Denaturalization And Asylum In Interwar Europe

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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 Mass Migrations Caused by WWI

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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.

Coming To Grips With Free Will

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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.

Socially Normative Agency And Rights

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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?

Socially Normative Agency

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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.

 

Great Apes As Rational Agents

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Index to posts in this series

In Chapter 5 of The Evolution Of Agency, Michael Tomasello discusses the nature of the agency displayed by the great apes. This group consists of five species, chimpanzees, bonoboes, orangutans, gorillas and humans. The first four of these are the subject of this chapter. African great apes seem to have emerged about 14 million years ago following millions of years of evolution of mammals. The changes were far-reaching.

There are three relevant threads in this chapter:

  1. evidence of the rationality of great apes
  2. evidence that they recognize that others of their species act intentionally, possibly including humans
  3. the evolutionary pressures that might have contributed to the development of these two mental capacities

Tomasello offers an explanation of this rationality as dependent on a second tier of executive control.

Rationality of Great Apes

Tomasello gives a number of examples of evidence from field observations and experiments that shows the great apes are capable of observing their environment and acting on it it rational ways. One is their understanding of tools. For example, they use sticks to fish for ants and termites to eat. If there is no stick nearby they will tear off a twig from a tree, and strip the leaves if there are too many. They will drop stones on above-ground termite nests to flush out the bugs. Here’s how Tomasello ascribes rationality to this practice:

… [W]hen faced with a novel physical problem, great apes can also take control of the causal process and make new tools that will work in the new context. In this case, they are first imagining an effect that is needed to solve the problem, and then going back to create a cause. For example, in the wild, chimpanzees routinely modify too-leafy branches by stripping leaves from them so that they will fit into termite holes. P. 72, cite omitted.

Here’s another example. The experimenter shows a piece of food to a chimpanzee and then puts it into one of two cups. The experimenter shakes the empty cup. The chimpanzee is allowed to pick a cup, and chooses the unshaken cup. This shows a reasoning chain: no noise means no food; therefore the food is in the other cup. Tomasello says that these are forms of logical organization that we should consider as rational.

Great apes understand some cause and effects created by others

Great apes understand cause and effects created by their own actions, as do other mammals. Unlike other mammals, they also understand indirect causes of results, as with the use of tools. They also recognize that other creatures can themselves cause effects through their actions. Tomasello cites a paper reporting

… that three human-raised chimpanzees selectively reproduced actions that a human demonstrator intended to perform over actions she performed only accidentally; the chimpanzees also performed actions that a human intended to perform but did not actually succeed in performing. P. 75.

A two-part experiment tests whether chimpanzees can “use self-experience to infer what another sees”. (Abstract here). Great apes will took at what another is looking at, which is referred to as gaze-following. The subjects are taught the visual properties of two screens, one opaque, one see-through. The first experiment tests gaze-following when the experimenter is using each screen. The subjects don’t seem to distinguish between the two types of mask in the gaze-following experiment.

The second experiment uses a competition model, where the chimpanzee and the experimenter are dealing with food in two boxes. One has an opaque lid and the other a screen or a transparent lid. The subject is taught the effects of the three lids. Then food is placed in both boxes. If the chimpanzee tries to get food when the experimenter can see it (transparent or screen lid), the experimenter takes it away. To get the food, the chimpanzee must know from its own experience whether the experimenter can see the food. In this setting the chimpanzees get the food significantly more often, leading the experimenters to “conclude that chimpanzees successfully used their self-experience to infer what the competitor sees.”

Tomasello also cites some evidence of social learning in great apes. He says they can learn by noticing the results of the actions of other great apes, and then doing the same thing or something similar.

Evolutionary pressures

Tomasello suggests two types of environmental pressures that might have led to the evolution of these skills. First, fruit is an important part of the diet of chimpanzeees. Fruit trees grow in small clumps, and don’t put out fruit at the same time. Chimpanzees tend to sleep in large groups at night, and split into small groups for foraging. The smaller groups somewhat reduce the competition for food.

