Wimpy Patriarchy

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This article by Professor Molly Worthan at the University of North Carolina diseases the form of religion taught by Bishop Robert Barron.  Worthan says that Barron operates Word on Fire, a ministry that uses social media to preach a tough version of Catholicism that appeals to men, especially young men.

This [tough view] is not the message that [Barron] got as a young Catholic. “To be frank about it, when I was in the seminary, it was more of a feminized approach,” he recalled. “We did a lot of sitting in a circle and talking about our feelings.”

Whatever is in his instagram and You-Tube videos, which I, of course, won’t watch, it seems to appeal to younger men, as his audience is over 60% male. Worthan says that among college grads under age 40, 69% of mall claim a religious affiliation compared with 62% of women.

Male resentment

Worthan offers this possible explanation.

Some pundits argue that as gender norms shifted and women started outnumbering men in universities and the white-collar workforce, men have grown resentful and nostalgic for patriarchy—so they seek it in traditional religion. J. D. Vance is the country’s most famous Catholic convert, and the story of his rightward shift might seem like a template for all Gen Z and Millennial men interested in Christianity.

This explanation says that men respond to the success of women by asserting their superiority as the men of the patriarchy. Historically men were dominant and women were subordinate. For many this cashed out as men have all the power and women are submissive. Historically, this system was enforced by the state and by religious authorities. Today it’s a part of all religions, and is a central aspect of all fundamentalist religions.

Seeking a solution to the apparent superiority of so many women in the Patriarchy  is an example of what C.S. Peirce calls the method of authority, one of his four responses to doubt. From his 1877 essay The Fixation Of Belief,

Let the will of the state act, then, instead of that of the individual. Let an institution be created which shall have for its object to keep correct doctrines before the attention of the people, to reiterate them perpetually, and to teach them to the young; having at the same time power to prevent contrary doctrines from being taught, advocated, or expressed. Let all possible causes of a change of mind be removed from men’s apprehensions. Let them be kept ignorant, lest they should learn of some reason to think otherwise than they do. .,,

Males Adrift

Worthan offers her own explanation:

Many young men feel unmoored—lonely in a time of weakening social institutions, unsatisfied and overworked by an accelerating professional rat race, alienated by political tribalism. “Men my age, we don’t have the social organizations that our fathers or grandfathers did,” Torrin Daddario, a Barron fan who converted to Catholicism from a Protestant background, told me. “We’re adrift.” Over the past decade, both the left and the right have tried to fill the void with morality tales that treat unfettered individual freedom as sacred and split the world into victims and oppressors. Those stories are getting stale.

Worthan explains that these young men get much of their information from YouTube and other social media. She says they might check out Jordan Peterson, for example, leading to Christianity, and the algorithm leads them to Barron.

This is an example of Peirce’s third possible response to doubt, which we might today call the method of common sense.

Let the action of natural preferences be unimpeded, then, and under their influence let men, conversing together and regarding matters in different lights, gradually develop beliefs in harmony with natural causes. … [Systems of metaphysics] have been chiefly adopted because their fundamental propositions seemed “agreeable to reason.” This is an apt expression; it does not mean that which agrees with experience, but that which we find ourselves inclined to believe.

Listening to random people who don’t have better information that you do is a recipe for failure. Listening to people hawking the old solutions, including patriarchy in its many forms, has the same result. You don’t get answers that are useful in our society. You get contemporary versions of answers to questions aur ancestors asked centuries or millennia ago. We living people have different questions based on radically different societies from those of our ancestors.

Beyond Atheism vs. Religion

All this gets boiled down into a discussion of atheism vs. religion. In the US, this debate is between people like Sam Harris and Richard Dawkins, the New Atheists on one side; and the Bishop Barrons and aggressive groups like Opus Dei and Christian Domionists. It almost always is understood as atheism vs. Christianity, ignoring the teachings of other religions. It deals with untestable beliefs like the existence of a Supreme Being or the proper form of worship, and never the moral teachings. This kind of simplistic dualism pervades all  public discourse on almost any issue. I am very skeptical of all dualistic framings, especially dualisms originating in the distant past.

The feelings Worthan describes are common among large numbers of people at especially after the First World war. The result was the origination of  secular theories of humanity that seem to me to transcend arguments about the existence of a Supreme Being and forms of worship.

One example is Existentialism. Those adrift young men listening to Barron might recognize themselves in the ennui expressed in Sartre’s play No Exit. The most famous line in the play is “hell is other people”. The three “other people”, condemned to hell for their sins, will torture each other through eternity. The play concludes with the words: “Well, well, let’s get on with it. …” But is that the answer to the problem they face? Wallowing?

Sartre doesn’t think so. Neither do the other existentialists. Look at The Plague by Albert Camus. The hero is the doctor. In the face of a deadly plague he does his best to tend to the sick and dying, advise the living how to protect themselves, and find a cure. The other characters display other responses to the plague, some modestly useful, others worthless. Camus tells us we have to act, to help, to fight the inevitable, to resist the meaninglessness of the universe by finding meaning in other people.

The odd thing, of course, is that traditionally the fundamental character of the masculine was action, while the feminine was characterized by passivity. Men find their place in society by accomplishment. Women find their place in the home and in child-rearing.

How ridiculous is it that men respond to women’s action in the world by becoming passive wimps? Or by asserting an invented superiority not arising from personal accomplishment?

 

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Image; Ruth Bader Ginsberg in her Columbia academic regalia, 1959

 

Maturing In US Society

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Posts in this series

In the last post I offered a story about human evolution. In this post I offer a framework story for how we mature in US society.

Introduction

I’ve read a lot of philosophy material trying to define human nature. It seems to me that almost all those accounts start with adults. They start with a fully mature male (because of course they do), and you can almost feel the self-examination at the root.

One obvious example is René Decartes with his skeptical doubt of everything, leaving him with his “I think therefore I am”. He never seems to think of asking himself what he was before he could think, and then what he was when he first started to think, and then, wait, when did I start to think and what was that like? All those questions seem more interesting than his trivial proof of his own existence as a first step to deriving the world.

When I read this material, or listen to podcasts like Philosophize This by Stephen West and The Partially Examined Life. I often find myself asking the air “What is the pathway to that view?” The absence of a pathway permits all sorts of answers that seem ill-suited to our day.

And that’s what attracts me to Pragmatism. It tells me that those old guys are asking interesting questions, but that the answers aren’t always connected to the way we actually come to be ourselves, or the way we actually are. Cf. Gilles Deleuze, who seems to think all philosophers asked interesting questions for their day. He says we need to ask questions relevant to our own times, taking what we can from our predecessors. (Disclaimer, I haven’t read Deleuze, and rely solely on outside sources.

Becoming

So, here’s a story. It’s not a universal story like the one in the last post. Instead, it’s a kind of individual story that might apply to us.

Cat Bohannon writes a lot about nursing babies in her excellent and very readable book, Eve. One critical part of the process begins shortly after birth when the mother offers her breast to the newborn. As Bohannon describes it, the two have to work together to get the breast to provide sustenance. The newborn has an instinctive behavior, rooting, but the mother must help and the newborn must respond to the assistance. This might be a very early example of the cooperation that I think forms part of our wiring.

Through the next year or so the infant takes in all sorts of information without using words, without knowing what a word is. (H/T commenter Gruntfuttock). This information is experiential, not formal.

