Notes

By Peter Wall

The Romance of Intergenerational National Identity

I have said before, though I don’t think in writing, that our system of law is powerful not for the reasons that it seems to be powerful, like the enforcement of rules or the distribution of consequences, but because it’s a tradition giving basic, slightly concealed form to the discourse about how things ought to be. Participating in that tradition is not just a matter of learning a particular vocabulary, upholding a practice of binding people under rules, or formulating arguments according to certain patterns; joining the legal tradition is a subtle process of socialization into the idea, which is rarely articulated clearly, that even when things change, we keep talking about them as though they haven’t.

Or I might say that the law is only apparently firm, but also only superficially mysterious: it works best when people believe in it so securely that they stop thinking about it, and let it change—and the moment you start thinking about it, things start to seize up. There’s a narrow band of mental states where it really works, and it’s easy to slip one way or the other, into fundamentalism or nihilism. (I have an even pithier way of putting it, but I’m loath to write it down. If you know me, you’ll have to ask.)

Given that ground of my crazy views, it was a pleasant surprise this morning to find a paper called “Enumeration and Continuity,” in which Richard Primus says this:

“For better and for worse, American constitutional law is not only about the mechanics of government; it is also about the romance of intergenerational national identity. Individuals’ sense of identification with the regime is an important ingredient in legitimate democratic government, and in the United States identification with the regime is broadly bound up with a sense of connection to a grand national narrative, one in which fidelity to a vision of government handed down by legendary Founders plays a central role. Discursive practices that link us to that narrative and to those Founders help create that sense of connection. To be clear, such symbolic and even romantic performances of historical continuity are not simply cynical shows for the benefit of poorly educated folks who must be duped into loyalty by theatrical mysticism. Lawyerly elites prize the sense of connection just as much as laypeople do, if not sometimes more so.”

So maybe may views aren’t completely nuts.

Read the rest of the paper for a stimulating take on the legal constitution of our federal government.

Where’s Gene Roddenberry when you need him?

Finally watched The Avengers.

So the moral of the story is that ordinary people are basically cattle: capable of little but watching TV with bated breath, cheering in relief, expressing gratitude, and having perimeters formed around them. Meanwhile, everything that elite purveyors of superhuman violence do, except use nukes on the bovine masses or actually admit their demigod status, is worthy of veneration.

In other words, Joss Whedon isn’t just a hack—he’s a tool of the military-industrial complex.

A Disparity of Ideational Fantasies

Much as I like the idea of science fiction, I can’t help sharing with the late snob of letters Kingsley Amis a qualified sneer at the mechanics of its execution:

With [Jules] Verne we reach the first great progenitor of modern science fiction. In its literary aspect his work is, of course, of poor quality, a feature certainly reproduced with great fidelity by most of his successors.

. . .

The literary critic with traditional aesthetic concerns, Amis declares, will find less to engage him than will “the cultural diagnostician, or trend-hound.” Amis was born sneering and couldn’t resist the chance to mint such a taunt; but he quickly takes pains to point out that an approach to science fiction by way of the history of ideas is “worthy enough, or even praiseworthy.”

From Algis Valiunas, “Fantastic Voyage: The literary (?) career of Jules Verne” in The Weekly Standard, July 21, 2014, Vol. 19, No. 42.

How else to explain why it took me three years to choke down the relatively straightforward Red Mars by Kim Stanley Robinson, but only a month or two to race through the complex Cloud Atlas by David Mitchell?

Let’s compare first paragraphs. You can guess which is which.

“Mars was empty before we came. That’s not to say that nothing had ever happened. The planet had accreted, melted, roiled and cooled, leaving a surface scarred by enormous geological features: craters, canyons, volcanoes. But all of that happened in mineral unconsciousness, and unobserved. There were no witnesses—except for us, looking from the planet next door, and that only in the last moment of its long history. We are all the consciousness that Mars has ever had.”

Thursday, 7th November—Beyond the Indian hamlet, upon  a forlorn strand, I happened on a trail of recent footprints. Through rotting kelp, sea cocoa-nuts & bamboo, the tracks led me to their maker, a White man, his trowzers & Pea-jacket rolled up, sporting a kempt beard & an outsized Beaver, shoveling & sifting the cindery sand with a teaspoon so intently that he noticed me only after I had hailed him from ten yards away. Thus it was, I made the acquaintance of Dr. Henry Goose, surgeon to the London nobility. His nationality was no surprise. If there be any eyrie so desolate, or isle so remote, that one may there resort unchallenged by an Englishman, ’tis not down on any map I ever saw.”

