SCOTUS Usurps Congressional Power

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Posts in this series.

In the previous post in this series I described the thesis of Jamal Greene’s How Rights Went Wrong. He says the Bill of Rights was designed to protect the power of states against intrusion by the newly created federal government. Chapter 1 provides evidence to support his conclusion. My original plan was to go over the evidence he cites. Instead, I have a different bit of evidence.

SCOTUS didn’t mention the Bill of Rights when it listed the rights of citizens of the United States in any of the seminal cases construing the Reconstruction Amendments.

The issue of individual rights under the 14th Amendment came before SCOTUS in The Slaughterhouse Cases (1873), which I discussed here. The majority says that there is a difference between the rights which Americans have as citizens of the United States on one hand, and the rights they have as citizens of a state on the other.

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government.

But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights the rights of person and of property [sic] was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

So what does the majority say are the rights of citizens of the United States? Very few, all of which are set out in the main body of the Constitution. The majority cites several older cases, and describes each of them as saying that the rights we claim come from our status as citizens of a state.

But neither the majority nor any of the older cases point to the Bill of Rights as a source of our rights as citizens of the US. None of them say that as citizens of the United States we have a right to a jury trial, or to freedom of speech, or any other right in the Bill of Rights.

In that section of The Slaughterhouse Cases the Court says the opposite. It says that the 14th Amendment does not change the principle that our rights come from our status as citizens of a state.

As we saw in earlier posts on the Second Founding, subsequent decisions of SCOTUS including United States v. Cruikshank  and The Civil Rights Cases take the same position, and strike down all of the remedial legislation enacted by Congress under the 14th Amendment to give civil liberties to all citizens including Black people. These cases led us to Plessy v. Ferguson. All of them stand for the proposition that the Reconstruction Amendments do not grant rights to U.S. citizens, and that it is unconstitutional for Congress to grant such rights.

Congress gave up trying, and nothing happened to repair the damage of slavery or bring an end to Jim Crow segregation for 70 years.

Discussion

1. SCOTUS ignores America history and its own precedents when it puts itself in charge of our rights. It wasn’t that way in 1792, and it wasn’t that way in the late 1800s. That whole thing was invented in the 20th Century as SCOTUS began to say that the provisions of the Bill of Rights applied to individuals through the Due Process Clause. The concept of due process has a legal definition, and this isn’t it. We now call it “substantive due process,” and I have never understood how it’s supposed to work. Clarence Thomas agrees, calling substantive due process a “legal fiction” in  MacDonald v. City of Chicago, Thomas J. concurring.

Here’s the Wikipedia entry on substantive due process.  I’m not sure I agree with it completely, particularly the pre-Civil War material. Here’s another which seems closer to what I remember from law school.

2. So where do our rights come from? In early cases under the Reconstruction Amendments, the Court says that our rights come from the states. Rights might be found in a state constitution, or in statutes enacted by state legislatures. That means there is no agreed set of rights held by all of us. It means that there is nothing significant to the idea of being a citizen of the U.S. It also means that we have to go from state to state amending laws and constitutions to protect our liberty.

In this post, I pointed to Hannah Arendt’s view of rights. She thinks that rights only exist among people living in societies that are based on equality as citiznes. In those societies rights arise from a mutual guarantee. We give each other rights, and agree to enforcement mechanisms; and we benefit by having the same rights. That certainly doesn’t point to courts as the source of rights. It points to founding documents, and to the legislature. The courts and the executive branch serve only as enforcement mechanisms.

Each of the Reconstruction Amendments expressly empowers Congress to pass legislation to enforce them. This is a power given to Congress, not to SCOTUS. The idea that SCOTUS gets to overrule the exercise of expressly authorized power by Congress is not in the Constitution or any amendment.

I note in passing that the argument in Shelby County v. Holder, striking down a critical part of the Voting Rights Act, is the dignity of the states. That’s a term cited by John Roberts, a long-time foe of the Voting Rights Act and other legislation broadening democratic rights. Dignity is very important when it comes to states limiting the right to vote, says Roberts.

