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Introduction and Index To Faces At The Bottom Of The Well

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Derrick Bell was the father of Critical Race Theory. Here’s a helpful overview of his intellectual life by Jelani Cobb. Faces At The Bottom Of The Well is not a book about CRT. It’s a group of essays and short stories fleshing out Bell’s view that racism is so deeply ingrained in the fabric of the lives of white people that ending it is a hopeless project. [Not all white people.] This is the foundation for his work on CRT.

In the Preface he talks about the challenge of writing about racism without leading people to despair. It might be an explanation of his own difficulties in trying to understand and solve what he sees as an intractable problem. He cites Paulo Freire saying

Freedom is acquired by conquest, not by gift. It must be pursued constantly and responsibly. Freedom is not an ideal located outside of . . . [the individual]; nor is it an idea which becomes myth. It is rather the indispensable condition for the quest for human completion.

I confess that for me this kind of quote usually just flies by, sure, sure, move on. It’s that last part that got to me. This isn’t just encouragement for activists. It’s a justification for freedom, by which I mean the kinds of freedom described by Elizabeth Anderson, negative freedom, positive freedom and civic freedom. Bell, an intellectual academic with a long list of scholarly wprks, and a legal activist with a long record, says that he cannot be complete as a human being without freedom.

And it hit me that I can’t either. I’m an old straight well-off white man. I have this freedom, and it’s the foundation for my own sense of myself as a whole person. I know this because lately I’ve frequently felt that my freedom is under attack by a sickening cabal of right-wing and religious fanatics, many of whom are violent. Thinking about it makes me feel off-balance, ill-at-ease, slightly nauseous, to the point where I’m not always able to work at my own projects. I can’t imagine living a whole life like that, as Bell and every Black person in this country does.

Bell quotes Albert Camus for the proposition that we must keep going in the face of certain defeat. Bell’s quote reminds me of one of my formative books, The Myth Of Sisyphus. Sisyphus is condemned by Zeus to roll a rock up a mountain and watch it fall to the bottom again and again for all eternity. Camus ends his essay with this:

The struggle itself toward the heights is enough to fill a man’s heart. One must imagine Sisyphus happy.

Bell quotes Franz Fanon and Martin Luther King for similar views. This should shame those smarmy Republicans who yammer about color blindness and vote to disenfranchise Black voters (but it won’t):

[King] said those adversaries expected him to harden into a grim and desperate man. But: “They fail, however, to perceive the sense of affirmation generated by the challenge of embracing struggle and surmounting obstacles.

It isn’t just intellectuals who feel this way. Bell tells of Mrs. Biona MacDonald, one of the people he worked with on a desegregation case in Harmony, MS, near the Mississippi Delta, back in the 1960s. He asked how she and the other organizers worked on despite

… intimidation that included blacks losing their jobs, the local banks trying to foreclose on the mortgages of those active in the civil rights movement, and shots fired through their windows late at night.

Mrs. MacDonald looked at me and said slowly, seriously, “I can’t speak for everyone, but as for me, I am an old woman. I lives to harass white folks.”

Bell tells us Mrs. MacDonald doesn’t think or even hope she and her colleagues will win. It’s her resistance that counts.

The nine chapters in this book each talk about racism and resistance. Most read like extended law school exam questions, where the way you discuss your answer is more important as the actual answer. This makes them excellent teaching vehicles, and this book is widely taught in colleges and law schools.

I’m going to start with Chapter 2. In Chapter 1, Bell explains why he doesn’t think laws are much help in fixing racism. It’s brutal read for this old lawyer who truly believed that a decent society would emerge if we just had good laws.

One of Bell’s gifts is his ability to make these issues personal, and not just for Black people. I’m still profoundly angry that the protests against the Viet Nam War failed. Hundreds of thousands died while US elites performed their dance of destruction and then ran away to riches with no shame, no accountability. I can’t say that my small participation in anti-war activities generates the feelings Bell describes, or reduces the anger.

It makes me think about the Black activists of my generation, the people of SNCC, the Black Panthers, the Selma marchers, the men and women at the lunch counters, the sanitation workers of Memphis, and others. I wonder how they feel contemplating their youthful hopes, their goals, their actions, and then remembering the physical beatings, the taunts, radists screaming at their kids, and the government and media attacks on them as people and as groups. Do they feel like Mrs. MacDonald, or Camus or King or Fanon or Bell say: proud that they acted? Did their actions make them whole, and give them strength to last a lifetime? I hope so.

Dewey On The State

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There is no such thing as the State
And no one exists alone….
September 1, 1939
W. H. Auden

Index to posts in this series.