Kim Stanley Robinson is the one that writes like a government committee. Which is not to say government committees can’t do good work, or express important and complex ideas. They just don’t produce the kind of thing that goes well with a glass of Laphroaig.

And in case you’re wondering, the two books are not especially distant, thematically. They’re both meditations on freedom, persistence, and politics across generations and foreign landscapes.

Mars

Symphonic Thrill

Begin with this 1991 recording of Samuel Barber’s Overture to “The School for Scandal” by the Baltimore Symphony Orchestra under the direction of David Zinman. Nobody gallops better.

And then experience the 1982 recording of Rachmaninoff’s third piano concerto by Marta Argerich with the Radio Symphonie-Orchester Berlin under Riccardo Chailly.

There’s nothing anywhere that deserves cranking up the volume as much as those last two minutes do. It’s like the sun coming out from behind the clouds.

Sierra Meadow, May 24, 2014

Alpine Meadow

Glimpses of the Undercurrent

“Never mind whether ‘truth will out’; just concern yourself with whether you’re locked in oppositional embrace. [That's] the ultimate in discursive nihilism and political cynicism: the contents of your ideas mean nothing; what matters is whether you are deploying them to execute political power, or to balance perceived inequalities in political power. But that’s not free speech; it’s just free utterance—words reduced to vocal and orthographical bullets.” [1]

“Why should a citizen bother to consider whether we are making just laws for ourselves, or raise a voice one way or the other, if that citizen can just obtain an exemption from participation? Quieting people with exemptions from laws only kills the conversation and divides the populace into subcultures. In the long view, that segmentation can’t be good. When laws don’t apply equally to everyone, then there is no ‘everyone.’” [2]

People are free to disagree on values, and to formulate moral arguments between their differences. And we ought to examine and critique each other’s arguments. But calling an argument ‘religious,’ at least in our society, is usually just a rhetorical device to mask what is really going on. It conceals the underlying values with presumed certainty, usually in the form of received dogma. If we disagree about whether to value reproduction over the autonomy of the persons in whom it occurs, then what’s called for is a frank examination of those values.” [3]

“If we are to give any content to the notion of good faith, we need to refocus on the ‘I’—the ‘I’ that is willing to stand in judgement on itself, on you and on the world in which we both live. For in this judging, we create and strengthen the relationship between us. If I act in bad faith and refuse to judge then I remain indifferent to you. You do not matter. Nor I to you. But in judging, I assert my difference from you but recognise you in the process. There is a shared nature of moral judgement that relies on a common-sense—a common sense rooted in our shared awareness of our freedom and our duty.” [4]

[1] “Repression, Conformity, and Free Speech.”

[2] “A Few Thoughts on Law, Freedom, and Commitment.”

[3] “Life and Personhood.”

[4] Angus Kennedy, “The Vital Importance of Being Moral.

What counts as knowledge?

Pablo Picasso painted Daniel-Henry Kahnweiler in 1910:

Picasso, Daniel-Henry Kahnweiler (1910)

Karl Heinz Hargesheimer (Chargesheimer) photographed him in 1956:

Chargesheimer, Daniel Henry Kahnweiler (1956)

Is either image more real?

Life and Personhood

Jeffrey Weiss is right that personhood is not a scientific idea. But he doesn’t make much sense when he says that “almost everyone who takes a position [on personhood] does so on the basis of religious belief.” That’s partly because “religious belief” just isn’t a useful category for human behavior—as Brent Nongbri has observed, determining whether something is a “religious belief” is usually just an exercise in determining whether something is “sufficiently similar to modern Protestant Christianity.” [1] It’s also because people use “religious belief,” coherent or not, to conceal the contingencies of their positions.

For personhood, consider instead that people’s positions are moral arguments, which we generate based on our values. And comparing different moral arguments might reveal something about the differences between the underlying values. Why, for example, do some people argue that personhood begins at “conception” (when a sperm joins an egg to form a zygote), while others argue that personhood begins sometime later, based on the decision of the people in a position to support the organism (first the mother exclusively, and then others)? No matter how people dress up their positions in rhetorical finery, I don’t think it’s an unreasonable interpretation of the dispute to see it as a conflict between valuing the process of reproduction and valuing the autonomy of the persons in whom it occurs. That is, it has nothing to do with “life,” which is always there anyway, or the dispute wouldn’t exist.

