I think it's safe to assume that the title of Elizabeth Alexander's inaugural poem,"Praise Song for the Day," was meant as some kind of reference to some kind of"African" traditionalism. As the OED defines it, a"praise song" is"n. a laudatory song, a song of praise" and it goes on to note, parenthetically,"spec. in some African traditions." But that"spec." stands for"specifically" in a wonderfully unspecific way; after all, what is specific about"some African traditions"? This Encyclopedia Britannica definition has the same problem: it tells us that a praise song is"one of the most widely used poetic forms in Africa," which strikes me as a little like saying that"the novel" is one of the most widely used prose forms in the West. However true the statement might be, what's most interesting about the form is the irreducible heterogeneity within it which such a definition has, of necessity, to finesse.
The examples that the OED cites to illustrate the term's usages are symptomatic of this problem, I think. It's telling, for erxample, that the term would get referenced in a 1928"Sympathetic Study of the Magico-Religious Practices and Beliefs of the Bantu Tribes of Africa": while"Bantu" has often, historically, been a signifier of something like what people mean when they say"black Africa" (ever since liberal South Africans in the twenties transformed a linguistic category into a replacement for the derogatory"Kaffir"), it's fallen out of favor because it's still just a linguistic term being forced to refer to something it doesn't, quite, encompass. Transforming it into an ethnicity is a little like referring to George W. Bush, Hugo Chavez, and Mahmoud Ahmadinejad as"Indo-Europeans." They are, sort of, but saying so doesn't really accomplish anything.
You could say something similar about the term"praise song," since calling it"African" doesn't so much explain what it means as beg the question that it does. After all, is there really some irreducible commonality between a"praise song" in Botswana and a"praise song" in Senegal? And if there is, can we really call it"African"? Plus, while that first example of the term's usage is from that"Bantu Tribes" book, the other is from an 1886 novel about Norsemen and the sea. At the risk of re-stating the obvious, then, let me just point out that while the term often does get used to reference Africa, there's also nothing exclusively"African" about the practice of singing someone's praises.
To beat this point to within an inch of its life, let's look at the word"griot." While a"praise song" is somewhat disconnected from time or place by the fact that anyone who sings someone else's praises is, in some sense, a"praise singer," the word"griot" references something much more specific, a profession with particular West African connotations, even - possibly - connections to what Paul Stoller has called"deep Sahelian civilization." And singing praise is only one of the laundry list of things that a griot does; as Thomas Hale enumerates it:"They are historians, geneologists, advisors, spokespersons, diplomats, interpreters, musicians, composers, poets, teachers, exhorters, town criers, reporters, and masters of or contributors to a variety of ceremonies." Moreover, while Alex Haley's 1976 Roots established the term in the American consciousness as a sort of catch-all for African bards (and, more generally, the African genealogy that Haley used it to emphasize), Hale also points out that the idea of a"griot" is less tightly connected to any truly local African context than it may initially seem:"Societies that count griots among their various professions, however, have their own words to describe them: iggio (Moor), guewel or géwél (Wolof), mabo or gawlo (Fulbe), jali (Mandinka), jeli (Maninka, Bamana), geseré or jaaré (Soninké), jeseré (Songhay), and marok'i (Hausa), not to mention a variety of other terms." There are even multiple terms within most of these African language, and significant ambiguity within those terms themselves.
My point in all this is that terms like"praise singer" and"griot" seem to mean something that they don't, and can't, actually mean. They signify"Africa," but a generalized Africa that doesn't really resemble the un-generalizable diversity of the actual continent's heterogeneity. I don't want to put too fine a point on this; I'm not trying to blame the OED for the incoherent ways people use a term like"praise song," or pretend that a better definition could be found. But pointing out the impossible task of a dictionary definition -- the necessity of holistically embracing all the different ways a term gets used and adding up all the different ways its usages don't add up -- helps to illustrate the ambiguities within Alexander's reference: while the term"praise song" advertises the fact that there's something"African" about the poem, it's a form without real content, a reference to"Africa" which matches up very imprecisely with the local"Africas" in which Africans actually live. Clifford Geertz once referred to the way Oliver Cromwell could be called the most typical Englishman of his time because he was also the oddest, and this is the best definition I know for the category"African": an African is a person who defines what it means to be"African" differently than most other Africans.
I'm interested by the fact that the"Africa" which Alexander references is, in this sense, neither Luo nor Mandika, nor any other"local" identity, but rather a kind of generalized, imagined version of the continent as a totality. Alex Haley's Roots somewhat regretably gave Americans the impression that a tiny stretch of the Gambia could be a synechdoche for the entirety of the continent, and Alexander's reference to a"praise song" that we presume to be African relies on the same kind of leap. But I don't say this as criticism. What might be bad history or anthropology (neither Geertz nor Hale, I imagine, would have much use for"Praise Song" as a generalizable analytic category) could still be good poetics, and it is, after all, a poem we're talking about. Not to mention that her subject is not neither African culture nor African history; the poem was about the American present. Which is why, in asking what it means to be of African descent in the United States, the open question of the"praise song" is not such a bad way to get at the hopeful openness of the signifer, the extent to which - because it doesn't reference anything in particular - the future might not be foreclosed by who a person is, or is taken to be.
More concretely, because"Africa" is such an open signifier and because it's impossible to emulate a form without content, the poem's direct predecessors lie somewhere other than the Sahel. In the NY Times, Maya Angelou observed that Alexander"sings the American song...much like Walt Whitman," and this seems right to me: in both substance and form,"Praise Song for the Day" is a voyage into the kind of problem-space that Walt Whitman spent his career trying to think about (and Whitman himself, after all, was no stranger to the presidential praisesong). As did Whitman, Alexander asks how you sing a pluribus without losing the Unum, evoking the singularity of nation with a multiplicity of"types." Like Whitman, she writes the historic poetry of occasion through prose about the prosaic. And like Whitman, most of all, she seeks to imagine a national community linked by bonds of love and affection, transcending the diversity of heterogeneous particularities by the singularity of prosaic, lived citzenship.
For Whitman, these problems were the essence of America, but as unsolved contradictions they prompted the breezy assurance of"Do I contradict myself? Very well then....I contradict myself; I am large...I contain multitudes." It's a noble sentiment in a way; Whitman at his best was America at its best, a United States large enough to not only contain but also celebrate and sing its multiplicity. But Alexander's poem also feels to me like an argument with Whitman: for all the idealism of his poetry, he was better thinking about these ideals than in dealing with their actual practical manifestations. To be quite blunt, he liked the idea of black people being emancipated bettter than her liked the existence of black citizens: in the aftermath of the civil war, he also showed us America at its worst, writing things like this on the subject of race mixing (in 1888):"I don't believe in it - it is not possible. The n--, like the Injun, will be eliminated: it is the law of history, races, what-not: always so far inexorable - always to be. Someone proves that a superior grade of rats comes and then all the minor rats are cleared out." He could idealize certain kinds of difference, but some particularities of difference disturbed him more than even he was comfortable acknowledging (since he removed most of these references from his deathbed editions and published prose, for example).