Great apes do not usually share these finds. The dominant member of the small group takes all it wants. Even so, predicting the behavior of competitors makes it more likely that subordinate individuals will obtain sufficient food.

Another factor might be that the great apes depend on social learning to maintain their groups, and to understand whether a specific behavior is or is not tolerated. Great apes have longer juvenile periods than other mammals, and much of their time is spent in groups where they learn to align their behavior with that of others. This requires them to be able to attribute their own experience to others of their groups.

This attribution seems to extend to their own mental states. As an example, juvenile chimpanzees use a specific arm gesture to indicate a desire to play with another. The juveniles know that the other must be looking at them in order to see the signal just as they do, and they wait until the other is looking at them to make it.

The psychological processes of great apes

Recall that Tomasello proposes a modes in which small mammals have an executive tier that supervises and controls the operational tier of mental processes. He suggests that great apes have a second level of control which he calls the reflective tier. Its function is to “… to monitor, troubleshoot, and intervene in processes of executive decision-making and cognitive control….” P. 82. In effect, Tomasello says it gives the great apes access to their own mental processes. This fits with the evidence he cites. For example, it explains how great apes can attribute their mental processes to other.

It also explains the results of this experiment cited by Tomasello. The subjects were rewarded for setting a group of blocks on end. Then a block was added that wouldn’t stand on end because of an internal weight. The subjects frequently inspected that block carefully trying to figure out why it wouldn’t stand up. The subjects are trying to reach a goal but failing. Tomasello says in this case the reflective tier in intervening in the intentional action to try to figure out why what works for most blocks doesn’t work for this specific block.

Discussion

1. Of course great apes can’t explain why they make these choices, so perhaps we humans don’t immediately think of them as rational. But think of the number of decisions we make without using strict logical constructions. In many of these cases rationality is buried so deep in our brains that we don’t really need to use language to work out the solution. This is similar to what Kahneman describes in Thinking Fast And Slow, which Tomasello cites in an earlier chapter for a similar proposition.

2. So far we’ve looked at three categories of agency, goal-directed agency as in lizards, intentional agency as in squirrels and cats, and rational agency as in the great apes. Tomasello’s thesis is that the psychological processes of human agency evolved through these groups.

Next he takes up humans. And so will I.

Goal-Directed Agency and Intentional Agency

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Index to posts in this series

Lizards

Lizards are a representative of the first category of agency according to Michael Tomasello in his book The Evolution Of Agency. As with the other categories, Tomasello focuses on the way lizards forage for prey. C. elegant, the nematode we looked at in the last post, moves and food either does or doesn’t go into its mouth. That obviously won’t work for lizards. Most species survive largely on a diet of insects, small creatures that move and flit about unpredictably.

So lizards have a different strategy. They have a goal, finding food, but they have to do several things to reach that goal. They have leave their hiding places and move to a place where there are insects. They have to spot a specific insect and then catch it and eat it. At the same time, they have to make sure they don’t become prey for other creature.

Here’s a video of a guy feeding crickets to his pet crested lizard. The lizard is in a special feeding cage. The crickets must be alive or the lizard won’t eat them. Bonus: you learn a new term: gut-loading crickets.

Following Tomasello here’s how I read this video. The lizard stands still orienting itself to its surroundings. The guy throws a cricket into the cage. The lizard sees the cricket. It takes a few steps forward. It pauses. It charges and grabs it and eats it. The guy throws another cricket into the cage. The lizard sees it, turns to chase it, misses, and pursues it in short bursts. It catches and eats the cricket. The guy throws a bunch of crickets into the cage. The lizard singles out one, chases, catches and eats it. The other crickets run around. The lizard spots one, chases, catches and eats it. This is repeated.

In this video we see a frilled lizard, a native of Northern Australia and southern New Guinea. It’s about a meter in length, and weighs over a pound. This video is heavily edited but again following Tomasello, here’s how it can be read. The lizard descends from it’s hiding place in a tree. It forages for prey, meaning any insect it might find on the ground. It sees one, approaches, catches and eats it. While chewing it looks around. It spots a predator, a black-headed python. It’s frill blows up. The snake approaches. The lizard runs really fast (also amusing). It eventually runs up a tree, making a full escape.