In Trump v. United States, the right-wingers granted the President almost total immunity in the exercise of official duties. It said in essence that citizens can’t hold Presidents accountable civilly or criminally, and it hamstrung any enforcement that might not have been foreclosed.

That’s how we should treat Congressional actions, including legislation and investigation related to its powers under the Constitution. That’s how we get our rights. We petition Congress for rights, and if granted, they are ours without regard to what five unelected zealots scribble.

How Courts Came to Control Our Rights

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Index to posts in this series

In Chapter 1 of How Rights Went Wrong, Jamal Greene goes through the actual history of the origin of the Bill of Rights. I think most of us were taught that the Bill of Rights is a list of rights that go with being US citizens. Courts are the arbiters of the meaning of the Constitution, so they protect the minority from overreaching by the majority. That’s not what Greene sees.

The Constitution doesn’t give individuals very many rights. It bars ex post facto laws, and bills of attainder, gives people a right to trial by jury, and a few other rights, not much compared to the rights people thought they have.

The Anti-Federalists objected to the Constitution in large part because of the absence of a bill of rights. They claimed to fear that the central government would infringe on the power of the states just like the British kings had done. The people living at that time were very interested in their individual rights, but according to Greene:

… within Founding-era political thought, the institutions best suited to reconcile the competing demands of rights bearers were not courts but rather state and local political bodies: juries, churches, families, and legislatures. Democracy was not a tool of majoritarian oppression but rather was the means through which a community prevented oppression from the outside. P. 7.

The key phrase here is “reconcile the competing demands of rights bearers.” Greene thinks the goal of the Bill of Rights was to center the balancing of rights claims at the local and state levels, and to keep it out of the hands of the federal government.

This theory was consistent with the political power structures of that era, with local and state governments having the dominant role. Many of the states were run by the rich: slavers, merchants and bankers in varying proportions in each of the states. None of these people were willing to cede much power to the federal government not least because it might interfere with their own power and their own profits. The Federalists held plenty of power in their own states, and had no reason not to agree.

Side note: I may be reading some of this into Greene’s words. He doesn’t discuss power and wealth, but I think this is a fair reading of his words:

The backers of the Bill of Rights were not interested in protecting minorities from majority tyranny. They were interested in protecting their own governing majorities from others who might have different interests or agendas. P. 13

The purpose of the Bill of Rights was not to protect individuals from the tyranny of the majority. It was to protect state and local governments from interference and control by the federal government. Most of the provisions of the Bill of Rights in their own words apply to the powers of Congress: “Congress shall make no law”. Only a few of them seem to give rights to individuals, or protect individuals from the power of the States to regulate as they see fit. In fact, as we will see, most states and the federal government enacted laws that seem to violate the express provisions of the Bill of Rights.

Greene says the theory that state and local governments, juries, and private institutions like churches and schools were best positioned to deal with rights claims was destroyed in the Civil War.

Greene goes through each of the first 10 Amendments in the second half of Chapter 1. I’ll look at some of those in the next post.

Discussion

1. So how did the Supreme Court gain control over our rights? SCOTUS claimed the ultimate power to interpret the Constitution. In Dred Scott, it aggressively asserted that it was in charge of the slavery question, no matter what Congress and the people wanted. After the Civil War, instead of refashioning the Supreme Court and insisting on their proper role in control of our rights, Congress and the Executive gave the judiciary a large role in the enforcement of the laws and our rights, including in several Civil Rights laws.

From the beginning, SCOTUS resisted the force of the Reconstruction Amendments. In The Slaughterhouse Cases, there is a nice statement of the goal of the !3th, 14th, and 15th Amendments. Then the Court says it can’t possibly really mean much by that, so those old racists went on to say that the rights of Black people, women and Native Americans were still controlled by the states. In a series of cases SCOTUS restricted the power of Congress to carry out the intent of those amendments, and repurposed them to protect corporations.

After a few decades SCOTUS decided that the Due Process Clause of the 14th Amendment applied against the states, effectively creating a whole set of national rights for individuals which it claimed to find in the Bill of Rights. It claims that the rights it finds there are absolute, and cannot be touched by our government. Congress and the Presidents acquiesced. That’s how we find ourselves under the thumb of a rogue SCOTUS.