Alexander's"praise song" is part of this traditions, too, I think. But whereas a variety of Whitman-esque poets have paid a lip service to a diversity which they didn't care to actually look too closely at, I wonder whether some of the thorniness of Alexander's poem isn't an attempt to think a little more carefully about how difficult is to actually contain multitudes, to take the problem of diversity more seriously that Whitman did, to talk not merely about music, but about noise. After all, the poem's rhetorical occasion was the kind of problem Whitman never had to face: how does one speak to the substance of a historical occasion from the historic position of exclusion which both the poet and its subject have shared? The election of a black president, after all, is a"historic" occasion because, until now, there's been something intrinsically hard to imagine about an executive swearing to"protect and defend" a constitution which still refers -- the fourteenth amendment notwithstanding -- to counting"three fifths of all other Persons." It's"historic" because it breaks with history; if"President Obama" is a game changer, it's because (quite literally) the rules of the game were originally written to exclude the possibility of him.
In this sense, I wonder if"praise song" isn't so much a stable description of the poem, as it is an ambiguous reference whose very ambiguity helps articulate the problem that Alexander faced in writing it: how does one speak, officially and historically, both about and from a position which has historically been officially defined by its fractional existence? Can one be both Whitman and African? Can one address the exclusion of the past without forgetting to sing the inclusion of the present? Can one praise the transcendence of history without forgetting that the past is never really past? I'm not going to try to judge how well Alexander's poem actually succeeds at doing this - though I think many of her critics have not tried very hard to actually read the poem - but I wonder if foregrounding the limitations of a term like"praise song" helps illustrate both the impossible problem of the occasion and the way the poem tropes on this very impossibility. After all, the task of"repairing the things in need of repair," or even of imagining how it might be done is not yet done; the poem's most memorable lines hinge on the problem of speaking, both of finding a place of safety from which we can encounter each other through words and of making music out of this noise, reminding us that the inauguration of a black president is a break with history not a revision of it, and a hopeful sign of things that might come, not their completion. There's a real bitterness in lines like"Say it plain, that many have died for this day," a bitterness that Whitman never felt or wrote about, but one which conditions the way it's possible to remember the forgottenness of the multitudes who"built brick by brick the glittering edifices they would then keep clean and work inside of." Yet just as the edifice's glittering doesn't make it any less built by the sweat and blood of people who couldn't benefit from their toil, neither does the bitterness of that toil make the edifice any less worth occupying. Alexander doesn't downplay this bitterness, nor does she let it overshadow the possibility of a American future voiced in the first person plural. It's both.
At the risk of reading too much into the poem, then, I wonder if the ambiguity of the title -- the unanswerable question of what"praise song" really means -- might be what helps it point toward the open possibility of a future not yet written. In its very lack of specificity, it might reference both a timeless African tradition and a Whitmanian optimism unhinged from history. It's Africa as that origin gets imagined in America - an inheritance which African-Americans work to re-invent - and Walt Whitman as he should have been, as even he knew he should have been. In other words, I wonder if the very lack of specificity which makes"praise song" a useless empirical term might be what allows it to reference a day when the complex diversity of Barack Obama's heritage would be what makes him most typical, where an American is a person who defines what it means to be"American" differently than most other Americans, and when race itself would be an open question that we get to ask and answer for ourselves.
Brad DeLong resorts to the apocalypse:
Q: What is the Geithner Plan?
A: The Geithner Plan is a trillion-dollar operation by which the U.S. acts as the world's largest hedge fund investor, committing its money to funds to buy up risky and distressed but probably fundamentally undervalued assets and, as patient capital, holding them either until maturity or until markets recover so that risk discounts are normal and it can sell them off-in either case at an immense profit.
Q: What if markets never recover, the assets are not fundamentally undervalued, and even when held to maturity the government doesn't make back its money?
A: Then we have worse things to worry about than government losses on TARP-program money-for we are then in a world in which the only things that have value are bottled water, sewing needles, and ammunition.
I have very little to say about the nuts and bolts questions at stake here; macro-economic predictions is certainly not my thing. But while he may be completely right or wrong about his measured approval for the Geithner plan, I'm (likeseveralothers) fascinated by the rhetoric of the statement, the way an entire area of inquiry gets located off-screen on the assumption that, if it were true, we have much bigger problems that render this one irrelevent. In the TV show House, MD, it isn't uncommon for our polymathic protagonist to instruct his team to assume that a patient's condition is not the result of the most obvious explanation, because if that were the case then the condition would be terminal and nothing could be done anyway. And in the context of that kind of diagnostic triage, it makes a kind of sense: assuming that the patient is suffering from a curable condition will produce the most likely favorable outcome.
But in this case, it's a bad metaphor. The US economy is not a patient, ontologically defined by whether or not it will live or die, and if you want to know what life looks like after a collapse, look at Zimbabwe right now, or any number of places whose economies have gone into strange unthinkable places: it looks a lot like life anywhere else, only worse. In short, it goes on. Which is why it simply makes no sense to bracket off one possible future just because it cannot, should not, better not be true. Something shifty happens if you grant, right from the start, that a very likely thing is not worth thinking about on the assumption that, if it is, the world is over. After all, predictions of the world's demise are an absolute staple of American cultural history, but they have, one hundred percent of the time proven to be exaggerated. We've heard this song before.
In this sense, while the old cliché that someone is"rearranging deckchairs on the Titanic" is a nice way to criticize people who prefer to rearrange deckchairs rather than address the iceberg, it's good to remember that the world is not a ship, ontologically defined by whether it is sinking or floating; the world is a place in which history has a way of going forward, even if those living in it have difficulty imagining how. Life always goes on, somehow, and maybe badly, but the character and dynamism of its continuity is of profound importance for those of us who want to live in the future.
Everything I've read suggests that it's quite rational to speculate that the majority of these assets might not be undervalued, that they really are close to worthless, and that we actually do live in a world economy that's just lost all four engines. But the difference between a controlled crash-landing, where at least most of the passengers have a good chance of survival, and pretending that the engines still work (because the alternative would be too dire to imagine) is extremely important, and needs to part of this discussion. If those engines are dead, we need to look for soft landings, rivers, empty fields, and think about getting people buckled into their seats. We need to review safety procedures, and radio ahead for ambulances. For those of us in this metaphor who are flying without parachutes, the question of what happens after the apocalypse can't get bracketed off.
Alex de Waal's Introduction which places the book in the context of Mamdani's larger work.
Sean O'Fahey offers both a useful introduction to the problem of ethnic identity in Darfur (and some criticisms of the theoretical approach Mamdani took), and offers some background on the importance of land issues in the conflict.
Bridget Conley-Zilkic writes about the conversation we are not having and asks if"historically and politically informed human rights advocacy in the context of (even in the aftermath of) extreme violence against civilian communities possible?"
Manuel Schwab argues that "Saviors and Survivors begins and ends making a case for what only a minority concerned with the conflict have been willing to say" and notes that"precious little literature coming from the activist community surrounding the Save Darfur coalition is sensitive to the complexities of what it might mean to think through a common Sudanese future, a dangerous side effect of the splitting of the conflict into clear victims and perpetrators."
