t write about the evolution of free will. His book is called The Evolution Of Agency. Even so, I think we should understand Tomasello’s model as a partial defense of free will.

The idea behind the book is that the psychological processes that characterize our species are the result of evolution and evolutionary pressures. That includes agency. Recall from this post that Tomasello gives this description of agency:

…[I]n the current case, we may say that agentive beings are distinguished from non-agentive beings … by a special type of behavioral organization. That behavioral organization is feedback control organization in which the individual directs its behavior toward goals—many or most of which are biologically evolved—controlling or even self-regulating the process through informed decision-making and behavioral self-monitoring. Species biology is supplemented by individual psychology. P. 2,

This description of what we mean by agency doesn’t explain how we set goals. But I think as a first approximation that we set goals “through informed decision-making and behavioral self-monitoring”, heavily influenced by our families and communities through what Tomasello calls socially normative agency. We examine as many aspects of our situation as we can think of and handle, we apply our decision-making tools, we decide. Among the constraints for decision-making we consider the incentives and constraints of our society.

Once our goals are set, we consider the ways we might reach them, and choose the one that seems most likely to enable us to reach the goal. We monitor our results, and make adjustment as we go along, including changing the method of reaching the goal, or the goal itself, if that seems better to us.

Determinists

Some scientists deny the existence of free will, including  Robert Sapolsky, a Stanford neurobiologist.  He explains why he thinks we have no free will in this LA Times interview about his recent book Determined.

Here’s an essay in The New Yorker by Nikhil Krishnan, a philosopher at Cambridge, discussing the book in the context of philosophy.  This article says that Sapolsky doesn’t define the term free will, but offers

a challenge. A man, Sapolsky invites us to imagine, “pulls the trigger of a gun.” That’s one description. Another is that “the muscles in his index finger contracted.” Why? “Because they were stimulated by a neuron,” which was in turn “stimulated by the neuron just upstream. . . . And so on.” Then he throws down the gauntlet: “Show me a neuron (or brain) whose generation of a behavior is independent of the sum of its biological past, and for the purposes of this book, you’ve demonstrated free will.”

First, how exactly would that kind of free will have evolved?

Second, that’s not how people think of free will. In normal usage free will is about the ability of the individual to make choices among alternatives, a view central to Tomasello’s model. I could shoot my gun, or I could not shoot my gun. Both are within the range of possible actions, and I can choose between them. Sapolsky thinks the fact that I don’t shoot is the result of every bit of experience in my past, and that I had no real choice. Someone else with a different past might not have any choice but to shoot. Tomasello, I think, would say that I can think rationally about whether or not to shoot the gun, examine the possible consequences, determine which action accomplishes my goals, and act on that reasoning

Examples

1. If someone had asked me 30 years ago what my favorite color is, I would not have had much of an answer. I might have said I don’t have one, or I might have said British Racing Green; or maybe blue, which is close to a non-answer. Today I would say jewel tones: ruby red, dark blue sapphire, intense emerald green. I can point to several reasons for this change. One is seeing the lapis lazuli blues of early Renaissance Sienese paintings of the Virgin Mary, and a ring we bought, gold with tiny sapphires.

2. Lake, a deeply conservative Trumpish Republican, attends a work-related dinner with their partner. Lake doesn’t know anything about the people at the table. The conversation turns to politics. Lake doesn’t want to impede their partner’s career, and keeps quiet.

3. Albert Einstein at the age of 16 imagines what he would see if he were riding side by side with a beam of light. A few years later he suddenly realizes the implications of the answer.

Analysis of examples

1. Favorite color doesn’t implicate goals. It seems to be about recognizing a thing that gives us pleasant feelings. The example asks if we can know whether a thing gives us pleasure, not whether we can choose what gives us pleasure.

It seems likely that we can train ourselves to take pleasure in things. I like opera, but that wasn’t always so. I learned to like opera by attending operas, listening to opera singers, and eventually singing opera chorus. How exactly does that relate to free will? Would Sapolsky say I had no choice in the matter?

2. This example seems fairly close to the foraging examples used by Tomasello, including the ones about our early modern human ancestors. Each person in the group has to play a role. Lake’s role is not to irritate the other people at the table and hurt Lake’s partner’s ability to bring home the bacon. Was that an exercise of free will by Lake?

