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Martha Albertson Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J Law & Feminism (2008)

Introduction

In this essay I develop the concept of vulnerability in order to argue for a more responsive state and a more egalitarian society. I argue that vulnerability is—and should be understood to be—universal and constant, inherent in the human condition. The vulnerability approach I propose is an alternative to traditional equal protection analysis; it is a “post-identity” inquiry in that it is not focused only on discrimination against defined groups, but concerned with privilege and favor conferred on limited segments of the population by the state and broader society through their institutions. As such, vulnerability analysis concentrates on the structures our society has and will establish to manage our common vulnerabilities. This approach has the potential to move us beyond the stifling confines of current discrimination-based models toward a more substantive vision of equality.

To richly theorize a concept of vulnerability is to develop a more complex subject around which to build social policy and law; this new complex subject can be used to redefine and expand current ideas about state responsibility toward individuals and institutions. In fact, I argue that the “vulnerable subject” must replace the autonomous and independent subject asserted in the liberal tradition. Far more representative of actual lived experience and the human condition, the vulnerable subject should be at the center of our political and theoretical endeavors. The vision of the state that would emerge in such an engagement would be both more responsive to and responsible for the vulnerable subject, a reimagining that is essential if we are to attain a more equal society than currently exists in the United States.

Before further developing the vulnerability thesis, I want to address some conceptual impediments to the idea of a more responsive state. First, an impoverished sense of equality is embedded in our current legal doctrine. We understand equality in terms that are formal, focused on discrimination, and inattentive to underlying societal inequities. Second, the view that the proper role of the state is one of restraint and abstention is politically powerful. Even self-identified progressive social reformers are suspicious of the state; the rhetoric of non-intervention prevails in policy discussions, deterring positive measures designed to address inequalities. Further, we idealize contract and correspondingly reify individual choice in ways that mask society’s role in perpetuating inequality. The fact that societal institutions play a significant role in maintaining and extending inequality is the very reason that we need a more active state, one that is responsive to that reality.

I. The Limits of Formal Equality

For centuries, the concept of “equality” in Western thought has been associated with John Locke’s philosophy of liberal individualism (and the creation of the liberal subject).1 “Equality” in the liberal model is the expression of the idea that all human beings are by nature free and endowed with the same inalienable rights. Although this vision of equality has inherent radical potential, in the United States today we have come to understand “equality” narrowly as the requirement of sameness of treatment,2 a formal anti-discrimination mandate, primarily enforced through the courts. We all know the litany of protected categories found in the equal protection doctrine: race, sex, religion, national origin, and so on.3 These classifications define individual legal identities and form the main axes around which claims for equal protection can be made. This system of identity categories defines the organization of interest groups. Indeed, these categories ultimately frame the content and influence the direction of American law.

Our current understanding of equality has been shaped in part by the twentieth century history of the use of the equal protection doctrine as a tool to fight blatant forms of discrimination focused on race, sex, and ethnicity. In particular, feminist legal reformers during the latter part of the century were suspicious of any difference in treatment, even if it was designed to favor women. They demanded formal equality and rejected any “special” consideration because, in their experience, any classification based on asserted gender differences led to exclusion and subordination.

The problem with a formal model of equality is that it is limited in several important ways. Indeed, “equality,” reduced to sameness of treatment or a prohibition on discrimination, has proven an inadequate tool to resist or upset persistent forms of subordination and domination.4 While this model might be used to successfully address some situations of discrimination, it fails to protect against others. Nor does our equal protection doctrine provide much protection against discrimination on the basis of categories not recognized as receiving heightened judicial scrutiny, such as disability and sexual orientation.

This version of equality is similarly weak in its ability to address and correct the disparities in economic and social wellbeing among various groups in our society. Formal equality leaves undisturbed—and may even serve to validate—existing institutional arrangements that privilege some and disadvantage others. It does not provide a framework for challenging existing allocations of resources and power.5 Unless some distortion is perceived to be introduced by impermissible bias, the state is not accountable. Nor is the state understood to appropriately intervene or interfere with the discrimination of private actors, be they in the “free” market or the “private” family. The formal equality model therefore not only fails to take into account existing inequality of circumstances, it also fails to disrupt persistent forms of inequality.

If we look at American society we see a long and growing list of material and social inequalities; we have no guarantee of basic social goods such as food, housing, and health care, and we have a network of dominant economic and political systems that not only tolerate, but justify grossly unequal distributions of wealth, power, and opportunity.6 Nevertheless, the sameness of treatment version of equality has proven resilient in the face of arguments for a more substantive concept of equality, one that is result-oriented and takes into account past circumstances and future obligations, considering need and disadvantage. What is more, sameness of treatment has been used to argue increasingly effectively against measures like affirmative action that might generate remedies for past inequities.

From a political and policy perspective, the current model of equality is further limited as an anti-discrimination principle because its protections do not appear to extend to everyone. Politically, this limitedness is problematic because it can and has resulted in significant backlash. Even more significant in the long run has been the fact that the goal of confronting discrimination against certain groups has largely eclipsed, even become a substitute for, the goal of eliminating material, social, and political inequalities that exist across groups. In this regard, identity categories are both over and under inclusive.7 The groups that traditional equal protection analyses recognize include some individuals who are relatively privileged notwithstanding their membership in these identity groups. Indeed, while race or gender may complicate and compound disadvantage, individual successes abound across these and other categories that the Equal Protection Clause demarcates. These individual successes create both theoretical and empirical pitfalls: Successful individuals who belong to a designated suspect class can undermine the coherence and dilute the strength of critical analyses based on asserted bias against the same identity group. At the same time, identity categories are too narrow. Poverty, denial of dignity, and deprivation of basic social goods are “lack-of-opportunity categories” that the current framework of identity groups does not recognize; such disadvantage transcends group boundaries.

The general tendency under a sameness of treatment equality framework is to focus on individuals and individual actions. The task under this approach is to identify the victims and the perpetrators of discrimination, as well as to define what were the prohibited activities, the individual injury, and the specific intent involved in each occurrence. Unless they are tied to individuals and discrimination, systemic aspects of existing societal arrangements are left out of the picture. It is as though existing material, cultural, and social imbalances are the product of natural forces and beyond the ability of the law to rectify. While it may be beyond the will of the law to alter, existing inequalities certainly are not natural. Inequalities are produced and reproduced by society and its institutions. Because neither inequalities nor the systems that produce them are inevitable, they can also be objects of reform.

II. The Restrained State

In American legal culture, the idea of the private acts as a principle of restraint and abstention. We accept the ideological assertion that it is appropriate to create barriers to keep the state out of our institutions and activities. This veneration of state non-intervention is a second major impediment to reforms intent on instituting a state that is more responsive to inequalities.8

State restraint is often expressed in terms of separate spheres ideology: there is a contrast between public and private domains, with the state cast as the quintessential public entity and the family cast as essentially private.9 Current conceptions of privacy are based on this dichotomy, which places some things and institutions presumptively beyond state regulation and control. The idea of family privacy “protects” the family and other intimate entities from state interference, while individual privacy shields certain intimate decisions from state control.10 Our economic institutions (such as the corporation) and our commercial practices (like those that govern wealth accumulation and distribution) are shielded by the black box of the free-market as it has been constructed in late American capitalism.11

Also contributing to a sense of inevitability when it comes to state restraint is the recently fashionable tendency to talk about the irrelevance—one could even say “withering away” —of the modern state.12 The suggestion is that one effect of globalization has been the displacement of the state by multinational corporations.13 Trade arrangements and treaties that span traditional geographic boundaries are agued to have rendered the state relatively impotent.

I propose a different interpretation. The state is not withering away. Rather, it has withdrawn or been prevented by entrenched interests from fulfilling one of its traditional roles in the social compact: to act as the principal monitor or guarantor of an equal society. The fact that nonintervention has facilitated a skewed and unequal society with the distance between rich and poor growing in recent years, makes clear that some form of prevailing power is essential to counter unfettered self-interest. Understood historically as the manifestation of public authority and the ultimate legitimate repository of coercive power, the state is the only realistic contender in that regard.14 One pressing issue for those interested in furthering a new vision of equality must be how to modernize or refine this conception of the state and then explicitly define its appropriate relationship to institutions and individuals within contemporary society.

A first step in this reconception is understanding that the state itself is manifested through complex institutional arrangements. Through the exercise of legitimate force in bringing societal institutions into legal existence and, subsequently regulating them under its mandate of its public authority, the state also constitutes itself.15 For example, although we often experience entities such as the family and the corporation as “natural” or inevitable in form and function, in reality such institutions are constructed and evolving; their identities are legitimated in law, hence by the state. Both intimate and economic entities are creatures of the state, in the sense that they are brought into legal existence by the mechanisms of the state. The state determines how both family and corporation, for example, are created as coherent entities entitled to act as such in society.

This process of institutional creation also establishes the state as the ultimate source of public authority. Its law tells us who may join together by structuring what will constitute a legitimate institutional formation and determines the consequences of that union, be it marital or corporate in form. Law defines the circumstances under which an entity and its actions will be considered entitled to the special protection of law. Once the legal union is established, the state may also insist on participating in its termination and can dictate the terms under which separation or dissolution may occur.

Many economists would respond to such observations with the assertion that the structuring of institutions can be, and increasingly is, handled through private ordering—through contract.16 However, contracts have no independent force; they are merely documents dependent on the institutions of the state to give them life through interpretation, implementation and execution. No matter how we try to isolate transactions, the state is always a residual player in so- called private arrangements, having fashioned both the background rules that shape those agreements and maintaining the background institutions upon which parties ultimately rely. The state, in exercising its unique role as the creator of legitimate social organizations susceptible to its ongoing coercive authority, should assume a corresponding responsibility to see that these organizations operate in an equitable manner.

Given the state of non-interventionist rhetoric, a brief digression on the issue of state competence is warranted. Critics of an active state often argue that state bureaucracies are inefficient and potentially corrupt.17 Because of the escalating sense of both the inevitability and the superiority of privatization within American political culture, we now live in an era of private schools, private prisons, even a private military—a world in which corporations perform functions that used to be classified as public in nature, displacing the state and its responsibility in doing so. It is as though the state—the public—cannot add anything distinctive. We just want to get the job done as quickly, quietly, and cheaply as possible, and it is presumed that private entities will be superior to the state in this regard.18

These worries about efficiency and corruption need to be addressed in any theory that argues for state action. While corruption can and should be addressed through criminal and regulatory law, we must inquire more thoughtfully into whether or not efficiency is the paramount or only appropriate measure of state success. Should social goods, such as education, or social responsibilities, such as those related to the criminal justice system, be measured only in terms of efficiency? Economic measures may be important, but are they the only bottom-line—the ultimate bottom-line?

Should independent and public values that further the public good, such as equality, justice, and fairness, not be measured and considered when we assess the value of public action? How can public goals be articulated and established without considering how they are consistent with public norms? Public values such as equality or justice are largely unquantifiable, which may explain why they are not typically addressed in neo-classical economics, nor often considered an integral part of the normative system that governs the market and other economic institutions. However, because the state is theoretically freed from the market and profit constraints placed on individual industries and businesses, it should be seen as in a superior position to develop expertise and competence in regard to the implications and implementation of public values. Unlike corporations, which are presumed to act only to maximize profits, the state can and does operate to accomplish more ambitious, even if ultimately immeasurable and illusive, goals. Further, if the preservation and implementation of public values are areas of state responsibility, this responsibility should extend to ensuring that to the extent possible, public goods are distributed according to those values as well.

III. The Vulnerability Thesis

In discussions of public responsibility, the concept of vulnerability is sometimes used to define groups of fledgling or stigmatized subjects, designated as “populations.”19 Vulnerability” is typically associated with victimhood, deprivation, dependency, or pathology.20 For example, public health discourse refers to “vulnerable populations,” such as those who are infected with HIV-AIDS.21 Groups of persons living in poverty or confined in prisons or other state institutions are often labeled as vulnerable populations. Children or the elderly are prototypical examples of more sympathetic vulnerable populations.

In contrast, I want to claim the term “vulnerable” for its potential in describing a universal, inevitable, enduring aspect of the human condition that must be at the heart of our concept of social and state responsibility. Vulnerability thus freed from its limited and negative associations is a powerful conceptual tool with the potential to define an obligation for the state to ensure a richer and more robust guarantee of equality than is currently afforded under the equal protection model.22

This vulnerability approach both expands upon and complements earlier work I have done in theorizing dependency. The technique is to focus on a concept or term in common use, but also grossly under-theorized, and thus ambiguous. Even when the term is laden with negative associations, the ambiguity provides an opportunity to begin to explore and excavate the unarticulated and complex relationships inherent but latent in the term.23 Thus reconsidered, the concept of vulnerability can act as a heuristic device, pulling us back to examine hidden assumptions and biases that shaped its original social and cultural meanings. Conceiving of vulnerability in this way renders it valuable in constructing critical perspectives on political and societal institutions, including law.24 Vulnerability raises new issues, poses different questions, and opens up new avenues for critical exploration.

Vulnerability initially should be understood as arising from our embodiment, which carries with it the ever-present possibility of harm, injury, and misfortune from mildly adverse to catastrophically devastating events, whether accidental, intentional, or otherwise. Individuals can attempt to lessen the risk or mitigate the impact of such events, but they cannot eliminate their possibility. Understanding vulnerability begins with the realization that many such events are ultimately beyond human control.25

Our embodied humanity carries with it the ever-constant possibility of dependency as a result of disease, epidemics, resistant viruses, or other biologically-based catastrophes. Our bodies are also vulnerable to other forces in our physical environment: There is the constant possibility that we can be injured and undone by errant weather systems, such as those that produce flood, drought, famine, and fire. These are “natural” disasters beyond our individual control to prevent.26 Our bodily vulnerability is enhanced by the realization that should we succumb to illness or injury there may be accompanying economic and institutional harms as a result of disruption of existing relationships.

Because we are positioned differently within a web of economic and institutional relationships, our vulnerabilities range in magnitude and potential at the individual level. Undeniably universal, human vulnerability is also particular: it is experienced uniquely by each of us and this experience is greatly influenced by the quality and quantity of resources we possess or can command.27 Significantly, the realization that no individual can avoid vulnerability entirely spurs us to look to societal institutions for assistance. Of course, society cannot eradicate our vulnerability either. However, society can and does mediate, compensate, and lessen our vulnerability through programs, institutions, and structures. Therefore, because both our personal and our social lives are marked and shaped by vulnerability, a vulnerability analysis must have both individual and institutional components.

A. The Vulnerable Subject

Understanding the significance, universality, and constancy of vulnerability mandates that politics, ethics, and law be fashioned around a complete, comprehensive vision of the human experience if they are to meet the needs of real-life subjects. Currently, dominant political and legal theories are built around a universal human subject defined in the liberal tradition.28 These theories presume the liberal subject is a competent social actor capable of playing multiple and concurrent societal roles: the employee, the employer, the spouse, the parent, the consumer, the manufacturer, the citizen, the taxpayer, and so on. This liberal subject informs our economic, legal, and political principles. It is indispensable to the prevailing ideologies of autonomy, self-sufficiency, and personal responsibility, through which society is conceived as constituted by self-interested individuals with the capacity to manipulate and manage their independently acquired and overlapping resources.29

The legal metaphor encapsulating this vision of societal organization is “contract.” Liberal subjects have the ability to negotiate contract terms, assessing their options and making rational choices. They consent to such agreements in the course of fulfilling society’s mandate that they assume personal responsibility for themselves and for their dependants. Privacy principles that restrain the state and its institutions from interfering with the liberal subjects’ entitlements to autonomy and liberty depend on this presumed competence and capability.

Vulnerability analysis questions the idea of a liberal subject, suggesting that the vulnerable subject is a more accurate and complete universal figure to place at the heart of social policy. There have been many critiques of the liberal subject, most of which focus on autonomy. For instance, feminist scholars have scrutinized and criticized the ways in which dominant theory and popular politics idealize notions of independence, autonomy, and self-sufficiency that are empirically unrealistic and unrealizable. Feminist critics, specifically in bringing dependency and care work into light and under scrutiny, have offered a model of interdependence in which the liberal subject is enmeshed in a web of relationships and perceived as dependent upon them.30

A vulnerability critique builds on these insights, but differs in several ways. Vulnerability is a more encompassing concept and, for that reason, analyses centered around vulnerability are more politically potent than those based on dependency. Because dependency is episodic and shifts in degree on an individual level for most of us, mainstream political and social theorists can and often do conveniently ignore it. In their hands, dependency, if acknowledged at all, is merely a stage that the liberal subject has long ago transcended or left behind and is, therefore, of no pressing theoretical interest. In addition, society has historically dealt with dependency by relegating the burden of caretaking to the family, which is located within a zone of privacy, beyond the scope of state concern absent extraordinary family failures, such as abuse or neglect. Thus largely rendered invisible within the family, dependency is comfortably and mistakenly assumed to be adequately managed for the vast majority of people.

By contrast, understood as a state of constant possibility of harm, vulnerability cannot be hidden. Further, while institutions such as the family may provide some shelter, they are unable to eliminate individual vulnerability and are themselves vulnerable structures susceptible to harm and change. Because vulnerability is ever-present and enduring, institutional as well as individual, it suggests a critique of dominant modes of thinking about inequality that is at once complementary to but more powerful than dependency. My argument is not for vulnerability to supplant dependency, for they each reveal different and important things. Rather, the assertion is that vulnerability analysis may ultimately prove more theoretically powerful.

In addition, the vulnerability perspective calls attention to another problematic characteristic of the liberal subject: S/he can only be presented as an adult. As such, the liberal subject stands not only outside of the passage of time, but also outside of human experience. The construction of the adult liberal subject captures only one possible developmental stage—the least vulnerable—from among the many possible stages an actual individual might pass through if s/he lives a “normal” lifespan. We must confront this foundational flaw in the liberal model if we are to develop legal and social policies that reflect the lived realities of human subjects.