2. The current conservative majority agrees with those old courts. They restrict congressional and executive powers. They put crucial matters like women’s health and welfare in the hands of states. They approves of state actions to gerrymander and suppress voters to make sure minorities in those states can dominate the majority. Every disgusting decision the six right-wingers hand down would fit fine with their Reconstruction-era predecessors. Every policy choice they make would satisfy the demands of the Gilded Age Plutocrats.

The founders were rich white men infused with the biases of their day. There were slavers and people willing to compromise with slavers for their own reasons. They agreed that the lives of enslaved people and Native Americans didn’t matter, and that women weren’t really people. Those views informed their drafting of our Constitution and Bill of Rights. Why should they control ours? But Roberts and his majority are trapping us in the amber of those ignorant prejudices.

Roe v. Wade

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Roe v. Wade (1973)  is at the heart of Jamal Greene’s book How Rights Went Wrong, my next book. It marks the apogee of the trajectory of the Warren Court, though it was decided after he retired. The opinion was handed down during my last year in law school, and I must have read it then, but I hadn’t read since. The name, if not the reasoning, became an icon for our understanding of our rights. And then, the current SCOTUS majority reminded us that they’re in charge of our liberty, and not some ancient version of SCOTUS from 50 years ago.

In this post, I’ll discuss the holding and reasoning of the Roe majority, written by Harry Blackmun.  I’ll skip over the preliminary holdings, including standing, justiciability, and procedural issues.

Introductory context

Blackmun begins his analysis by stating that the Court is aware that the abortion is “sensitive” and “emotional”, and that people hold “deep and seemingly absolute convictions” the subject. People’s views on the subject are influenced by a wide variety of factors, ranging from religious doctrine to worries about population. But he has a job to do.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.

Facts and legal claims

Jane Roe was a single woman residing in Texas. Texas law made abortion a crime with exceptions “… for an abortion by. ‘medical advice for the purpose of saving the life of the mother.’ “. At the time she filed Roe was pregnant and wanted a safe abortion in Texas because she couldn’t afford to go to a state where it would be legal.

Roe claimed that the Texas statutes were unconstitutionally vague, and “… that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”

Context and interests

Blackmun begins with a history of abortion laws from ancient times to the present “for such insight as that history may afford us”. He doesn’t mention the witch-hunter Matthew Hale. He then describes the past and current positions of three professional associations, the American Medical Association, the American Bar Association, and the American Public Health Association. These lay out the general legal and health situation at that time and the recommendations of those bodies.

Blackmun says there are three justifications for criminalizing abortion.

a) to discourage illicit behavior. Texas doesn’t make this argument.

b) to protect the pregnant woman. At the time of adoption of criminal punishment the procedures were dangerous, with a high mortality rate. With modern procedures, that is no longer the case, and abortions, at least in the early months, are safer than normal childbirth. Blackmun notes that there remain important health and safety issues that are properly the function of states. The interest of the states in protecting the woman’s health and safety increase as the pregnancy progresses.

c) to protect pre-natal life. Texas argues that “Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail.” Blackmun says that “as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.”

The Roe side argues that there is no reason to think that any of these statutes were intended to protect the fetus. There is no legislative history to support that view, and what there is discusses the health of the pregnant woman. The same is true for the case law.

These are the interests at stake.

The right to privacy

Blackmun says that there is a line of SCOTUS cases in which the Court recognized a zone of privacy for individuals, and lists cases in which provisions of the Bill of Rights were applied to create individual rights to be let alone, including Griswold v. Connecticut, the birth control case. He doesn’t repeat the analysis of Griswold, merely pointing out its roots in the 9th Amendment.

Blackmun holds that the a woman’s decision to get an abortion is within this zone of protection. He recites some of the burdens that Texas imposes on women, and the damage it does to them and their families. But that’s not the end of the discussion.

He’s already said that Texas has an interest in protecting the health of the woman, and in maintaining medical standards, and in protecting potential life. The right to privacy is not absolute. There are other interests that must be protected, and at some point the interests of that the state rightfully claims become dominant. He says this is the general position taken by most of the courts that have ruled on the issue.