3. I chose the Einstein example because I’ve always thought it was a singular insight into an otherwise intractable problem. The greatest works of art, music, literature and inquiry also show us a singular insight into our world, other people, and ourselves.

This example seems to combine elements of the first two. Why was Einstein thinking about this bizarre hypothetical at age 16? How much of the solution he eventually reached depended on the fact that other people were thinking about and working on that problem? Would Sapolsky agree that this is so far outside normal human behavior that it qualifies as free will? Is the concept of free will relevant to this example?

Conclusion

Of course, there isn’t an answer to this disagreement, so here’s what I think. Our bodies, including our cognitive processes and our psychological processes, co-evolved in a way that encouraged collaboration as a survival tactic. We learned to cooperate in gathering food, making simple tools and clothing, and protecting the group. It turns out that the cognitive and psychological processes we evolved are useful for other things, like making music, decorating plates and bowls, and inventing airplanes. They can be used for darker purposes. They can be used for highly abstract purposes, like set theory and surreal poetry.

We can also act rationally, just like Einstein thinking about the nature of light. We can force ourselves to examine as best we can the likely outcomes of our actions. We can use that skill to decide what we want and how best to get it. We can choose to act on the results of that rational thought or not. That’s enough free will for me.

Index to posts in this series

Michael Tomasello’s book, The Evolution Of Agency, presents a model of the evolution of agency, not cognition, not emotion, not the physique or eating habits of Homo sapiens. It’s packed with references to academic papers and books, but in the end, it has to be understood as a series of hypotheses generated by Tomasello from his own research, and his extensive study in this area.

Any extension of this model, for example, trying to use it to understand our own culture, is mere speculation until it is tested. That’s true no matter how obvious the extrapolation might seem. With that caveat I’ve been thinking about the implications of this model.

Self-awareness

Here’s an example of Tomasello’s understanding of human agency as an individual attribute:

Most of the unique psychological capacities of the human species result, in one way or another, from adaptations geared for participation in either a joint or a collective agency. Through participation in such agencies, humans evolved special skills for (i) mentally coordinating with others in the context of shared activities, leading to perspectival and recursive, and ultimately objective, cognitive representations; and (ii) relating to others cooperatively within those same activities, leading to normative values of the objectively right and wrong ways to do things. Individuals who self-regulate their thoughts and actions using “objective” normative standards are thereby normative agents, very likely characterized by a new form of socially perspectivized consciousness, what we might call self-consciousness. P. 117.

In this picture, we evolved to cooperate. One crucial focus of cooperation is forming a useful picture of reality, one that we can use safely to plan our actions.

Side effects of socially normative agency

Tomasello’s evolutionary history leaves off around perhaps 50,000 or so years ago, when humans lived in small bands, loosely connected in cultural groups. That mode of life continued until about 6,000 years ago, when humans began to live in cities.

In The Dawn Of Everything, David Graeber and David Wengrow look at this history of our ancestors from a different perspective. I really like two of their ideas.

• “… As soon as we became humans, we started doing human things.” P. 83.
• “There is an obvious objection to evolutionary models which assume that our strongest social ties are based on close biological kinship: many humans just don’t like their families very much.” P. 279.

Following these points out, most of the rules of cultural normativity must have seemed critical for survival ti early modern humans, even if the connection didn’t seem obvious to a child or an adolescent, or an outsider. But as the millennia pass, some of the norms might have seemed wrong or unnecessary, and oppressive. The young might have been unwilling to put up with the demands of their elders and especially their parents but lacked the ability to change things.

This is the Wikipedia summary of Sigmund Freud’s book Civilization and Its Discontents:

… Freud theorized the fundamental tensions between civilization and the individual; his theory is grounded in the notion that humans have certain characteristic instincts that are immutable. The primary tension originates from an individual attempting to find instinctive freedom, and civilization’s contrary demand for conformity and repression of instincts. Freud states that when any situation that is desired by the pleasure principle is prolonged, it creates a feeling of mild resentment as it clashes with the reality principle.

Primitive instincts—for example, the desire to kill and the insatiable craving for sexual gratification—are harmful to the collective wellbeing of a human community. Laws that prohibit violence, murder, rape and adultery were developed over the course of history as a result of recognition of their harm, implementing severe punishments if their rules are broken. This process, argued Freud, is an inherent quality of civilization that gives rise to perpetual feelings of discontent among individuals, justifying neither the individual nor civilization. Fn omitted.//

We don’t talk about instincts much anymor, and the question of mutability of instincts is open, but I think Freud has a sharp insight here. We all have moments when we feel out of control with rage or grief or hatred or …. We might have fantasies about guillotines for particularly loathsome elites or having sex with a co-worker. But mostly we just get over it and move on.