The vulnerable subject approach does what the one-dimensional liberal subject approach cannot: it embodies the fact that human reality encompasses a wide range of differing and interdependent abilities over the span of a lifetime. The vulnerability approach recognizes that individuals are anchored at each end of their lives by dependency and the absence of capacity. Of course, between these ends, loss of capacity and dependence may also occur, temporarily for many and permanently for some as a result of disability or illness. Constant and variable throughout life, individual vulnerability encompasses not only damage that has been done in the past and speculative harms of the distant future, but also the possibility of immediate harm. We are beings who live with the ever- present possibility that our needs and circumstances will change. On an individual level, the concept of vulnerability (unlike that of liberal autonomy) captures this present potential for each of us to become dependent based upon our persistent susceptibility to misfortune and catastrophe.

B. The Vulnerable Society and Its Institutions

The vulnerable subject thus presents the traditional political and legal theorist with a dilemma. What should be the political and legal implications of the fact that we are born, live, and die within a fragile materiality that renders all of us constantly susceptible to destructive external forces and internal disintegration? Bodily needs and the messy dependency they carry cannot be ignored in life, nor should they be absent in our theories about society, politics and law. Surely the reality of our universal fragility has played some role in our construction of societal institutions. Contemplating our shared vulnerability it becomes apparent that human beings need each other, and that we must structure our institutions in response to this fundamental human reality.

Of course, societal institutions themselves are not foolproof shelters, even in the short term. Metaphorically, they too can be conceptualized as vulnerable: They may fail in the wake of market fluctuations, changing international policies, institutional and political compromises, or human prejudices. Even the most established institutions viewed over time are potentially unstable and susceptible to challenges from both internal and external forces.31 Riddled with

their own vulnerabilities, society’s institutions cannot eradicate, and often operate to exacerbate, our individual vulnerability. In fact, awareness of these institutional fallibilities may intersect with the specter of our own possible dependency, making reliance on these institutions particularly frightening.

One promising theoretical potential of making vulnerability central in an analysis of equality is that attention to the situation of the vulnerable individual leads us to redirect focus onto the societal institutions that are created in response to individual vulnerability. This institutional focus has the effect of supplementing attention to the individual subject by placing him/her in social context. The institutions of particular interest are those that are created and maintained under the legitimating authority of the state, since the ultimate objective of a vulnerability analysis is to argue that the state must be more responsive to, and responsible for, vulnerability.32

The state facilitated institutions that have grown up around vulnerability are interlocking and overlapping, creating the possibility of layered opportunities and support for individuals, but also containing gaps and potential pitfalls. These institutions collectively form systems that play an important role in lessening, ameliorating, and compensating for vulnerability.33 Together and independently they provide us with what Peadar Kirby refers to as “assets”— advantages, coping mechanisms, or resources that cushion us when we are facing misfortune, disaster, and violence. Cumulatively these assets provide individuals with “resilience” in the face of vulnerability.34

In his evaluation of violence and vulnerability, Kirby identifies three different types of assets that social organizations and institutions provide: physical assets, human assets, and social assets. 35 Institutions that provide us with physical assets are those that impart physical or material goods through the distribution of wealth and property. These assets determine our present quality of life, and provide the material basis for accumulation of additional resources—or resources that are more sustainable—in the form of savings and investments.36 Certainly tax and inheritance laws impact the distribution of physical assets and are part of this system, but so also are banking rules and regulations, and credit policies.37

Like physical assets, human assets also affect material well-being. Defined as “innate or developed abilities to make the most of a given situation,”38 human assets provide on an individual level for the accumulation of human capital or “capabilities.”39 Kirby identifies health and education as chief among assets in this category, making the institutions governing education and health care prime candidates for a vulnerability analysis.40 In addition to the examples Kirby provides, employment systems should be added; like education and healthcare, they develop the human being, impart assets that allow participation in the market and, thus, facilitate the accumulation of material resources that help bolster individuals’ resilience in the face of vulnerability.

Finally, social assets are networks of relationships from which we gain support and strength, including the family and other cultural groupings and associations. Kirby argues persuasively that social assets are also accumulated through political collectives in which individuals bolster their resilience by joining together to address vulnerabilities generated by the market.41 These collectives historically included trade unions and political parties, but today— as Kirby recognizes—the welfare state and insurance are also offered as alternative, often competing, means of protection against risk.

Kirby’s description of assets and asset-conferring institutions is analytically helpful in constructing a vulnerability analysis in that it illuminates the link between asset accumulation by individuals and the creation and maintenance of societal institutions. The nature of this relationship, coupled with the fact that asset conferring institutions initially are brought into legal existence only through state mechanisms, places such institutions within the domain of state responsibility. As asset-conferring entities, these institutions distribute significant societal goods and should be more specifically regulated; normatively, this state involvement requires that the state be vigilant in ensuring that the distribution of such assets is equitable and fair. Together with the concept of the vulnerable subject, understanding the state’s relationship to asset-conferring institutions gives us a vocabulary for arguing that the state should be held accountable for ensuring equality in response to individual and institutional vulnerability.42

IV. Assessing and Addressing Privilege and Disadvantage

Within the various systems for conferring assets, individuals are often positioned differently from one another, so that some are more privileged, while others are relatively disadvantaged. Important to the consideration of privilege is the fact that these systems interact in ways that further affect these inequalities. Privileges and disadvantages accumulate across systems and can combine to create effects that are more devastating or more beneficial than the weight of each separate part. Sometimes privileges conferred within certain systems can mediate or even cancel out disadvantages conferred in others. A good early education may triumph poverty, particularly when coupled with a supportive family and progressive social network.

Therefore, with respect to the assets any one person possesses, it is not multiple identities that intersect to produce compounded inequalities, as has been posited by some theorists, but rather systems of power and privilege that interact to produce webs of advantages and disadvantages.43 Thus, where other theorists expand the traditional equal protection analysis to account for multiple intersecting identities,44 a vulnerability analysis provides a means of interrogating the institutional practices that produce the identities and inequalities in the first place.

Using this systematic approach, a vulnerability analysis can address some of the ambiguities and anomalies that are evident in our current models of discrimination and in the identity categories these models utilize. Focusing on the interactions of asset-conferring institutions makes clear why some individuals can maneuver past disadvantages typically associated with our existing discrimination categories of race or gender to excel, even triumph, in a “white man’s world.” The various systems and institutions these individuals have encountered have provided them with the accumulated assets they needed to succeed. Such successes sometimes result in rejection of group identification and denial of group-associated disadvantages and measures designed to address them both by society in general and by successful individuals themselves. There are women CEOs who reject the idea that accommodations should be made for caretakers of small children or aging parents; wealthy and successful African Americans who launch campaigns against affirmative action in college admissions; and Latinos who are as adamant that we ferret out and deport undocumented workers as are their white counterparts.

These individuals do not disprove the existence of structural inequalities or the need for remedial action, however. Rather, they should be seen as the beneficiaries of institutions and systems in which privileges are conferred in more complex and particular ways than a simplistic focus on identity and discrimination would allow. Privileged within intersecting systems, these individuals have escaped both materially and psychologically from what are often cast as the inevitable disadvantages conferred by their gender, race, or ethnicity. Their successes lessen their identification with unmodified categories like race or gender and sometimes even make them opponents of the very policies that assisted them.

Just as privilege is not tethered to identity neither is disadvantage. Vulnerability is universal and, as such, transcends historic categories of impermissible discrimination. The sub-prime mortgage crisis affected white and middle-class people as well as those in the traditional suspect categories. Welfare reform during the 1990s should have been understood as a direct attack on all caretakers in that it undermined the value of unpaid care work and demonized motherhood outside of the patriarchal paradigm.45

The realization that disadvantage is produced independent of racial and gender biases in many—but of course not all—instances provides an important political tool. Mobilizing around the concept of shared, inevitable vulnerability may allow us to more easily build coalitions among those who have not benefited as fully as others from current societal organization. If we begin to operate from this perspective, institutional arrangements will be the targets of protest and political mobilization, and interest groups need not be organized around differing identities. The justice inquiry will also be reconfigured: it will focus on whether existing institutional arrangements are equally attentive across individuals and groups with shared vulnerability and assets are conferred in an equitable manner, or conversely if some subset is unduly privileged.

Of course, discrimination along identity lines unfortunately is likely to continue to occur; and, if it does, there will be an ongoing need to protest and remedy such discrimination. But, relative to relying on equal protection analysis, focusing on shared vulnerabilities and building a political movement around unequal institutional arrangements attendant to those vulnerabilities is a far more promising and powerful approach in addressing and correcting the disadvantage that persists in society. As noted earlier, discrimination-based arguments have accomplished too little with respect to dismantling broad systems of disadvantage that transcend racial and gender lines, such as poverty.46 Our understanding of equality has been so constrained by prevailing discrimination models that any radical potential of identity-based politics that may have once existed is now perhaps beyond resuscitation. The vulnerability approach will take us further, for despite progressive attempts to build strong and enduring coalitions across identity groups, such a coalition has not by and large emerged.

A vulnerability approach accomplishes several other important political objectives that illuminate both why a post-identity paradigm is necessary and how powerful it can be in addressing existing material and social inequalities. First, it allows us to celebrate the progress toward racial, ethnic, and gender equality that has been made under the anti-discrimination model. Institutions that were historically closed to women, African Americans, and other non-white males are now formally open, and many individuals have flourished as a result. Yet many are left behind, including some white males. Current anti-discrimination law and formal equality provide little in terms of rectifying many of the disadvantages these people face. Institutional exclusion in the formal, historic sense is not the reason that these individuals are not flourishing.47

Some politicians and policy makers have suggested that those left behind are merely suffering the just results of their own individual failures and inadequacies.48 These assertions rely on the assumption that unsuccessful persons have simply not demonstrated individual responsibility by taking advantage of the equally available opportunities afforded to them under existing societal systems. But the claim of failure of personal responsibility might be harder to make if we do not frame equality arguments in terms of the absence of impermissible discrimination but, rather, question whether the system provided an impermissible advantage to some individuals or groups. Within that framework, claims that individuals are entirely responsible for their own failures become less tenable. A vulnerability inquiry proposes a more thorough and penetrating equality analysis—one that considers structural and institutional arrangements in assessing the state’s response to situations of vulnerability before indicting the individual.

This structural focus illustrates a second political advantage to a vulnerability analysis: It brings institutions—not only individual actions— under scrutiny, redirecting our attention to their role in providing assets in ways that may unfairly privilege certain persons or groups, even if unintentionally. Remember that institutions as well as individuals are vulnerable to both internal and external forces. They can be captured and corrupted. They can be damaged and outgrown. They can be compromised by legacies of practices, patterns of behavior, and entrenched interests that were formed during periods of exclusion and discrimination, but are now invisible in a haze of lost history. Nonetheless, these institutions also have a vital role to play in addressing individual vulnerability. The resources they provide are the assets that allow us to live and aspire toward happiness despite our vulnerability. It is important that they operate in a non-discriminatory manner and neither favor nor disadvantage certain individuals or groups. Intent is irrelevant, what matters is whether or not these institutions are structured so as to respond unequally to the reality of our shared vulnerability. If they are, the burden would be on the state to either justify that inequality or act to adjust the institutional arrangements. This type of coercive institutional supervision can only be undertaken by the state in its capacity as the legitimate manifestation of public authority.

V. The Responsive State

Replacing the liberal subject with a vulnerable subject, and articulating a corresponding and compelling argument for fashioning a state more responsive to that subject, is not an easy task. Critics may argue that attacks on the liberal subject destabilize liberalism itself: If a competent, responsible adult is not at the center of social and political theory, will this not inevitably lead to less democratic modes of government and a more authoritarian state? The answer to such questions, which are anchored in an attachment to the status quo, should begin with some consideration of the history and development of our democracy and its institutions. Our current system has been built upon myths of autonomy and independence and thus fails to reflect the vulnerable as well as dependent nature of the human condition. This theoretical weakness has had practical implications that undermine our aspirations for equality and democracy.

In addition, we must think beyond current ideological constraints and consider the possibility of an active state in non-authoritarian terms. This theoretical task—reconceptualizing the role of the state—requires that we imagine responsive structures whereby state involvement actually empowers a vulnerable subject. Certainly state mechanisms that ensure a more equitable distribution of assets and privilege across society would contribute to a more robust democracy and greater public participation. The choice, then, is not one of an active versus inactive state per se, but rather whether the state is constructed around a well-defined responsibility to implement a comprehensive and just equality regime.

As stated earlier in this Essay, our present conceptions of the state underestimate or even ignore the many ways in which the state—through law— shapes institutions from their inception to their dissolution.49 Currently, the state minimally supervises these institutions in fulfilling their essential role in providing the assets that give us resilience in the face of vulnerability. The mandate of equal protection under statutes and the Constitution prohibits discrimination and, absent the demonstration of compelling differences and/or state interest, equality of treatment is the legal norm. However, by relying on the myth of the autonomous individual, the formal equality model fails to address substantive inequalities and differential allocations of privilege produced by our institutions.50 Instead, by focusing on equal protection and formal equality, the current model mires us in a battle of identity politics where every gain by a minority individual becomes a justification for abandoning the pursuit of substantive equality. Moreover, when one person or group gains, other individuals and groups often perceive themselves as losing. This paradigm pits some against others in a negative manner, deflecting sustained attention away from the institutional arrangements and systems that distribute disadvantage across people and groups.

Under both the vulnerability and nondiscrimination approaches the mandate is the same—the establishment of a regime of equality—but the foci and indeed the manner in which equality is imagined are very different. A vulnerability analysis greatly magnifies state responsibility for the institutions and structures the state constructs and utilizes. Vulnerability analysis demands that the state give equal regard to the shared vulnerability of all individuals, transcending the old identity categories as a limitation on the recognition that the state has a vital role to play in protecting against discrimination. A vulnerability analysis begins by first considering how the state has responded to, shaped, enabled, or curtailed its institutions. Has it acted toward those institutions in ways that are consistent with its obligation to support the implementation and maintenance of a vital and robust equality regime; a regime in which individuals have a true opportunity to develop the range of assets they need to give them resilience in the face of their vulnerabilities?

This inquiry into institutional and structural advantages and disadvantages would require a substantial reorientation of political culture, as well as some adjustments to legal institutions and theory. The legislature and its actions would become the primary institutional manifestation of the state. Its mandate would be to be responsive to vulnerability, which would result in a more nuanced sense of what constitutes equal opportunity than currently theorized— one that is more sensitive to existing inequalities and more demanding of the state. This imperative would be placed on the legislature and executive in the first instance: the mandate to be more responsive to and reflective of vulnerability. The legislative and executive fulfillment of that imperative ultimately would be monitored or supervised by the courts, looking to see if the state fulfilled its responsibility in assessing individual equality claims.

The questions a vulnerability analysis poses for equality are not restricted to a focus on discrimination against certain individuals or groups.51 Rather the state is required to ensure that institutions and structures within its control do not inappropriately benefit or disadvantage certain members of society. The operation and impact of those institutions and structures become the focus of legislative and executive action. The vulnerability inquiry examines the ways in which societal resources are channeled to see if the result is to privilege and protect some while tolerating the disadvantage and vulnerability of others. This focus on the structuring of societal institutions reflects the fact that the state has an affirmative obligation not to privilege any group of citizens over others and to actively structure conditions for equality. Imagine how much more fruitfully political and policy discussions might proceed if this framework was the one by which legislative and executive actions were gauged.52

A focus on the state and its institutions, as well as privilege and disadvantage, would also change the nature of the legal inquiry presented for judicial determination. It would move courts away from assessing the individual characteristics of designated groups within society to see if they are the subjects of animus. The vulnerability paradigm calls on courts to look beyond the identity of the disadvantaged developed over the past few decades under a discrimination paradigm. While the old identity categories – gender, race, sexuality, and so on—should not be totally removed from consideration, we must reframe our concerns in order to reveal and address things about the organization of society that are otherwise missed.

Similarly, under this approach, the task is not to explore the intent behind the actions of individual employees, educators, landlords, and so on. Individual intention is not the issue, nor is discrimination. Ill will is irrelevant when all of society is operating with the same set of prejudicial assumptions and beliefs such that our culture ignores the many ways it is organized to privilege some and not others. Because the shared, universal nature of vulnerability draws the whole of society—not just a defined minority—under scrutiny, the vulnerability approach might be deemed a “post-identity” analysis of what sort of protection society owes its members.

By recognizing that privilege and disadvantage migrate across identity categories, we are forced to focus not only on individuals, but also on institutions – the structures and arrangements that can almost invisibly produce or exacerbate existing inequality.53 A vulnerability approach does not mean that different treatment, even the conferral of privilege or advantage, is never warranted. It means that if the state confers privilege or advantage, there is an affirmative obligation for it to either justify the disparate circumstances or remedy them.54 This would then be the political and legal culture of equality in which the state and our societal institutions and their actions were judged.

VI. A More Positive Equality

Interestingly, the same-sex marriage debates reveal a concrete contemporary application of an approach that is not based on the idea of discrimination against some group, but instead eschews state action that privileges a few while leaving others outside of its protective structure. In some cases, plaintiffs have focused their arguments on the privileges associated with marriage that were denied to same-sex couples. Those benefits are “assets” in a vulnerability thesis – material and relational advantages that arose from or were conferred by the way that the institution of marriage has been structured.