To be continued...

In other words, life continues at conception; personhood begins when people decide it begins, for whatever reason. And personhood doesn’t have to begin instantaneously; it might begin gradually. (It can end at once or incrementally, too. Consider, for example, the difference between immediate death and the loss of “capacity” to make decisions in the advance of dementia.) We have these values, and we make decisions about the ways to promote them, and then we try to persuade others to agree. The purpose of the exercise is to decide how our society ought to work (or, as the wonks would say, to “formulate policy”).

People are free to disagree on values, and to formulate moral arguments between their differences. And we ought to examine and critique each other’s arguments. But calling an argument “religious,” at least in our society, is usually just a rhetorical device to mask what is really going on. It conceals the underlying values with presumed certainty, usually in the form of received dogma. If we disagree about whether to value reproduction over the autonomy of the persons in whom it occurs, then what’s called for is a frank examination of those values.

[1] Brent Nongbri, Before Religion: A History of a Modern Concept (Yale University Press 2013) p. 18.

Thomas Paine and Aquaman

The best sentence I’ve read all week:

“In the comic-book version of history that serves as our national heritage, where the Founding Fathers are like the Hanna-Barbera SuperFriends, Paine is Aquaman to Washington’s Superman and Jefferson’s Batman; we never find out how he got his superpowers, and he shows up only when they need someone who can swim.”

From Jill Lepore, “A World of Paine,” in Revolutionary Founders: Rebels, Radicals, and Reformers in the Making of the Nation.

Thomas Paine

Aquaman

A Few Thoughts on Law, Freedom, and Commitment

In the United States, we afford each other certain rights. One of those is the freedom to speak out on matters of public concern. If you you find a law repugnant, but wish to retain your credibility as a citizen, your options are to comply under protest, or to take your chances against enforcement with civil disobedience. In any case, a law that offends you deserves the best denunciation you can muster. And it deserves your work to persuade others, to help them understand your perspective. That’s hard work, and most of us will fail at it most of the time. But we prize the freedom of speech in this country because we agree, or used to agree, that the only way to determine which laws are just is to ensure that everyone and anyone may speak on them, to them, for them, and against them—against them even in compliance.

Here is the flip side of that principle: we understand, or we used to, that compliance is not endorsement. Sooner or later, everyone is stuck between preference or conscience on one side and a distasteful or offensive law on the other. But we understand, or we used to, that following a law that you hate is not a forfeiture of your hatred, or of your disagreement, or even of your personal integrity; it is not a statement of agreement, but an opportunity for condemnation, argument, and maybe even persuasion. And it is a demonstration of your commitment, not to the substance of the law, but to everyone else in this project of our society. If you think we’re failing each other by making bad laws, then the thing to do is to speak out and say why, to persuade the others into different laws, if you can. To improve the laws by respecting them enough to criticize them.

But demanding exemptions from enforcement serves no one. It only demonstrates your lack of commitment to our shared project, and to each other. And obtaining exemptions only removes your incentive to speak out and persuade. Who needs to think freely, or contribute to the project by argumentation, if the laws apply differently, according to preference? Why bother to join in society at all?

Today our Supreme Court has once again interpreted a weirdly nihilistic act of Congress and diminished the strength of our society, not by enhancing our freedom, but by removing an incentive to exercise it. The expectation of compliance, even in opposition, is what stokes the fires of protest and disputation. Why should a citizen bother to consider whether we are making just laws for ourselves, or raise a voice one way or the other, if that citizen can just obtain an exemption from participation? Quieting people with exemptions from laws only kills the conversation and divides the populace into subcultures. In the long view, that segmentation can’t be good. When laws don’t apply equally to everyone, then there is no “everyone.”

The Supreme Court is not the only problem with the Hobby Lobby case; Congress shares the blame, with its Religious Freedom Restoration Act, also known as RFRA. We all share the blame, for letting laws like this exist. I think that complying with a law like RFRA can only have pernicious effects on the structure of our society, and the rule of law. Maybe in that respect my concerns are like those of the Hobby Lobby plaintiffs. But I’m not asking for an exemption. And if I happened to be a lawyer for the federal government, then I would advise compliance with RFRA despite my detestation of that law—just as I have, on many occasions, advised my clients to comply with laws, even when I believe, sometimes strongly, that those laws are wrong, unjust, or worse. Because like it or not we are all in this together.

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