Eric Reeves contends that"Mamdani does not know Sudan or Darfur well, has cooked his political narrative in advance, and in his inaccurate and over-generalizing attack on American Darfur advocacy largely ignores the enormously and deliberately destructive actions of Khartoum in Darfur"
Martin Daly finds Mamdani's argument to be persuasive, but bemoans (and carefully details) the"defects in his marshalling of evidence and the intemperance with which it proceeds."
Rebecca Marshall divides the book between the sections written by"Mamdani the Professor, and Mamdani the Provocateur."
Martin Daly, in writing about British administration in Darfur, argues that the book"misapprehend[s] or exaggerate[s] the role that Darfur played in British administrative thinking during the colonial period."
Alex De Waal's "Civilizing Projects, Tribal Administration and the Color Khaki" agrees with the letter of Daly's critique, but illustrates how that"the future of Sudan—and Darfur—was shaped by how colonial ideas of society were adopted by Sudanese rulers," and that it"was a reconstituted and sharpened version of the colonial trap, designed and built by the radical Islamists and their security chiefs which snared Darfur."
Semhar Araia has a round up of a debate at Columbia University between Mamdani and John Prendergast.
While G. Pascal Zachary applauds Mamdani's critique of the Save Darfur coalition's willingness to use African suffering as a product to sell to Western consumers, he worries that Mamdani also"subordinates Darfur to a broader set of stories he wants to tell about dysfunctional American power in the world, about misunderstood Muslims, about an Africa violated by Westerners from every point of the political spectrum."
Kevin Funk asks what Darfur has to do with the war on terror.
Arguing that"all those simple ordinary people weren’t just killed by the forces of history or the mistaken racial theories of some long-dead British colonialist," Abd al-Wahab Abdalla castigates "Mamdani’s lack of sensitivity to the suffering of the Darfuri people and his readiness to give the benefit of the doubt to their oppressors."
Alex de Waal writes about emancipatory American exceptionalism and the manner in which that"the ‘war on terror’ and the call for halting genocide by (principally American) military intervention possess a comparable moral logic."
Adam Branch draws out Mamdani's brief comparison between northern Uganda and Darfur to"argue that another, equally dangerous dimension of Western interventionism is on display in Uganda, where a militarized security state is not undermined, but promoted in the name of human rights, with detrimental consequences for democracy, self-determination, and peace."
Louisa Lombard situates Saviors within Mamdani’s larger oeuvre, noting that his emphasis on a"methodological shift away from area studies" makes his ambitious project one of locating"the horizon above and beyond 'the facts' of specific contexts...his methodology entails a process of instrumentalization and interpretation of facts through which the details that do not fit the argument tend to fall away." Criticisms of his factual errors, she suggests, are necessary but not ultimately as damning as they have been framed as being" they"turn a microscope on Mamdani’s binoculars."
Finally (and note that this debate is ongoing), Mamdani responds to his critics, in the first of three pieces:
"The first post – this one – will respond to questions regarding the scholarship in the book [and factual inaccuracies/typos identified by some readers]. The second posting will discuss questions about the ideas, practices and politics of the Save Darfur movement. The third and final posting will focus on the way ahead, including how to respond to the suffering of the people of Darfur, and to the politicization of key identities [victim, perpetrator, survivor]. I hope to do this in a way that may contribute to taking the discussion forward, rather than freezing it in a defensive posture."
For one thing, Gates clearly could not have been arrested for breaking into his own house, and not only because it is logically impossible to do so. And at no point does the arresting officer assert that suspicion of that sort played any role in Gates’ arrest: from the moment that Gates shows his identification (and the officer accepts it), it is clear that the charge of burglary is off the table and that the situation has become something somewhat different. So let’s look closer. In the officer’s police report, Sgt. Crowley writes:
“Due to the tumultuous manner Gates had exhibited in his residence as well as his continued tumultuous behavior outside the residence, in view of the public, I warned Gates that he was becoming disorderly. Gates ignored my warning and continued to yell, which drew the attention of both the police officers and citizens, who appeared surprised and alarmed by Gates‘ outburst. For the second time I warned Gates to calm down while I withdrew my department issued handcuffs from their carrying case. Gates again ignored my warning and continued to yell at me. It was at this time that I informed Gates that he was under arrest.”
What happens in that magical moment? What strange and wondrous transformation was occurring as the well-meaning Sgt. Crowley reports to Gates that, before his very eyes, “he was becoming disorderly”? Surely we require the hand of providence as explanation.
More prosaically, Touré puts it this way: “why did the officers find it necessary to arrest a man who was in his own home and who had not posed or made a threat to them? The worst crime in the police report is Gates yelling at an officer who was telling him to calm down. Is that a crime?”
I think this is an important question. I’ve been unscientifically reading a lot of the blog commentary on the event (here, here, here, here, here, and especially the 2k comments here), and while trying to extract anything meaningful from the verbal overflow of an overly fecund comment thread is a hopelessly misguided ambition at best, I’m struck by a general failure to recognize that the event stinks in more than one distinct way.
This is what I mean. The episode pretty clearly begins with a racist indignity, and most people clearly recognize that fact: though the 58 year old Gates walks with the assistance of a cane -- no one’s idea of a burglar -- the fact that he is a black man apparently makes him sufficiently like the profile of a burglarto overcome the counterintuitivity of a man who has undergone hip-replacement surgery scrambling through windows and jimmying doors. And such profiling, to the extent of forcing a homeowner (who actually answers the door) to provide identification papers inside his own home, is an indignity, and a racist one.
But what then? The situation could have ended there, and we should think carefully about why it didn’t. After all, neither Sgt. Crowley nor Gates wanted this particular outcome. So why did it happen that Gates, plausible suspect of no recognizable crime, was taken into police custody? Part of it, of course, is Gates’ own actions. I’m not trying to blame Gates for the fact that his choice to be “tumultuous” (whatever that means) certainly was part of the equation; even if all he did was demand the officer’s badge number (as his lawyer’s account has it, and as it was his right to do) and even if there was no “yo mama-ing” involved at all (as the officer claims), it seems hard to imagine that he couldn’t have kept his cool in a way that would have kept him out of bracelets. Which is simply to say that Gates had a choice, albeit a choice between two indignities: either he could be the big man (“yo mama!”) or he could be the bigger man (either"over come 'em with yeses, undermine 'em with grins, agree 'em to death and destruction” as the Invisible Man’s grandfather advised or the kind of struggle through restrained passivity that the civil rights movement was all about are choices).
But then, to say that he had a choice is not to blame Gates for choosing wrong or something; in fact, being limited to this kind of choice is precisely another kind of indignity, since it puts the burden on Gates to fix the officer’s mistakes. And I’m struck by how many unsympathetic commentators essentially fault Gates for acting like most people would act in that sort of situation; after all, when angered and frustrated, most people tend to act angry and frustrated. Yet people given the choice of indignities that Gates had to choose from precisely don’t have the luxury of acting like normal people; they get the choice, instead, to either swallow other people’s crap or to suffer for their refusal to do so.