Then the little one learns to talk. This is also a cooperative process. It has already heard words, and maybe even worked out what they mean, like its name and mama and dada. As the vocabulary grows, the child can take in information from parents and others, including information about the use of language. Hopefully our little person stops licking everything in sight.

Then the questions start. Why is the sky blue? Why do I have to go to eat these green things? And more and more. And then they get harder. Why doesn’t X like me? Why can’t we go see Grandmother? Why do I have to go to school? Kids expect their questions to have answers, and to expect that the parents know the answer. Gradually they learn that other people have answers.

Then they learn that their parents don’t have all the answers and that they have given incomplete and misleading answers, and even wrong answers. They turn to new sources of information and answers. Hopefully they don’t get many wrong answers.

The point of this story

None of us made the world we live in. We didn’t create social norms, we didn’t generate any of the material goods we have, we didn’t create a morality. We just showed up. Our parents first, and then everyone else in our lives helps us grow accustomed to the social, physical, and moral world we inhabit. Hopefully we become able to survive in it, to succeed in it on its terms, and maybe even to add something to the accumulated store of human understanding.

We get used to living in a certain way. As Pierre Bourdieu explains, we develop a habitus, a set of practical responses to the things that might happen in our world. Once that habitus is in place, we have stock responses for almost all events. We don’t think. We just respond.

So how do we react  when something happens for which our habitus is inadequate? What happens when something arises that raises doubts about the assumptions behind our habitus? I turn to the early Pragmatist C. S. Peirce (pronounced “purse”). I discuss his seminal 1879 essay in this post. Peirce says we don’t like to think. It’s hard. It’s no fun. And besides, we were just fine before that stupid doubt appeared.

Peirce says there are four responses to doubt. First, we could just ignore that irritating doubt. That works more or less well, depending on how important the belief is to our daily lives, and how irritating the doubt is. For example, we can do just fine with “the sun rises in the East”, unless we hang around with normal people who know better and laugh at us.

Second, we can look for an authoritative source to force other people to agree with us. Galileo found out about that.

Third, we might get together with other people and try to create a new view by consensus. That might work, depending on who we talk to. Hint: avoid QAnon people. Also people who you just found online.

Finally, we can try what we now call the scientific method.. This approach has been elaborated and partially formalized since Peirce’s time. For a good discussion, see Jonathan Rauch’s book, The Constitution of knowledge, discussed here. Because the same method, modified slightly, can be used for most subjects of expertise, we now generally think that expert knowledge is always contingent on new information and new ways of thinking about old information.

Individuals as individuals

1, So this, I think, is the way people mature. Of course, specific people can stop anywhere along the way. But the goal is always to find a place in a complex society that was there before us, will be there regardless of what we do, and will remain when we’re gone. But the process of maturation isn’t in itself a satisfying answer to the question of what it means to be an individual in the context of our society. I’ll offer a tentative answer in my next post

2. I don’t think this description is judgmental; it wasn’t meant to be. I think judgment of individuals has to be based on criteria outside the process of maturation.

3. I didn’t mention individual agency in this story. One element of habitus is the range of responses available to each of us in response to specific events. One of the goals of the people who raise us is to shape the rane of responses we consider in confronting an event. For example, our parents don’t want us to hit a sibling for taking a toy. That is a restriction on our individual agency.

Depending on the way we are raised, and the reactions we get from our responses to events generally, we limit our agency so that the responses are at least bearable. As an example, if we repeatedly do badly at school, we might form a habitus including the proposition that we aren’t very smart, and that limits the things we think we can do. This amounts to limiting our own agency. There are many ways in which society operates to limit our exercise of individual agency.

Graphic of the Haymarket Riot from Harpers Weekly

Evolution And Individuals

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Posts in this series

The Individual In Contemporary Society
Evolution And Individuals
Maturing In US Society

The first post in this series took up the question of the nature of the individual in contemporary US society.  I think answering this question is necessary if we are to create a theory of government for our time.

An evolutionary tale

Let’s start with a story. I can’t remember where I found the story I’m about to tell. Maybe it was The Evolution of Agency by Michael Tomasello, or The Dawn Of Everything by David Graeber and David Wengrow, or maybe Eve by Cat Bohannon, or maybe something I ran across while writing about those books, or a combination of these.

Of course we will never know the “truth” about evolution, and there’s always a danger of falling for just-so stories. But this tale seems plausible and I’ll point out some circumstantial evidence.

As our ancestors evolved, they moved around in loose groups. The change began about 6 million years ago. Perhaps a group of primates got cut off from the rest by a rising river or an earthquake, or maybe they just wandered too far to be reunited. Conditions changed in the new area, resulting in less food. This led to smaller and weaker creatures. They were easy prey for other larger, stronger creatures with sharper ears, eyes and noses.

Their survival came to depend on their ability to cooperate. One form of cooperation might have been scavenging. After one of the big predators made a kill and gorged, the scavengers appear: jackals, hyenas, vultures. Our ancestors may have worked together. One or more scare off the other scavengers while others rip at the carcass. They run away and share the prize. Or it might have been cooperative hunting, where the victory is, again, shared.

Chimpanzees and other primates in and near our line of evolution do not cooperate in hunting. They may work side by side, but if they succeed, there is no sharing. Every chimp grabs what it can, whether or not it participated in the hunt.

In either case, or otherwise, about two million years ago, they began to use tools. Maybe they started with sticks and rocks. Eventually they learned how shape tools. This is a learned and teachable behavior.

Social cooperation requires the ability to recognize the existence of others as similar to oneself. When I feel a certain way, my body does X. If I see a creature doing X, I assume they feel like I would if I exhibited that behavior. From there, more and more complex social interactions can develop. Hunting can proceed by explicit agreement. Simple hand signals and noises can be used to indicate planning and the means of cooperation.

Over the next 1.6 million years, brains gradually grow larger. From the shape of fossil skulls we can guess that the parts of the head that grew are those necessary to accommodate the parts of the brain used in social interactions. The larger heads change the way the female body was shaped and the way they gave birth. The difficulty of birth required increased social cooperation, probably centered on the females.

The infants were dependent far longer than their primate ancestors. This was another force leading to increased social cooperation. Bohannon speculates that the primary source of language was the interaction of mother and infant, because they spent so much time together. Eventually we became Human, and as Graeber and Wengrow put it: we began doing human things.

Some evidence

There are a number o papers showing that there are regions in primate brains that are specific to facial recognition. There other papers  showing that primates make and recognize some facial expressions. Another group says that the parts of the brain responsible for speech are separate from the parts that perform thinking operations.

1. Facial-recognition regions. In this article from Scientific American, Doris Y. Tsao, a professor at Berkeley, explains how she and her colleagues discovered specific regions in the brain whose function is to recognize faces.  She performed fMRI studies on monkeys, creatures with whom we share a common ancestor. When fellow scientists objected that fMRI is inconclusive, she and her colleagues tested individual neurons in the patches, and found that all but a tiny number of cells in those patches responded solely to faces.

2. Primates recognize individual faces of conspecifics (members of their species) and some recpgmize human faces. They also read at least a few emotions from the facial expressions of conspecifics. A example is the teeth-bared grimace, which has different meanings in different species. It is common among chimpanzees, monkeys of many species, and in some canids. The teeth-bared grimace can look somewhat like the human smile. It is used in several papers I read as an example of the evolutionary roots of human facial expressions. Here’s one example from 2001. From the introduction:

One of the central questions in human evolution is the origin of human sociality and ultimately, human culture. In the search for the origin of social intelligence in humans, much attention is focused on the evolution of the brain and consciousness. Many aspects of human cognition and behavior are best explained with reference to millions of years of evolution in a social context Human brainpower can thus be explained, in part, by increasing social demands over the course of human prehistory. Cites omitted.