In 1999, the Supreme Court of Vermont looked into its own early American history and held that same-sex couples were entitled to receive the legal benefits and protections that were previously only afforded to married couples of opposite sexes.55 The court’s rationale in extending these benefits (or assets) to same-sex couples derived, not from arguments of formal equality under the Equal Protection Clause, but from a more expansive and earlier notion of equality derived from the experience of colonial America.56 The Vermont Constitution’s Common Benefits Clause predated the Fourteenth Amendment and was not based on a concept of discrimination,57 nor was it focused only on protection for a specific category of persons. The Common Benefits Clause states, in part, “[t]hat government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community . . . .”58

The court distinguished federal jurisprudence from its interpretation of Vermont’s Common Benefits Clause, which it characterized as concerned with ends rather than merely means. It noted that federal courts had been “broadly deferential to the legislative prerogative to define and advance governmental ends, while vigorously ensuring that the means chosen bear a just and reasonable relation to the governmental objective.”59 By contrast, underpinning the Common Benefits Clause was the notion that “the law uniformly afforded every Vermonter its benefit, protection, and security so that social and political preeminence would reflect differences of capacity, disposition, and virtue, rather than governmental favor and privilege.”60

Baker v. Vermont’s discussion of the Common Benefits Clause is an end- focused analysis. The majority continued, noting that the clause “prohibits not the denial of rights to the oppressed, but rather the conferral of advantages or emoluments upon the privileged.”61 Further, the Common Benefits Clause, “at its core . . . expressed a vision of government that afforded every Vermonter its benefit and protection and provided no Vermonter particular advantage.”62 The majority in Baker did not limit the potential classes whose interests are protected under the Common Benefits Clause to those groups identified by the U.S. Supreme Court as protected under the Constitution. For, as the Court noted, “the plaintiffs are afforded the common benefits and protections of Article 7, not because they are part of a ‘suspect class,’ but because they are part of the Vermont community.”63 This fact alone compelled the Court to “police a political process whose product frequently discriminates between citizens in respect to benefits and privileges.”64 Baker employs a creative and positive mode of inquiry in line with the vulnerability approach: It is concerned with whether the state, in fashioning its institutions, acts with equal regard for the shared vulnerability of all its legal subjects.

Conclusion

Equality must escape the boundaries that have been imposed upon it by a jurisprudence of identity and discrimination, and the politics that has grown up around this jurisprudence. The promise of equality must not be conditioned upon belonging to any identity category, nor should it be confined to only certain spaces and institutions, be they deemed public or private. Equality must be a universal resource, a radical guarantee that is a benefit for all. We must begin to think of the state’s commitment to equality as one rooted in an understanding of vulnerability and dependency, recognizing that autonomy is not a naturally occurring characteristic of the human condition, but a product of social policy.

Footnotes

1. See generally JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Ian Shapiro, ed., Yale Univ. Press 2003) (1689).

2. MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY 46 (1991) [hereinafter THE ILLUSION OF EQUALITY]; see also MARTHA ALBERTSON FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY 10 (2004) [hereinafter THE AUTONOMY MYTH] (“Equality is manifested in mere formal or legal guarantees of sameness of treatment for individuals.”).

3. Interestingly, in this catalogue, as well as in the law, class is absent as a suspect classification. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (rejecting the application of strict scrutiny to an education policy allegedly discriminating against students on the basis of class). Class bias would bring economic arrangements into question and, for that reason, would be incompatible with a formal equality analysis that ignores disparate underlying circumstances, including economic inequality.

4. See, e.g., FINEMAN, THE ILLUSION OF EQUALITY, supra note 2, at 46, 174 (describing how sameness of treatment has failed to provide equality for women in the context of divorce).

5. FINEMAN, THE ILLUSION OF EQUALITY, supra note 2, at 36-37 (analyzing the economic and social inequalities that persist despite the use of the formal equality model).

6. See, e.g., John W. Lee III, Class Warfare 1988-2005 Over Top Individual Income Tax Rates: Teeter-Totter From Soak-The-Rich to Robin-Hood-In-Reverse, 2 HASTINGS BUS. L.J. 47, 147-49 (Winter 2006) (analyzing 2005 Census data documenting the growing rich/poor gap in American society).

7. I acknowledge that discrimination does exist, and I do recognize that these personal characteristics might work to complicate the experience of vulnerability for any individual. My claim is merely that discrimination models based on identity characteristics will not produce circumstances of greater equality and may in fact lead to less in many circumstances. For an example of this argument in the context of family law reform, see chapter three of FINEMAN, THE ILLUSION OF EQUALITY, supra note 2.

8. To a great degree, our concept of the private also shields non-governmental actors from equality scrutiny. When deemed to be private actors, there is no state action to prompt constitutional scrutiny. See, e.g., Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (affirming the Boy Scouts of America’s First Amendment right to exclude homosexuals from membership in the organization and noting that no constitutional right or law providing public accommodation free from discrimination exists to contest such exclusionary policies). This aspect of the private verses public debate is beyond the scope of this essay, which focuses on state responsibility, particularly in so far as the state is responsible for the creation and maintenance of societal institutions. In this context, the state is an active player and there is no private action exemption.

9. The family is the quintessential private institution—private in its relationship with both market and state. On the other hand, while the market is cast as public vis-a-vis the family, it is private when paired with the state, a truly chameleon institution. Cf. Iris Marion Young, Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory, in FEMINISM, THE PUBLIC AND THE PRIVATE 421 (Joan B. Landes ed., 1998) (discussing the ways in which privacy rhetoric excludes particular persons and ideas from public discussion).

10. See FINEMAN, THE AUTONOMY MYTH, supra note 2, at 59, 208.

11. Id. at 223-25.

12. See SASKIA SASSEN, LOSING CONTROL? SOVEREIGNTY IN AN AGE OF GLOBALIZATION 9-10 (1996) (arguing globalization has resulted in the partial erosion of the nation-state); see generally ROBERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLITICAL ECONOMY (2d. ed. 2005) (discussing the growth of international trade regimes and neoliberal institutions and the decline of the traditional realist model of nation-state politics).

13. SASSEN, supra note 14, at 8.

14. The “state” referred to in this analysis is not necessarily the nation state. The term is used to refer to an organized and official set of linked institutions that together hold coercive power, including the ability to make and enforce mandatory legal rules, and which is legitimated by claim to public authority. In form the “state” could be locally, nationally, transnationally, or internationally organized.

15. See generally JOAN WALLACH SCOTT, GENDER AND THE POLITICS OF HISTORY 48-9 (1999) (discussing the ways in which state authority is continually reconstituted and reaffirmed by actions taken in the name of protecting the public and how these actions depend upon a series of gendered exclusions).

16. See Victor P. Goldberg, The Enforcement of Contracts and Private Ordering, in HANDBOOK OF NEW INSTITUTIONAL ECONOMICS, 491, 491 (Claude Ménard & Mary M. Shirley eds., 2005) (“The primary purpose of contract law is, most would concede, to facilitate private ordering. The parties are the best judges of their interests and the law should, as much as possible, stay out of the way.”).

17. See, e.g., need author of article, in PRIVATIZATION: A GLOBAL PERSPECTIVE need correct pincite (V. V. Ramanadham, ed., 1993) (discussing popular conceptions of public or government institutions as inefficient, corrupt, or adverse to change).

18. Experience with Halliburton in Iraq, for example, may indicate that the private is not always the cheapest. Nor does experience support the notion that private entities are always more efficient or less corrupt than state efforts.

19. See FINEMAN, THE AUTONOMY MYTH, supra note 2, at 33-35.

20. See, e.g., CAROLINE KNOWLES, FAMILY BOUNDARIES: THE INVENTION OF NORMALITY AND DANGEROUSNESS 108-09 (1996) (discussing popular constructions of children, women, and minorities as vulnerable, pathological, and in a perpetual state of victimhood).

21. Public health is a fertile area for analysis of vulnerable populations in this mode. For an interesting example of vulnerable population analysis, see LEIYU SHI & GREGORY D. STEVENS, VULNERABLE POPULATIONS IN THE UNITED STATES (2005). The authors consider vulnerability in the light of multiple, cumulative risk factors in regard to designated groups within society classified as to racial/ethnic background, low socioeconomic status, and lack of health insurance. See id. at 2. The designated population approach is not premised on the universality of vulnerability, as I argue, but is limited to specific categories.

22. See supra Part I.

23. For the development of the dependency theory, see generally FINEMAN, THE AUTONOMY MYTH, supra note 2.

24. As I have earlier defined the term, dependency is deemed “inevitable” when applied to biological or developmental stages of life and “derivative” when considering the social arrangements inherent in caretaking. The theoretical insight is that caretakers need resources in order to undertake care for children, the ill, the elderly and so on, and are thus derivatively dependent. Society is structured in such a way as to make the private family the primary source of those resources, resulting in great inequalities, including that other societal institutions that benefited from carework are free to evade responsibility to accommodate or compensate caretakers in any way. See FINEMAN, THE AUTONOMY MYTH, supra note 2, at 57-70.

25. I understand vulnerability, in its individual universality, to be similar but not identical to inevitable dependency. Whereas both are universal, only vulnerability is constant, while inevitable dependency is episodic, sporadic, and largely developmental in nature.

26. Environmental disasters are not always beyond society’s influence: Human actions can exacerbate environmental threats, as we see with global warming, water pollution, and war, for instance. Human-induced environmental catastrophes, as well as institutional failures more generally, raise additional questions about the ability of institutions to mitigate vulnerability.

27. Vulnerability is like derivative dependency in that it is profoundly shaped by social institutions. However, while only some individuals in society are derivatively dependent as a result of the care work they are assigned or assume, everyone is vulnerable. So, while vulnerability is both inevitable and universal, it is also socially constructed in its particularities.

28. FINEMAN, THEAUTONOMY MYTH, supra note 2, at 18-20.

29. For my critique of the liberal subject, see id. at 224-27.

30. See, e.g., id. at 161-75 (discussing feminist critiques of autonomy and the myriad of ways in which social institutions structure individuals’ lives).

31. My conception of vulnerability departs from that of other theorists, such as Judith Butler who argues for a theory of vulnerability that is preoccupied with the human capacity for loss, death, and tragedy. Butler proposes a framework of grief and suffering as a mechanism of reconsidering the ways in which certain lives become more privileged or valued than others. See JUDITH BUTLER, PRECARIOUS LIFE: THE POWERS OF MOURNING AND VIOLENCE 30 (2004). By examining grief and finding ways togrieve, Butler argues that we “might critically evaluate and oppose the conditions under which certain human lives are more vulnerable than others, and thus certain human lives are more grievable than others.” Id. However, Butler’s theory stops short of calling for restructuring our institutions in ways that reflect our vulnerability. Because institutions are simultaneously constituted by and producers of vulnerability, we must continually challenge these institutional practices and the meting of social resources. Thus, where Butler remains suspicious of “governmentality” and the ways in which the state intervenes to protect the population, my theory of vulnerability requires an active engagement with these institutions precisely because they are vulnerable and receptive to demands. For example, Butler does not challenge the ways in which the formal equality model and anti-discrimination framework perpetuate inequality and mask vulnerability under the guise of autonomy. See id. at 25-26.

32. These institutions in combination with the legal and governmental structures that bring them into existence and monitor their activities constitute the state as I conceive of it. See supra p. 6.

33. See BRYAN S. TURNER, VULNERABILITY AND HUMAN RIGHTS 25-44 (2006). Turner recognizes the importance of a vulnerability analysis in the development of international institutions that are receptive to human needs. However, Turner’s theory of vulnerability focuses on the ways in which human rights abuses create vulnerability and prevent institutions from effectively protecting the population.

34. This discussion on systems addressing vulnerability builds on PEADAR KIRBY, VULNERABILITY AND VIOLENCE (2006). In discussing resilience, Kirby builds on earlier definitions that understood resilience as “enabling units such as individuals, households, communities and nations to withstand internal and external shocks.” Id. at 55 (quoting the United Nations Economic Commission for Latin American and the Caribbean).

35. Id. at 55. Kirby identifies a fourth category: environmental assets. He notes that this set of assets is often overlooked due to the prevalence of economic analysis, which in its neoclassic form gives “priority to monetary value and which, by and large, treats environmental assets as ‘externalities.’” Id. at 69. Systems and institutions falling into this category include those addressing issues of global warming, bio-diversity, wildlife and natural resources that affect individuals and societies worldwide. Id. At 69- 72.

36. Id. at 54-55.

37. Kirby notes that residential property is the single biggest asset class, accounting for forty to sixty percent of total household wealth in Europe and around 30 percent in the United States. He warns that a crisis in the housing market could be worse than a depression, a warning that seems prescient in view of the recent world-wide crisis generated by the sub-prime debacle. Id. at 59.

38. Id. at 60. This aspect of Kirby’s work reflects some dimensions of Amartya Sen’s analyses. He notes that Sen does not address vulnerability, but emphasizes capabilities and what constitutes “well- being” in a way that “highlights important dimensions of what we can call the social production of resilience.” Id. at 55. I believe Kirby’s multiple asset-conferring institutional analysis is richer and more helpful in articulating a basis for state responsibility than is the Sen focus on the development of individual capabilities. In setting out a system approach in which a variety of structures confer different, complementary types of assets, Kirby is reaching for robust categories that capture the complex dimensions of the idea of resilience. Id.

39. Martha Nussbaum has argued that social justice is best achieved through a “capabilities” based approach. See, MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 70, 164 (2006). Nussbaum argues that situations of substantial dependence, for example that of a person in a vegetative state or a person who is permanently confined to a wheelchair, result in certain individuals requiring more resources than others. Id. at 164-65. The capabilities approach attempts to define a minimum level of human capability “in a way informed by an intuitive idea of a life that is worthy of the dignity of the human being.” Id. at 70. By focusing on the base level of human worth and defining the components of that life, Nussbaum’s theory perpetuates social inequality in potentially dangerous ways. Enabling society or even individuals to define what does and does not constitute a valuable life echoes with arguments historically resulting in eugenics, discrimination, and social inequality. As such, Nussbaum’s theory of dependency and human capabilities fails to capture the benefits of a vulnerability approach that challenges social inequalities while maintaining an ethic of universal applicability.

40. KIRBY, su35. Id. at 55. Kirby identifies a fourth category: environmental assets. He notes that this set of assets is often overlooked due to the prevalence of economic analysis, which in its neoclassic form gives “priority to monetary value and which, by and large, treats environmental assets as ‘externalities.’” Id. at 69. Systems and institutions falling into this category include those addressing issues of global warming, bio-diversity, wildlife and natural resources that affect individuals and societies worldwide. Id. At 69- 72.

41. Id. at 64-69.

42. It would be interesting in future work to broaden the idea of asset categories. Perhaps distinctions between asset-conferring, asset-preserving, and asset-enhancing systems would be helpful. Also relevant to the idea of resilience, and for that reason eminently worthy of study, are those institutions that do not confer individual assets per se, but provide some collective social good, such as maintaining order. In this category would be the criminal justice system and the armed services. Of further interest are the systems designed with institutions, not individuals, as the primary regulatory objects. Such systems guide capital and nation states in accumulation and consolidation, and determine the range and viability of international interactions and relations. I would place international treaties and United Nations conventions in this system, since they are directed toward the governance of collective entities. Individuals might be benefited through such systems, but they are not perceived as their primary objective.

43. See e.g., Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 587 (1990) (“Feminists have adopted the notion of multiple consciousness as appropriate to describe a world in which people are not oppressed only or primarily on the basis of gender, but on the bases of race, class, sexual orientation, and other categories in inextricable webs.”); see also id. At 588- 89, 598, 601 (critiquing gender essentialism).

44. See Judy Scales-Trent, Black Women and the Constitution: Finding Our Place, Asserting Our Rights, 24 HARV. C.R.-C.L. L. REV. 9 (1989) (focusing on the intersections of race and gender for black women in light of the various standards of review under the Equal Protection Clause).

45. See MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES 101-10 (1995) (discussing mothers of all races characterized as deviant for their rejection of the patriarchal form of family).

46. See supra notes 4-9 and accompanying text.

47. Affirmative action plans are premised on the anti-discrimination model. They are perceived as temporary adjustments to the formal equality paradigm necessitated by past discrimination. Since they are based on historic individual identity categories, they do not focus us on institutions, which is where we need to direct our attention if we are to address the more complicated forms of disadvantage we face in a post-equality society.

48. See FINEMAN, THE AUTONOMY MYTH, supra note 2, at 34.

49. See supra p. 6-7.

50. See supra Part I.

51. This also helps to problematize the claim that because some members of a group succeed, the system is functioning appropriately and need not be monitored or transformed.

52. A fundamental question about our current societal arrangements that might spark controversy would begin with a consideration of why we organize work and wealth the way we do. I would like to see a discussion in state legislatures and Congress asking such questions about the workings of the law itself as: Why do we privilege contract over status, market over family or individual? Why does law divide up the market analytically and put its various parts in competition with each other: corporation versus workers versus consumers versus government? Why aren’t all corporation constituencies represented in corporate governance and only shareholders viewed as stakeholders? Why do we accept the idea of a minimum wage, but view as incomprehensible the idea that there might be a maximum wage under law? Why do we have a fictitious public-private divide imposed on the family and in employment? Lawmakers in other countries ask such questions and respond to them in their policy-making. At a minimum the vulnerability approach would be premised on the idea that it was inappropriate for the state and its institutions to protect and privilege some, to shield them or to mediate their vulnerability through the creation and maintenance of societal institutions, and it would force us to uncover the ways the state allows some to struggle with vulnerability and dependency.

53. The concept of vulnerability also allows us to avoid the argument based in the theme of individual responsibility that there is no longer any problem in the United States since certain individuals from protected identity groups have experienced successes.

54. The current prevailing perspective is that state action of this type is inappropriate. We are a people embedded in a national ideology of individualism that is protective of individual liberty and composed of mandates about individual responsibility, state non-intervention, and negative rights.

55. Baker v. State, 744 A.2d 864 (Vt. Sup. Ct. 1999).

56. Id. at 876-77.

57. Id. at 877-78.

58. VT. CONST. ch. I, art. 7.

59. Baker, 744 A.2d at 871 (emphasis omitted).

60. Id. at 876-77.

61. Id. at 874.

62. Id. at 875.

63. Id. at 878 n.10.

64. Lawrence Friedman & Charles H. Baron, Baker v. State and the Promise of the New Judicial Federalism, 43 B.C. L. REV. 125, 152 (2001).