Tomasello says that the lizard has hard-wired goals: including eating and avoiding predators. Both it’s prey and its predators are quick and unpredictable. It has evolved to deal with that unpredictability by paying attention to the crucial aspects of the situation it perceives at any moment. It then acts to achieve a goal applicable to that situation. In both videos, the lizard eats while checking the situation. In the second it detects danger. It freezes its eating, then flares its frill, then runs. It achieves its goals by a series of go-no go decisions. That’s a clear step up from C. Elegans.

Squirrels

Squirrels are Tomasello’s example of intentional agents. He gives an example of a squirrel on a tree branch spotting a nut on a lower branch. The problem is whether to jump to the lower limb or retreat to the trunk and run down to the lower branch. He says the squirrel looks at the nut then at the tree trunk and then back at the nut. He interprets this as the squirrel cognitively considering two alternatives, then forming an intention to act, then acting. This two step process is evidence of an executive tier of mental control of behavior.

I have a young cat who does something similar. Winston knows there is interesting stuff happening on the counter when I’m making coffee. I see him looking at me, then at the counter as if contemplating jumping up. Am I paying attention to him? If I say No in a loud voice, he won’t jump. Maybe. But if I do nothing or am not paying attention, he works out an answer and acts.

Winston also knows how to open a door. Here’s a video of cats opening doors. Note that in several of the scenes the cat stares at the handle before acting. Tomasello interprets this as the cat forming an intention and then acting on the intention. Again, that implies an executive tier of mental activity.

Here’s a video of squirrels hiding nuts. Nut-hiding is a hard-wired activity, but it’s a complex problem. The squirrel has to decide where to bury the nut, and it has to be able to find it in winter. There are other squirrels waiting to steal the nuts, and predators. There are obstacles, including roots and hard soil. The squirrels stop and look around several times. In each case it looks like the squirrel makes a choice.

This is a 20 minute video of a guy operating a squirrel maze in his back yard. It’s not exactly relevant, but it looks like the squirrels are playing, something we don’t see lizards do. Also I enjoyed it.

The difference

Tomasello says that when lizards perceive a change in the situation, they freeze their current behavior and then respond to the new situation. He contrasts this chain of go/no go decisions with

… an either-or process of decision-making in which the individual simultaneously considers more than one behavioral option simultaneously (which mammals arguably do….) Pp. 33-4.

Tomasello says squirrels and other small mammals have an executive tier in their psychological processes that controls their operating behaviors, like running and burying nuts. This is a function of their larger brains, especially a larger pre-frontal cortex, more complex neurons and neural connections, and increased memory. Larger brains and longer time spent as juveniles increase the possibility of learning about the environment and experimenting, including play, which we might see as rehearsal. Mammals seem to have whet we would call emotions that also provide input to the executive tier.

The executive tier of the squirrel brain coordinates all these inputs. It considers alternative courses of action, “weighs” the costs and anticipated benefits of each and chooses one. That choice is communicated to the operant systems. The executive tier monitors the outcomes. It can inhibit one choice in favor of another if the situation changes or if the initial choice meets an obstacle or fails. Small mammals don’t use words, so it does this with some from of remembered perception.

Here’s Tomasello’s version of an executive tier:

The executive tier oversees the operational tier, as it were, and attempts to facilitate behavioral decisions via action planning and cognitive control. … It requires individuals to cognitively simulate in an organized way their own potential actions, the potential obstacles and opportunities for those actions, and the probable outcomes of those actions. They do this by perceptually imagining all these action elements in the common cognitive workspace and representational format provided by an executive tier of operation. P. 49.

It is this executive tier that gives mammals a wider range of choices of action, which presumably increases the chances of survival of individuals.

Discussion

1. Tomasello says that there isn’t any way to find mental processes in brains, so scientists infer the mental processes from the overt behavior of the creature. I think this raises the potential of anthropomorphism, leading people to ascribe human characteristics to other kinds of creatures. The executive function in humans is a defining feature of our species, so this is a real possibility.Of course, here we’re talking about a simple form of executive control.