3. We do not need words to think. This was news to me, because I have a bare acquaintance with the fundamental ideas of Noam Chomsky. But this article in Scientific American asserts that the regions of the brain used in problem-solving are separate from the centers used in language.  The paper surveys dozens of studies. It finds several kinds of evidence.

First, there are studies of thinking in aphasic people. These are people who cannot use language, but nevertheless are able to solve problems, make plans, read faces and perform other tasks requiring mental processing.

Second, there are many fMRI studies showing that when people are solving problems, like doing Sudoku, the speech centers are not active.

Third, language is optimized for communication, not for thinking. There are ambiguities in words and sentence structures that would make problems solving fuzzy.

The areas of the brain that do language are late developments. We didn’t need complex language to survive. We could learn the techniques for knapping rocks into tools by watching and practicing. But the more we learn, the more we need language to share knowledge. If we think of knowledge as an internal state of mind, we can see language as a way to communicate that knowledge, that internal state, to others.

It seems me that each of these supports the idea that human evolution is oriented towards social cooperation. Our survival as a species has been built around our ability to work together to survive together. For us, evolution isn’t driven by the survival of an individual, but by the survival of our group. Our genes aren’t just ours, we share many of them with others in our kinship group. For most of our evolutionary history, kinship was at the root of our social groups. At least I think that’s probably so. Thus, if our cousins survive, many of our genes go with them.

But cooperation isn’t the only mode of interaction. All of our abilities can be used for more than one purpose. For example, our social skills can be used to deceive others. That’s always been true, and some of our primate relatives can do it too. We should assume that our earliest ancestors could and did take advantage of those skills and use them for individual gain. And we should assume that societies develop systems for coping with those non-cooperative behaviors. I think deception developed side by side with our social skills, and may have driven our social evolution to some extent.

But I think that at bottom, cooperation is a fundamental aspect of our selves, and that the capacity to deceive is a variant of cooperation skills. I think our first social control systems developed out of cooperation in reaction to those who refused to cooperate. Is that too optimistic?

Implications

This story is the opposite of the dominant theory of our times, neoliberalism. Our society tells us that we are nothing more than isolated individuals competing in a fiercely competitive arena for the resources we need to survive. Neoliberalism is at the heart of US capitalism, the economic system established by the rich and powerful. Many of our own ancestors fought back against aggressive capitalists, but were crushed again and again by a combination of state and federal armed forces, and private armies.

Of course, we don’t teach that history any more, but you can get a start reading A People’s History Of The United States by Howard Zinn. We occasionally remember that Black people resisted, sometimes violently, but we never talk about the coal miners, the factory workers, and small farmers resisting the grotesque demands of the filthy rich. These men and women fought together. I mean literal fighting, with guns and pitchforks. Eventually they won minimal legal protection.

Then their children threw it away. They bought into a story about Lone Rangers and Honest Sheriffs and Invisible Hands.

These are people who don’t know their own history. Maybe we need to teach them their about their ancestors. All of their ancestors.

 

 

Last judgment by da Modea, Cathedral Bologna, IT. Shows tortured bodies and giant beast in the center eating the damned and shitting them out

Now What?

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I’ve had lots of feelings about that miserable election: anger, hostility, fear, worry, and more. But life goes on. Now what?

Self-Care

I practiced bankruptcy law for 25 years, mostly representing middle-class people who got hammered by one of the four most common causes of financial distress — divorce, illness/injury, job loss, and financial crashes. Almost all of my clients were shocked and horrified that things had come to the place where they needed to consult a lawyer. I had one piece of advice: take care of yourself. You can’t help anyone else if you’re totally stressed out.

It’s good advice. I took it myself, in fact, I’m still taking it. I did a media cleanse: no billionaire media, quit reading newsletters and Substacks, got off Xitter, and limited my screen time. I watched movies, read novels, talked to my friends over dinner and drinks. I cleaned out closets and drawers, took a close look at expenditures, and talked to my stock broker.

I’ve read this site, and the comments. I moved to Bluesky (@edwalker.bsky.social) and used the starter packs to replace my curated list of follows on Xitter. I’m exercising and eating mindfully. It’s helping.

The Blame Game

I’ve been thinking about why the election turned out so badly. Of course there are many reasons for a huge loss, but these seem make me angriest.

1. Voters. Democracy only works if voters can discriminate among candidates. Donald Trump is a law-breaker, a sexually abusive creep, and a business and governmental failure. People who think this repulsive demented jerk is a plausible candidate and voted for him and people who refused to vote failed the basic test of democracy. There is no excuse for this. With the exception of Muslims who refused to support genocide, discussed below, those people failed as citizens.

2. Billionaire media. The billionaire-owned and controlled media (the “BM”) rehabilitated and enabled Trump. When Trump was impeached for inciting a riot to hold on to power after getting whipped n the 2020 election, the BM announced that the impeachment was futile. Then when the coward Mitch McConnell protected him the BM patted itself on the back and announced that Trump was the leading candidate for 2024. Then he was discovered to have stolen critical national security documents from the government and refused to return them. The BM treated this as spectacle, thrilled by his contempt of law, and continued to treat Trump as the leading Repub candidate.

Meanwhile, the BM’s political reporters decided that inflation was Biden’s fault because of all the government spending on COVID relief, infrastructure and bringing manufacturing jobs back to the US. This was a lie. The primary cause of inflation was supply chain blockages brought on by corporate just-in-time practices. Prices rose as supply dropped, just as predicted by Econ 101 textbooks.

But when supply chain problems eased, prices didn’t come down as predicted by those textbooks. The largest US corporations have oligopolistic market power, and were able to keep prices rising. This was a replay of the mid-1970s when right-wing economists pretended inflation was caused by Keynesian spending instead of the ripple effects of OPEC price hikes. Sadly, BM political reporters lack the capacity to learn from the experience of being bamboozled.

By mid-2023 it was obvious that Biden’s policies were bringing our economy to a soft landing, and many economists (not the right-wing toads) began calling for the Fed to reduce interest rates. The Fed, led by a Republican, refused. That helped keep inflation from falling. BM political reporters blamed Biden for all it.

It doesn’t matter why. They failed. They are to blame.

3. The Democratic Party. Famous Will Rogers quote: “I don’t belong to an organized political party. I’m a Democrat.”

The election was a massive failure of Democratic “leadership,” the timid politicians, the know-it-all rich donors with their hands out, and the incompetent consultants. They all failed. They all should head to a monastery or convent and spend the rest of their days in shame and prayers for forgiveness on account al the people Trump will hurt physically and psychologically.

There is no Democratic Party. There are a bunch of politicians who claim the label, and their supporters and apparatchiks. They won’t help a single person now. For years lefties have begged them to do things that will help people directly — things like raising the minimum wage, protecting voting rights, strengthening labor laws, and reducing student debt, legislating abortion rights, and much more. Zippo.