#law #equality #constitutional law #critical theory #feminism #gender #race #class #disability #social contract theory #jurisprudence #human capacities #law and society

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quakerjoe · 6 years

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Americans’ attitudes about fascism have always been based on the assumption that fascism, as occurred in Germany when Hitler came to power, “can’t happen here,” that we love our freedom so much we would never give in to an authoritarian populist regime. We never stopped to consider what might happen if Americans’ conception of freedom became so twisted that it came to embody the “freedom” to deprive other people of their freedoms, while preserving your own. Fascism is not just a historical relic. It remains a living and breathing phenomenon that, for the generations since World War II, had only maintained a kind of half-life on the fringes of the American right. Its constant enterprise, during all those years, was to return white supremacism to the mainstream, restore its previous legitimacy, and restore its own power within the nation’s political system. With Trump as its champion, it has finally succeeded. It’s important, first, to understand just what fascism is and what it is not. The word “fascist” has been so carelessly and readily applied as a shorthand way to demonize one’s political opposition that the word has become almost useless: used to meaning anything, it has almost come to mean nothing. One commonly, and wrongly, cited definition of fascism is attributed to Benito Mussolini: “Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power.” According to the investigative reporter John Foster “Chip” Berlet, Mussolini never said nor wrote such a thing. And neither did the fascist philosopher Giovanni Gentile, to whom it is also often attributed. “When Mussolini wrote about corporatism,” Berlet writes, “he was not writing about modern commercial corporations. He was writing about a form of vertical syndicalist corporatism based on early guilds.” The terms “corporatism” and “corporate” meant an entirely different thing in 1920s Italy than they mean today: “corporations” were not individual businesses, but rather were sectors of the economy, divided into corporate groups, managed and coordinated by the government. “Corporatism,” Berlet says, “meant formally ‘incorporating’ divergent interests under the state, which would resolve their differences through regulatory mechanisms.” In fact, says Berlet, this supposed definition of fascism directly contradicts many of the things that Mussolini actually did write about the nature of fascism. Another thing that fascism decidedly is not is what the right-wing pundit Jonah Goldberg says it is: a kind of socialism and therefore “properly understood as a phenomenon of the left.” This notion is such a travesty of the idea of fascism that it functionally negates its meaning. George Orwell wrote that “the idea underlying Fascism is irreconcilably different from that which underlies Socialism. Socialism aims, ultimately, at a world-state of free and equal human beings. It takes the equality of human rights for granted. Nazism assumes just the opposite.” Not only did Goldberg’s book, Liberal Fascism: The Secret History of the American Left, From Mussolini to the Politics of Meaning, published in 2009, become a New York Times bestseller, but its thesis became widely accepted on the American right among Patriots and Tea Partiers in the years leading up to Trump’s ascension, who eagerly accused President Obama and liberal Democrats of being the real fascists. Historians of fascism were scathing in their assessment. For example, Robert O. Paxton, an American political scientist who is professor emeritus at Columbia University and the author of seminal studies of fascism, wrote: “Goldberg simply omits those parts of fascist history that fit badly with his demonstration. His method is to examine fascist rhetoric, but to ignore how fascist movements functioned in practice.” In reality, fascism is a much more complex phenomenon than Goldberg’s or the “corporate state” definition would have it. Historians have for years struggled to nail down its essential features, partly because, as Paxton notes, fascism in the 1920s “drew on both right and left, and tried to transcend that bitter division in a purified, invigorated, expansionist national community.” In the postwar years of the 1950s and ’60s, political scientists and historians tried to define it primarily by assembling a list of traits common to historical fascists. The problem with this approach was that as historians examined the record more closely, they grasped that fascism was constantly acquiring and shedding one or another of these traits. It was a protean, shape-shifting phenomenon, and a simple list of traits failed to capture this dynamic quality. In response, some scholars, notably Roger Griffin, a modern historian and political theorist at Oxford Brookes University in England, have attempted to distill fascism into a singular quality, an underlying principle that remained constant all throughout its various permutations. Griffin ultimately zeroed in on what he called “palingenetic ultranationalism”: a revolutionary movement based on the belief that a nation can be restored to glory via a process of phoenix-like rebirth by activating, or creating, national myths of original greatness (“palingenesis” is the doctrine of continual rebirth). Griffin explains fascism further as a “modern political ideology that seeks to regenerate the social, economic, and cultural life of a country by basing it on a heightened sense of national belonging or ethnic identity. Fascism rejects liberal ideas such as freedom and individual rights, and often presses for the destruction of elections, legislatures, and other elements of democracy. Despite the idealistic goals of fascism, attempts to build fascist societies have led to wars and persecutions that caused millions of deaths.” While Griffin’s approach is extraordinarily useful and insightful, it still fails to fully explain the dynamic nature of fascism. Robert Paxton’s 2005 book The Anatomy of Fascism, widely considered to be a definitive text on the subject, attempted to tackle that aspect of the phenomenon. His definition of fascism is placed in the context of the reality of its behavior: that is, fascism cannot be explained solely by its ideology; it is also identified and explained by what it does. By examining the historical record, Paxton has been able to describe its constantly mutating nature as occurring in five identifiable stages: 1. Intellectual exploration. Disillusionment with popular democracy manifests itself in discussions of lost national vigor. 2. Rooting. A fascist movement, aided by political deadlock and polarization, becomes a player on the national stage. 3. Arrival to power. Conservatives seeking to control rising leftist opposition invite the movement to share power. 4. Exercise of power. The movement and its charismatic leader control the state in balance with state institutions such as the police and traditional elites such as the clergy and business magnates. 5. Radicalization or entropy. The state either becomes increasingly radical, as did Nazi Germany, or slips into traditional authoritarian rule, as did fascist Italy. Paxton explains that “each national variant of fascism draws its legitimacy … not from some universal scripture but from what it considers the most authentic elements of its own community identity.” He also examines the underlying principles that fueled the rise of fascism, and determines that there are nine “mobilizing passions” that have fed the fires of fascist movements wherever they have arisen: 1. A sense of overwhelming crisis beyond the reach of any traditional solutions 2. The primacy of the group, toward which one has duties superior to every right, whether universal or individual, and the subordination of the individual to it 3. The belief that one’s group is a victim, a sentiment which justifies any action, without legal or moral limits, against the group’s enemies, both internal and external 4. Dread of the group’s decline under the corrosive effect of individualistic liberalism, class conflict, and alien influences 5. The need for closer integration of a purer community, by consent if possible, or by exclusionary violence if necessary 6. The need for authority by natural leaders (always male), culminating in a national chief who alone is capable of incarnating the group’s destiny 7. The superiority of the leader’s instincts over abstract and universal reason 8. The beauty of violence and the efficacy of will, when they are devoted to the group’s success 9. The right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group’s prowess in a Darwinian struggle. This last “passion” was explored as an essential aspect of Nazism by the Norwegian social scientist and philosopher Harald Ofstad, whose interviews with former Nazis led him to write Our Contempt for Weakness: Nazi Norms and Values—And Our Own (English translation, 1989). It described the logical extension of that Darwinian struggle against the “lesser” that pervades so much fascist literature: the deep-seated hatred and contempt in which all persons deemed “weaker”—ethnically, racially, medically, genetically, or otherwise—are held, and the desire to eliminate them entirely that it fuels. Paxton ultimately summed this all up in a single paragraph: “Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal constraints goals of internal cleansing and external expansion. Fascism is both a complex and a simple phenomenon. In one sense, it resembles a dynamic human psychological pathology in that it’s made up of a complex constellation of traits that are interconnected and whose presence and importance rise and fall according to the often fast-changing stages of development it goes through; and in another, it can in many ways be boiled down to the raw, almost feral imposition of the organized violent will of an angry and fear-ridden human id upon the rest of humankind. Throughout history, it has only ever achieved real power when it was able to coalesce its many contentious and often warring factions under the banner of a unifying charismatic leader. The lack of such a figure at those periods when fascist tendencies were ascendant in the United States is one of the primary reasons historians believed that fascism never could obtain the “political space” required for obtaining power in the United States: “It can’t happen here.” That’s where Donald Trump comes in. Fascist elements and tendencies have always been part of the nation’s political DNA, even though many Americans cannot admit this. Indeed, it can be said that some of the worst traits of European fascism were borrowed from America, particularly the eliminationist tendencies, manifested in the form of genocidal violence toward indigenous peoples and racial and ethnic segregation. Hitler acknowledged at various times his admiration for the American genocide against Native Americans; for the segregationist Jim Crow regime in the South, on which the Nazis modeled the Nuremberg Race Laws; and for the deployment of mob violence by the Ku Klux Klan, which was the inspiration for the murderous street thuggery of the German Brownshirts and the Italian Black-shirts. According to Ernst Hanfstaengl, a German American who was a confidant of Hitler’s for a time, Hitler was “passionately interested in the Ku Klux Klan … He seemed to think it was a political movement similar to his own.” And it was. Despite these tendencies, the United States had never yet given way to fascism at the national level. No doubt this, in the second half of the twentieth century at least, was due to horror at what ultimately transpired under the Hitler regime—namely, the Holocaust. We were appalled by racial and ethnic hatred, by segregation and eliminationism, because we saw the pile of corpses that they produced in Europe. We didn’t make the connection with our own piles of corpses, until the civil rights movement finally redressed our own national wrongs. However, that was a different generation, one that grew up in the shadow of World War II and experienced not only McCarthyism but also the civil rights struggle. Today, it is not uncommon to see Nazi regalia treated as a kind of fashion statement and outrageous genocidal racial sentiments tossed about like popcorn, dismissed as a kind of naughtiness. White nationalism and supremacism, nativism, misogyny, conspiracism, sexual paranoia, and xenophobic hatred, once embodied in German National Socialism, have experienced a revival in twenty-first-century America in the form of the alt-right and Patriot-militia movements. Relatively early in the campaign, a flood of observers began using the word “fascist” to describe Trump’s campaign. Not all of these concerns were coming from the left: in November 2015, a number of conservatives began sounding the alarm as well, especially in response to Trump’s vows to crack down on Muslim immigrants. “Trump is a fascist. And that’s not a term I use loosely or often. But he’s earned it,” the conservative pundit Max Boot, a Marco Rubio campaign adviser, tweeted in November 2015, after Trump had retweeted a graphic from #WhiteGenocide. Steve Deace, a Ted Cruz supporter and conservative Iowa radio host, tweeted in November 2015, “If Obama proposed the same religion registry as Trump every conservative in the country would call it what it is—creeping fascism.” Even the staid, Republican-owned Seattle Times used the term to describe Trump in a November 2015 editorial: “There is a bottom line, and it’s simple: Trump’s campaign message reflects a kind of creeping fascism. It needs to be rejected.” Of course liberals, too, were alarmed: the historian Rick Perlstein, in a Washington Spectator piece titled “Donald Trump and the F Word,” explored the question of Trump’s fascist tendencies in depth, concluding that although Trump himself might not be a fascist, the phenomenon he was empowering was troublingly close to meeting Paxton’s condition of fascism at the power-acquisition stage. Trump was tapping into a wellspring of discontent: “If he’s just giving the people what they want, consider the people,” he wrote. “Consider what they want.” There is little doubt that there is a significant resemblance between Trump’s ascendance and that of previous fascist figures in history beyond Hitler, including Mussolini, Francisco Franco, and Miklos Horthy, partly because the politics he engenders indeed fill out so many of the key components that collectively create genuine fascism, as we’ve come to understand it through deep historical scholarship. A careful examination of Trump’s campaign and post-election messages in light of Paxton’s definition reveals a raft of fascist traits: 1. Eliminationist rhetoric is the backbone of Trump’s appeal. His opening salvo in the campaign —the one that first catapulted him to the forefront in the race, in the polls, and proved wildly popular with Republican voters—was his vow, and subsequent proposed program, to deport all 12 million of the United States’ undocumented immigrants (he used the deprecatory term “illegal alien”) and to erect a gigantic wall on the nation’s southern border. The language he used to justify such plans— labeling those immigrants “criminals,” “killers,” and “rapists”—is classic rhetoric designed to dehumanize an entire group of people by reducing them to objects fit only for elimination. Trump’s appeal ultimately is about forming a “purer” community, and it has been relentless and expansive: When an audience member asked him at a town-hall-style appearance when and how he was going to “get rid of all the Muslims,” he responded that “we’re going to be looking at a lot of different things.” He also claimed that if elected, he would send back all the refugees from Syria who had arrived in the United States: “If I win, they’re going back,” he told one of his approval-roaring campaign crowds. He told an interviewer that the Black Lives Matter movement was “looking for trouble” and later suggested that maybe a Black Lives Matter protester should have been “roughed up.” 2. Palingenetic ultranationalism, after race-baiting and ethnic fearmongering, is the most obviously fascistic component of Trump’s presidential election effort, embodied in those trucker hats proclaiming, “Make America Great Again.” Trump amplifies the slogan this way: “The silent majority is back, and we’re going to take the country back. We’re going to make America great again.” That’s almost the letter-perfect embodiment of palingenesis: the promise of the phoenix-like rebirth of a nation from the ashes of its “golden age.” 3. Trump’s deep contempt for both liberalism and establishment conservatism allows him to go over the heads of established political alignments. The conservative talk-show host Rush Limbaugh has noted, “In parlaying this outsider status of his, he’s better at playing the insiders’ game than they are … He’s running rings around all of these seasoned, lifelong, highly acclaimed professionals in both the consultant class, the adviser class, the strategist class, and the candidate class. And he’s doing it simply by being himself.” 4. Trump exploits a feeling of victimization, constantly proclaiming that America is in a state of crisis that has made it “the laughingstock” of the rest of the world, and contends that this has occurred because of the failures of (primarily liberal) politicians. 5. He himself embodies the concept of a lone male leader who considers himself a man of destiny. His refusal to acknowledge the lack of factual basis of many of his comments embodies the fascistic notion that the leader’s instincts trump logic and reason in any event. 6. Trump’s contempt for weakness was manifested practically every day on the campaign trail, ranging from his dissing of John McCain as “not a hero” because “I like people who weren’t captured,” to his onstage mockery of Serge Kovaleski, a New York Times reporter who has a disability. This list is thought-provoking—and it is meant to be thought-provoking—but as part of our exercise in examining the attributes of real fascism, we also can begin to discern the difference between that phenomenon and the Trump candidacy. For example, fascists have, in the past, always relied upon an independent, movement-driven paramilitary force capable of intimidating their opponents with various types of thuggery. In Italy these were the Blackshirts; Hitler imitated the Italian units with the formation of the Brownshirts, the Storm Division. Trump has no such paramilitary force at his disposal. Members of various white-supremacist organizations and bona fide paramilitary organizations such as the Oath Keepers and the Three Percent movement are avid Trump backers. Trump has never made known any desire to form an alliance with or to make use of such groups. However, via wink-wink nudge-nudge cues Trump has on occasion encouraged or failed to condemn spontaneous violence by some of his supporters against both protesters at rallies and groups they consider undesirable, such as when “enthusiastic supporters” committed anti-Latino hate crimes. Encouraging extralegal vigilante violence can be classified as a fascistic response. Yet a serious fascist would have called upon not just the crowd to respond with violence, but also his paramilitary allies to respond with retaliatory strikes. Trump didn’t do that. Another perhaps more basic reason that Trump cannot be categorized as a true fascist is that he is not an ideologue who acts out of a rigid adherence to a consistent worldview, as do all real fascists. Trump’s only real ideology is worship of himself, “the Donald.” He will do and say just about anything that appeals to any receptive segment of the American body politic to attract their support. One segment of the body could be called the nation’s id—groups that live on paranoia and hatred regarding those different from themselves and also the political establishment. There’s no question that these supporters brought a visceral energy to the limited universe of the GOP primary, though I don’t know anyone who, in 2015, expected that such a campaign could survive the oxygen and exposure of a general election. Those observers, including me, were all proved wrong. Few observers had any clue how successfully the Alt-America worldview could become in muscling its way into the national spotlight. However, the reason why Trump has never yet called upon the shock troops of a paramilitary wing for support, and why he has attempted to keep an arm’s-length distance from the overtly racist white nationalists and neo-Nazis who have become some of his most enthusiastic backers, is simple: he isn’t really one of them. What he is, says Chip Berlet, is a classic right-wing nativist populist demagogue: “His ideology and rhetoric are much more comparable to the European populist radical right, akin to Jean-Marie Le Pen’s National Front, the Danish People’s Party, or Vladimir Zhirinovsky’s Liberal Democratic Party of Russia. All of them use the common radical right rhetoric of nativism, authoritarianism, and populism.” Trump himself is not a fascist primarily because he lacks any kind of coherent, or even semi-coherent, ideology, nor has he agitated for a totalitarian one-party state. What he represents instead is a sort of gut-level reactionism that lacks the rigor and absolutism, the demand for ideological purity, that are characteristic of full-bore fascism. But that does not mean that the movement he has unleashed is not potentially dangerously proto-fascist, nor that he is not dangerous to American democracy. Indeed, he has now proved to be more dangerous than an outright fascist, because such a figure would be far less appealing and far less likely to succeed in the current milieu. What Trump has succeeded in doing, by exploiting the strands of right-wing populism in the country, has been to make the large and growing number of proto-fascist groups in America larger and more vicious. In other words he is simultaneously responding to and creating the conditions that could easily lead to the genuine growth of fascism. The journalist Milton Mayer, in They Thought They Were Free: The Germans 1933–1945 (1955), describes how these changes happen not overnight, but incrementally: “You see,” my colleague went on, “one doesn’t see exactly where or how to move. Believe me, this is true. Each act, each occasion, is worse than the last, but only a little worse. You wait for the next and the next. You wait for one great shocking occasion, thinking that others, when such a shock comes, will join with you in resisting somehow. You don’t want to act, or even talk, alone; you don’t want to ‘go out of your way to make trouble.’ Why not?—Well, you are not in the habit of doing it. And it is not just fear, fear of standing alone, that restrains you; it is also genuine uncertainty … “Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves; when everyone is transformed, no one is transformed. Now you live in a system which rules without responsibility even to God. The system itself could not have intended this in the beginning, but in order to sustain itself it was compelled to go all the way.” We lose our humanity incrementally, in small acts of meanness. The Nazis’ regime ultimately embodied the ascension of demonic inhumanity, but they didn’t get that way overnight. They got that way through, day after day, attacking and demonizing and urging the elimination of those they deemed their enemies. And this has been happening to America—in particular, to the conservative movement and the Republican Party—for a very long time. Donald Trump represents the culmination of a trend that really began in the 1990s. That was when we first saw the popular rise of eliminationist hate talk. It was first heard in Patrick Buchanan’s 1992 declaration of a “culture war”; it was then wielded with thoughtless glee and great regularity by an increasingly rabid set of right-wing pundits led by Rush Limbaugh; then it was deeply codified by a new generation of talking heads who have subsequently marched across the sound stages at Fox News. It surfaced particularly with the birth of the Tea Party, which became perhaps the single most significant manifestation of right-wing populism in the nation’s history, certainly since the Ku Klux Klan of the 1920s. Trump aligned himself very early with the Tea Party elements, remarking in 2011, “I represent a lot of the ingredients of the Tea Party.” And indeed he does—in particular, its obeisance to the captains of industry and their untrammeled right to make profits at the expense of everyone else. Right-wing populism is essentially predicated on what today we might call the psychology of celebrity worship: convincing working-class schlubs that they, too, can someday become rich and famous—because when they do, would they want to be taxed heavily? It’s all about dangling that lottery carrot out there for the poor stiffs who delude themselves about their chances of hitting the jackpot. The thing about right-wing populism is that it’s manifestly self-defeating: those who stand to primarily benefit from this ideology are the wealthy, which is why they so willingly underwrite it. One might be inclined to dismiss it as a kind of “sucker populism.” But that would be to overlook the reasons for its appeal, which run much deeper, and are really in many ways more a product of people’s attraction to an authoritarian system. Those psychological needs often are a product of the levels of general public fear, much more so than of economic well-being or other factors. That fear is generated by a large number of factors, including the spread of unfiltered social media, as well as the rapid decline in basic journalistic standards of factuality in the larger mainstream media, as well as the mainstream media’s increasing propensity to promote information that, producers say, reflects what people want to see rather than what responsible journalistic ethics would consider more important: what they need to know. That’s how Alt-America became so powerful a political force. This right-wing populism, largely lurking on the periphery and gradually building an audience, was whipped into life by Ron Paul’s and Sarah Palin’s 2008 candidacies, and then became fully manifest as a national movement in short order with the rise of the Tea Party in 2009. Not only was the Tea Party an overtly right-wing populist movement, it soon became a major conduit for a revival of the populist Patriot-militia movement. Many of these “Tea Party Patriots” are now Oath Keepers and Three Percenters whose members widely supported Trump’s candidacy, and are now vowing to defend his presidency with their own arms. Most of these extremists are only one step removed, ideologically speaking, from the neo-Nazis and other white supremacists of the racist right, and both of those segments of the right lean heavily on nativist and authoritarian rhetoric. It’s only somewhat natural that Trump’s right-wing populism would be mistaken for fascism—they are closely related. Not every right-wing populist is a fascist, but every fascist is a right-wing populist. Thus, Donald Trump may not be a fascist, but with his vicious brand of right-wing populism he is not just empowering the latent fascist elements in America, he is leading his followers merrily down a path that leads directly to fascism. If the final result is fascism, the distinction between right-wing populism and fascism is not really significant except in understanding how it happened in the first place. The United States, thanks to Trump, has now reached a fork in the road where it must choose down which path its future lies—with democracy and its often fumbling ministrations, or with the appealing rule of plutocratic authoritarianism, ushered in on a tide of fascistic populism (if history serves as a example, the fascistic populists will eventually overwhelm their plutocrat sponsors). Trump may not be a fascist, but he is an authoritarian who, intentionally or not, is empowering the existing proto-fascist elements in American society; even more dangerously, his alt-right–Tea Party brand of right-wing populism is helping these groups grow their ranks and their potential to recruit new members by leaps and bounds. Not only that, he is making thuggery seem normal and inevitable. And that is a serious problem. How can you talk with a diehard Alt-American if you are a dedicated mainstream liberal? Many Americans confronted that question over their family Thanksgiving tables a couple of weeks after the election. The conversations often did not turn out well. But it is no longer a question we can pretend away, perhaps by choosing to stay away from those tables altogether. The American radical right is a real force with real power—both political and cultural—and it is no longer alarmist to point that out. Nor is it a problem that we can hope to attack head-on through blunt political force, though without question the barrage of attacks on Americans’ civil rights that very likely now await us in the coming years will require our most vocal opposition. It will be incumbent upon this political opposition to be totally dedicated to the principles of nonviolent resistance. During the anti-Trump protests that immediately followed his election, the liberal mainstream media characterized a handful of violent incidents as riots. That undermines the aims of the anti-Trump protest. Fascist movements have a long-documented history of converting any violence they encounter after having provoked it into a justification for further violence that far outpaces anything that the opposing left might be capable of mustering. The rise of the radical right is a symptom of problems more deep-seated than the purely political level. Fascism, at its base, is fueled by hate and the pure objectification of an utter lack of empathy for other human beings. Thus, the negation of this negative emotion is not love, but empathy. Confronting fascism—as J. K. Rowling suggests with a theme running through her popular “Harry Potter” series of children’s books—means first embracing humanity, both ours and theirs; from that embrace we can make the personal choices that define what kind of people we are. We need to be able to put ourselves in other people’s shoes, even if we do not agree with them, for our own sake as well as theirs. Harry’s experiences observing young Tom Riddle, the nascent Lord Voldemort, through the magical “Pensieve” gave these stories a surprisingly profound depth of meaning. Empathy as an essential political principle actually comes naturally to progressives as a policy imperative. Certainly the liberal social policies that have created wealthy liberal urban enclaves that were the base of the Democratic Party’s support in the 2016 election reflect that empathetic impulse, in the form of broad social safety nets, supportive urban-oriented programs, high-powered educational systems, and bustling economies. The impulse behind most modern liberal programs has been to raise the standard of living for ordinary people and to defend the civil rights of everyone, especially those who have not enjoyed them for much of the nation’s history. That’s a fairly empathetic agenda. Liberals’ dealings regarding rural and Rust Belt America, however, have over the past forty years largely been characterized by at best benign neglect, in terms of both economic policy and culture: wealthy urbanites do often look down their noses at rural and working-class citizens and consider their concerns and attitudes at best antiquated and at worst backward and stupid. This political disconnect emerges in all kinds of cultural expressions, from movie stereotypes to thoughtless remarks from liberal politicians. Which is perhaps why the conversations around our Thanksgiving tables were so deeply awkward, if not deeply disturbing, in the wake of Donald Trump’s surprise election. And yet that is the kind of place where the deeper change that needs to occur in our relationships with each other as Americans can happen. One healing conversation at a time. If Americans of goodwill—including mainstream conservatives who recognize how their movement has been hijacked by radicals—can learn to start talking to each other again, and maybe even pull a few Alt-Americans out of their abyss along the way, then perhaps we can start to genuinely heal our divisions instead of relegating each other into social oblivion and, maybe eventually, civil war. Some kind of cultural or political civil war is clearly already on many minds. The bottom-line issue is really an epistemological one: how is a rational exchange possible when we can’t even agree on what constitutes a fact and factuality? Most liberals (certainly not all) tend to prefer traditional standards of factuality and evidence in which concrete information from reliable sources is accepted as fact, and scientific evidence obtained through peer-reviewed methods is considered the gold standard for presentable evidence in a discussion. Pretty much the opposite is true in Alt-America. Science and scientists are viewed with suspicion as participants in the “conspiracy,” and so their contributions are instantly discarded as worthless, as is the work of any kind of academic in any field, including history and the law. The only sources of information they accept as “factual” are tendentious right-wing propaganda riddled with false facts, wild distortions, and risible conspiracist hyperbole. Fox News—whose mass failures regarding factual accuracy are now the stuff of legend—is considered by Alt-Americans to be the only “balanced and accurate” news source, though even it is viewed with deep suspicion by alt-righters, Patriots, and Alex Jones acolytes. Breaking through that wall is at best difficult, and in the case of dedicated and fanatical Alt- Americans, probably not worth the personal costs in terms of the emotional abuse they like to heap on those with whom they disagree. But finding people who remain within reach—those for whom common decency and respectful discourse and Christian kindness are still important values, even though they may have voted for Trump—may provide an avenue for deeper social change. At some point, there will have to be a discussion about just what is a fact and what isn’t, because that eventually will determine whether or not you can ever come to a rational common ground. But getting there first will take a lot of empathy. The communications expert Sharon Ellison specializes in what she calls “powerful nondefensive communication”; she has developed an effective empathy-driven model that she has shown can be effective in at least breaking down the interpersonal barriers that modern politics have erected, and upon which the radical right thrives. The starting place, she says, is curiosity: "Instead of blasting Trump or insulting the morality or intelligence of his supporters, first, just get curious. You don’t have to agree; you’re simply gathering information and trying to understand where they’re coming from, even if you believe they’re deeply misguided. "Make it a dialogue, not a debate or an inquisition. No matter how true and rational your analysis is, force-feeding it will not go down well. Nor will a premeditated series of sugar-coated questions designed to subtly lead the person to “get it.” The right question, skillfully and non-aggressively posed, could prompt someone to gain unexpected insights, and when they realize something for themselves, they can more easily accept it. "Your questions should be very specific but posed in a non-judgmental way. (Note that I’m calling the questions “specific” rather than “pointed,” which implies that a question is a weapon.)" Ellison cautions against using general, open-ended questions such as whether people can ever learn to get along. Some of us gravitate toward these because they feel softer, but they can wind up serving as an invitation to rant. The key to understanding people who have become drawn into the Alt-America universe is the role that the hero myth plays in framing their worldview. Dedicated Patriots and white nationalists, just like the hate criminals they inspire, genuinely envision themselves as heroes. They are saving the country, or perhaps the white race, or perhaps just their local community. And so anything, anything they might do in that act of defense is excusable, even laudable. This embrace of the heroic is what ultimately poisons us all. The sociologist James Aho has explored this concept of the hero: "The warrior needs an enemy. Without one there is nothing against which to fight, nothing from which to save the world, nothing to give his life meaning. What this means, of course, is that if an enemy is not ontologically present in the nature of things, one must be manufactured. The Nazi needs an international Jewish banker and conspiratorial Mason to serve his purposes of self- aggrandizement, and thus sets about creating one, at least unconsciously. By the same token, the radical Zionist locks himself in perverse symbiosis with his Palestinian “persecutors,” the Communist with his “imperialistic capitalist running dogs,” the capitalist with his Communist “subversives.” Aho goes on to describe how the enemy is constructed as embodying “putrefaction and death,” is experienced “as issuing from the ‘dregs’ of society,” whose “visitation on our borders is tantamount to impending pestilence … The enemy’s presence in our midst is a pathology of the social organism serious enough to require the most far-reaching remedies: quarantine, political excision, or, to use a particularly revealing expression, liquidation and expulsion.” What Aho describes is a dynamic latent in all sectors of American society but finding a virulent expression in right-wing extremism. It is one in which both sides—the heroic exemplars of the far right and their named “enemies,” that is, Jews, civil-rights advocates, and the government— essentially exchange roles in their respective perceptions; the self is always heroic, the other always the enemy. Each sees the other as the demonic enemy, feeding the other’s fears and paranoias in an increasingly threatening spiral that eventually breaks out in the form of real violence. There is, as Aho suggests, a way to escape this dynamic, to break the cycle. And it requires, on the part of those seeking to oppose this kind of extremism, a recognition of their own propensity toward naming the enemy and adopting the self-aggrandizing pose of the hero: "As [the cultural anthropologist] Ernest Becker has convincingly shown, the call to heroism still resonates in modern hearts. However, we are in the habit of either equating heroism with celebrity (“TV Actress Tops List of Students’ Heroes”) or caricaturing the hero as a bluff-and-swagger patriot/soldier making the world safe for, say, Christian democracy. In these ways heroism is portrayed as a rather happy if not entirely risk-free venture that earns one public plaudits. Today we are asked to learn that, in the deepest and truest sense, heroism is really none of these things, but a largely private vocation requiring stamina, discipline, responsibility, and above all courage. Not just the ascetic courage to cleanse our personal lives of what we have been taught is filth, or even less to cleanse society of the alleged carriers of this filth, but, as Jung displayed, the fortitude to release our claim on moral purity and perfection. At a personal and cultural level, I believe this is the only way to transcend the logic of enemies." For all of its logic and love of science, modern liberalism as a social force is weighed down by its most consistent flaw: an overweening belief in its own moral superiority, its heroism, as it were. (Not, of course, that conservatives are any better in this regard; if one factors in the religious right and the “moral values” vote, they are objectively worse.) This tendency becomes especially noticeable in urban liberal societies, which for all their enlightenment and love of tolerance are maddeningly smug, intolerant of the “ignorance” of their rural and “fly-over country” counterparts. It’s not an omnipresent attitude, but it is pervasive enough that others’ perceptions of it are certainly not without basis. There’s a similar stigma attached to religious beliefs as well, especially among more secular liberals, and that in turn has given birth to a predictable counterreaction that is only partially a result of misunderstanding. If we look at the 2016 electoral map, and see all those red rural counties and come to terms with the reasons why none of them ever turn blue, it’s important to come to terms with our own prejudices and our easy willingness to treat our fellow Americans—the ones who are not like us—with contempt and disrespect. Simply beginning the change will require both humility and empathy. That’s not to suggest that we respond to racist or violent provocations with touchy-feely attempts at “reaching out” to the other side; these are always rejected with contempt, or viewed as a sign of weakness. Certainly it does not mean we need to “reach out” to the rural haters and the conspiracy-spewing Patriots. I grew up in rural America, and I’m all too familiar with the bullies and swaggering ignoramuses who hold too much sway in that culture, and whose politics and worldview are now ascendant beyond their wildest imaginings (and they are wild, trust me). There’s really no point in trying to reach out to people who will only return your hand as a bloody stump. The only thing they understand, in the end, is brute political force: being thrashed at the ballot box, and in the public discourse. So it is vital for liberals, progressives, moderates, and genuine conservatives to link arms in the coming years to fight back against the fascist tide. It will require organizing, and it will require real outreach. And if this coalition wants to succeed, its members will need to break the vicious circular social dynamic that right-wing extremists always create, particularly in rural communities where their bullying style of discourse can stifle honest discourse. To do that, some self-reflection will go a long way. Respecting those from rural areas, those who hold deep religious beliefs, doesn’t force progressives to compromise their own beliefs or standards. It simply means being part of a democracy, which is enriched by its diversity. It means once again empowering the many rural progressives who have lived there all along, fighting the good fight against all odds, because they are the people who are best equipped to have those many dinner-table conversations. Certainly traditional rural values such as communitarianism, common decency, mutual respect, and respect for tradition should have a place among all that diversity that liberals are fond of celebrating. Because until urban progressives learn to accord them that respect, they are doomed to remain trapped in the vicious cycle being fueled on both sides. For liberals and moderates, breaking out may be a matter of survival—especially as the rabid right’s fantasies begin coming to fruition. Alt-America, thanks to Donald Trump, is no longer merely the stuff of these fantasies. It will take the best of us, the most decent part of us—the better angels of our nature, as Abraham Lincoln invoked in his first inaugural address—to prevent right-wing dreams from becoming realities. David Neiwert