Fetal personhood

In Section IX, Blackmun takes on the question of whether a fetus is a “person” within the meaning of the 14th Amendment. Blackmun recites every use of the word person in the Constitution. He says that none of them can be read to include “prenatal application.” Other courts agree. But that doesn’t fully exhaust the interests asserted by Texas.

Texas claims life begins at conception. Blackmun says that doctors and scientists can’t answer that question and gives examples Therefore the judiciary certainly can’t.

Blackmun says that to override a woman’s right to privacy Texas must show a compelling state interest.

We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, … and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’

This leads to the three part rule of Roe. In the first trimester, the dominant interest is that of the woman, and the state cannot show a compelling interest in her decision or in the means of effectuation. In the second trimester, the risk increases, justifying reasonable regulation related to the life and health of the woman.

After viability, roughly at the end of the second trimester, the interest of the state in protection of the fetus becomes dominant, and reasonable regulation to protect the fetus is justified, so long as it doesn’t impact the life or health of the mother.

Discussion

1. In Dobbs v. Jackson Women’s Heath Organization,  Alito  claims that Roe is badly reasoned. Alito doesn’t like the history, maybe because it doesn’t mention any witch-hunters. He thinks Blackmun was required to show there were prior legal case recognizing a Constitutional right to abortion. He doesn’t like the three part regime. And he doesn’t like the idea of the zone of privacy at all.

Alito states that there is no basis in the Constitution for a right to an abortion. He says that whatever the privacy interests are, the states can evaluate them without regard to the Constitution. He flatly denies the existence of a constitutionally protected zone of privacy. He thinks the only limit on governmental intrusion is something he calls the principles of ordered liberty, which he doesn’t define, or something deeply rooted in our history and traditions. Alito says no new constitutional rights can ever exist, and we’re locked into a regime dominated by slavers and those willing to compromise with slavers; a regime where dominant males said women were second class citizens, despite the Reconstruction Amendments. Alito thinks federal and state governments can intrude into any area of private life with few exceptions.

Alito’s views are at the very beginning of his interminable opinion, and there’s a syllabus, a brief synopsis, at the beginning of the link. See for yourself.

Query: which opinion makes better sense of the world we live in?

2. After we go through Greene’s book we’ll take another look at this case.

Background For A New Book

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Index to posts in this series

This series about rights began with the observation that there is a lot of talk about rights, but not a lot of clarity about their nature and origin. I think the readings so far provide a bit of clarity. Earlier series add additional background.

Several commenters recommended Jamal Greene’s How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart. I’ve read the introduction which summarizes some of Professor Greene’s ideas, and I think it will be a good next step.

This post sets out ideas that form the background of my approach to Greene’s book. In the next post I’ll examine Roe v. Wade, which is at the center of a contest about rights in the US.

The nature of us humans

The Evolution Of Agency by Michael Tomasello leads me to think that we humans invented ourselves by a slow process involving observation, learning, teaching, memory and luck. Many species can learn behaviors by trial and error coupled with varying degrees of observation and reasoning. Many of those species can teach learned behaviors to others of their species by example. Humans are especially good at that. Humans add the layer of verbal communication which speeds things up. We can also pay attention to our own words and reason with and about them in a kind of iterative learning. This gradually gave us a tremendous capacity for abstraction which is a valuable asset in problem-solving.

Early humans taught their young their knowledge of what works and what doesn’t, giving them tools for survival. Natural curiosity brought change. This view of evolution is supported by Cat Bohannon’s book Eve: How the Female Body Drove 200 Million Years of Human Evolution. Bohannon says  most likely females taught basic language skills to the young, on the ground that females spent most of their time tending to helpless infants.

Philosophical insights

“Of all things the measure is man: of those that are, that they are; and of those that are not, that they are not.”

That, of course, is Protagoras, quoted in §2.1 here He meant that individual observation of the world is the best anyone can do in determining facts about things in the world. The example he uses is weather. If it seems cold to me then it’s cold and if at the same time it seems hot to you then it’s hot.