We begged them to attack the policies and the politicians of the stupid party. We begged them to defend against the Ratfuckers’ ugly attacks on teachers, librarians, liberal clerics, college students, intellectuals, scientists, not-White people, asylum-seekers, LGBTQ+ people, and anyone with a brain capable of telling right from wrong. We begged them to communicate forcefully their successes. We begged them to use the power we gave them to help all of us flourish. They refused. They took our money and our time and then punched the dirty fucking hippies for funsies.

Time to clean House and Senate.

All right, big mouth, now whatcha gonna do?

1. There are a couple of things I can do locally, and I’m going to try to do them, hopefully in the company of people better equipped than I to accomplish them.

2. I’m going to continue with my current project of examining what it means to be an individual in current US society. But instead of treating it as a personal project, I’m going to try to make it more useful. More on that later.

3. I think the Democratic Party as currently constituted is purely transactional. It has no center, no reason for existing. There is nothing to bind us to the party. Instead, we are expected to support people who have claimed the label, regardless of whether or not they are furthering our goals.

As an example, Muslims who voted for Biden were asked to vote for the party’s chosen successor, Kamala Harris, despite her apparent support for Israel’s genocide in Gaza, its attacks on Lebanon and Hezbollah, its evident attempts to stir up war with Iran, and the close connection between the Israel’s odious warmonger Netanyahu and Trump.

Compare this to the 2012 election. We were asked to support Obama and his team despite their flat refusal to hold Wall Street accountable for causing the Great Crash. We were asked to support Obama’s choice to “foam the runway”, to allow the perps keep all the money they stole and use it to buy up all the houses that went into foreclosure. We were told to ignore the fate of millions of our fellow citizens who suffered loss of homes and savings. I didn’t vote for him. I couldn’t. How could I demand that Muslims support Harris in the face of genocide? How could anyone? Maybe other people felt similarly about other failures to deliver on promises.

The Democratic Party is not our friend, and it’s not going to help. We all have to figure out how to fix the mess that crowd of failures created. The shell of the party remains. I might be able to help with one obvious problem the lack of a governing theory.

4. I’m going to continue to attack the MAGAts on SCOTUS. I know how to read their bullshit opinions, and I know what plausible jurisprudence is, and I can and will show my contempt.

5, I think another serious problem is that we have no way to communicate with a large audience. By we, I mean thoughtful left-leaning writers and thinkers. We have no mass media presence, and we aren’t likely to develop one under a Trump administration.

At the Democratic Convention the Harris team centered a group of what it called “content creators,” people with podcasts. TikTok followers, Instagram accounts, and other ways of communicating. Those reach some of our target audience and could reach more.

Maybe that’s a way forward? Some kind of grouping of these content creators? Some sensible organization that stretches across all these forums? A coherence based on common goals and maybe even a theory? Maybe some way to make a little money?

Conclusion

We’re all going to have to find a way forward. Any thoughts?

_________
Front page photo: Detail of The Last Judgment by Giovanni da Modena, a fresco at the Cathedral of Bologna, Italy. Photo by Artemisia.

The Individual In Contemporary Society

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I’m on the road, it’s been raining in Paris, time for something new. I’ve been posting here for a long time, this is number 334, and almost all of them have been about some aspect of our national life. Lately I’ve been thinking about what it means to be an individual person in contemporary US society.

Vignettes

Should we define ourselves in terms of our work lives?

1. Neoliberals talk about homo economicus.  Humans are rational agents competing against each other for necessary resources and desired objects.

2. This is from a 2019 article in Scientific American, How the Brain Reads Faces by Doris Y. Tsao, a professor at Berkeley.

I believe at each stage in life one has a duty. And the duty of a college student is to dream, to find the thing that captures one’s heart and seems worth devoting a whole life to. Indeed, this is the single most important step in science: to find the right problem.

3. Dr. Tsao’s view isn’t reserved for college professors. I recently sat in the Cloisters of San Marco in Florence, an open courtyard surrounded on four sides by a slope-roofed portico,  supported by arches on pillars of pietra serena topped with Ionic capitals. It is a quiet space. Tourists seem muted as they pass through. It was designed by Michelozzo in the mid-15th C., but I was thinking about the builders, the working men who carved out the pillars and the capitals, built the arches, coated them with plaster, and whitewashed them.

Maybe they felt like the Kentucky coal miners described in the book Stolen Pride by sociologist Arlie Russell Hochschild. Here’s an excerpt from a book review; the quotes seem to be from the author.

For more than a century, eastern Kentucky was one of the centers of the American coal industry. Though back-breaking and sometimes deadly for its workers, the sector employed thousands of people, lifted many out of poverty, and brought railways and other infrastructure into the region. Men took pride in their work, which required courage and knowhow, and the people of the region were proud that their coal fueled America.

“[People could] proudly say, ‘We kept the lights on in this country; we won world war one, world war two by digging coal,’ and the coalminer was kind of like a decorated soldier – he faced danger. Many died young, of black lung. But it was like a trade passed down from generation to generation for men, and then suddenly it was cut off.”

Should we look for something sciencey?

The is from Possession by A.S. Byatt; this part of the story is set in the mid 1980s.

Roland had learned to see himself, theoretically, as a crossing-place for a number of systems, all loosely connected. He had been trained to see his idea of his “self” as an illusion, to be replaced by a discontinuous machinery and electrical message-network of various desires, ideological beliefs and responses, language-forms and hormones and pheromones. Mostly he liked this. He had no desire for any strenuous Romantic self-assertion. P. 459.

Should we be looking for meaning?

1. From the Baltimore Catechism. It’s slightly different from my memory from St. Joseph’s Grade School.

2. Q. Who is God?

A. God is the Creator of heaven and earth, and of all things.

3. Q. What is man?

A. Man is a creature composed of body and soul, and made to the image and likeness of God.

6. Q. Why did God make you?

A. God made me to know Him, to love Him, and to serve Him in this world, and to be happy with Him for ever in heaven.

2. This is from The Myth Of Sisyphus by Albert Camus. It was, as I recall, the first serious philosophy book I ever read. My mother gave it to me when I was 16, and I have thought about it ever since. We all know the myth, at least the part about the punishment meted out to Sisyphus, which is the subject of this essay.  This is the concluding paragraph of Camus’ essay:

I leave Sisyphus at the foot of the mountain! One always finds one’s burden again. But Sisyphus teaches the higher fidelity that negates the gods and raises rocks. He too concludes that all is well. This universe henceforth without a master seems to him neither sterile nor futile. Each atom of that stone, each mineral flake of that night-filled mountain, in itself forms a world. The struggle itself toward the heights is enough to fill a man’s heart. One must imagine Sisyphus happy. P. 78.

So what?

None of my vignettes involve any of the conditions under which we humans evolved. None of them deals directly with food, clothing, and shelter, the requirements of survival. None of them takes up the question of the relations between and among people. Admittedly I was only looking for pieces about individuals, but that was easy, because there is little in our literature related to human solidarity.

There’s something else missing. Here’s a bit more about Roland from Possession. He is a barely employed researcher into the life of a fictional Victorian poet, Henry Randolph Ash. He’s uncovered a previously unknown connection with the poet Cristabel LaMotte. He shared this discovery with Maud, an expert in LaMotte and in feminist theory. Byatt writes:

He thought … of Maud’s faintly contemptuous look at their first meeting. … [T]here was little real connection between them. Maud was a beautiful woman such as he had no claim to possess. She had a secure job and an international reputation. Moreover, in some dark and outdated English social system of class, which he did not believe in, but felt obscurely working and gripping him, Maud was County, and he was urban lower-middle-class, in some places more, in some places less acceptable than Maud, but in almost all incompatible. All that was the plot of a Romance. He was in a Romance, a vulgar and a high Romance simultaneously; a Romance was one of the systems that controlled him, as the expectations of Romance control almost everyone in the Western world, for better or worse, at some point or another. P. 459-60.