In this sense, when Gate’s detractors on the uglier comment threads suggest a class narrative (just another uppity professor from Hahvard lording it over the hard-working, much put upon beat cop), I think it’s precisely to avoid having to follow down this line of thinking. But while it’s true that Gates would have more social power than our blue-collar Sgt. Crowley in a few circumstances, this was certainly not one of them. You could as plausibly say that Gates was the victim of a home invasion by an unwelcome police officer, whose misguided accusations he has to endure, whose unreasonable demands he has to respect, and to whose authority he is eventually made subject. After all, while he is eventually made the perpetrator of a public crime, Gates only goes outside of his house in the first place because Sgt. Crowley tells him to, a desire which, as SEK notes, is the black box in the officer’s account (“if he had not, he couldn’t have arrested him).” SEK:
[Gates] was charged with a crime against chastity, morality, decency and good order:
“Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure.”
The only one of those that applies to this situation would be disturbing the peace, which is difficult to do from inside your own house. Except that’s not what the officer accuses him of:
“Due to the tumultuous manner Gates had exhibited in his residence as well as his continued tumultuous behavior outside the residence, in view of the public, I warned Gates that he was becoming disorderly.”
At what point does mere tumultuousness become criminal disorderliness? Moreover, given that “tumult” refers to the “commotion of a multitude,” Gates must have literally been beside himself.
More than that, though, while the choice itself is a kind of imposition (and the choice to either suffer silently or suffer more for refusing to suffer silently is sickeningly familiar for anyone who knows African-American history even a little), most commentary has framed the event so as to emphasize Gates’ choice and agency, talking about what he should have done once the initial confrontation passed and allowing the officer’s own agencyto simply disappear from view (Henry’s Crooked Timber post is an exception). But why couldn’t the officer be the one to suffer indignities in silence? If Gates had the choice to suck it up and swallow his pride, certainly so did Sgt. Crowley, and Crowley -- unlike Gates -- gets paid to swallow his pride.
Which is to say, I think it’s interesting (and symptomatic) that the internet commentariat has accorded such a healthy degree of scorn to the notion a professor is due a measure of respect and would go a little unhinged when subjected to this kind of indignity -- what a snob! -- but the idea that a policeman’s mis-steps should, as a matter of course, be glossed over -- that Gates clean up his mess, essentially -- has so many times and in so many places asserted as if it were a simple given. After all, while I can appreciate the practical wisdom of treating a cop with a gun like the dangerous animal he might turn out to be, this kind of healthy caution can be pragmatically necessary without being at all consistent with any sense of what a policeman should be. What concerns me, in other words, is the unspoken movement from a practical recognition that personal self-interest might necessitate excessive self-control (if one wants to stay out of jail anyway) and a more pernicious sense that it was Gate’s responsibility to do so, that whatever power does is justified.
The best way of reading the situation for Crowley, after all, would be to assert that it was simply Lucia Whalen’s phone call that put him in this situation and that he otherwise behaved like a saint. That might even be almost true. Certainly what started the whole thing in motion was her bizarrely misguided tip to the police that a break-in was in process, and even if Crowley exacerbated the situation by demanding multiple forms of identification from an obvious non-burglar, he did have a responsibility to investigate the situation, which put him, at best, in the uncomfortable position of interrogating the supposed crime’s victim. But even if that were the case, the fact that Gates takes the rap for her idiocy is a complete non-starter: when a bad tip leads a police officer to abuse an innocent, even inadvertently, surely the solution to that original misstep isn’t to abuse the injured innocent even more, is it? If Crowley knew that Lucia Whalen was the original caller (as his report indicates he did), she should have been called into the conversation immediately, either to confirm that the less-than-spry Gates was not the burglar she had reported or to take on the burden of accusation. The point where Crowley took it on himself to presume Gates to be the perpetrator (and especially when he followed Gates into his house) is where his police work became incredibly shoddy.
So this, then, is the question: when a police officer is in the wrong -- and the absolutely most charitable interpretation of the situation is that Crowley was in the wrong, but that it wasn’t his fault -- whose responsibility is it to clean up his mess? Is it the responsibility of Gates to suffer indignities in silence? Or is the officer’s responsibility to earn his pay and suck it up? Obviously, my feelings are clear, but it’s worth pointing out that this is less a question about race than about the relationship between citizens and the state, since, in a democracy, I have the idealism to imagine, it shouldn’t be the aggrieved party. Yet it was, which is why the joke I began with is not completely a joke: when Gates was arrested, he became the sacrificial scapegoat atoning for the officer’s blunder, for by magically transforming Gates’ indignation into a threat against the public, Crowley was able to make his own choices disappear, and to displace responsibility for the entire situation onto Gates himself. And this is worrying. When the instruments of state authority exonerate their own screw-ups by making their victims pay the price -- and especially when citizens express their approval -- we should be, if not surprised, at the very least worried.
He asks “What should the mission of a truly modern African-American Studies department be?” and then spends the rest of the piece complaining that all African-American Studies departments do is complain about racism. In his words: “the answer common in such departments is that the principal mission is to teach students about the eternal power of racism past and present…too often the curriculum of African-American Studies departments gives the impression that racism and disadvantage are the most important things to note and study about being black.”
Constructing this straw man of African-American studies allows him to make sure that when he gets around to asking “whether this, for all of its moral urgency in the local sense, qualifies as education under any serious definition,” the answer can hardly be anything but no. Which is why, even though I don’t particularly disagree with his argument that the black conservative tradition is important and should be included and studied rather than dismissed, I’m disgusted by the extent to which he gets to that point by saying preposterous things about what actual African-American studies departments actually do; there is an argument to be made for increased attention to the black conservative tradition, after all, but this kind of intellectual dishonesty is not it.
Most of his examples come from what he calls “the curriculum of one African-American Studies department in a solid, selective state school west of the Mississippi,” a department where, as he puts it, “racism is, essentially, everything.” If that were true, if this curriculum in this unknown school could so easily be summarized in a one-sentence rehearsal of demonology, then maybe McWhorter has a point. But how can we know? By withholding the name of the school, we’re forced to take his word that this description is accurate.
Luckily, google gives us the means of checking his work quite easily and, with the same joy with which I discover students who have plagiarized papers from the internet, I found within minutes that the school was UC Santa Barbara, and quickly found a full version of the curriculum that so incensed Mr. McWhorter right here. I would encourage you to click over if you want to see what a disservice McWhorter does to them, how basically he oversimplifies what is done in that department, omitting notice of everything that doesn‘t fit his caricature. For example, how does a class like “The Black Family in the United States” fit into his account? Perhaps he would like us to think that “Particular attention will be paid to the various forces that have influenced the structural and behavioral aspects of family life among Black Americans” is code for “Kill whitey cuz racism.” I could go on, but it’s just too easy; the idea that a handful of classes on black radicalism indicate a “fetishization of radical politics as blacks' only constructive allegiance” is simply disingenuous, and it took all of three minutes to see how false his attempt to extend this as a generalization about the entire curriculum is.
I emailed a few of the professors that taught the classes he pilloried, and Janice Madden, an economics professor at Penn, was nice enough to describe her course on"Racial and Sexual Conflict" to me, which he takes to task (again, without naming it or her specifically) as an indoctrination machine. For McWhorter, it is not enough that a hypothetical student in her class could write a term paper on “what people have done to get past obstacles”; instead, he bemoans the fact that the “material covered in this course gives precious little support to such an endeavor.” I’m trying not to put too much weight on the fact that while McWhorter bristles at the observation that racism and sexism even exist, he apparently views as impossible the obstacle of a professor who doesn’t actively encourage students to write a particular kind of paper and then spoon-feed them the resources to do it. That’s because it’s much more important to note how fundamentally off-base McWhorter’s characterization of the class’s purpose actually is.