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gravitascivics · 4 years

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VARIED AND NOT

This posting picks up on the notion that the current polarization bedeviling the nation’s politics is not felt the same across the political landscape. That is to say, at least in one of its aspects, Democratic party members and Republicans view the functions of their respective parties differently and that is because their constituency arrangements vary. One has a “57 variety” feel to it; the other has a monolithic feel to it.

The Democratic Party has set upon itself the aim to represent the interests of a large array of groups. These include liberal whites, African Americans, Latino/as, Asians, most labor groups, and in general, low income groups and their advocates. They do have religious groups supporting them, but they are not from one religious’ tradition. Their advocates include Christians, Jews, Muslims, even atheists and Buddhists and reflect the more liberal theological tradition.[1]

But here the sorting becomes a bit complex. Democrats are sorted, in part, among whites that are not psychologically bound to traditional religious values. But in terms of non-white groups that they attract, they include traditionally oriented blacks and other immigrant groups, that attach themselves to fairly strong community-based allegiances.

In general, many in this latter group hold conservative beliefs and often find it stressful to accept the liberal, Democratic agenda. They stick to the Democrats because of their repulsion of the Republican Party and its policy positions. This includes positions regarding many issues that affect these minorities in negative ways, such as the Republican party’s aversion to public services, such as in education, or its immigration policies.[2]

The Republican Party represents the interests of one basic group – white voters as they define themselves as an identity group with a strong subgroup, fundamentalist Christians. Within this group of people, in inordinate numbers, there are businesspeople, who are generally attracted to the party’s conservative, pro-business agenda. For example, the party has consistently stood against business regulations and taxes. It also has a strong aversion to social public policies and instead favors market solutions.

Due to these distinctions, two very different party makeups have emerged. The Democratic Party is more of a coalition of various elements and the Republican Party equals sameness. Ezra Klein reports,

It means [for Democrats] winning liberal whites in New Hampshire and traditionalist blacks in South Carolina. It means talking to Irish Catholics in Boston and the karmically curious in California. Democrats need to go broad to win over their party and … they need to reach into right-leaning territory to win power. Republicans can afford to go deep.[3]

To support this distinction, Klein cites the contextual information that Americans generally consider themselves conservative instead of liberal (35% vs. 26%). Yet, three-quarter of Republicans say they are conservative and only half of Democrats consider themselves as liberals.[4] This betrays two important facts about American politics. One it tends to be conservative and the polarization is better defined on the right. It is the conservative voice that has the more targeted message in that it is less diluted by mixed motivations.

How does this dissimilarity manifest itself in day-to-day politics? Matt Grossman and David Hopkins in their book, Asymmetric Politics, study this question. Generally, according to them, the Democratic Party, in that they are the more arrayed, factious party, finds commonality through a set of policy positions or goals. The Republican Party, on the other hand, finds commonality in a binding ideology which is more abstract and generally phrased in their rhetoric.

Republicans, consequently, have less interest groups expressing support for the party (about half as many as the Democratic Party has) and in their pronouncements, such as in debates, they tend to cite their ideology or principles at a much higher rate. Democrats cite the various groups that support them, highlighting these groups’ interests and how the party’s policy positions support those interests. Interestingly, this encourages them, the Democrats, to support compromise more readily than Republicans are but are more prone to expect results.[5]

But an irony appears when it comes to the current state under a Trump administration. While conservatives, as mentioned above, tend to be more ideological, they seemed malleable to the drifts of Trump’s rhetoric that aim to accommodate different audiences. Klein reports that among conservatives, what was most important was not the offenses the president’s words have been to their ideology – or even Trump’s support of their ideology – but in how Trump defended them as an identity group or how the president defended their identity.