Are we all caught up in systems that control us? Is that what it means to be an individual? I am nothing more that a crossing-place of a number of externally generatedJ systems that control me? It doesn’t feel like that, but ….

 

 

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The front page pic is a detail from The Expulsion From The Garden Of Eden by Masaccio in the Brancacci Chapel of Santa Maria Del Carmine in Florence, Italy. It was painted about 1425. Source.

 

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Conclusion To Series On Rights

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Conclusion to How Rights Went Wrong

In the last half of Jamal Greene’s book he gives us his explanation of a better way forward, and applies it to several controversial issues, including abortion and discrimination. Greene thinks that courts, especially SCOTUS, spend too much time on their made-up rules about about rights, instead of the rights themselves. He thinks all applicable rights claims have to be considered in rendering decisions and establishing remedies.

The Rodriguez case discussed in the last post is a good example. Kids are going to school with bats, but nothing can be done because of court-created rules designed to limit the reach of the Reconstruction Amendments. I think Greene is right about this.

I think that there are two problems underlying our current judicial approach that prevent Green’s ideas from being effectuated. First, immediately after the enactment of the Reconstruction Amendments SCOTUS limited their reach. The purported reason was preservation of federalism, as we see in The Slaughterhouse Cases. But that doesn’t explain the ferocity with which the Court attacked individual rights and especially Congressional action up to the 1930s, and then after a short respite, returned to the attack beginning in the Reagan era and continuing to the present.

This, I think, reflects a deep skepticism of democracy, whether in claims of individual rights against governments, or in concerted political action through the legislature. It seems SCOTUS has little respect for rights claims of ordinary people regardless of whether the rights arise through legislation or under the Constitution.

The judicial branch has always been a bastion of the privileged elites, who mostly like things the way they are. Powerful commercial interests are heavily over-represented, and have always been. Lewis Powell, the author of Rodriguez, is an example.

The second issue, I think, is the general unwillingness of the judicial system to make rulings requiring other branches to enforce. As an example consider Holmes’ 1902 decision in Giles v. Harris, discussed by Greene. Giles, a Black man, had been registered to vote in Alabama for years. The Alabama Constitution was changed to allow local election registrars to deny registration to people who lacked good character. Giles was not allowed to register under the new system. Ovrall, registration of Black men drooped to nearly zero. There is no doubt that this was a violation of the 15th Amendment. Holmes refused to do anything. One of his reasons was that “…the sheer scale of the conspiracy Giles was alleging exceeded the Court’s power to remedy it.” P. 49.

Courts have always been concerned about their ability to enforce their decrees, and rightly so. But that’s not an excuse for simply refusing to enforce rights. Courts are really good at collecting money. Creative use of this power is a great solution to weakness.

For example, in the Rodriguez case Powell could have given the school district a money judgment large enough to construct a new school, one less friendly to bats, and awarded further monetary damages necessary to bring the school’s textbooks up to date and deal with other issues. He could have imposed costs and attorney’s fees on the school district, and awarded the plaintiffs monetary damages for the injuries they suffered by going to school with bats and ripped up out-of-date textbooks. That would open the door to other under-funded schools in Texas to sue the State and local districts to equalize things. The legislature eventually would have been forced change the funding arrangement.

A third issue, most pornounced in the current panel of SCOTUS, is its effort to justify its decisions by newly created doctrines. The so-called Major Questions Doctrine is an example. This was apparently created for the purpose of thwarting government efforts to remedy serious emergencies pursuant to express legislative action. Another example is the absurd result in US v. Trump, where the loons expressly denied that they were looking at the facts of the actual case:  Trump’s efforts to overthrow an election. Instead they insisted they had to make a rule for the ages.

This is preposterous because the right-wingers on the Court don’t have a problem throwing out cases and rules they don’t like.

There are many better ways forward, including Greene’s. But so what? All Republicans including those on SCOTUS are incorrigible. We can’t even get the current crop of geriatric Democrats to hold a hearing on the corruption we all know exists in the judicial system, ranging from the ethics violations of right-wing SCOTUS members to the scandalous judge-shopping of the creepy right wing, to the overtly political decisions of the District and Circuit Court in Fifth Circuit. The fact is that only sustained aggressive demands will ever change anything.

Conclusion To The Conclusion

In this series I’ve discussed three texts: The Evolution Of Agency by Michael Tomasello; Chapter 9 of The Origins of Totalitarianism by Hannah Arendt; and Greene’s thoughtful book.

Tomasello provided a look at the way we humans evolved. I think it hints at how we came to think about rights. He speculates that the earliest ancestors of humans were weaker, slower, more fragile, and had less sensitive eyes, ears and noses than their competitors. They survived by being more cooperative, more attuned to their group, more sensitive to the desires and emotions of individuals in the group. This increased receptiveness to others was the genesis and result of increasing brain size. The larger brain changed the bodies of women to enable birth babies with larger heads. That led to complications of birth. Dealing with those complications required more social cooperation. The longer dependency of the young also increased the demands of cooperation. These changes increased over time and eventually we became human. For a similar view, I recommend Eve by Cat Bohannon, which discusses evolution from the perspective of the female body and mind.

The importance of cooperation in this story leads me to speculate that rights are a way of maintaining individuality among creatures who are tightly bound for the sake of survival.

The Arendt selection says that rights are mutually guaranteed by equal citizens in a society. It also says that rights don’t matter unless there is some way to enforce and protect them. These are her conclusions about the last 200 years, not the earlier millenia.

Greene’s book tells us the story of our national attempt to insure our rights through the legislature and the judiciary, and the sad results.

I think everything we know and essentially all we think and think we know comes from other humans. That includes our rights. Some of us talk about natural rights, some about constitutional rights, some about human rights, some about God-given rights, but all of that comes from other humans and our own interpretations of their thinking. We draw from religions, philosophy, novels, catechisms, preachers, practical experience, our own emotions and sensitivities, laws, each other, our parents and teachers, our colleagues and our children.

But it’s always just us humans, trying to survive as individuals and as members of a group.

So I conclude with a question: how do you discuss questions of rights with people who believe that they possess the absolute unvarying truth?

 

 

 

The Injustice Of Our Rights Regime

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We’ve seen the rise of the Holmes/Frankfurter theory that the Constitution protects few rights but protects them strongly. In practice that means that if a law infringes a constitutionally protected right, there is a heavy burden on the government to justify it, called strict scrutiny, but if there is no right, the law stands unless there is no rational basis for it.

Chapter 4 of Jamal Greene’s How Rights Went Wrong is titled Too Much Justice. The phrase comes from a dissent by William O. Brennan in a death penalty case, McClesky v. Kemp. McClesky showed that in Georgia, Black people convicted of killing white people were disproportionately sentenced to execution. Lewis Powell constructed a slippery slope argument to the effect that any kind of defendant might show such disproportion and then what? Brennan wrote that McClesky would die because Powell was afraid of too much justice.