In Chapter 1 of The Public And Its Problems, Dewey introduces his conceptions of a public and the state. This post discusses Chapter 1, and it might be helpful to read the first part of it. Chapter 2 is focused on the state. Dewey starts by pointing out that his views are radically different from standard ideas about the state.

The state is not created as a direct result of organic contacts as offspring are conceived in the womb, nor by direct conscious intent as a machine is invented, nor by some brooding indwelling spirit, whether a personal deity or a metaphysical absolute will. P. 86.

Dewey doesn’t think there is a perfect or ideal form of the state towards which all states are evolving, or such that we could measure each existing state against it to determine the quality of a state. States arise to meet situations, he thinks. Situations vary, solutions vary, cultural acceptance of solutions vary, histories vary, and each of these and more influence the form of a state. All we can hope to do is to measure how well that form meets the needs and desires of the related public.

Here’s how Dewey formulates the connection between the public and the state:

The lasting, extensive and serious consequences of associated activity bring into existence a public. In itself it is unorganized and formless. By means of officials and their special powers it becomes a state. A public articulated and operating through representative officers is the state; there is no state without a government, but also there is none without the public. P. 109.

It is the appointment of officers and the grant of special powers that forms the state. Through those officers, themselves members of the public, the state organizes the public. The state itself is just a select group of people given special powers. It doesn’t matter who grants those powers. It could be by democratic vote. It could be by force of arms, as kingdoms were organized for centuries. Or it could be that a group of rich people arranges things to their liking. Or something else.

Dewey points out that there are many different forms of states across space and time. He claims that they exhibit traits which show that they are functioning in accordance with his formulation. These traits, or marks, relate to the consequences arising from the actions of a group of people, intentionally or not. [1] We can both check the theory and begin to study states by observing and studying these marks.

The rest of Chapter 2 discusses four such traits. They are: a) temporal and geographical contiguity; 2) the “… fact that the quantitative scope of results of conjoint behavior generates a public with need for organization.” P. 94; 3) states are concerned with behaviors and outcome that are long-established; 4) children and other dependents are the peculiar concern of a state. [2]

The trait of contiguous territory is obvious. As to temporal contiguity, He says that discrete harms occurring at irregular intervals will not stir up demand for representation of the interests of a public that would lead to the creation of a public.

The second trait is more problematic. People in a territory experience a range of impacts from the conjoint action of other people, and those impacts change over time. If there were such a thing as an ideal state, we would not expect different ranges of harm or changes that would necessitate changes in the nature of the state. But that is the case. Dewey sees this as confirmation of hypothesis about the nature of states.

The state is primarily concerned with established patterns of action. Dewey says that established patterns are engrained in members of the public, and that people resist changes. The state has helped in the establishment of those patterns. Innovation is essentially an individual act, and innovation is mostly resisted by the public.

About the most we can ask of the state, judging from states which have so far existed, is that it put up with their production by private individuals without undue meddling. P. 103.

This works better in some states than in others. [3] The point is that with old, established behaviors, there seems to be a psychological desire to make them uniform and official.

Dewey’s fourth mark, that children and other dependents are a special focus, seems obvious. Children are the future, so the public sees the need to make sure that they are protected and supported. For other dependents, such as “the insane and the permanently helpless”, there is a need to insure care and treatment as appropriate. Underlying this is the reality that when people are unable to protect themselves, the vast part of the public wants them protected.

Dewey discusses each of these four marks of the state with concrete examples, showing his view of the history of states. the kinds of things a state might do, and in the case of the fourth mark, a basic introduction into his ethical thought.

One of those sub-issues seems especially current: the role of laws and regulations. Dewey points out that no one can calculate all the ways and different people who might be affected by an action or an innovation. That creates an insecurity among those who might be affected. They form a public, and create state officials and empower state action to protect themselves from possible future harm.

It is not merely that the combined observations of a number cover more ground than those of a single person. It is rather that the public itself, being unable to forecast and estimate all consequences, establishes certain dikes and channels so that actions are confined within prescribed limits, and insofar have moderately predictable consequences. P. 98.

Laws and regulations benefit the actor, the innovator, and the rest of us. They make it unnecessary for actors to work out every last detail of a proposed action, because there are regular forms which can be adapted to their needs and desires. The rules may be irritating, but at least one can predict with reasonable certainty the risks and rewards.

People persist in calling laws and rules “commands”, as if they issued form some distant dictator. Dewey says that’s wrong. He points out that this command view is the logical outcome of theories of the state based on will, or causality, whether divine or human. Dewey says that these views rest on the idea of a superior force imposing its will on others.

Rules of law are in fact the institution of conditions under which persons make their arrangements with one another. They are structures which canalize action; they are active forces only as are banks which confine the flow of a stream, and are commands only in the sense in which the banks command the current. P. 99.