The videos seem to provide at least some reason to think Tomasello is on the right track in ascribing an executive tier to small mammals. The empirical studies he cites may also be persuasive evidence.

2. I have described only a small part of Chapters 3 and 4 for this post. It’s allfascinating, especially the discussion of the executive tier, but it’s not relevant to my purposes in reading this book. As a reminder, this series is aimed at thinking about the origins and roles of rights in our society. I’ll get there, I promise.

creative commons

Free Will, Agency, And Evolution

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Most of us think we have free will, and we certainly act as if we do. We expect ourselves to do certain things and not do other things, and we feel responsible for those choices. We have the feeling, the sense, that we control those behaviors, or at least that we have the ability to control decisions about which things we do and which we don’t. We attribute to other people their own agency, which we take to be just like ours, even if they may have different ideas about proper behavior.

There’s a school of thought that says we don’t control those things. Here’s a recent article about Robert Sapolsky, a Stanford University neurobiologist, who doesn’t agree. He’s not the only one. Perhaps recognizing that this is an intractable problem, many scientists use the term agency instead of free will.

One is Michael Tomasello, whose book, The Evolution of Agency, I’ll be examining in the next few posts. Agency carries less moral baggage, and it’s something that can be described and studied neutrally; at least more neutrally. Tomasello doesn’t give a precise definition of agency. This is from the introduction:

…[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.

The book rests on two assumptions. The first is that the basis of agency is a feedback control activity, a psychological mechanism, seated in the brain. The second is that agency is an outcome of evolution.

Feedback control organization

Tomasello’s feedback control organization works like a thermostat. The idea is that a goal is set for the thermostat: keeping the temperature at a certain level. It has a sensor that measures the ambient temperature and compares it to the goal. It then turns on another device that brings the temperature closer to the goal. It continues to test the ambient temperature and when it reaches the goal, it turns off the device.

Tomasello claims that this is the only model that can work to enable things to control themselves. He points out that all efforts to get machines to operate autonomously work in accordance with this model.

Evolution and agency

Tomasello doesn’t think there’s a goal for evolution. He thinks that as brains become more complex, the feedback control activity takes on a different shape, a shape that takes advantage of the bigger brain. I’ll just toss in the observation that mutations happen all the time, and some become established in subpopulations whether or not they have any survival value. That might include hair color or a larger brain. If circumstances change, the mutation may suddenly have survival value, and the subpopulation thrives while the rest of the population suffers.

Studying psychological processes

Tomasello says agency is a psychological process, one that occurs in the brain of an individual creature. It cannot be studied directly. Instead scientists infer the existence of psychological processes from the overt behavior of subjects.

Scientists infer psychological agency when the organism acts flexibly toward its goal even in novel contexts. To behave in this flexible manner, the individual must go beyond a stimulus-driven, one-to-one mapping between perception and action. The individual must be capable of choosing to act or not to act, or among multiple possible actions, according to its continuous perceptual assessment of the situation as it unfolds over time (sometimes employing executive processes such as inhibition, as a further control process, during action execution). P. 27.

The layout of the book

Evolution has been at work on this planet for hundreds of millions of years. We say that different species split off from lines of evolution, as humans split off from the great apes; and as homo sapiens eventually split off from the first hominids, and then evolved into modern humans. The lines go back to the beginnings of life on the planet, to the earliest living creatures.

Tomasello thinks certain existing species have no agency, and the rest fall into four categories. He selects five of them to represent his five categories of agency.

1. No agency: C. elegans, a tiny worm-like creature (the image on the home page is a bunch of these creatures)
2. Goal-directed agency: lizards as representative of reptiles
3. Intentional agency: squirrels as representative of small mammals
4. Rational agency: great apes as representative of great apes
5. Socially normative agency, which has two subcategories
a) young human children as representative of hominids with a simple form of socially normative agency
B) adults humans who exhibit a more comprehensive socially normative agency

Tomasello treats each category of agency in its own chapter. The last chapter is mostly for his fellow scientists, discussing gaps in the research and proposals for future work on this model. In each chapter Tomasello explains how the agency works, the evolutionary pressures that might have led to it, and the nature of the world as perceived by the example creatures. These issues are supported by a empirical evidence from academic and field studies.