San Antonio Independent School District v. Rodriguez, (1973) is similar.  The plaintiffs were the families of kids in the Edgewood district of the Defendant San Antonio Independent School District (SAISD). They claimed that the funding system for Texas school districts was unconstitutional because it effectively deprived their kids of a decent education.

Greene begins his discussion with a description of the school that the Rodriguez kids attended:

The school building was falling apart. Many of the windows were broken. Many of the teachers were uncertified and underpaid; a third of them had to be replaced every year. Temperatures in San Antonio reached the mid-80s that day, but the school had no air-conditioning. There was no toilet paper in the restrooms. A bat colony had nested on at least one floor of the school. P. 94.

Powell wrote the 5-4 majority opinion. He starts with a detailed history and description of the funding system which is based on property taxes in each district. Edgewood had the lowest property value in the SAISD. Texas capped property tax rates. Even though Edgewood had a higher property tax rate, it raised substantially less than other school districts in the SAISD. Edgewood had $356 per student compared with $596 in Alamo Heights, which had the highest property tax valuation.

Powell’s discussion of applicable law starts with a discussion of the decision below. A three-judge panel of the District Court found that the Texas funding system discriminated on the basis of wealth, that wealth was a suspect category, that education was a fundamental right, and therefore the State was required to carry a heavy burden of proof justifying this system. Of course Texas could not show a compelling reason for the funding system.

Powell rejects that analysis. He doesn’t bother with the actual facts of the case as they affect the plaintiff. His only interest is the nature of the legal rights asserted by the plaintiff.

We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny.

Powell says the wealth discrimination shown here is unlike any other kind of wealth discrimination accepted by SCOTUS to date. Later he says the same about education as a fundamental right.

Wealth Discrimination

The lower court found that poorer people in San Antonio received “less expensive” educations that those in weather districts. It held that that was enough to find wealth discrimination. Powell says that’s simplistic. Powell says he has to find a class of disadvantaged poor people that can be defined in the customary language of equal protection cases; and then evaluate the relative — rather than absolute — nature of the asserted deprivation is of significant consequence.”

He says there are three possible ways to show discrimination.

1. People with incomes below an identifiable and relevant level, which he calls “functionally indigent” (my quotes).
2. People relatively poorer than others
3. People who live in poor districts regardlesss of their incomes.

He says he will stick to SCOTUS precedents. He offers two groups where wealth discrimination has been found. He says that in those cases, the group discriminated against was so poor they could not pay, and thus were denied a benefit available to wealthier people. We are treated to several pages of cases, an expanded form of what lawyers call string-citing. Based on this analysis, the Texas plaintiffs must be relying on Powell’s first definition of a class of poor people.

But that is no good. There are equally poor people in wealthier districts. There’s a study saying that poor people tend to live in districts with a high concentration of warehouses and industry, which would support a higher property tax rate. That’s tnot the case here.

Anyway, SCOTUS precedents require that the class be denied the benefit. Here the kids are getting an education, and some money, and that’s good enough under the Equal Protection Clause.

 … [I]n view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an “adequate” education for all children in the State.

Who can tell? It’s all so complicated.

The right to education

Powell says SCOTUS is committed to education as an important right. Then he says that education is just another service offered by the state. The Equal Protection Clause doesn’t require equality in that service. Powell says education isn’t a fundamental right set out in our Constitution.

It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.

Discussion

1. There’s more. Lots more. And that’s not counting the 114 footnotes. But I doubt many EW readers got far into the discussion before saying to themselves, But what about the kids going to school with BATS? The bat colony isn’t mentioned in either the SCOTUS decision or that of the lower court.  The lawyers are so wound up about the funding mechanism and court-created rules about classification that they ignored the actual outcome: kids are going to school with bats!

2. Powell gives us a slippery slope argument: if we say kids shouldn’t have to go to school with bats, we might have to say they have to be fed a nutritious meal at school.

3. Greene describes Powell’s background in some detail. Reading between the Ines, Powell seems like one of those genteel Southern Politicians, the ones who would never use the N-word in public, but can’t quite pronounce Negro, especially at the country club.

4, The 14th Amendment says in part that no state is permitted to “… deny to any person within its jurisdiction the equal protection of the laws.” How hard is it to apply that rule to kids going to school with bats?

5. This case and hundreds of others are the direct result of the refusal of SCOTUS to enforce the 14th Amendment. Instead, we get blindingly stupid holdings based on what John Roberts called the dignity of the state. A state that makes kids go to school with bats and calls that an “adequate” education has no claim to dignity.

 

Using Social Media For Good Or At Least Fun

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In Tuesday’s debate, Vice President Harris showed her ability to dog-walk Trump into betraying his unfitness and his fury. If you hang out on social media much, you’ll see the same fury among his followers. They’re responding with vehement ugliness.

For the past several months I’ve been experimenting with my Xitter feed, trying to figure out some tactics for coping with these people. In this post I’ll lay out some of the things that seem to work, at least to make it more fun for me, and possibly to discourage some of them.

I think most of this works on any social media platform swarmed by the ignorant, the trollish, and the ugly, but I don’t use any of the others so I don’t know.

1. On Xitter, use lists. You probably only follow sane people, funny people, people who have some expertise in a field you care about, people whose views you want to read. Make private lists. These are lists that only you see and are not shared with others. I currently follow about 500 people. There are a lot of lawyers, a couple of philosophers, some funny people, a few journalists, and experts in science, economics, and finance. I selected a about 150 and put them on lists. I sorted the lists so that one has my current favorites, then one with second favorites, and a third for the rest. I move accounts around from time to time.

When I read Xitter on my phone I’m given columns at the top. One is the “for you” column. It’s loaded with Musk garbage, lunatic right-wingers, Qanon freaks, Covid deniers, anti-vaxxers, and other loons. I never read it. I don’t even update it. I just let it sit there in all it’s noxious glory. The next column is “following”. I read it when I’m waiting at a doctor’s office and expect to be sitting awhile. Then there are columns for each of my lists. I read them regularly.

On my desktop, I go directly to the button on the left column labeled lists and select one. That’s it. I don’t read Musk garbage.

2. One of the criteria I use for selecting for lists is the quality of the reposts I get. I follow several people who do a great job of reposting things I’m interested in.

3. I often reply to posts in my lists. I try to accomplish one of three things with those replies. First, adding some useful information. For example, if I see a post on something related to Project 2025, I often add a page citation and a link, encouraging people to see for themselves. Second, I try to be funny. It’s hit or miss on that.

4. The third goal is more open, I reply to some of the loons who have replied. I try never to respond to anyone with fewer than 300 followers, and lately more. If I do, it’s usually one or two words: Troll, Troll Alert, or “You seem smart,” which I stole from Lizz Winstead.

For MAGAs, I have several stock responses.

A) “You seem smart, can you tell me what Trump meant here?” Then I add one of several tweets I’ve bookmarked. One example is this from Judd Legum. It’s a collection of Trump’s nonsense. Another is this from Acyn, where Trump promises to bring back cement. I ask if they know where the cement went.

B) “You seem like a real patriot. Please empty your retirement account and send the money to Trump. If he doesn’t get elected, the world will collapse and you won’t need it.”

C) “You seem really angry. That can’t be good for you and your friends and family.”

D) “We got rid of our old guy, and he was a decent man who maybe lost a step. Why are you welded to your old guy who ignores every norm of human decency and who says weirdo stuff like this: [adding one of my links].”