To support this contention, Michael Barber and Jeremy C. Pope, in a recent academic article, provide evidence of how Trump supporters accept the diverse messaging the president espouses. In their study, respondents who identified with Trump, were disposed to pick up on Trump’s cues to align their opinions to match his.[6]

The Congressman, former Republican, Justin Amash, puts it well,

A lot of Trump Republicans have this mindset that they have to fight this all out war against the left. And if they have to use big government to do it, they’re perfectly fine with that. So when I go to Twitter and talk about over-spending or the size of the government, I get a lot of reactions now from Trump supporters saying, “Who cares how big the government is”, or “Who cares how much we’re spending as long as we’re fighting against illegal immigration and pushing back against the left.”[7]

The message relevant to the polarization issue is that its parameters have transcended its original motivating force among those of the right. It now has become its own self-consuming end.

A civics teacher who wishes to portray in his/her classroom the current political arena, therefore, needs to deal with certain complexities that do not promise to become easier anytime soon. Probably no aspect of that grand contest is its emotional evolution that is still in the making and is changing as the day-to-day political aspects of the nation change.

For example, the current coronavirus challenge has added a whole new layer to what is found divisive among Americans. It has gotten down to whether to wear a mask or not has become political. And this all-encompassing passion for Trump has its own media outlet, Fox News, which will be addressed in the next posting.

[1] “Theological liberalism, a form of religious thought that establishes religious inquiry on the basis of a norm other than the authority of tradition. It was an important influence in Protestantism from about the mid-17th century through the 1920s.” - - “Theological Liberalism,” Encycloaedia Britannica (n.d.), accessed August 17, 2020, https://www.britannica.com/topic/theological-liberalism .

[2] Jonathan D. Weiler and Marc J. Hetherington, Prius or Pickup: How the Answers to Four Simple Questions Explain America’s Great Divide (Boston, MA: Houghton Mifflin Harcourt, 2018).

[3] Ezra Klein, Why We’re Polarized (New York, NY: Avid Reader Press, 2020), 231. The general identification of issues in this posting can be attributed to this source.

[4] Ezra Klein, Why We’re Polarized.

[5] Matt Grossman and David Hopkins, Asymmetric Politics: Ideological Republicans and Group Interest Democrats (New York, NY: Oxford University Press, 2016)

[6] Michael Barber and Jeremy C. Pope, “Does Party Trump Ideology? Disentangling Party and Ideology in America,” American Political Science Review, 113 (1), February 2019, 38-54.

[7] Jane Coaston, “Justin Amash on Trump, Impeachment, and the Death of the Tea Party,” New York Magazine, July 3, 2019, accessed August 17, 2020, https://www.vox.com/policy-and-politics/2019/7/3/18759659/justin-amash-trump-impeachment-gop-tea-party-republicans . This article is the reporting of an interview with Justin Amash conducted by Coaston of Vox. In this article, Amash, a Tea Party product, offers a fine summary statement of the natural rights view: “The purpose of government is to protect people’s rights. And Congress should serve as a deliberative body that ultimately reflects the will of the people through their representatives.” Yet, elsewhere he cites his allegiance to federalism but restrains that reference to the structural aspect of that construct, not its processes.

#polarization #Democratic Party #Republican Party #party members #ideology #Ezra Klein #Matt Grossman #David Hopkins #Michael Barber #Jeremy C. Pope #Jane Coaston #Justin Amash #Vox #civics education #social studies

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marymosley · 5 years

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The Life and Legacy of John Paul Stevens

Below is my column in the Washington Post Sunday on the legacy of Supreme Court Justice John Paul Stevens. With roughly 35 years on the bench, he was the nation’s second oldest and third-longest serving justice.

Stevens will lie in repose at the Supreme Court on Monday. On Tuesday his funeral will be held and he will be buried at Arlington National Cemetery. I expect he would have preferred center field at Wrigley but this is a strong second option.

Here is the column:

After 35 years on the court, John Paul Stevens remained one of the most difficult justices to interview. Stevens was old school, and tended to avoid public speeches and discussions of his legacy. In 2010, as rumors of his retirement were spreading, I tried every angle to land an appointment. I phoned his office and invoked the fact that we were both Chicago natives who attended the University of Chicago and Northwestern. No dice. We were both die-hard Cubs fans. Nope. I finally resorted to the lowest possible approach. When I saw Stevens at a legal gathering, I told him that I doubted that Babe Ruth really “called the shot” before his famous home run, into the bleachers, off Cubs pitcher Charlie Root in the fifth inning of Game 3 of the 1932 World Series. Stevens pounced, describing what he’d seen from the stands as if it were still Oct. 1, 1932, and he was that 12-year-old kid with his dad at Wrigley.

While some claim that the Babe might not have actually been pointing but was just swinging his bat, Stevens insisted that he “was pumping the bat” at his intended destination. I immediately relented, of course, and then asked, “Okay, now how about your retirement?”

I can’t say I got anything earthshaking out of that brief conversation, but my desperate bait-and-switch was not entirely random. Stevens, as I’ve written before, was the “uncalled shot” of the Supreme Court. Entering the court as a conservative appointed by President Gerald Ford, Stevens would finish his tenure as the indisputable leader of the liberal wing. He is an example of how a jurist can find not just his voice but his vision on the court.

While most Americans may not recognize Stevens’s name, he changed this country in fundamental ways with dozens of historic rulings. Those opinions were written in direct and unadorned language. He was also crafty. As the center of the court shifted to the right, Stevens repeatedly found ways to forge majorities or avoid review in critical cases.

Born into a wealthy Chicago family, Stevens was headed for an advanced degree in English before he took a detour into naval intelligence. He joined the Navy the day before Pearl Harbor was bombed and would receive the Bronze Star for his role in a code-breaking operation that led to the downing of the plane carrying the leader of that attack, Adm. Isoroku Yamamoto. When he returned to Chicago, he opted for law school and graduated with the highest average in the history of Northwestern University School of Law .

After a clerkship with Justice Wiley B. Rutledge Jr., he turned down an offer to teach at Yale and went into private practice, specializing in antitrust law. He investigated possible corruption in the Illinois court system, a complex enterprise that led to the resignation of two state Supreme Court justices. After Watergate, Ford wanted to appoint someone to the court with impeccable ethics and unimpeachable standing in the legal profession. He chose Stevens, who succeeded the liberal stalwart William O. Douglas.

Stevens left a legacy that transcends those of all but a handful of justices, and his shift from the right to the left of the court is one of the most striking in the institution’s history. He would come to regret some of his earlier votes, such as one reinstating the death penalty (in Gregg v. Georgia, in 1976). In 1978, Stevens wrote a strong dissent against affirmative action in University of California Regents v. Bakke . Yet he would finish on the court as one of the great supporters of the practice, upholding race as a criterion in university admissions in a series of cases. He would also emerge as one of the most consistent and strongest voices supporting abortion rights, gay rights and women’s rights.

His most consequential decision may have been in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984). There, Stevens laid out the standard for the review of agency decision-making, an opinion that would create great deference to administrative decisions. Stevens held that, when a statute is ambiguous and an agency acts, the only question courts must resolve is “whether the agency’s answer is based on a permissible construction of the statute” – a standard that largely insulates agency decisions from challenge. Chevron greatly magnified the role of agencies in U.S. governance and remains among the most-discussed court rulings.

His voice on the court became more distinctive and powerful as time went on – and this was particularly true after such towering figures as Thurgood Marshall and William Brennan left the court.

The style as well as the content of Stevens’s opinions evolved: His early decisions tended to be not just more conservative but also shorter and somewhat underdeveloped, in the vein of his appellate decisions. Years ago, Stevens and I flew to Milwaukee to speak at a judicial conference. He mentioned that he probably wouldn’t be able to attend my speech (which was frankly a bit of a relief since I was speaking about the Supreme Court). During the discussion, a judge asked about my proposal to expand the court and whether I would also support term limits for justices or mandatory retirement ages. I answered no, and said I could explain why in three words: John Paul Stevens. I said that Stevens’s early opinions were sometimes incomprehensible or incomplete, while his later opinions were profound and transformative. That is when I spotted Stevens. He later approached me with his signature grin and said, “Incomprehensible?”

The fact is that Stevens came into his own on the court. I disagree with some of his decisions – particularly one supporting sweeping eminent-domain powers ( Kelo v. City of New London , 2005). Yet he always wrote not out of hardened ideology but an innate sense of fairness, equality and inclusion.

He would truly emerge as a leading voice on the jurisprudential left a decade into his tenure. In his dissent to Bowers v. Hardwick (1986), Stevens vehemently disagreed with the upholding of a Georgia statute criminalizing sodomy between consenting adults. It was one of the worst decisions in the history of the high court, and Stevens denounced the analysis. His views would later prevail in the landmark Lawrence v. Texas (2003), which struck down anti-sodomy laws.

Stevens authored one of the most powerful defenses of the First Amendment in Reno v. ACLU (1997), writing the opinion striking down the criminalization of “indecent transmission” of “obscene or indecent” messages under the Communications Decency Act of 1996. The vagueness of the law was clearly incompatible with the guarantees of the First Amendment, and Stevens held that the law “threaten[ed] to torch a large segment of the Internet community.”

Stevens was also a critic of expansive interpretations of the Second Amendment. He wrote a stinging dissent to the decision in District of Columbia v. Heller (2008), which recognized, for the first time in U.S. history, an individual right to bear arms. He wrote a comprehensive account of the origins of the amendment and argued: “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.”

Despite sharp disagreements, Stevens rarely used the kind of hyperbolic or dramatic language that characterized the opinions of some of his colleagues. But he was both direct and forceful in his dissent to the decision to stop the recount in Florida in the 2000 presidential election. In Bush v. Gore , Stevens warned that the court had crossed a dangerous line, putting its own legitimacy at risk. He expressed hope that “time will one day heal the wound . . . inflicted by today’s decision,” adding: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Likewise, Stevens was ardent, in 2010, in dissenting from Citizens United v. Federal Election Commission , which struck down limits on political contributions by corporations as an unconstitutional denial of free speech. “While American democracy is imperfect,” he wrote, “few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

Such opinions are like the man himself: impassioned yet direct; honest and unpretentious.

When I received the first call informing me of Stevens’s death, I was watching our Cubs play the Cincinnati Reds. I left the game on as I started to write about his exemplary life and work. The Cubs won in extra innings, with Kyle Schwarber hitting a long ball at Wrigley into the bleachers, the same area where Babe Ruth once made history in front of an awed 12-year-old named John Paul Stevens. Schwarber’s home run was no “called shot.” But some great players, like great justices, just make the play, without the fanfare or the theatrics.

is the Shapiro professor of public interest law at George Washington University.

The Life and Legacy of John Paul Stevens published first on https://immigrationlawyerto.tumblr.com/

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ufeministi · 4 years

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“The heterosexist definition of the sexual act fits neatly into the dominant patriarchal definition of women as subordinate to men in every way, including and especially in the sexual sense” (Patricia McFadden)

Queer women’s lives are lush. They are complex, multi – faceted and dynamic. This diverse terrain is often flattened by hetero-sexist representations and societal limitations. Popular cultural representations offer rare glimpses into the galaxies which lesbian and non – gender conforming women create. These glances are often alienating and insulting. From Cleo’s hypersexualised portrayal and dramatic death in 1996 American film, Set it off to the heroine’s ��silencing by death’ in Karmen Gei, a Senegalese 2001 film, lesbian women are a portrayed as a menace which heterosexist patriarchy silences through metaphor. This silencing takes a literal dimension in the application of law and social sanction.

In Africa, dominant ante and post-colonial narratives circulate limiting portrayals of women. These depictions benefit from erasing lesbian women and non-gender confirming people from public space and its record. Dominant heteronormative narratives circulate limiting portrayal of women which benefit from erasing lesbian women and non-gender confirming people from public space and its record. Lesbian women and non – gender confirming people have also been subjected to denigrating readings like the bully archetypes in Nollywood films and hypersexualized portrayals of women who assert their sexuality. Resistance has been mounted to these mirages though scholarship and self-stylization. The social histories and identities of lesbian women have been artfully depicted in film, academia and popular culture.

Lesbian visibility matters, it should be a concern for cis-gendered and heterosexual people as well as other members of the LGBTIQ community. Regrettably, lesbian women’s presence and preference is perceived as a threat by heterosexist patriarchal institutions, individuals and ideals. Campaigns like #lesbianvisibility week add to a rich living archive of lesbian women which is being produced through social, political, academic and artistic initiatives. Visibility has implications for lesbian women’s freedom from violence, access to reproductive healthcare, the expression of social, economic and political freedoms as well as the safe navigation of digital spaces,

Lesbian women threaten hegemonic masculinity. Heterosexist patriarchy does not know what do to with the public presence of women who love women. In South Africa, women like Brenda Fassie have been vilified for declaring their love for women. It is not just Brenda’s male following who shunned her but women who didn’t agree with Brenda living her life on her own terms. Years after Brenda’s death, there was public outcry about the homophobic remarks reportedly made by then Minister of Arts and Culture Lulu Xingwana about artist Zanele Muholi’s work as immoral and posing a threat to nation unity. Similar sentiments caused uproar in Liberia when a Women’s rights organization leader attributed being lesbian to the trauma of war. In Gambia, Yaya Jameh’s government undertook a campaign of state funded, military executed homophobia and torture. The LGBTIQ community are conspicuously absent from the country’s ongoing Truth and Reconciliation Commission.

African Feminisms and womanisms are constrained by conservative social norms, religious fundamentalism and heterosexist images. Cis – gendered heterosexual women are often the gatekeepers of patriarchy. They are often depicted as the voice of ‘women’s rights’ and the advancement of dignity. However, without acknowledging and affirming lesbian women and non – binary identities, feminisms and womanisms, perpetuate the violence they seek to end.

Lesbian visibility is important for challenging heterosexist norms and affirming non – binary ways of being in the world. Lesbian visibility in the media, politics, academia and other spaces provides alternative archetypes for children who are being socialised out of the heteronormative constraints we currently deal with. It is important for children to grown up seeing lesbian women just being, occupying space and living their lives, unfettered by heterosexist patriarchy. It is equally important for adults to actively affirm lesbian and non – gender confirming personhood and dignity.

Heterogenous representations of womanhood are life giving. Seeing lesbian women living their lives fully, without discrimination and indignant aspersions passed on them will free humanity. Stella Nyanzi encourages us to transcend “myopic imaginings of a homogenous African – ness and pedestrian oblivion to pluralities within African sexualities.”

Women’s sexuality is unfortunately framed within terms which privilege patriarchal definitions of personhood. Sexuality is personal but it also has various elements which encumber it like race, class and other social categorisations. Lesbian women’s expression of social and political rights is limited by the homophobic and heteronormative ideals which plague many families, organisations, religious institutions and whole countries. In heteronormative societies, women are often treated as ‘containers’ of cultures, they are treated as (current or future) ‘mothers’ of the nation or defined through other limited lenses determined by their proximity to men. In these heteronormative contexts, women are treated as vessels for hegemonic masculinity and the expression its desires. Women are portrayed as objects or at most, passive subjects. Women who are complicity with hegemonic masculinity sadly also accede to the demands of their societies to gain privilege and access to power / resources.

Women’s bodies are sometimes treated as community property. The idea of this property being distributed by women choosing to love and desire other women, threatens heterosexist patriarchy. It is in conflict with the wishes of institutions of like religious bodies and the heterosexual nuclear family. Grave consequences such as so – called ‘corrective rape,’ violence and exclusion are often visited on the lives of lesbian women who assert their own desires.

Lesbian artists have provided fluid representations of personhood which fly in the face of patriarchy. Pumla Dineo Gola writes that “[Zanele] Muholi’s work resists precisely such endeavours to name, tame and classify.” So does the work of filmmaker Cheryl Dunye whose Stranger Inside offers complex and affirming representations of black lesbian women. Wanuri Kahiu’s Rafiki is a Kenyan film that portrays the romance between Ziki and Kena. The film was banned by Kenya Film Classification board “due to its homosexual theme and clear intent to promote lesbianism in Kenya contrary to the law.” Kahiu sued the government and the ban was lifted. Kahiu and Muholi join part of long-standing tradition of artists documenting women loving women. There are many documented and undocumented practices which African scholars and writers have discussed. Ifi Amadiume’s 1987 work is seminal in documenting non – binary and heterogenous sexual practices. Same sex play and erotic attachments amongst Basotho women feature in the work of Kendall (1999.) Keletso Mafokane has documented same – sex sexualities and practices in Zimbabwe, Lesotho and Ruth Manga has written about subversive sexualities in Yaounde. Stella Nyanzi, Pumla Dineo Gqola and Frieda Ekotto write eye opening work. Sylvia Tamale’s writings are seminal and comprehensive, Makhosazana Xaba and HOLA Africa’s work also provide alternative representations.

Amina Mama encourages deviation by the scholar or advocate of African feminisms from outlooks which are “distinctly heterosexual, pro-natal, and concerned with many ‘bread, butter, culture, and power’ issues.” This deviation can be achieved through increasing and diversifying the archetypes of African womanhood to include #Lesbianvisibility.

Recommended reads

Coalition of African Lesbians Tool Kits

https://web.archive.org/web/20160303002020/http://www.cal.org.za/new/?page_id=68

HOLAA Africa http://holaafrica.org/

Queer African Youth Network

Tamale, Sylvia, 2011. African Sexualities: A Reader. Oxford, England: Pambazuka Press.

Ruth Morgan and Saskia Wieringa. 2005. Tommy Boys, Lesbian Men and Ancestral Wives: Female Same-Sex Practices in Africa

Keguro Macharia. 2015. “Archive and Method in Queer African Studies.” Agenda 22(1): 140–146.

https://www.tandfonline.com/doi/full/10.1080/10894160.2016.1146031?src=recsys#

Martin, Karen and Makhosazana Xaba, eds. 2013. Queer Africa: New and Collected Fiction. Braamfontein, South Africa: Ma’Thoko’s Books

McFadden, Patricia. 2003. “Sexual Pleasure as Feminist Choice.” Feminist Africa 2. http://www.feministafrica.org/index.php/sexual-pleasure-as-feminist-choice

Matebeni, Zethu. 2009. “Feminizing Lesbians, Degendering Transgender Men: A Model for Building Lesbian Feminist Thinkers and Leaders in Africa?” Souls 11(3): 347–354.