Tomasello would attribute this to our socially normative agency, and that makes a lot of sense.

Here’s an example used by Tomasello. A hunting party from a band kills an antelope. There are three competing interests. First, the successful hunter needs to eat, and wants to get as much as possible. Second, the hunter has a normative duty to the rest of the hunting party to share. Third, the hunter and the rest of the hunting party have a normative duty to carry the kill back to the rest of the band for disposition as the band decides.

Bands and cultures survive because the hunters bring the food home. But each time, the individuals experience a conflict in that they are unable to satisfy their selfish desires.There must have been cheating. Sometimes an individual or a group must have defected. Defection too has survival value, at times more so than the survival value associated with membership in the band. But that may well have produced an equally unpleasant sensation for many, guilt.

We aren’t so evolved we’ve lost our urge to satisfy our personal desires, or our willingness to satisfy our personal urges if we can or provide for our families even at the expense of the community. Thus the incidence of violence and sexual adventures, and the negative feelings and damage that go with those events.

Rights as limits on the demands of one’s community

In the past several thousand years we humans have lived in large communities, from a few tens of thousands to over a billion. We’ve endured all kinds of governments, from more or less egalitarian consensus-driven groups to totalitarian dystopias. Freud’s insight, and those of Graeber and Wengrow, apply to all of them. There will always be a conflict in the minds of many of us between the demands of society and our personal desires.

The Founders said that the point of government was to protect the rights given to people by the Creator, but they were just as worried about the dangers of government. They said the just powers of the government derived from the consent of the governed, but they were just as worried about the dangers of oppression by the majority. The solution they adopted was government of limited powers and the Bill of Rights.

The hope was to balance the desires of the individual members of society against the need to maintain a community in which everyone can flourish.

The idea, in other words, is that rights set the boundaries of the demands society can make on us. those limits

Discussion

1. I like Tomasello’s suggestion that one feature of shared agennce is the construction of a onsensus picture of the reality confronting the group, so that sensible shared decisions can be made. This was doable 10,000 years ago, but in our radically different world it’s hard. We’ve replace full consensus with majority rule

2. We should think about their impact of rights on our society as a whole, more than the feelings of the individuals claiming rights. Let’s take guns as an example. What kind of society do gun rights advocate think we should have? Should people with the history of Zackey Rahimi be allowed to have guns? Should this decision be made by 5 unaccountable unconstrained members of SCOTUS?  Or should the majority decide based on their understanding of the nature of a good society?

Index to posts in this series

In Chapter 6 of The Evolution Of Agency by Michael Tomasello we come to human beings. Tomasello says that we humans build on the agency of lizards, squirrels and great apes discussed in earlier posts.

Let’s start with an illustration. Occasionally a group of chimpanzees will hunt and kill monkeys. One chimpanzee will spot the opportunity and scream and start chasing it. Others join in the chase. If they kill the monkey they all try to grab as much as possible. They do not distinguish between those that hunted and free-riders. Only the strongest and wiliest eat.

On the other hand, children as young as three years old act differently. Confronted with a task that requires two actors, they will form an agreement to work together. If they succeed at the task, they split the reward evenly almost always. If one defects from the work or tries to grab the whole reward, the other complains and that is usually enough to bring the offender into compliance. Children who don’t participate in the work are rarely given a share of the reward.

Tomasello says this is a form of agency in humans not present in other species. He calls it socially normative agency.

Evolution of socially normative agency

Tomasello says that hominids, the predecessors of our species, split off from the great apes about six million years ago. They began hunting collaboratively about one million years ago. He suggests that collaboration might have begun with scavenging meat off carcasses. Hominids were smaller and weaker than other species competing for the carcass. They would have had a better chance of success if they worked together, some keeping other scavengers away and some gathering the spoils, then splitting it up among all of the group.

Later, two of our ancestors might agree to work together to hunt large game, agreement would be established, and the two would work together and share the rewards. Over time, collaborative hunting became necessary to meet the demands for food. By about 400,000 years ago collaborative hunting was an established practice. Our ancestors became interdependent, unable to survive on their own.