McWhorter frames Madden’s course as “purporting to teach America's brightest and most ambitious students about urgent realities” and I take that to mean he expects it to be a course teaching young black students how to succeed. If the course were this kind of how-to seminar, if it were about teaching the students themselves how to succeed, then perhaps the literature he cites would be appropriate. But Janice Madden sent me a copy of her syllabus (the same one he saw, I’m sure) and both made it clear that hers simply isn’t that course. Madden is an economics professor, and so, unsurprisingly, her course teaches her students how to doeconomics. In her words, “the course uses neoclassical economic theory and quantitative or empirical statistical studies” to address a disciplinary question: how “to sort out empirically and statistically the influences of differences in worker characteristics from the influences of current discrimination on racial and sexual differences in employment outcomes.” Teaching students how to do economics -- how to use economic theory and apply empirical data to a problem -- would seem to be a useful thing to teach students taking an economics class. And the emphasis, in that sense, is as much on how to use economics to solve a problem as on the problem itself. And the class not only doesn’t presume discrimination as an all-powerful plague on black people, but the entire point of the class is to question and analyze the extent to which it is. In other words, since the point of the class is to use economic theory and statistics to determine the extent of discrimination, the possibility of the kind of answer McWhorter wants is practically built into the question.
It seems telling to me, in fact, that his version of her course is the much more political one; while he wants her to teach her students “about urgent realities,” her course actually teaches them to ask smart questions about those realities and to then use economic methodology to find answers. Madden, in other words, is setting out to do what an economics professor might very reasonably be expected to do: teach her students how to do economics. And in her email to me (and after reading her syllabus), it seems very clear to me that this is what her course, in fact, does. In her words: “none of these choices about what is included is about a"political slant" but rather a disciplinary one. I make clear in my discussion of the term papers that the students must cover ALL perspectives on the topic they address and are NOT to write an advocacy piece…As an economist, I think it fair to focus on the economics literature and on the issues that economists of all political stripes address in that literature. A sociologist would no doubt teach different topics and use a different literature, as would a political scientist or a historian.”
Were McWhorter actually interested in the state of African-American studies, I imagine he would be above making cheap polemical points off of selective misrepresentations about the truth. But one of the responses I got from a UCSB professor said it all to me:"We know who he is…and what he stands for."
But it also seems to me like the conversation that's been going on so far about the UC system has been hamstrung by a lot of uninformed assumptions about how the UC administration comes to have the authority it does, and what their relationship is with"Sacramento," the town no one seems to like. One of the common myths about the UC system crisis, in fact, has been that “Sacramento” is the real villain, and that protesting the UC administration is a waste of time. The administration itself likes this one; they like to send us emails urging that the legislature is the actual problem, because they're the ones who have allocated less money to the University system (leaving the administration holding the bag). Instead of occupying the Office of the President of the UC system, therefore, students should really be protesting politicians in Sacramento.
This seems to me to be both wrongheaded and misinformed. The president (and the regents who appoint him) are Sacramento, while the university community itself has not only had very little role in the massive top-down restructuring of the university that got under way in July, but they have been quite actively shut out of it, by the Regents and by President Mark Yudof, who are doing the job Arnold Schwarzenegger appointed them to do. Which is to say, when students from the university protest against the regents and the President, they are protesting Sacramento. The legislature in Sacramento may have created the problem by cutting funding for higher education, but it’s the representatives and appointees of our Sacramento-based governor who have turned the problem into an opportunity to privatize higher education in California.
This is an important point, because -- and this needs to be emphasized -- the scandal of the administration’s conduct is not the fact that they’re cutting services while raising fees, at least not in and of itself. In bad economic times, some kind of response is necessary. The scandal is that Mark Yudof and the regents are using the crisis of the moment to push forward a plan to privatize the UC system that has long been in the works and is geared to be permanent. And they are doing it by assuming “emergency powers” which allow them to arbitrarily overturn the precedents and policy that would otherwise explicitly prevent them from doing so, everything from caps on the amount that student fees can be raised to the contracts they’ve signed with university employees to the “Master Plan” for higher education that the state of California established fifty years ago. So if we want to talk about “Sacramento,” then let’s do so. But we need, then, to talk about two things: first, how the Republicans that run California through the governor’s mansion have been trying to privatize the state’s public education for a very long time, and, second, how the regents and Mark Yudof have been using the rhetoric of “crisis” to push that agenda through, bit by bit and step by step, replacing the UC’s traditional system of shared governance with a system of top-down corporate management.
"There is a saying, 'A crisis is a terrible thing to waste,' and that is my view"…some things we probably should have done 10 years, five years, 20 years ago may get done when you have a crisis." (Mark Yudof, May 8, 2008)
But who is Mark Yudof? And who are the Regents of the University of California who appointed him? You can check out their bios here, but I’ll give you the rundown as I‘ve pieced it together. There are 26 official regents who can vote, one of which is a student. But while they always list the student regent first to emphasize campus representation, don’t kid yourself: that student (Jesse Bernal) may have voted against the fee increase on Nov 19th, but he was the only one who did so. That’s how well represented the students are. And in any case, it’s the regents themselves who select and appoint that student for his or her one year symbolic position. At the same time, it seems less symbolic that the chair of the committee who selected next year’s voting student is Regent Paul Wachter, “the founder and Chief Executive Officer of Main Street Advisors [a financial advisory firm which] provides a wide range of financial, strategic and asset management advisory services to a select group of high net worth individuals and companies.” While not a representative of the campus community, he is however completely characteristic of the regents as a whole: instead of the university system itself, they overwhelmingly represent the private sector.
It is therefore important to notice that Wachter is only one of the eleven out of eighteen regents that Schwarzenegger appointed to twelve year terms (plus two more who will be replaced by Schwarzenegger before the gubernator’s term of office is over). Of the remaining seven voting regents, one of them is Schwarzenegger, one of them is Mark Yudof, and the others are the state’s Lieutenant Governor, the Speaker of the Assembly, the Superintendent of Public Instruction, and president and vice president of the Alumni Associations of UC. Since a voting majority of the Regents were directly or indirectly appointed by Schwarzenegger, all the lines of authority here lead you back to the governor’s office in Sacramento, a place where -- and this may shock you -- the idea of a public institution of higher learning is not held in great regard.
And that’s what at stake here. As Keep California’s Promise nicely put it, “the debate over higher education should not be framed as a debate over how to allocate scarce state resources during difficult times, but as what it actually is: an ideological debate over the nature of higher education.” I agree.