Nkabinde’s memoir Black Bull, Ancestors and Me: My Life as a Lesbian Sangoma

Interview with Zanele Muholi – https://l.facebook.com/l.php?u=https%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3Dz5IZEs_4ZmQ%26fbclid%3DIwAR0Bo4OmTC2gACwECVgd824j4dA-ku12omOyLCRafW_4MdQp6RZVkjBDZGw&h=AT0GiJS_j-zXczkkDbggKDcNzsSx5J4eh9EO_lDtehi9ie7219BjQAE7_MWFm7sFVyF7tev412dMlNzw674PtpenR5EIq0F0STSqmjpo7Oq-EKZamdzG3l5rXAfOEOoQhg

BETWEEN US: The complexities of Lesbians, Bisexual and Queer Women’s Organizing in Francophone Sub-Saharan Africa Case Studies Cameroon & Togo

Canaries in Coal mines: an analysis of spaces of LBGTI activism in Zimbabwe

http://theotherfoundation.org/wp-content/uploads/2017/02/Canaries_Zimbabwe.pdf

Baderoon, Gabeba. 2011. “‘Gender within Gender’: Zanele Muholi’s Images of Trans Being and Becoming.” Feminist Studies 37(2): 390–416.

Bauer, Heike. 2004. “‘The Hand That Stirs the Pot Can Also Run the Country’: Electing Women to Parliament in Namibia.” Journal of Modern African Studies 42(4): 479–509.

Böhme, Claudia. 2015. “Showing the Unshowable: The Negotiations of Homosexuality through Video Films in Tanzania.” Africa Today 61(4): 63–82.

Boy-wives and Female Husbands: Studies in African Homosexualities, edited by WillRoscoeand Stephen O. Murray

Chacha, Babere Kerata, and Kenneth Nyangena. 2006. “Globalisation of Sex and the Problematics of Gender Identities in Africa: From Human Rights to Women’s Rights to Sexual Freedom.” CODESRIA Bulletin 1–2: 29–36

Ekotto, Frieda. 2013. “For an Endogenous Critique of Representations of African Lesbian Identity in Visual Culture and Literature.” African Women in Cinema Blog.

Ifi Amadiume. 2009. “Family and Culture in Africa.” In A Companion to Gender Studies, edited by PhilomenaEssed, David TheoGoldberg, and Audrey Kobayashi, 357–369. Malden, MA: Blackwe

Alleyn Diesel” Reclaiming the L-Word: Sappho’s Daughters Out in Africa

Off the map: how HIV / AIDs programming is failing same – sex practicing people in Africa. https://outrightinternational.org/sites/default/files/6-1.pdf

Homophobia is unAfrican: #lesbianvisibility & Non Conforming sexualities in Africa “The heterosexist definition of the sexual act fits neatly into the dominant patriarchal definition of women as subordinate to men in every way, including and especially in the sexual sense” (Patricia McFadden)

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hellofastestnewsfan · 6 years

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In Alexia Arthurs’s new short-story collection, How to Love a Jamaican, identity is fluid but not frivolous. The book follows multiple characters of Jamaican descent either on the island or in the American locales that have become an approximation of home—whether that’s Brooklyn or Iowa. Some characters are content to remain in Jamaica, others yearn for more. Some who leave the island have found solace in their departure, others nurse a persistent nostalgia.

Despite its cheeky title, How to Love a Jamaican isn’t a didactic text. Arthurs, who has had her fiction published in The Paris Review and the Virginia Quarterly Review, never makes sweeping pronouncements about who Jamaicans are. How to Love a Jamaican, her debut collection, is neither a guide to the island nor an instructional for how to assess its people. Rather, the book insists on the diversity of its titular population, partly through Arthurs’s choice of format: By offering a series of short stories rather than any single consolidated narrative—whether fictional or anthropological—Arthurs complicates the very idea of a unifying national identity. She paints a disparate but not disjointed portrait of a complex national and diasporic landscape. To love any one Jamaican, Arthurs implies, you must first learn them.

It is, perhaps, a startlingly simple reminder: Geography may forge a people’s destiny, but it also shapes individual human beings in concert with a whole set of personal characteristics. Arthurs makes the case for her characters’ specificity repeatedly throughout the text. Still, it’s never a blunt, overbearing message. The vignettes ebb and flow at different paces because Arthurs’s characters do. In this way, How to Love a Jamaican enters a larger canon of literature by immigrant or diasporic authors whose stories function both as self-contained literary worlds and as mirrors of human ecosystems that precious few American artistic institutions invest in reflecting.

Following in a broader Caribbean literary tradition, Arthurs also infuses the book with familiar themes and motifs. Water both purifies and drowns. Mermaids are both warning signs and prizes. Arthurs immerses the reader, taking special care to re-create the sights, smells, sounds, tastes, and feelings of the island she calls home. In some stories, the reader can practically smell curry wafting through the air. In others, oxtail gravy might as well drip down characters’ chins. Mangoes are ripe; the sun sits high and mighty. The scenes transport the reader: For those familiar with the world these characters inhabit, it’s a trip home (or something almost like it). Even for those who may never have cracked a coconut or sung an unruly prayer, Arthurs crafts an extrasensory delight. How to Love a Jamaican is a world all its own—but it’s still connected to the one readers inhabit, to the country that birthed Arthurs. To parse some of the questions How to Love a Jamaican raises about national ties, familial connections, and shifting identities, the Atlantic staffers Hannah Giorgis and Lolade Fadulu discuss Arthurs’s book, the dangerous comfort of nostalgia, and the refreshing complexities of black-immigrant literature.

Hannah Giorgis: Lola, I’m so excited to talk about this book with you. How to Love a Jamaican feels like a deeply character-driven set of stories, but I was struck by how much nostalgia permeates the text. As the daughter of two immigrants (from Ethiopia, a sort of spiritual cousin of Jamaica), I definitely felt that in my bones. Did that resonate for you at all? To what extent does How to Love a Jamaican complicate the idea of identity as something fixed, something we return to as opposed to something we shape?

Lolade Fadulu: Seeing just the title of this book brought a smile to my face. My father is Nigerian, but I was raised by my African American mother and her Jamaican partner, Brooks. Every mention of oxtail, rice and peas, and callaloo made me yearn for my Florida home, where those types of meals and more were prepared almost daily. And the dialogues: I found myself reading them in Brooks’s voice. When it comes to complicating the idea of identity, Arthurs really comes out swinging. In one of the first stories, “Light-Skinned Girls and Kelly Rowlands,” she places two Jamaicans on a college campus in New York City. Kimberly has lived in New York City for her entire life, and was raised by a Jamaican mother who is still figuring out social media. Cecilia, on the other hand, was raised in the Bay Area by Jamaican professor parents who didn’t cook Jamaican food. Kimberly expects that they’ll be friends, before she even knows Cecilia’s background, just because they’re black. At first, Cecilia really disses her though.

Giorgis: You know, I didn’t love that story on first scan! It made me worry that the collection would be full of vignettes that each presented stock characters—the Self-Hating Jamaican versus the Authentic Jamaican—rather than fully realized individuals. It’s hard to consume work made by black and/or diasporic authors and not wonder how it’ll be received by audiences who don’t normally imagine that a Kimberly and a Cecilia could be radically different from each other.

Where that story starts to come together for me is in Arthurs’s subtle indictments of Kimberly’s entitlement to Cecilia’s friendship. The two may share a heritage, but that doesn’t necessarily grant Kimberly unmitigated access to Cecilia. Avoiding the romanticization of a shared identity can be difficult, but it’s something both Kimberly and the reader must do. Arthurs doesn’t judge Cecilia for wanting to transcend her Jamaican identity in college—the author just offers a glimpse of one way that a child of immigrants might attempt to reckon with the assumptions made about her during an especially formative time. As someone who can get a little obnoxious about my own immigrant-kid pride, I didn’t expect to find Cecilia sympathetic, but Arthurs really pulls that off.

Fadulu: I was surprised to see Kimberly and Cecilia actually build a relationship, but I was happy when they did. The way their bond started, when it did, was so organic—over Cecilia’s admiration of Kimberly’s art—and not forced, which, in some ways, is how friendships should start. As you said, Arthurs does a great job of portraying Cecilia’s desire to transcend her Jamaican identity but also of showing why Kimberly would feel so distressed by not at least having Cecilia in her corner on their predominantly white campus. And when their friendship disintegrated again, it made sense because Arthurs committed to their radically different personalities, political leanings, and overall interests.

Giorgis: But Cecilia and Kimberly aren’t the only fraught girls or women throughout the text. How to Love a Jamaican presents countless women who buck expectations of them—expectations held by their families, by Jamaican society writ large, by America. I love that Arthurs complicates the idea of “likable” women not by explicitly making an argument for brash behavior, but by presenting characters who rebel against imposed gender norms in ways both subtle and bold.

Fadulu: It’s definitely a collection that prioritizes the voices of grandmothers, mothers, and daughters. Several times, female characters throughout the book weigh their options: the route of marrying less-than-ideal men/having children/gossiping about unmarried women versus the path of exploring one’s sexuality/focusing on getting an education/perhaps never marrying or having children (what some folks may uncharitably call a “slack” lifestyle). The way Arthurs mulls over these decisions that women are often forced to make is refreshing; she never condemns the more “traditional” path. Instead, she spends more time on the repercussions of living what can be called a more progressive lifestyle. In “Island,” the narrator is subtly shunned by her best friends because of her queerness and misses out on the opportunity to share what she’s experiencing with her friends. Who can she tell that getting kissed by a woman feels normal? To whom can she explain this new form of sexual intimacy? How can she describe the freedom and happiness her girlfriend makes her feel, without actually talking about her girlfriend?

Giorgis: Those thorny questions are part of why “Island” might be my favorite story of the bunch. The queer Brooklynite protagonist finds herself back in Jamaica for the first time in years. “I always wanted to go to Jamaica as a tourist—to see the island as an outsider,” she muses. “Who doesn’t want to, at a certain point, be pampered in her own home?” You’re right that the story’s narrator isn’t wholly accepted by her friends and her community when they realize she’s queer—that she isn’t granted the space to celebrate this newfound part of her identity alongside the Jamaican-ness she’s always known. I appreciated that Arthurs writes this tension without pathologizing Jamaicans, or black people in general, as uniquely homophobic. Her narrator is fearful; after all, outside the confines of the resort where she’s arrived for a heterosexual wedding and befriended some other queer travelers, the country can indeed be a place of grave danger for queer people. But that fear isn’t conveyed for voyeuristically dramatic effect. It’s just one part of the narrator’s story. In these moments, Arthurs’s work is evocative of Marlon James (A Brief History of Seven Killings) or Nicole Dennis-Benn (Here Comes the Sun). Both authors left their native Jamaica in no small part because they feared homophobic violence. Arthurs doesn’t wash over that reality, but she also reminds the reader that it is not the island’s defining characteristic—and that it lives elsewhere, too. To me, How to Love a Jamaican is at its most riveting when its characters are making complicated connections. The book plays with the idea of what “love” itself can mean. Does loving a country require us to stay there? Does loving a relative mean we also have to like them? Does loving a child demand that we support them unconditionally?

Fadulu: Arthurs explores those questions in the context of grief, which makes sense given the introspective period that often follows the death of a loved one. Her characters, after all is said and done, constantly seem to be asking themselves, Have I made the right decision?

In “Mash Up Love,” a mother dies. One of her sons, the narrator, is quiet and thoughtful; the other, Cobby, is spirited and boisterous. The narrator never leaves the country; Cobby goes out exploring and adventuring. The narrator marries a Jamaican woman and stays by his mother’s side; Cobby embarrasses his mother by having a child at 16. If mothers do in fact have favorites, the narrator would definitely be it—at least on paper. But as she’s dying, she asks the narrator repeatedly for Cobby. When she dies, Cobby doesn’t even attend the funeral. This leaves the narrator wondering why he didn’t win the prize of her affection for never leaving. Ultimately, there’s nothing left for him but his grief.

In “Mermaid River,” a grandmother dies. Her grandson’s mind is flooded with memories of living with his grandmother in Jamaica while he’s commuting around New York City. The grandmother spent most of her life selling fish and other foods under a tree near a river with some of her girlfriends. She persists as the town gentrifies and as the river is rebranded “Mermaid River” and visited by tourists. He recalls one day in particular: He and his friend are playing marbles in the front yard when the friend asks who that “ole woman” is. It’s the first time the narrator is forced to think of his grandmother’s mortality. He spends the next day helping his grandmother with her business down by the river, and she tells him stories of how things used to be. But he doesn’t help out for long after that day and goes back to hanging with his school friends, playing marbles and cricket. Looking back, he feels guilty. Ultimately, again, he’s left with nothing but his grief. In both stories, Arthurs really shows how these complicated questions have no simple, clean, and painless answers.

Giorgis: “Mermaid River” bleeds with grief over the narrator’s grandmother, yes, but also over the river itself—and by extension, the country. Tourism, a form of foreign intervention, changes the landscape and texture of any country, and Jamaica is no different. Arthurs makes the human effect of the industry palpable through the loss that the narrator’s grandmother experiences. The story immediately made me think of Jamaica Kincaid’s A Small Place, a compact missive about the devastating effects of tourism and colonialism on the island of Antigua. Throughout How to Love a Jamaican, but especially in “Mermaid River,” Arthurs implicates readers whose primary knowledge of Jamaica is gleaned from stereotypical imagery of the Edenic island as a blank slate for tourists. To overlook Jamaica’s histories while swimming along its shores is to bury its people while searching for paradise. Asked about the sheer volume of grief and death in How to Love a Jamaican, Arthurs told Hazlitt, “I love that the imagination can put language and imagery to what is unknown and shrouded in mystery, like the nature of death.” To the immigrant, the process of leaving home is itself a mystery, a small and specific death. Especially given the impossibly high stakes of immigration policy at this exact moment, it’s hard not to feel heart-heavy when reading about characters—which is to say, people—who sacrifice everything only to meet a country that does not want them. So many of Arthurs’s scenes feel driven by the same sorts of concerns that animate black-immigrant households of all backgrounds. How do people retain the elements of their culture that matter most to them in a country that can make them feel as though their difference renders them unworthy of respect? How do immigrants from the Caribbean and the continent relate to one another—people who share their heritage, people who share their skin tone, people who share their sense of isolation? How to Love a Jamaican renders the many losses that immigrants can experience with an eye toward both the specificities of Jamaicans’ cultural realities and the broader connective tissue of migration and its effects. I’m reminded of The House on Mango Street by Sandra Cisneros, who is a dual citizen of Mexico and the United States. Or Behold the Dreamers by the Cameroonian author Imbolo Mbue. These books are beautiful, brilliant. They introduce us to characters who both reflect and challenge our experiences—as immigrants, as the children of immigrants, as humans. Like us, they defy simple categorization. How to Love a Jamaican is a joy to read not just because it reminds the reader of lives that deserve close attention, but also because it magnifies, with tenderness, the multitudes within an identity too often dismissed as singular.

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republicstandard · 6 years

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Liberal Nationalism? The Hypocrisy of Yascha Mounk

Yascha Mounk is an interesting chap. A political scientist, author, and Harvard lecturer, Mounk is obsessed with populism- or rather, he is obsessed with ensuring that his peculiar idea of what populism means is adopted as objective truth.

"We're trying a historically unique experiment: Transforming a mono-ethnic, mono-cultural society into a multi-ethnic one. That can work out. I believe it will work out, but naturally this will provide social distortions." -Yascha Mounk

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Mounk is not a populist, he is a globalist and a liberal- which is absolutely fine by me, the West has been built on the friction between ideas and free expression. That is why we are not totalitarians. However, Mounk is also dishonest and seeks to conflate ideas that he does not like together under the umbrella of 'populism' and reduce 'nationalism' to being just the civic identity of all nation-states- provided that state is not named Israel, but we will come to that thorny business later. With all due credit to Mr. Mounk, he does have a book coming out so you can see why he is so prevalent in the mainstream media talking about his ideas. We should be grateful that his agent is so diligent and that he has been so forthcoming, as the results are illuminating indeed.

In an interview with Haaretz, Feb. 21, 2018, Mounk said:

"Today, we face a trilemma of nationalism, democracy, and globalization. You have to find a way to make those three work together because you cant get away from nationalism and you don't want to give up democracy and globalization.

The key, says Mounk with an ironic smile, is... to give people a feeling they have a control over their lives and that your own nation has control over its destiny. In order for people to feel that they have to be convinced that they can live in a multi-ethnic and democratic society and still be better off materially and the liberal camp must learn how to embrace nationalism.

The idea used to be that we can get away from nationalism and substitute it with other things like social justice, and somehow people will learn to live without it. But when nationalism and democracy clash, nationalism wins."

This is a crucial part of understanding Mounk's perspective. He recognizes that some form of nationalism defeats democracy- but he is truly talking about two different kinds of nationalism in these three paragraphs. He begins with the idea of nationalism being an ever-present force, literally the glue that binds a nation together. He says that you cannot escape it, but that he doesn't want to give up on democracy and globalization. Well, I would suggest that globalization we can do well without and are in fact incompatible entirely with a concept of a nation- the very nature of free movement of people, free trade and free movement of capital requires that globalism dominates the rights of any nation-state or her people.

Mounk recognizes that the ethnic root of nations exists in a tangible way. He knows that the ethnic root of a people, this immortal tie forged over centuries, will always defeat a 'democratic' process that treats that ethnic identity poorly or is perceived to do so. We need only look at the rise in Black Identitarianism in the West to show this to be true- despite acquiring protected class status in legislation and not being discriminated against one iota by the democracy of the United States, the perception that this is so is enough for a wide-ranging ethnocentric movement that is immune from any accusation of racism thanks to the effect of the ideology of intersectional social justice on society at large.