I’ll take a quick look at the first three levels of agency, and discuss socially normative agency in more detail.

Creatures without agency

Let’s start with C. elegans. This is a worm-like creature about 1 mm in length. We know a great deal about it: we have sequenced its genome; and identified its 302 neurons, their connections, and the role each plays. It has no sensory apparatus beyond the ability to sense nutritious and certain noxious substances. It lives in organic material, where it eats bacteria. It has rudimentary powers of movement. They are mostly hermaphrodites. For more, see this dense Wikipedia entry.

Basically it moves around in organic muck eating bacteria. If it isn’t finding any, it moves. If it detects a noxious substance it moves. That’s about it. Tomasello says that with the tiny number of neurons, it’s hard to imagine the creature could have a goal, let alone behave flexibly to achieve it. It is purely stimulus driven. It’s sensory apparatus is very simple, so it only recognizes a few stimuli, and it responds to them mechanically.

In Tomasello’s terms, this creature is non-agentive. He calls it an animate actor. There’s not much else to say about it.

Discussion

I’m not fond of the word “agentive”, which strikes me as an ugly neologism, but it points to somehting about human behavior. Not all of our behavior is agentive. Take breathing. We can control it, but mostly we don’t. It’s an interesting exercise to think about what parts of our actions are agentive.

Another way to put that is to ask how much we resemble C. elegans.

Rights Without Reason

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Posts in this series.

On The Evolution Of Agency by Michael and related

Free Will, Agency, And Evolution
Goal Directed Agency And Intentional Agency
Great Apes AS Rational Agents 
Socially Normative Agency
Socially Normative Agency And Rights
Coming To Grips With Free Will

On Chapter 9 of The Origins OF Totalitarianism by Hannah Arendt
The Mass Migrations Caused By WWI
Denaturalization and Asylum in Interwar Eruope
Stateless In Palestine
Citizenship

On How Rights Went Wrong by jamal Greene

Background For A New Book
How Courts Came To Control Our Rights
Two Views Of Protection Of Rights
Strict Scrutiny And Rational Basis Scrutiny
The Injustice Of Our Rights Regime

Introduction

Social media is full of right-wingers bleating about the infringement of their rights. Sometimes it’s gun nuts blathering about their rights to own every gun. Sometimes it’s some dude whining about being slammed for exercising his free speech right to spew his racist opinions. These blowhards say that no limitation on their rights is permitted, whether it’s criminal penalties, civil damages, or public insults.

Perhaps these oppressed people get their idea about rights from the Declaration of Independence,

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness….

But, of course, the Declaration doesn’t confer any rights. Maybe they think the right to mouth off and the right to strut around with guns are God-given. That would explain why they are offended when they encounter consequences for their behavior.

Perhaps they believe these rights spring from the first two Constitutional amendments. But SCOTUS says otherwise in US v. Cruikshank (1875).

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It ‘derives its source,’ to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, ‘from those laws whose authority is acknowledged by civilized man throughout the world.’ It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution.

…

The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.

….

The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.

The Supreme Court says that neither the right of free association nor the right to keep and bear arms are granted by the Constitution. By that logic, neither is the right of free speech. The cases applying these amendments to the states under the 14th Amendment do not reject this reasoning.

It seems that our rights depend on the interpretation by five members of SCOTUS of a word like “republicerad”, or of whatever they think they know about our tangled history. If so, there is no way to explain anything about our rights. That’s especially true of this version of SCOTUS, which doesn’t even pretend to care about precedent, and invents rules to suit its preferred policy outcomes.

Preliminary Ideas

I’m going to read and write more about our rights. For starters, here are some thoughts. It will be interesting to see how these thoughts hold up against other people’s ideas.