While higher education policy in California has traditionally been guided by the Master Plan for Higher Education, the assumption guiding that document -- that the state had a responsibility to educate the state’s citizens -- is being steadily replaced with the idea that the university systems are on their own, that the necessary money will be provided if it is available and if it is not, then tough luck. As Keep California’s Promise notes, this shift was first explicitly codified in 2004, when the UC signed an agreement (Higher Education Compact) with the governor to shift its revenue structure away from the state general fund and onto private sources (such as, for example, student fees). In short, compromise a little on the principle that the state was responsible for all the university’s core functions, and get, in return, the promise that state funding cuts would be, if substantial, at least predictable. This was a compromise that happened under a certain amount of duress: Schwarzenegger was threatening massive cuts, and since budget minded officials saw the present crisis coming, they thought that the Compact would protect the UC and CSU systems from larger cuts in the long run if they compromised in the short term. Had this held true, it might have been a wise decision. But it hasn’t; as KCP puts it, “when the budget crisis came in 2008, Governor Schwarzenegger simply walked away from the deal.”
But the larger issue is simply whether or not the state has a responsibility to provide for the core functions of the university. The 2004 compact committed the university systems to “maintain quality” by “seek[ing] additional private resources and maximize other fund sources available to the University to support basic programs,” the first time the general principle was accepted that the state’s public university system would have to look elsewhere than public coffers for its “basic” needs. Private sources of income and student fees used to be peripheral to the system’s revenue structure, which were to rely on state funding to do the job the state gave it to do. Such sources of income are now, according to the compact, to become increasingly central, which means the university system will be less and less beholden to a public mission (educate students) and more and more beholden to the bottom line.
This is also what is known as “privatization.” The real question is whether California higher education is a public good, a public trust, and a public responsibility, or whether it’s simply a private good to be paid for by its customers. We’ve learned what Schwarzenegger’s answer to that question is. And Mark Yudof has pretty consistently indicated that he has the same answer. Here, for example, in one of his many “no, I really am pretty much as bad as my critics say I am” moments, Yudof admits that educating students is not the “business” of the university:
“Many of our, if I can put it this way, businesses are in good shape. We’re doing very well there. Our hospitals are full, our medical business, our medical research, the patient care—so we have this core problem, who’s gonna pay the salary of the English Department? We have to have it, who’s gonna pay it and Sociology, and the humanities, and that’s where we’re running into trouble.” (Mark Yudof, November 20, 2009, via EotAW)
If you wanted to give Yudof the benefit of the doubt, you could say that he’s simply the man in the middle; Sacramento is cutting funds, and as the UC president, he has to deal with that somehow. There is a small bit of truth to this: while the public university system has a few profit earning sectors (medicine, to hear him tell it), it is also true that teachers have salaries which have to be paid somehow. But since when were public universities in “business”? Since when do you start with the portions of the university which hire themselves out to private corporations and then complain that the English department hasn’t done the same effectively enough? If your basis for comparing what works and what doesn’t about the university is profitability, then you’ve basically conceded the argument over privatization from the start.
It now becomes appropriate, then, to note that Yudof has done exactly this. His vision of the university can be found in an article he wrote for Change magazine in 2002 (Higher tuitions: Harbinger of a Hybrid University?”), in which he made predictions that he himself would eventually be empowered to fulfill:
“for the foreseeable future, public research universities will look to students to pay more of their educational costs. These students will be part of what has been dubbed the hybrid university, an institution with many traditions and functions still within the public realm, but with other characteristics that are more in line with those of private colleges and universities.”
This is, of course, a self-fulfilling prophecy. Every time the UC system finds new sources of funding for state cuts, it encourages the state budget makers to believe that those cuts were acceptable, and suggests to them that more cuts are possible. And while Yudof and the chancellors talk a good game about how “we” need to stand up to “Sacramento,” they fundamentally undercut their own argument when they start with the presumption that Sacramento will do whatever it pleases, that it has no responsibility to fully fund higher education. When Schwarzenegger broke the compact he made with the UC system in 2004, he paid no political cost for it, partly because people like Yudof had conceded years ago that the state would and could cut funding whenever it pleased. It’s hard to ask for more money, after all, when you’re already on record talking about the inevitability of less money.
This is why it’s important to remember that Yudof was appointed by Schwarzenegger, the man who wrote the budget. Yudof is Sacramento. He was hired precisely so that he would never actually stand up to Schwarzenegger in any meaningful way. And why should he? He likes to talk about how he’s a lawyer from Philadelphia who got into education by accident (here and here), so why would anyone expect him to put the good of California students above the wishes of the people who appointed him to his position? I certainly don’t.
But this just underscores why the rhetoric of “crisis” is so pernicious. For although it’s true that the state’s finances are bad right now (and if you want to understand why that is, a good place to start is Louis Warren’s account of how a minority of republican legislators have held the state’s finances hostage), the current recession is only making an already very bad situation much worse. The UC system is not beset by a sudden, unexpected crisis; what is happening now has been going on for years, long before the current recession hit, and the system has become insolvent because its fiscal stability has been basically undermined from within. Yet while the current recession can be expected to subside eventually -- the crisis of the moment will pass -- the actions being taken by the regents are not temporary responses to a temporary crisis but are fundamental, permanent restructurings of the university system as a whole. In other words, if this were simply an “emergency” our economy would eventually return to normal, but our university system will not.
Which is why we need to very carefully distinguish between “emergency” and “insolvency,” and as the CUCFA argues here, the situation is the latter:
“The proper analogy is to enterprise insolvency. Indeed the Regents are a corporation with a special relationship to the State to administer the public trust that is the University of California. A corporation that can't pay its bills can reasonably ask employees (and then other creditors) to accept payment at a discount rather than shutting down. The next step is bankruptcy, which takes place under court—and public—supervision. When this happens, stakeholders are entitled to know what other resources the enterprise has, and to demand that all these resources be made available to resolve the situation. A bankrupt enterprise cannot say, as President Yudof has recently done, that “It’s important not to take money from enterprises that are really entrepreneurial.” A bankrupt enterprise loses the autonomy to protect its profitable parts.
“It thus makes no sense to talk about prolonging a crisis of solvency such as UC faces. To the extent that financial “emergencies” are prolonged, they open the way for huge windfalls (salaries and bonuses) in the still-profitable parts of an enterprise, and create an incentive to drain resources from the money-losing parts, which in UC’s case is public higher education. UC has all-but-said that this situation will be its new normality by proposing a renewable financial emergency. This would be like slow-motion bankruptcy – without supervision to protect the rights of stakeholders, and without the need for eventual restructuring and liquidation of activities that remain profitable.”
However, declaring a fictitious “emergency” gives Mark Yudof a free hand to do what he and the people who appointed him have wanted to do for years, while simultaneously avoiding the accountability and oversight that something like declaring bankruptcy would necessitate. When a business has been so mismanaged as to have become basically insolvent, after all, bankruptcy is the process by which you remove authority from the managers who have driven it into the ground. What is happening instead is the reverse: after Sacramento has dismantled the public university’s finances, the people they’ve appointed to run the ship they’re sinking declare a fiscal emergency to grab the authority necessary to finish the job. They’re using the problem they’ve created as cover for finishing the job. As the Cog noted, here’s something distinctly Norquistian about the sight of a state government shrinking the university’s public function until it’s small enough for the regents they appoint to drown it in the bathtub.