5. You will get responses from some of these. I have some rules for handling them.

A) If they are seriously angry, mute and block. Life’s too short for that kind of nonsense.

B) Most of the replies are personal attacks. Often it’s homophobia, or you’re stupid, or “your a commie” [sic]. I never reply to the slur. Instead I keep the focus on them. An easy way is 4. (A) or (B) above or variations.

C) Check their Xitter profile. For crypto dudes and related finance types, I might go with “How much did you lose on $DJT, which is Trump’s social media company?” I often link to a Google search for that symbol, and set it to one year. It’s an ugly chart.

D) There’s a lot of obscenity and jerk behavior. I’ve been replying with some version of: “Ooh that’s ugly. It’s natural to be distressed after seeing your doddering old criminal get whipped by the Vice President, so maybe take a break from this site until you recover.” If they reply I continue in the same vein: “It’s okay: psychic pain is normal after a crushing defeat.” No matter what, keep the focus on them and their defects.

E) I make an exception for the anti-abortion crowd. I don’t see much of them unless they’re replying to a post from someone else. I generally reply with this link to an article on human reproduction by an embryologist, https://onlinelibrary.wiley.com/doi/10.1002/ntls.20220041

I often suggest they need to learn about the reality, not what their preacher says. The goal is to get them to realize the dangers of pregnancy, and the actual facts about things like fetal heartbeats and fetal pain. I don’t think you can convince anyone, but maybe it’s a good first step to opening minds.

One common claim from rabid anti-abortion people is the execution after birth lie. This one is deeply rooted. A Chicago Sun-Times reporter attended a debate watch party sponsored by the Niles Township GOP; Niles Township is a suburb North of Chicago.

… [Attendees were in disbelief after Harris said, “Nowhere in America is a woman carrying a pregnancy to term and asking for an abortion,” with audible claims that she’s lying or “full of s—t.”

My stock response to these ignorant people is: Killing babies is a crime. If you know of such a crime and don’t report it you are an accessory and are criminally liable.

6. I have a few phrases I use all the time, including:

• The filthy rich and their price-gouging corporations
• Doddering old criminal
• MAGA SCOTUS
• Billionaire media and their hired hacks

I also try to use words and phrases current on the site. Sane-washing is a good current example.

7. Family. I’m lucky that my extended family is fairly normal politically. My dad was always conservative, but in his old age he became besotted by Fox News. It was miserable. I don’t have much to go on, but maybe the following will help.

Don’t respond immediately. Wait until the initial response dies out, and then wait some more.

There may be a specific reason for the anger. We have no way to figure that out for strangers on social media, but we can at least try with family. Then maybe you can work with that in a later interaction, away from the immediate contact. At least maybe you can avoid triggering something unpleasant.

Post a lot of family pics, pet videos and non-political funny stuff. It’s harder to be angry with people who make us laugh. If they go off the hook, respond later, much later, with a funny, or a link to a sports thing or anything but a reply. Life’s too short to be angry with family.

Finally, if you do respond, do so with a question: Where did you hear that? Do you have a link? Why do you think that? Could you explain?

I’m pretty sure the actual facts and your links won’t help matters, but I have to believe that getting people to say things directly, to type them out, to try to justify them, will help in the long run.

 

This isn’t a game for everyone. But I think it’s important to push back as best we can. We can’t let the creeps ruin everything. Do you have ideas? Comments are open!

 

UPDATE: There are a number of accounts that hang around accounts you might like, such as Democratic politicians. Here’s a good example: Paul A. Szypula 🇺🇸, @Bubblebathgirl. This person spends hours posting garbage tweets, which draw lots of response. The account does not engage, and any time you spend there is wasted. Do not engage. If you feel like it: reply with “Do not engage with this troll”.

Strict Scrutiny and Rational Basis Scrutiny

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In Chapter 2 of How Rights Went Wrong, Jamal Greene introduces us to a rule of Constitutional interpretation suggested by Oliver Wendell Holmes in his dissent in Lochner v. New York (1905).  The idea is that the Constitution protects few rights, but those it protects, it protects strongly. This cashes out as the requirement that the government must show very strong grounds if it infringes a protected right, the strict scrutiny test. However, the government need only show that it has a rational basis for other legislation, the rational basis test.

Chapter 3 explains how that rule came into effect, worked for a while, and then proved inadequate. The principle driver of change was Felix Frankfurter, showing once again the importance of people and relationships in the evolution of our legal system. Frankfurter was the son of Austrian immigrants. He came to New York City in 1894 at the age of 11. He was a star student, went to Harvard Law, and began to rise in government service. Greene describes him as “An inveterate sycophant and social climber” (p, 60). One of his targets was Holmes, and over the years, Frankfurter slobbered over him.

In 1914 Frankfurter joined the law faculty at Harvard and began to advocate for the Holmes dissent in Lochner. He was in and out of government service, and became a sort of Leonard Leo figure, placing his best students in clerkships and government positions.

He forged a relationship with Franklin Delano Roosevelt during WWI when both served on a government board. The relationship grew when FDR became governor of New York.

The effort to actualize Holmes’ Lochner dissent wasn’t going well through the 1920s, as the Supreme Court repeatedly applied the rule of the Lochner majority. When FDR was elected president, Frankfurter became one of his most trusted advisers. In the early years of the New Deal, SCOTUS struck down most of the laws enacted to deal with the Depression. That led to FDR’s threats to pack the Court, and to the sudden change in the outcomes of these cases.

US v. Carolene Products Co. was an early example. In that case, the majority based its decision on Frankfurter’s view of Holmes’ Lochner dissent. Further, it expanded that rule with Footnote 4, which Greene summarizes as holding that strict scrutiny would apply in three different cases:

(1) when the law interferes with a right the Constitution specifically protects, (2) when the law restricts the political process itself, or (3) when the law discriminates against particular religious or racial minorities. P. 66.

I read Greene as suggesting  that one of the factors in Frankfurter’s advocacy was his progressive view of the need for government regulation of corporations. Footnote 4 connects that view with strong protection for minority groups.

Greene shows how this rule made its way into the leading treatises and legal textbooks, largely through the influence of people trained and steeped in Frankfurter’s views.

With minor adjustments, that remained the rule through the 50s and early 60s. That was a period of vast social change, and social unrest, as Black people, women, LGBTQ people, Native Americans, and poor people from all groups began to make demands on the legal system that went beyond the bare scope of Footnote 4.

One example of this push is Griswold v. Connecticut, which Greene discusses in detail. One of Frankfurter’s last SCOTUS decisions was Poe v. Ullman; Poe was a facial challenge to Connecticut’s ban on birth control. Frankfurter punted, saying that the statute was never enforced. Side note: the legal term is desuetude. It ought to apply, for example, to the Comstock Act which isn’t ever enforced, but with the current majority on SCOTUS, who knows.

Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, got herself and a doctor arrested and convicted for dispensing birth control material and information. Frankfurter had retired due to a stroke. William O. Douglass, who had dissented in Poe, wrote the majority opinion in which he laid out the right to privacy.

In the remainder of the Chapter, Greene looks at the different ways courts, especially SCOTUS, have tried to deal with the demands of groups whose rights were limited by all branches of state and federal governments.

Discussion

1. Reading between the lines, it seems to me that Greene thinks that the values, biases, and opinions of judges play a crucial role in decisions. This is one of several versions of legal realism.