1. Every idea people have about everything was invented by a human being. This is a point made by the early Pragmatist William James; see the last part of this post. This is the second in a three part series on Pragmatism, the other two are here and here. They lay out the basic ideas that help me to understand our world. For those interested in how this philosophy works in our time, take a look at Philosophy And Social Hope by Richard Rorty, a collection of essays by the late Pragmatist.

2. One problem with our Bill of Rights is that the language is unhelpful. Many of them are couched in the negative, leaving open the nature of the positive right. Others use imprecise language, such as “cruel and unusual”. From the beginning these amendments were seen as limits on the national government. When the Supreme Court began to implement the Reconstruction Amendments, it imposed the language in the Bill of Rights limiting the national government on the states. The result was the eradication of the power of the states to participate in the regulation of these rights. This was a major change in our federalism. And we were left with the vague language, now subject only to the interpretation of SCOTUS. Constitutionalizing these ill-defined rights leads to inflexibility in thinking about their content.

3. What exactly do we mean by “rights”? As a starting place, and in keeping with what I take to be the position of First Amendment absolutists and the gun nuts, we mean that no one is allowed to interfere with some action taken by another. For example, the right to own a gun means no one can interfere with anyone else’s right to buy and own a gun, including violent criminals and domestic abusers. The right to free speech means no one can interfere with the right of anti-abortion fanatics to scream outside my neighborhood abortion clinic.

4. Rights are inherently social, not individual. Every right requires a concomitant imposition on everyone else. The existence of rights limits the way our society can regulate itself. For example, anti-vaxxers may make religious liberty claims, while others point out that refusal to get vaccines threatens their children. If the anti-vaxxers prevail, we are all exposed to greater risk of illness and death.

This implies that rights should have a political aspect. Our current system is heavily biased towards a legalistic approach, empowering courts, especially SCOTUS, with undue power. It also focuses on the claims of individuals and ignores the impact on society and the claims of people not in the litigation. Dobbs is a good example: the plaintiff was the state government, and the defendant was an abortion clinic. What about pregnant women? What about their families? What about he impact on society? Alito and four other self-righteous rulers don’t care.

New Series

My next book will be The Evolution Of Agency by Michael Tomasello. I think it indirectly supplies a more useful approach to thinking about social relations, and thus rights. It’s short, and easy reading (mostly).

In this post I discuss the Epistemic Regime as described by Jonathan Rauch, in his book The Constitution Of Knowledge. The Epistemic Regime is the way we arrive at truth in the Pragmatic sense. I think it’s good background for some of Tomasello’s ideas about our species.

I’d like to follow that with books or papers about the theory of rights in the US. I don’t know what that will be yet, and if anyone has a suggestion, please put it in comments; also I’m still on Xitter @MasaccioEW, and slowly moving to BlueSky. @[email protected].

Conclusion To Series on The Reconstruction Era

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Index to posts in this series

This series was motivated by recent scholarship arguing that the Reconstruction Amendments, the 13th, 14th, and 15th Amendments, gave our nation a new beginning, one centered on equality of citizens. I discussed The Nation That Never Was by Kermit Roosevelt; The Second Founding by Eric Foner, and Beloved by Toni Morrison, I also discussed several Supreme Court cases from that era, The Slaughterhouse Cases, US v. Cruikshank, and The Civil Rights Cases; and several recent SCOTUS cases continuing their foul legacy. Enough. Here are some final thoughts.

1. Once again I’m reminded of the astonishing amount I don’t know. I think my education as a young person was reasonably solid. But I have no memory of any of the history I’ve discussed in this series. As I recall, I was taught that we passed the Reconstruction Amendments after the Civil War, that Johnson was impeached, and that Grant was corrupt. Then we learned about a the civil service laws, a little early labor history, the financial collapses caused by speculators and frauds, and the reforms of the Progressive Era. I didn’t learn about Plessy v. Ferguson until my first mandatory history course in college. It’s worse today, of course.

Much of what I’ve written about here is posted under Left Theory, because I’ve tried to focus on abstract ideas that might provide a framework for thinking about a left version of the future. It’s hard to get worked up about ideas, which suited me as I didn’t want to write rage posts. But there’s nothing abstract about this series.