To extend the metaphor: we have a name for a river not constrained by its banks: we call it a flood.
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[1] Pollution is a good example. The intent of a polluter is not to harm others, it’s to maximize profits. But pollution harms others.

[2] This transition is extremely confusing. I’m not sure I have it exactly right, especially point 2.

[3] For example, I’ve heard a number of French people complain about the refusal of the government to permit innovation, and the tight constraints imposed on innovators.

The SCOTUS Healthcare Decision Cometh

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[UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

As to the Medicaid portion, here is the key opinion language on that:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

And here is THE FULL OPINION]

Well, the long awaited moment is here: Decision Day On The ACA. If you want to follow the live roll out of the Supreme Courts decisions, here is a link to the incredibly good SCOTUSBlog live coverage. Coverage starts at 9 am EST and the actual Court proceedings starting at 10 am EST.

This post will serve two functions. The first is to lay just a very brief marker, for better or worse (undoubtedly the latter I am afraid), going into decision day, hour and moment, and a ready location to post the decision of the court and link the actual opinions. The minute they are known and links available, they will be put here in an update at the top of the post. That way you can start the discussion ahead of the decisions, lay a record of your predictions ahead of time AND have a place to immediately discuss the rulings as they come in and immediately afterward.

Many friends and other pundits involved in the healthcare SCOTUS discussion have been working for weeks on alternative drafts of posts and articles to cover every contingency so they can immediately hit the net with their takes. That is great, and some of them will be a service. But I have just been too busy lately to expend that kind of energy on something so canned. Sorry about that. So my actual analysis and thoughts will mostly have to come later, but they will be on the merits, such as they may be, when the actual decisions are in. Also, I will be in comments and on Twitter (under “bmaz” of course).

Okay, with the logistics out of the way, I have just a few comments to lodge on the front end of this gig. First off, the ACA/PPA started off as truly about health insurance, not about health care from the start, and that is, still, never more true than today. Marcy laid out why this is, and why a LOT of people may get, or be forced into, purchasing health insurance, but there is a real question as to whether they will be able to afford to actually use what they will be commanded to buy. See here, here and here as a primer. Those points are pretty much as valid today as they were back when she wrote them.

Secondly, I have no real actual idea how the ruling will come down as to the merits. But, just for sport and grins, I guess I should take a stab at what I think after all the briefing and oral arguments, so here goes. The Anti-Injunction Act argument that the issue is a tax matter and therefore cannot be ripe for consideration until implemented and applied, will be rejected. The individual mandate is struck by a very narrow majority in a very carefully worded opinion written by John Roberts. The remainder of the ACA is deemed severable and is left to stand, and the Medicaid provisions are left intact, again by a narrow majority. Here is the thing, I would not bet one red cent of my own money on the foregoing; but if I could play with your money, I guess that is how I would roll. Maybe. Note that, before oral argument, my prediction was that the mandate would be upheld; I may regret not sticking with that call.

The real $64,000 question is the mandate, and that could just as easily be upheld, in which case it will likely be by a 6-3 margin (I still think Roberts writes the opinion, and if that is to uphold that means it will be 6-3). Here is what I will unequivocally say: however this goes down as to the mandate, it is a very legitimate issue; the arguments by the challengers, led by Randy Barnett, are now, and always were, far more cognizant than most everyone on the left believed or let on. I said that before oral argument, I said that after oral arguments and I say that now. Irrespective of what the actual decision turns out to be. Oh, and I always thought the hook liberals desperately cling to, Wickard v. Filburn, was a lousy decision to start with.

I have been literally stunned by the ridiculous hyperbole that has been blithely bandied about on the left on the ACA cases and potential striking of the mandate. Kevin Drum says it would be “ridiculous”, James Fallows says it would be a “coup!”, Liz Wydra says the entire legitimacy of SCOTUS is at issue, So do the Jonathans, Chait and Cohn. A normally very sane and brilliant guy, Professor David Dow, went off the deep end and says the justices should be impeached if they invalidate the mandate. The Huffington Post, and their supposed healthcare expert, Jeffrey Young, ran this insanely idiotic and insulting graphic. It is all some of the most stupefyingly hyperbolic and apoplectic rubbish I have ever seen in my life.

Curiously, the ones who are screaming about, and decrying,”politicization of the Court”, my colleagues on the left, are the ones who are actually doing it with these antics. Just stop. Please. The mandate, and really much of the ACA was ill conceived and crafted from the get go. Even if the mandate is struck, the rest of the law can live on quite nicely. Whatever the decision of the court, it will be a legitimate decision on an extremely important and very novel extension of Commerce Clause power that had never been encountered before.

One last prediction: Irrespective of the outcome today, the hyperbole will continue. So, there is the warm up. Let’s Get Ready To Rumble!