As the UC Santa Barbara faculty senate argued (before calling Mark Yudof a “cynical opportunist”), emergency powers are not only unnecessary, but they also can have only exactly this purpose: “to free UCOP’s hand to undermine longstanding institutional structures, like faculty governance, and to circumvent financial obligations to faculty, staff, and students.” Faculty governance is a particular point of pride in the UC system; as the UC’s own website crows, “For more than a century, shared governance between the Board of Regents, the systemwide president and the faculty has ensured the highest standards of excellence.” But the vote to endow Yudof with emergency powers undoes that, meaning that the power to set priorities for a public institution is being vested in the 26 appointed regents and the President of the University, who they appoint.
When the Regents of the University of California declared a fiscal emergency and endowed UC president Mark Yudof with emergency powers (the minutes of that meeting here), for example, the specific issue was faculty and staff furloughs -- which are unilateral salary cuts by another name -- but what was really at stake was the authority of the Regents to essentially conduct a massive restructuring of the university’s functioning and finances, and to do so without oversight from anyone but the regents itself. The idea that a requirement to “consult with faculty, campus leaders and other UC officials” somehow limits Yudof’s powers should fool no one (though it apparently fooled Yudof), since the action to amend standing order J1: “clarifies the President’s authority to implement furloughs and/or salary reductions, consistent with applicable legal requirements, on terms that the President deems necessary, for some or all categories of University employees, upon a Declaration by the Regents of Extreme Financial Emergency.”
The Council of UC Faculty Associations challenged the legality of the declaration on procedural grounds (you can read their challenge here), and at that meeting, CUCFA President Robert Meister argued that:
“You can’t declare a financial emergency today without violating your own rules. Adopting J1 [the power to declare a financial emergency] violates the 30 day notice requirement for amending By-laws (By-law 130). And you can’t adopt J2 [the declaration of emergency itself] without following the stepwise procedure required by J1, which can’t begin until J1 is adopted. Procedural objections were first raised by the Academic Council’s letter (of July 8); we hired a lawyer to find out how bad they are, and now you know.”
But the motions passed anyway, as Meister reported: having not provided the required thirty days notice of their intention to amend the by-laws, the regents instead amended the motion for declaration of emergency to also waive that pesky rule. In short, they changed the rules and then, when challenged on the legality of how they were doing so, they also changed the rule that was getting in the way of changing the rules. As Robert Meister put it at the time, “today’s action comes down to saying that Regents have the “inherent power” to impose furloughs if they run out of money, and that they have chosen to do so.” But when the regents were appointed by the people who wrote the budget, why are we surprised?
But one of the interesting things about that phrase is that our first record of his using it (and only his first use), in a letter to an ally in the NY state senate, turns out to attribute the phrase to a “west African proverb.” I would love to know where he’s getting it from, how exactly he’s thinking through its West African provenance; hopefully I’ll be able to find out. But that’s the last time he mentions it as having an African origin, as far as I can tell; after that, he calls it an “old adage,” a “homely old proverb” and a “homely proverb.” Given how pervasive (and for Roosevelt, how problematic) is the conventional cliché/stereotype of African masculine, shall we say, endowment, there’s something fascinatingly suggestive in how this ultra-phallic imagery of big sticks begins with an African origin only to swiftly be stripped of it, as it comes to be the official slogan of a great white man president:
In a letter to Henry Sprague in 1900:
“I have always been fond of the West African proverb, ‘Speak softly and carry a big stick; you will go far.’”
“National Duties,” 1901:
“A good many of you are probably acquainted with the old proverb ‘Speak softly and carry a big stick--you will go far.’”
“The Monroe Doctrine,” 1903:
“There is a homely old adage which runs: ‘Speak softly and carry a big stick; you will go far.’”
“America and the World War,” 1915
"One of the main lessons to learn from this war is embodied in the homely proverb: “Speak softly and carry a big stick.”
I’ve also come across an Irish attribution from the American Magazine, 1910 (maybe the Irish have big sticks too?):
“In a happy moment some years ago, Mr. Roosevelt quoted the old Irish saying,"Speak softly and carry a big stick." The press was delighted. The"big stick" part sounded picturesque. So the"speak softly" part of the sentence was promptly amputated, and for seven years the big stick was waved on the front page, on the editorial page, in the sporting section and the Sunday editions.
And in 1917, in “Muncy’s Magazine,” Lawrence Abbot expanded on the Irishness of the phrase, by implication:
“Early in his Presidential career he uttered one of those epigrammatic phrases for which he has become famous." Speak softly, but carry a big stick," he said. The"big stick" half of this phrase caught the public fancy, and many people, forgetting that he put speaking softly first, have pictured him as a sort of glorified Irishman carrying a shillalah in a universal Donnybrook Fair, joyously hitting every head he saw.”
Of course, no one has ever found any source from which Roosevelt might have taken the proverb; you'd think, if it was such a hoary old saw, we'd have some kind of record of its having been used before Roosevelt, and (as far as I can tell), we don't. I strongly suspect he just made the thing up, which makes his initial decision to attribute it to a"West African" proverb and his subsequent decision to retract the attribution all the more interesting.
One of the central lessons of the Bush era should have been that illegal or unconstitutional actions — warrantless eavesdropping, torture, unilateral Presidential programs — can’t be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like.
In other words, while this decision might have pernicious effects in practice, he gives priority to the decision’s theoretical justification, the fact that it is “good law,” that it follows the constitution’s explicit guidelines. I don’t particularly think that he’s wrong. But I don’t think you can be right on this kind of question, or at least not in the simple way he‘s pretending to be. The “rule of law” is a convenient fairy tale for both simple-minded people and for whip smart lawyers like Greenwald who, for whatever particular reason, find it congenial to act as if they believe there is a clear line dividing legal from illegal or constitutional from unconstitutional. But as Jeffrey Toobin put it during the Sotomayor confirmation hearings (a man who knows a thing or two about Supreme Court history), it is a fiction that “the law” can exist separate from the minds that, in interpreting it, radically re-create and transform it:
Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution.
Within the significant ambiguities left by the constitution’s “majestic vagueness,” the Supreme Court makes law and needs to be regarded as a law-making body. Every issue the Supreme Court takes up has come to them precisely because there is more than one plausible answer to the question being decided, because — for reasons having everything to do with desired outcomes and procedural practice — one of the possible correct answers needs to take precedence over the others. If it were simply about reading and applying the law, we wouldn’t need a Supreme Court to re-decide cases that prior courts have already ruled on; if it were simply a matter of reading the constitution and acting on what it says, we wouldn’t need to take “precedent” seriously in the way we do. In other words, while dogmatic partisans and constitutional lawyers might take seriously the idea that a decision can be right, this is largely because they have a vested interest in a process which functions, in practice, to legitimize and render authoritative (and make law out of) what are, in essence, politically determined opinions.
This is not to say that all opinions are equal, of course. But the kind of cavalier disregard of the law that was marked by, say, John Yoo’s approach to the issue of torture is wrong for very importantly different reasons. After all, Yoo didn’t argue against precedents that said the opposite of what he wanted to argue or offer a reinterpretation of them; he simply ignored them. And most of the US’s illegality on the issues where we have been in the wrong — what Greenwald means by “the Bush era” — have been, it seems to me, easily and demonstrably wrong on these kinds of procedural grounds: they have not operated within the wiggle room of the law’s vagueness, but have simply pretended that the law didn’t even exist.