I was enraged from the beginning by the insistence of the Founding Fathers on enabling a brutal slave system while yammering about Enlightenment Ideals. Thomas Jefferson enslaved his own children with Sally Hemings even as he claimed that all men are created equal. Maybe Roosevelt is right to say Jefferson was talking about the state of nature but the contrast between ideas and practice is grotesque and disgusting. How are we supposed to accommodate it in our veneration of the Founding Fathers?

The Reconstruction Amendments were drafted by men who had waged and survived the Civil War, knew that the slavers started it, and wanted to stamp out slavery as part of the crushing victory they achieved. Voters elected Senators and Representatives who knew that the slavers had never accepted defeat; that they intended to enforce White Supremacy by force and by legalized resistance, the KKK or state legislatures. Between 1865 and 1875 Congress enacted numerous laws to enforce equal rights for all citizens, regardless of race.

The Supreme Court refused to recognize the Reconstruction Amendments or laws passed pursuant to those amendments. They read the Privileges and Immunities Clause out of the 14th Amendment. They narrowed all three amendments, and ignored the part giving Congress the power to legislate to enforce ir known purpose. Congress passed more laws, and the Supreme Court swatted them away. The Court intentionally substituted its policy preferences for those of the elected branches of government.

I’ve never claimed to be an expert in any of the areas I’ve written about here at Emptywheel. I only claim to be willing to engage with the text and to try to give it a fair reading. But this was simply too emotionally charged. Maybe someone else could read this material as if it were an essay by John Locke, but not me. And to think that a vast majority of moraly and intellectually deficient Red State politicians want to walk away from it — no. Just no.

2. Much of the material in the last part of the series revolves around the role of the Supreme Court and its centuries of rejection of majority rule. But that’s not the whole story. If a majority of White voters thought the Freedmen and their own Black neighbors were their equals they could have forced change one way or another. But while many, perhaps most, white people were sympathetic, that didn’t mean they were ready to accept Black people as equals.

This point is illustrated by a scene in Beloved. Long after the end of the Civil War Denver, a Black woman, desperately needs a job. She goes to the home of the Bodwin’s, the people who helped her grandmother and mother afterthey escaped from slavery. She knocks on the front door, and Janey Wagon, the Bodwin’s maid, opens it.

“Yes?”
“May I come in?”
“What you want?”
….
“I’m looking for work. I was thinking they might know of some.”
“You Baby Suggs’ kin, ain’t you?”
“Yes, ma’am.”
“Come on in. You letting in flies.” She led Denver toward the kitchen, saying, “First thing you have to know is what door to knock on.” P. 297-8.

Even the Bodwin’s, who were aggressively anti-slavery, didn’t let Black people enter at the front door. I’d guess this was the dominant attitude in that era. Citizenship was one thing. But there was little, if any, support for social equality.

One piece of evidence supporting the view that the national consensus was that social equality was impossible can be found in a 1910 editorial in the New York Times, supporting a Jim Crow law requiring separation of Black and White people on railroad cars in interstate commerce. The Times says the case, Chiles v. Chesapeake & Ohio RR, reverses an earlier decision barring such discrimination.

The present decision reveals the influence of the change in public opinion since the reconstruction era: it justifies both the law and compliance with it by the carrier, and permits the rest of the Southern States to amend their “Jim Crow” laws after the example of Kentucky.

The Southern Legislatures, thwarted during the first years following the civil war in their efforts to separate negroes from whites in public conveyances, have gradually passed laws to this effect in every State save Missouri, and the courts have sustained them.

Without public opinion on their side, Black people were left to their own devices, treated as second-class citizens by state and federal governments. Over time the national mood turned into indifference to violent White Supremacist attacks on Black People. This mood was reflected in Supreme Court decisions in cases like Plessy v. Ferguson. That indifference didn’t even begin to change until the 1950s. White Supremacists, closet racists, and pandering politicians continue to fight a rear-guard action with plenty of wins.

That thought takes the edge off the fury and exposes a deeper layer of emotions: sadness that just like the Founding Fathers we do not live up to our professed ideals.