Psychological processes and feedback control mechanisms

Tomasello says the central mechanism of control in all species is the feedback loop. In the simple form, a lizard uses its perceptionto look for prey, moving on if there is none. In small mammals like squirrels, there is an additional level of psychological control, an executive tier, that enables the individual to keep track of its goals (foraging, burying nuts for the winter, staying ahead of predators etc. They can chanage their behavior if needed for safety or for a better chance of successful foraging. They can choose among alternative actions for reaching those goals.

In great apes, there is third tier, the reflective tier, that monitors the executive tier, and can interrupt the action of the individual to solve problems preventing the individual from reaching its goal, Doing this requires mental processes Tomasello calls rational because they are logically structured.

In the example of three-year olds cooperating in a task, the two reach agreement on joint action. That agreement creates a a new entity, the joint agency. There feedback control mechanism runs  each child to the other. Both are entitled to enforce the requirements of the joint agency. If one child stops working, leaves, or refuses to share, for example, the other remonstrates in normative terms. The other will say something like: we don’t do that, or you have to share, or that’s not fair. The offender recognizes that this is a legitimate complaint, and most ofteb changes behavior. Tomasello says this is because each child recognizes and accepts the demands of the joint agency and the right of each to enforce it.

In great apes, the feedback control mechanisms are internal to the individual. In socially normative agency, the feedback loop is in the “we” created by the agreement, and is exercised by both parties as the project proceeds. The feedback control also covers the efforts of the two to collaborate in the task.

Evolutionary changes

The evolution of agency in humans requires greatly increased complexity in the brain: more and better neurons with more and better connections, and a large increase in the pre-frontal cortex, which we think is the location of executive action.

These physical changes were needed for collaboration. Control by agreed normative rules required three new kinds of psychological processes: a) creation of the joint goal: b) allocation of roles; and c) collaboration in self-regulation during the action. Each of these in turn require a chunk of mental processing, This is something humans do automatically, and other creatures don’t.

Those who didn’t cooperate, who didn’t communicate, and who didn’t share were left behind, without mates, and without offspring. The mental processes that enable collaboration, including collaboration, became targets of natural selection, probably in a form of co-evolution.

Cultural groups differentiated by their norms

Collaborative hunting and reward sharing was very successful for our ancestors. By about 150,000 years ago, human population had grown to the point that we began to live in larger and larger groups. Successful hunting of larger game was just one part of survival. Others in the group foraged for plants and small game, some became adept at creating tools snd weapons, others at weaving and making clothes, others learned about curative herbs and healing and so on.

Tomassello says that our ancestors were living in bands loosely connected to each other by cultural norms related to diet, stone knapping, languages, foraging techniques and more. Membership in a cultural group became necessary for survival as these cultural groups competed for resources. Again, those who couldn’t manage the psychological processes necessary for participation in the cultural group were shunned and didn’t reproduce. Compliance with cultural norms became a target of natural selection.

Cultural groups survived by teaching their offspring proper, that is normative, behaviors and techniques. Long childhoods and adolescence were periods of training and learning the social norms of the cultural group. In operation, these cultural groups made cpllective decisions, and enforced them. Tomasello calls this cultural agency. The feedback control is operated by the entire group.

Here’s how Tomasello describes the evolutionary process up to about 100,000 years ago:

… modern human brains are three times larger than those of other great apes, with an expanded prefrontal cortex (the main seat of executive functioning) and insula (the main seat of social emotions), and are structured by unique types of neurons with more complex dendritic structures Consistent with this analysis, González-Forero and Gardner … find that much of the brain growth characteristic of modern humans during this period was concerned with adaptations for cooperative interactions and cultural learning. P. 106-7; cites omitted.

Discussion

Regardless of your view of Tomasello’s model, one thing is clear from the evidence he cites. Human evolution runs side-by-side with increasing levels of cooperation. Our ancestors taught each other; we literally dragged ourselves up by our bootstraps. Social learning and cooperation are an integral part of our evolution.

In The Dawn Of Everything David Graeber and David Wengrow discuss the Thomas Hobbes theory that early humans fought each other for resources, the war of all against all. That didn’t happen. We should stop talking like it did.

In the same way, the bizarre neoliberal idea that we humans are atomistic utility-maximizers struggling against each other to get all we can is madness. Any academic who takes this view should be laughed out of their profession.

I’ll have more to say about this in the next post.