Yet while “the law” does profoundly and importantly limit what it is possible to regard as legal — and some things are just clearly and indisputably out of these bounds — the range of the “legal” is still quite dramatically broad. To go back to the Supreme Court ruling that Greenwald is writing about, while I take seriously his argument that the majority decision actually is good law, even granting this proposition doesn’t exclude the possibility that other readings of the law — say, the dissenting opinion — are good law as well. As Justice Stevens dissented, for example:
The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends.
I don’t have any illusions that I know “the law” better than Stevens, Kennedy, or Greenwald. But they are professional interpreters of the constitution, a profession which requires a certain pragmatic and practical heads-down close-mindedness about all the ambiguities and contingencies of their exegetical process, the useful pretense that one answer being right precludes other answers being right. After all, that entire process falls apart if we acknowledge that none of these words were handed down from on Mt. Sinai, that their meanings change unpredictably, that the founders were (as every Supreme Court justice is) subjective and limited in their perspective, and that the difference between “right” and “wrong” is, in many cases, simply a difference of (politically informed) opinion. The job of such people, after all, is to pronounce authoritatively on questions that lack obvious answers, and in doing so, investing and reinforcing consequential questions with answers that we can, in accepting, invest with social legitimacy.
But sometimes two answers are both right, and sometimes the language of the constitution allows us no way to choose. It is, in fact, precisely the Supreme Court’s function to makes the law in such cases: when they decide a particular point, they are almost always choosing one convincing and coherent argument over another convincing and coherent argument, a decision they make based on which principles they decided to elevate over others. And their subjective beliefs about the world we all share are always part of the process.
In this case, the idea that a for-profit corporation has the rights which the constitution accords to human beings is, perhaps, a good one. Yet so is the argument that it does not and should not; as Justice Stevens points out, what a “corporation” was in the year those words were written, after all, was fundamentally different than what it is now. And since all sorts of speech gets regulated in the service of the public welfare, everything from yelling fire in a crowded theatre to libel and slander, it isn’t at all clear to me that there is any pressing necessity why being an absolutist in this case is any more necessary than in those cases. I’m not saying Greenwald is wrong, in other words; I’m saying that his right answer isn’t the only one. And while being either a constitutional lawyer or a partisan hack requires a certain practical suspension of one’s awareness of that complexity and ambiguity, it doesn’t mean we should find such arguments convincing. Do we choose to regard the attitudes of the founders as the principles we regard as constitutionally valid? Or do we strip the words of their context and regard them as holy writ? Both approaches are valid, on their own terms, and both are “legal.” But the fact that they have profoundly different consequences — profoundly different outcomes — is what makes the distinction what it is.
Which is why I am illuminated by reading Greenwald’s opinion, but not convinced by and don’t share it. I would note, for one thing, that while he has argued we should not take our desire for certain outcomes into consideration, he also spends the entire column arguing that the outcome of this decision will not be nearly as bad as people think. I hope he is right about that. But outcomes are the only thing that matter as he implicitly admits even by his claim that reverence for the rule of law is the important thing right now. And even more than that, “outcomes” is simply a euphemism for the common good that the entire constitution’s reason for being is, explicitly, justified by. The constitution’s purpose is not to be a coherent set of principles that lawyers and judges and statesmen can use as a fig leaf for arguing that their opinions are legal while others’ are not. Its purpose is to “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” and if that isn’t to be part of what it is seen as doing, then it has no reason to be regarded as meaningful. Which is why Greenwald’s own argument for the constitutional protection of speech is framed the way it is: he argues, after all, that protecting free speech is more important than checking corporate influence over elections. The fact that he thinks Citizens United vs. FEC is good law is, at least rhetorically, subordinate to that argument and I think it should be. But it implicitly contradicts his underlying claim: he argues that we should put legality above outcomes because doing so produces better outcomes.
Anachronistic document that it is in all sorts of ways, the constitution is worth keeping because it mostly isn’t very vague at all, and because most of its principles are good ones and produce good outcomes. Centuries of jurisprudence have gone into filling in the many holes left by its omissions and ambiguities, and we can still operate according to the principles it sets forth because, while the document admits of some wiggle room on a variety of issues, that wiggle room is pretty clearly limited in other important respects. At the same time, all sorts of profoundly bad decisions were once invested with constitutional authority — human slavery, after all, is woven into every aspect of the constitution — and have since been changed because of the outcomes they produced. But the fact that one legal process for changing law is the process of writing and voting on amendments doesn’t mean we shouldn’t close our eyes to the other one, the always-activist and political process by which justices transform by interpreting the words on those pages. Whether or not “activist judges” were the way the founders intended the system to work is less important than the fact that it always has worked that way. Which is why we should stop giving the right wing the gift of respecting that framework: it leaves us demanding liberal in-activism at the same time as the wildly “activist” and ambitious Roberts court radically and legally transforms our political system.
But while the constitution might have been a nice job for Greenwald and a job well done for us, it is good to remember that we are a nation with two holy writs, and that unlike the relationship between the new and old testament, the 1787 covenant doesn’t replace the one that was written in 1776. Instead, they exist in a productive tension: the America of the constitution is always in silent conflict with the America of the declaration of independence, for while the first describes the terms under legitimate authority is to be established, the second describes the terms under which a revolution against established authority can be legitimized as moral. These are very different stories, but they are both “American.” The declaration of independence (and all it signifies) legitimizes the desires of people to argue that when the government has failed to be a good government (in a “social contract” understanding of what government is), then they are perfectly legitimate in arguing for a changed law that is better able “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” And let’s not forget that the founding of this nation’s legal system was an inescapably illegal act; official narratives of the United States tend to strategically collapse 1776 and 1787 into a single “founding,” but the legitimacy of our nation is founded in the moral principle that bad laws need to be changed. There are, then, no easy answers here, no perfect laws written down by God or founding fathers for us to mindlessly follow. Which is why it’s lucky that we’re adults, capable of thinking for ourselves.
"The godlike heads of our descendants may be shaved all over or electrically depilated; and with hair completely out of fashion we may have ceased to care about its colour or its undulations. Eyes may be screened with lenses for the telescopic or microscopic development of sight; body and limbs be so perpetually protected from heat and cold, germs and bruises, by some closely-fitting, antiseptic garment that only the beauty of its shape be visible and nothing of its skin-colour. In 2100 A.D. there may be no physical or mental reason why negroid and Caucasian should not become one flesh."
Also, for bonus Harry Johnston weirdness, here's his reflections on the future of writing:
BOOKS are often synonymous with boredom nowadays. We have so much more to read through than our parents read before us [if we are to keep abreast of the ever-widening scope of world-interests] that the sight of the printed page is to many people almost a provocation to anger, suggesting a further strain on the already over-taxed eyes and over-stuffed brain. The literature of the almost immediate future may quite possibly be reduced to the pictographs from which writing began. A novelist, a traveller, an anthropologist, or an historian will be required to say what he has to say in a series of pictures—photographs and diagrams—and the letterpress will be confined to little more than descriptive titles and occasional verbal explanations.