But when a group of people compares notes on such observations, and generates and tests explanations, something else happens: we start to approach truth, at least truth in the sense of the Pragmatists.

This kind of truth is the goal of participants in the Epistemic Regime described by Jonathan Rauch in The Constitution Of Knowledge, which I discuss here (Side note, the earlier posts in that series took Brooks’ false definition of the term as a starting point. I wrote the linked post after I read what Rauch actually wrote.)

William James, one of the founders of Pragmatism, says that everything we think and know came from our human ancestors. Everything they taught us, including language, the meaning of words, and the rules of reasoning, all came from the actions and thoughts of our forebears.

We socialize each other. We learn how to act, think, and be human from other humans. We aren’t the individual atoms described by neoliberal economists, and we aren’t the husks created by totalitarianism. The social human is a better view than most philosophers offer. Descartes with his cogito ergo sum tries to reason his way into understanding the self, as do other philosophers, but it doesn’t work like that.

We can’t understand anything useful by starting with individuals. We only have meaningful existence in the context of our social groups. If I come up with what I think is a new idea, it only becomes useful if I share it with others who check it, and perhaps find some use for it.

Basic principles of rights

In Chapter 9 of The Origins Of Totalitarianism, Hannah Arendt demonstrates three relevant points. First, rights are guarantees given by citizens to each other. Here’s how Arendt puts it:

Equality, in contrast to all that is involved in mere existence, is not given us, but is the result of human organization insofar as it is guided by the principle of justice. We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights. P. 301.

I read this to say that equality is an element of citizenship in a well-organized state. Each of us as a citizen participates in the public life of the group on an equal footing. Equality only exists in societies guided by a principle of justice. Arendt doesn’t say which principle of justice. To my mind this is a valuable insight, as different societies can have vastly different ideas about justice based on their own cultures. I’d guess Arendt would approve of the notion of justice laid out by John Rawls in A Theory Of Justice.

Arendt rejects Jefferson’s pious formulation that the Creator endows us with certain rights. She says, correctly I think, that we endow each other with rights and by doing so we hold those rights reciprocally. We create our own rights by consent. Over time we reach for the rights we think are most conducive to our flourishing as a group. Again, this doesn’t tell us which society is best, or what “flourishing” might mean, simply that it is acceptable to the majority.

Second, Arendt says that as a practical matter rights only have meaning if they are the creation of a state or a nation capable of and willing to enforce them against all comers, foreign and domestic. The first nine chapters of the book can be read as supporting this view, if you think of them from the point of view of people acted on by the dominant class. It is especially obvious in her discussion of the vast migrations set off by World War I. Modern examples abound, including the formation of Pakistan and Bangladesh, the attack on the Rohingya people of Myanmar, and the contemporary attack on Gaza.

Third, Arendt agrees with Jefferson that the governed must participate in social decisions as a matter of the equality of all citizens. I take that to be one of the principles of justice.

Freedom and Equality

When we say that all people are created equal we mean equality in civic life. This is the way Elizabeth Anderson talks about it as I discuss here.  Here’s the index to the series, which also takes up her discussion of the dimensions of freedom in civic life. Equality is closely tied to her concept of freedom, which includes freedom from domination by others.

Supreme Court Cases

I have discussed a number of Reconstruction Era Supreme Court cases (here, here here, and here). These show the dangers of letting a group of unaccountable lawyers make decisions about rights.

Conclusion

I hope this summary helps explain how I am approaching the ideas in Greene’s book. I will use these ideas and definitions as starting points for understanding his book.

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Front page picture: By Sailko – Own work, CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=57477584

 

Citizenship

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

A place in the world

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

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

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

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

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

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

A return to nationalism

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

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

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

She says:

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

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

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

Discussion

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

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

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

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

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

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

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

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The story of the Kimmerians, as told by Herodotus:

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

 

Public Domain, https://en.wikipedia.org/wiki/Hannah_Arendt#/media/File:Hannah_Arendt_1933.jpg

Stateless In Palestine

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

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

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

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

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

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

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

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

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

The failure of assimilation

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

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

Revisionist Zionism

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

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

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

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

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

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

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

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

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

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

Discussion

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

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

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

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?