For the purposes of this Article, I define “legal realism” as the perspective that Supreme Court decisions resolving important constitutional law questions are based primarily on the Justices’ values, politics, and experiences, not on text, history, or precedent. In other words, personal preferences, rather than the prior law dictate most Supreme Court constitutional law decisions.

2. Here’s an example. Richard Posner is an intellectual. He served on the 7th Cir. From 1981 to 2017. He taught at the University of Chicago Law School for decades. He seems to have been influenced by the strict neoliberalism taught at the Chicago Business School. That connection perhaps led him to his theory of law and economics, which I would describe as the idea that in deciding cases Posner would assume that the law favors the economically efficient outcome.

In a 1985 article, An Economic Theory of the Criminal Law,  he analyzes crimes like rape in terms of markets and market efficiency, apparently indifferent to the inherent silliness of the effort.

Put differently, the prohibition against rape is to the marriage and sex “market” as the prohibition against theft is to explicit markets in goods and services. [footnote omitted]

After the Great Crash of 2008, he formally renounced the entire project of the Chicago School of economics, including his own law and economics branch. Here’s a discussion.  That, of course, is the mark of an intellectual: he rejected a theory he had relied on for decades when he saw it didn’t work.

2. Greene mentions the deeply felt trope that we have a government of laws, not men, citing John Adams. P. 58.  How does it square with the theory that the prejudices and deeply held world views of judges are a critical factor in their decisions?

In routine cases it’s not a problem. But it’s a huge problem for major constitutional law issues decided by SCOTUS. Neil Gorsuch pompously demonstrated this when he said at oral argument in Trump v. United States,  “…we’re writing a rule for the ages” about presidential immunity from criminal accountability. P. 140. That is not the job of a judge. Writing rules for the ages is the responsibility of legislatures. But the current majority doesn’t think like that. As they showed in Dobbs and the gun cases, they don’t even believe there are rules for the ages. There are only rules laid down by five unelected unaccountable lawyers, good only until changed by five other unelected unaccountable lawyers.

3. I think that when institutions are controlled by people willing to subvert the norms of their jobs to achieve ideological or political goals, the institutions will fail. There are no rules sufficient to restrain them. The only solution is to remove them and replace them with people who comply with the norms.
__________
Graphic: Gilbert Stuart’s portrait of John Adams.

Two Views Of Protection Of Rights

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The Supreme Court Has Always Been Terrible.  In Chapter 2 of How Rights Went Wrong, Jamal Greene selects three examples of terrible cases: Dred Scott v. Sanford, Plessy v. Ferguson,  and Lochner v. New York. These three cases are so blatantly horrible that no one can support their outcomes and be considered acceptable in academia. Or in polite society, if you ask me.

Greene sees Dred Scott as a case about who is entitled to rights under the Constitution.

At stake in Dred Scott were the boundaries of the political community entitled to the law’s protection and able to claim rights under it.
…
Chief Justice Roger Taney acknowledged that the Declaration of Independence had emphasized the “self-evident” truth “that all men are created equal.” But, Taney continued, “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration.” P. 36.

Plessy is equally horrible. Henry Brown’s opinion says that being forced to travel in separate railcars isn’t a badge of inferiority but the “colored race” chooses to feel insulted.

Greene says that the Framers saw Constitutional rights as necessary to protect the rights granted by states and local governments from federal intrusion. On that theory, state and local majorities were free to grant or deny rights to people as they saw fit. The views of the Framers failed to protect people when those local majorities trampled on the rights of Black people and others. Local majorities can be just as tyrannical as any unaccountable monarch, and frequently are.

Reconstruction Era cases repurposed the 14th Amendment to protect capitalists from regulation by state and federal governments. Lochner is the example frequently given. The bakers of New York persuaded the legislature to pass health and safety laws concerning their work hours and other matters. Lochner sued, saying that the laws interfered with his right to contract, which he alleged was guaranteed by the Constitution. The holding, that the right to contract prevails over state and federal laws, lasted  until the 1930s when Franklin Delano Roosevelt threatened to expand SCOTUS.

There were two dissents in Lochner, by Oliver Wendell Holmes and John Marshall Harlan. Holmes took the view that there are Constitutional rights, and these must be given maximum protection. But laws that do not implicate Constitutional rights are in the province of the legislature and must be respected and enforced by the courts.

For Holmes, the Constitution protected very few rights—and certainly not the right to contract—but those it protected, such as freedom of speech, it protected strongly. P. 54.

Harlan took the view that all rights, including those enumerated in the Constitution, must be respected. The question for courts is the extent to which rights are respected when they conflict with other rights or the rights of society. Harlan agrees that the Constitution protects the right to enter into contracts. But.

The right to contract “is subject to such regulations as the state may reasonably prescribe for the common good and the well-being of society.” P. 55.

The job of a court in a case like Lochner is not whether there is a Constitutional right to contract. It’s to determine whether the state is acting reasonably in regulating that right. Greene notes that it might have helped if the Courts had considered the right to labor, a right protected by political action .

Holmes’ views prevailed, for reasons we learn in Chapter 3. Greene sees this as the birth of what he calls “rightsism”, the fetish for rights that we see all the time now.

Discussion

1. I’ve skipped all the material that makes this chapter so persuasive. Greene gives detailed and clear descriptions of the cases, and of the backgrounds of Holmes and Harlan. This isn’t just a dry theoretical lecture, it’s a lively picture of important documents and the people who crafted them. It’s a good reminder that we are persuaded not just by logic but by the perceptions we have of the facts and issues in cases. I found myself persuaded that he was on the right track long before we got to the meat of the arguments.

2. I’ve tried to read Dred Scott and Plessy, but failed. The mindset of the writers is jarring even through the somewhat difficult language of that era. The bias is blatant. And yet I’m sure these judges were, in the words of William Baude about the current right-wing majority, “principled and sound”, with some blemishes.

Baude explains that all the recent controversial decisions “… rightly emphasized the importance of turning to historical understandings in deciding Constitutional cases rather than imposing modern policy views.” Of course, Dred Scott, Plessy, and Lochner are soundly reasoned and in accord with historical tradition. That’s not my idea of a good way to justify any Constitutional decision. Maybe it’s relevant that Baude is a member of the Federalist Society, the organization founded by Leonard Leo.

I discussed my view of good judging in this post.  Start at “Let’s begin with this question” for the general discussion. Needless to say, it has nothing to do with anything taught by the conservative legal movement.

3. Lochner logic shows up in Project 2025’s Mandate for Leadership.

Hazard-Order Regulations. Some young adults show an interest in inherently dangerous jobs. Current rules forbid many young people, even if their family is running the business, from working in such jobs. This results in worker shortages in dangerous fields and often discourages otherwise interested young workers from trying the more dangerous job. With parental consent and proper training, certain young adults should be allowed to learn and work in more dangerous occupations. P. 595.

 

4. In The Nation That Never Was Kermit Roosevelt says that the meaning of the term “all men are created equal” changed through the efforts of Abraham Lincoln, Frederick Douglass and many others. Greene does something similar with the idea of Constitutional rights. He explains the shift in our understanding of the Bill of Rights as protecting the power of the states from the central government, to our current view that it protects individuals from all government action.

Language and grammar change, sometimes quickly. So does our knowledge and understanding of history. That’s why originalism and textualism are suspect methods. I do not think the legal academy has given this enough attention.