Mounk smiles when he says that you have to give people the feeling of being in control of their own destiny- not that this is an inalienable right, not that people need this to be a free people, but that they only need to feel it is so. Again:

"In order for people to feel that they have to be convinced that they can live in a multi-ethnic and democratic society and still be better off materially and the liberal camp must learn how to embrace nationalism."

This is the reframe that Mounk is pushing towards. A liberal understanding of nationalism is, in reality, a co-opting of civic nationalism to be compliant with progressivism. To make this a reality, the frame of conversation will necessitate a re-definition of what nationalism actually is, away from the complex mix of ethnic identity and the civic identity that ethnicity defines for itself, and towards pure civics, the 'magic soil' which transforms every Turk into a German when his shoes touched the ground at Flughafen Dusseldorf and ingrained me with a thousand years of Balearic identity when I arrived here in Ibiza. What remains, the concept of a people who are identified more than simply the land they choose to live, the very real ethnic and racial bonds that exist between all humans to varying degrees in this great species called humanity, all this is to be swept up into a box marked 'populism' and there it will be spat at and denigrated for being racial bigotry with a political name.

In The New York Times, March 3rd Mounk wrote:

"There is a sizable number of Americans for whom the idea of the nation remains synonymous with whiteness and Christianity.

So long as nationalism is associated with one particular ethnic or religious group, it will serve to exclude and disadvantage others. The only way to keep the destructive potential of nationalism in check is to fight for a society in which collective identity transcends ethnic and religious boundaries — one in which citizens from all religious or ethnic backgrounds are treated with the same respect as citizens from the majority group."

'American' is both an ethnic identity and a civic status. If it was not an ethnic identity, then there would be no need for prefixes to describe the different races that are also American citizens, with all the same respects and rights as the majority group which are guaranteed under the Constitution of the United States. This being said, the nation of the United States is a former European colony, in the same way as South Africa and Australia. The American Dream is fundamentally a dream of European people, which through the civics of the American state defined by people of European culture and descent were eventually extended to all people of all creeds- but the idea is as fundamentally European in nature as the ideas of Aristophanes and Plato and Socrates are Hellenic. We cannot separate the development of civics from the people who created that civic identity, it's crazy to do so. The Aztecs had their own kind of civics particular to their culture that demanded human sacrifice, that was the practice of their citizenship. It sounds alien to us, but was human sacrifice just an idea that these people came up with in order to assure good harvests that they came to through scientific endeavor, or was it a product of generations of superstition and religion and culture?

The point is that it cannot be so that ideas are merely the product of a human mind, disassociated from everything that taught that mind how to think. Are there no Boers as a distinct ethnic identity? Do they not have a cultural identity? Ask any Boer and he will tell you he is a White African. Is it the destructive potential of nationalism that threatens this minority group with genocide and destruction, or is it the racist form of Stalinism adhered to by the ANC that demands the death of Whites and the expropriation of their lands by force? Mounk recognizes that you cannot transcend ethnicity through social programming- the past few decades of world history puts the lie to that idea. In this way, Mounk sees that to achieve his utopian ideals we must all be deconstructed and returned to tabula rasa. We will come back to the impossibility of a blank slate culture later on.

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In The Guardian, March 4th, Mounk writes:

"Politicians need to recover the will and the imagination to ensure that the fruits of globalization and free trade are distributed much more equally. And citizens – which is to say all of us – need to work even harder to build an inclusive patriotism that protects vulnerable minorities against discrimination while emphasizing what unites rather than what divides us."

The fruits of globalization are rotten. You can get drunk on fermented fruits, even squirrels know how to do that. Eventually though you sober up with a cracking headache, nausea, and you promise to yourself that you will never do something so stupid again. Like the alcoholic, Mounk staggers back to the bar for another pint of Open Borders and demands that you also drink from the same cursed cup. What fruits of globalization need to be distributed? Wealth? Is it wealth redistribution you seek, Yascha? Is it cultural enrichment? If this is your end you will need something stronger than just globalist evangelism. Mounk again deploys his technique of redefinition. Patriotism is no longer attachment to your homelands but is in fact the corruption of patriotic ideals entirely. Patriotism is already inclusive, and is available to all people. In America it is expressed already in the pledge of allegiance, in serving your fellow citizens as equals. That is the civic nationalist system implemented by European people's virtually everywhere they go. The vulnerable minorities are not defined by Mounk as to why they are vulnerable, but it is surely not the fault of an overtly civic nationalist society which proclaims 'We The People' if some people do not follow those ideals and feel excluded. There is no framework in which an entirely individualist sense of national identity exists.

As the late Christopher Hitchens noted when :

"For a writer to become an American is to subscribe of his own free will to a set of ideas and principles and to the documents that embody them in written form, all the while delightedly appreciating that the documents can and often must be revised, so that the words therefore constitute, so to say, a work in progress.

This was all rather well set out in the passport that I immediately went to acquire… Human history affords no precedent or parallel for this attainment. On the day that I swore my great oath, dozens of Afghans and Iranians and Iraqis did the same.”

Hitchens recognized that he and his other new Americans were subscribing not a monolithic ideology of Americanism, but a constitution that is a living system born out of the ideals of the Founding Fathers. As great a mind as Hitchens recognized that to adopt the American identity is to pay fealty to the ideas of the American people as a people in their lands as a requirement of entry through the swearing of an oath, while also taking part in that conversation as a new and welcome citizen. It is a beautiful thing, and a universal human experience in all lands where free people together determine their story.

This concept Mounk espouses of a more "inclusive" patriotism is therefore an abuse of language. It is subversive and assumes that rather than the newer arrival adopting the customs and ways of their new nation, the nation must bend to the will of the minority. That is madness and a recipe for utter annihilation of everything that is remotely good and pure in the world- and I mean pure as in ideals, not racial purity or anything like that. Mounk already believes: "There is a sizable number of Americans for whom the idea of the nation remains synonymous with whiteness and Christianity." This is what he hates. This is what he wants to divorce from the idea of patriotism itself, that the United States which was built on the values of Europeans and Christianity, for better or worse, must be torn down, for it is evil, though why it is so is not shown.

From Slate, March 8th.

"From Hugo Chávez in Venezuela to Jaroslaw Kaczyński in Poland and from Viktor Orbán in Hungary to Recep Tayyip Erdogan in Turkey, many populists around the world have remained sufficiently popular for a long enough span of time to concentrate vast powers in their own hands. Trump has some important commonalities with them. Like them, for example, he is a master at riling up his base with lofty promises of big improvements and urgent warnings about imminent dangers."

Mounk goes on to tar Orbán as a xenophobe, populism -regardless of stripe- as merely a factor of luck, and for some reason invokes the long-dead Chavez as the cause of all Venezuelan ills. What is interesting is what Mounk ultimately decides populism really is.

"While other populists also like to stir the pot with outrageous claims, the bulk of their rhetoric is focused on one goal and one goal only: to cast themselves as the only legitimate spokesmen of the people—and portray their nation as being under siege from both internal and external enemies. This is what Erdogan is consciously doing when he calls all critical journalists terrorists, what Orbán is doing when he claims that Soros has hatched a plot to make Hungary subservient, and what Kaczyński is trying to achieve when he insinuates that Jews are telling lies to use the Holocaust as a weapon against Poles."

Populism is not an ideology that is restricted to right wing or left wing politics, as Mounk recognizes. What Mounk does here though is reveal his own agenda through by what he considers to be most abhorrent about Erdogan, Orbán, and Kaczyński. The Turk Erdogan is bad because he does not like the critical press -and the press definitely has a point against Erdogan and his regime, though he is far from the Islamist he is painted to be by some he is still Ottomanist and authoritarian. I would probably agree with Mounk on his criticism of Erdogan alone, and I suspect that this is a deliberate tactic on Mounk's part. By including Erdogan in a description of populism also featuring Orbán and Kaczyński the term is broadened to include all manner of unpalatable ideas, and through this method, Mounk may attack President Trump as not only a populist, but also as an unsuccessful one.

"Far from showcasing the strengths of American institutions, the past years have demonstrated that a rank amateur can push them close to breaking point." My @Slate cover story assesses how dangerous Trump would be if he learned on the job. Please read.https://t.co/vLkmn7bsad

— Yascha Mounk (@Yascha_Mounk) March 8, 2018

Mounk makes no mention of Chavez at this point, perhaps the concentration of power that took place in Venezuela trampling on the press and the courts does not matter- after all, Chavez was a leftist. In any case, Mounk moves swiftly on to defend George Soros for being George Soros, and then on to lie about the nature of the debate in Poland about the Holocaust. I've already covered in detail my response to the smear campaign conducted by the Ruderman Family Foundation and Jewish journalists like Bradley Burston of Haaretz but once again for those in the back- Poland is not denying the Holocaust. Poland is not accusing Jews of anything- the same Poles take their share of responsibility on an cultural level already, that some of their kin aided the Nazis. So did some Jews. This is not a matter of debate, the records prove it.

What Poland has attempted to do -wrongly in my opinion- is to prevent the accusation that the Polish state had involvement in the Holocaust which is, unfortunately, an implicit association with the phrase 'Polish Death Camp' or such like. The attitudes from the Jewish media and the literary world towards Poles has been objectively racist for years but this does not matter to Mounk. Mounk recognizes very well that ethnic differences matter in this conversation- it is at the crux of his argument against it, as illuminated by his use of three nations that are essentially ethnonational in character, by virtue of their ethnic homogeneity in Poland and Hungary and the suzerainty of the Turk in the land that bears the name of their people.

When Mounk accuses Poland of accusing Jews of lying about the Holocaust, this is Mounk's own ethno-nationalist feelings coming to the fore. He is a partisan, a Jewish-American raised in Germany who rejected the German Philo-Semitism while claiming to also not feel Jewish nor German. With his negative experiences of being an outsider having a great impact on his identity, Mounk wrote

"I grew impatient with the endless complications of being a German Jew. I wanted nothing more than to be seen, finally, as an individual. And so, despite everything I loved about Germany, and unlike so many other German Jews, I decided to leave... My identity is no longer that of a Jew or a German. It is that of a seeker who has found; that of a stranger who has come to be at home; that of, simply and immeasurably, a New Yorker."

With startlingly Messianic words, Mounk explicitly rejects his Jewish identity with his deliberately written words, and expresses his natural and ingroup preferences towards his ethnic kin with his unintended missteps, thereby proving once and for all that his entire thesis is built on sand. It is an idea that lives in a vacuum of fantasy liberalism, that if we just teach people the correct manner of behaving, then all racism will evaporate- meanwhile Mounk cannot resist attacking another race of people for the perceived slight against the race of people he claims to feel no affiliation for. If Mounk was interested in the generation of a new liberalism that co-opts the positive aspects of civic nationalism and does away with the old and divisive ideas of creed and nationhood, of actual populism, then his lens would be universally critical and an engine of pure analysis, based in the spirit of academic inquiry and the search for an ultimate truth. I would still disagree with Mounk on those terms, but I could at least respect him for his opinion. This is not what Mounk has created. Mounk denies himself.

From the Haaretz interview again:

"On only his second, short visit to Israel, Mounk admits that he knows very little about the country and that as a political scientist, he prefers not to analyze the Israeli situation with the same tools he employs to analyze other countries.

In any discussion in which it is mentioned, Israel takes over. Once you mention Israel, you cant just do so in passing, he says. It can’t just be another example. There is such a complexity and so many emotions when dealing with Israel that either you write 20 pages or nothing at all. For a political scientist who is not an expert on Israel, the best option is nothing at all."

Well, that is very interesting, a Jewish academic who refuses to hold Israel to the same standard that he advocates for all other nations. Yascha Mounk claims no loyalty to Israel or even Judaism;

" Being free to construct my own identity has had an unexpected effect: I’ve come to realize that being Jewish is not particularly important to me after all. Sure, I enjoy “Seinfeld” and a whitefish bagel. But is that enough to make me “culturally” a Jew? I’m not convinced."

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Yet, when asked to apply the lens of his apparently expert knowledge in political science to Israel by a Jewish journalist while standing in Israel he refuses to do so, claiming the complexity of a nation that is theoretically less than a century old is too complex for anyone who is not an expert on Israel. But Yascha, I thought we were moving away from such backward ideas as populism or ethnicity? If we are, what makes Israel exempt from such a conversation if we are criticising the ethnic-pluralism of Poland and Hungary and Turkey- can you not take a guess at Israel? Are you an expert on the politics of Poland and Hungary and Turkey and Venezuela? Is it not the very antithesis of 'Liberal Nationalism' to build a giant wall to keep one particular people inside, separate from the rest? I do not hold a PhD in Government from Harvard University, perhaps there is some light that Mounk can shine on this apparent double standard for me.

It is my suspicion that Mounk recognizes that applying the same critique to Israel that he applies to other nations would be uncomfortable for him. Why is this uncomfortable? Because contrary to his own belief that he has created his own identity the truth is that this individual identity is based on our understanding of who we are and where we come from, as a people. The cultures we are raised in are extensions of this ethnic identity, the people who are mixed race experience a twin-cultural formation of identity also- it is utterly inescapable, and to deny it as Mounk does in the face of his own actions that disprove his ideas is simply bizarre. He is flying in the face of the observed reality of all human beings, falling into Lockean tabula rasa, ideas.

This idea about our existence that claims that we are all born into this world with no inherent tendency towards actions or behaviors, which is why Rousseau claimed that mankind had to learn warfare. The reality is that in some ways we are blank-slates and in some ways, we are not. We are blank slates as infants learning how to speak, to think, to draw, but the slate itself is not universal to all people, we each bear a slightly different ‘slate’ to begin with. That is the product of our genetics, directly from your parentage and further back in time from the rest of your ethnicity whatever that may be. There are of course certain traits that are shared by all humans, but over millennia of separation, we have adapted to our environments to produce babies with a marginally different slate to one another.

We know that this is so, even within our own distinct groups. In England in the 15th Century Sir John Fortescue wrote;

His igitur, Princeps, dum Adolescens es, et Anima tua velut Tabula rasa, depinge eam, ne in futurum ipsa Figuris minoris Frugi delectabilius depingatur

“Therefore, Prince, whilst you are young and your mind is as it were a clean slate, impress on it these things, lest in future it be impressed more pleasurably with images of lesser worth."

Teach the young well. That is all that is meant by Locke and Fortescue and Ibn Sina and the sages, who had no concept of what an ethnically diverse nation would even be. It is a universal understanding of humanity that we have known for centuries if not millennia and that has been proven by behavioral psychologists using twin studies and so forth that there is no such thing as a blank slate save for that slate which is contextualized by the people who made it. The blank slate of my people is an ethnic British infant. The blank slate of the Maori people is a Maori infant. Are the two completely interchangeable? Science tells us that they are not. Why does Mounk claim that an entire culture can be replaced with a blank slate ideology that we all decide to adopt en masse? Does that idea not necessitate authoritarianism and force?

There is nothing wrong in being any race or mix of races. There is nothing wrong with choosing to leave your own culture in search of another, to forge a new identity- but this will never be an identity forged of tabula rasa. My children will be English and Polish and raised in Spain- but they will not be 'Spanish' in anything other than a purely civic sense The ethnically distinct Ibicenco and Catalan people who are my neighbors recognize this. These citizens of Spain are proud Spaniards by and large, but do they not also recognize that they are not Galicians or Andalusians? The Andalusians and all the other peoples that make up Spain are of a similar mind- is that populism? Is that ethnonationalism? No, Spain itself is a civic concept, recognizing the distinct ethnicities that make up the state does not diminish the state in any manner- it is an enhancement, or so the theory goes and many Catalan separatists will disagree with me, and that is their prerogative- the very concept of a self-determined Catalan state has come around from the feeling within Catalonia that the interests of this self-identifying ethnic group would be better served if they governed themselves. Are they ethnonationalists? Racists? Bigots? It is not so hard to imagine then that even within an outwardly homogenous looking nation there are ethnic differences that transcend the ability for civic nationalist ideas to serve.

The point is that ethnic identity is simply reality. It is not bigoted or racist to notice this reality, and we must accept this reality if we as a species are to prosper and survive on Earth together. Mounk extrapolates blank slate theory and applies it to entire nations comprised of millions of people bearing very different identities on a fundamental level. In his future we are to be re-educated. We have to scrap the past, force all people to begin with a new blank slate, and define afresh what identity means.

"One problem that Israel does share with other countries, he notes, is that its history tends to bog down any conversation about its present and future. When confronting populism and nationalism, dealing with history is problematic. Especially as the migrant citizens don't have the same history, Mounk says.

One solution may be dwelling a little less on history. To change the narrative, he says, we have to be talking about the present and future of our national identities."

Yascha Mounk recognizes the importance of history but wishes to persist in the chalkboard globalism that he perpetuates through his role as Executive Director at the Tony Blair Institute for Global Change. The methods and ideas that Mounk spreads through the Guardian, the New York Times, Slate and Haaretz and no doubt at his Harvard classes are thus ignorant of history (and we know the fate of those who ignore history) and, worst of all, betray a perverse identity for me but not for thee attitude. Though Mounk is impatient to be seen as an individual, he is a hypocrite because he himself rejects individualism. He wishes to co-opt nationalism for progressivism which I would be remiss in failing to note would be a phenomenally dangerous idea. The concept of a national identity solely based on hard-left neo-Marxist ideology is one of the most heinous and wicked ideas I can imagine. Even so, Mounk recognizes he is to some extent identified with America, and Germany by the rite of his country of adoption and birth respectively, and Israel by virtue of his ethnic heritage.

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Therefore, the ideas he proposes are based on hypocrisy, they are based on lies, and they are designed to strip the identity from others that Mounk feels was denied to himself. “So long as nationalism is associated with one particular ethnic or religious group, it will serve to exclude and disadvantage others.” Yascha, either you advocate for globalism for all, including open borders for Israel, or you are the worst kind of racist and a hypocrite for demanding that these practices be employed in everywhere except Israel.If this is not the case and you believe Israel should receive special treatment, then why will you not say so?

I ask you Yascha Mounk- why is Hungary a xenophobic state by your own definition but Israel is not?

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