AN ESSAY
Two weeks ago, I watched Paul Greengrass' searing Green Zone. Although the movie masquerades as a pure action thriller, it actually deeply criticizes American involvement in Iraq, especially the manufactured casus belli that led us to war. At several points during the movie,my emotions surged. I have always spoken out against the War in Iraq. I always considered it an illegitimate, illegal, unethical, imperialist venture without justification in law, justice or good policy. The movie showed raw American power at work. And that reawakened my slumbering vitriol about the war.
Green Zone opens in the din of an air raid. It is March 19, 2003, the day the U.S. air force began bombing Baghdad. Sirens wail. We hear the buildings shudder as explosions rip through the city. Iraqi men and women frantically run through hallways, shouting and screaming. We see lights flickering. Dust falls from ceilings. Windows break. Then the shot pans out to a vista over the city. Massive fireballs light up the night. Buildings burn. Anti-aircraft fire streaks into the sky. Jet engines and cruise missiles boom through the air before yet another explosion rips the skyline.
That scene choked me up. So that's American power, isn't it: The power to bomb a city into oblivion. The power to make civilians scramble in panic as the house next door explodes into a million pieces. The power to knock out electricity and destroy infrastructure. And for what? In hindsight, I knew there was no justification for the war. There were never any weapons of mass destruction. Iraq did not plan 9/11, nor did any Iraqis hijack the planes that attacked the United States. No, America flexed its muscles against Iraq simply because it could. It ignored the United Nations and its weapons inspectors. It acted with breathtaking defiance, even if it mumbled about "reliable independent intelligence" concerning an Iraqi nuclear arms program.
Worse, we're still there, seven years and 6000 American dead later. That's to say nothing about the hundreds of thousands of Iraqis killed and countless more lives ruined for nothing.
War apologists will inevitably label be a socialist for making these observations. They will tell me that "intelligence was uncertain" about weapons of mass destruction in Iraq in early 2003, so it was better to be "safe than sorry." They will also tell me that America had "good reason" to attack Iraq because Saddam Hussein was a brutal tyrant who tortured and murdered his own people. In fact, they will stress the fact that America "fights for freedom" around the world; even if we did not find nuclear weapons in Iraq, at least we gave Iraqis democracy.
I recoil from this facetious "freedom" explanation for the invasion. The argument is not just illogical; it also shows American involvement in Iraq for what it really is: A selective, hypocritical, arbitrary application of brute force. It is illogical because America does not really care about "worldwide freedom." In the first place, it is presumptuous to even suggest that "American-style freedom" can work in diverse cultures around the world. And even if such a thing as "freedom" were universal, why stop with Iraq? George W. Bush said that the war was necessary because "Iraqis needed freedom from a murderous tyrant who tortured and gassed his own people." Yet there are many nations across the globe that need the same treatment. The "freedom" rationale--if believed--would require U.S. military involvement in virtually every sub-Saharan African nation, as well as Saudi Arabia, several southeast Asian countries and even Russia. There are "tyrants" in all those nations who "murder their own people."
So why haven't we attacked all these other countries? If we truly care about "freedom," we should attack Rwanda, Uganda, the Congo, Pakistan and Malaysia. The fact that we haven't shows that our involvement in Iraq is purely selective. And because the freedom rationale is so weak, it begs the real question: Why Iraq? Only a naïve idiot could believe that America had a genuine interest in "Iraqis' freedom from tyranny." So what was the real reason?
For a long time, I thought that America invaded Iraq to gain access to its lucrative oil reserves. The cynic in me can never really suppress the thought. Yet after seven years of occupation, oil prices are no lower than they were in 2002. In fact, they have even spiked several times in the ensuing years. With oil men like Dick Cheney and George W. Bush in the White House, Iraq's oil must have been one reason why they decided to invade. In retrospect, it should have been an easy assignment: Knock out Saddam, capture the oil fields, set up some pipelines and start pumping.
But it did not work out that way. The war planners encountered a set of problems they did not anticipate: Sectarian strife. They must have underestimated how difficult it would be to occupy Iraq. They could not set up their pipelines or build their oil-carrying infrastructure because the Iraqis did not just roll over and allow the Americans to have their way with their country. They sabotaged roads, blew up tankers, ambushed convoys and beheaded "contractors." And because men like Donald Rumsfeld woefully miscalculated how much force would be needed to subdue Iraq, the U.S. military never had sufficient strength to pacify the countryside. Rumsfeld thought a "small, rapidly mobile force" with overwhelming air power could claim Iraq.
He was wrong. In the end, U.S. forces in Iraq wound up fighting a desperate "fire brigade" war in which they struggled to respond to local hotspots without bringing overall stability to the country. As a consequence, America could not realize its initial commercial war goal: Oil mercantilism.
Still, I am not writing today to summarize America's strategic failure in Iraq. Rather, I am writing to stress that America's failure was far larger than mere military stalemate. America sacrificed much more than young soldiers' blood to occupy Iraq. It also sacrificed its historically "moral high ground" in war by engaging in illegal, unethical behavior on an unprecedented scale. In the end, American occupiers showed themselves little better than the Baathist torturers they set out to depose in 2003.
Green Zone alludes to this. In brief, the movie follows an army officer (Matt Damon) assigned to locate nonexistent "weapons of mass destruction" at various sites throughout Baghdad. After coming up empty every time, he begins to wonder whether his intelligence is sound. He decides to investigate his sources and gradually uncovers a tangled web of official deceit running all the way down from the Pentagon. When he realizes that the Pentagon has basically misled the army into supporting the war, he sets out to locate an Iraqi general who met with a senior Pentagon official (Greg Kinnear) prior to the war. The general told the Pentagon official that Iraq had no WMD program. The Pentagon official lied about what the general said and told Washington that Iraq did have such a program. To prevent the truth from emerging, the Pentagon official sends a hit squad to kill the general. Meanwhile, the army officer rushes to save him and expose the truth.
Green Zone's plotline makes for a good thriller. But it also makes a valuable point: America's case for war against Iraq was marred from the outset. It was built upon official deception. It threw ethics to the wind and committed American blood for fabricated reasons. The movie shows the American government working in a criminally underhanded manner. It shows senior American officials manipulating the truth and authorizing murder to conceal it. While Green Zone might just be a movie, it is certainly based on real events.
I thought America was supposed to be better than this. What ever happened to America as the "White Knight" of international politics? There was a time when America went to war for good things--and only as a last resort. There was a time when people around the world looked to America as a beacon of freedom and justice. During that time, no one would have dared think America could be tyrannical or evil. America did not lie, cheat, deceive, torture, murder or kill. It punished those who did while remaining true to its ethical principles. Hitler tortured, killed and invaded. America liberated the death camps and freed Europe from Nazi domination. That was noble and just. That was America's international reputation. That America could never act a villain.
Sadly, America did act a villain in Iraq. In a telling scene, Green Zone reminds us that American forces committed atrocities against Iraqi prisoners. It shows us a "detainee camp" in which U.S. forces hold allegedly "high-value" Iraqis in a stockade. It shows U.S. troops brutalizing prisoners with clubs, barking dogs and extremely loud music. It shows them forcing prisoners to sit in uncomfortable positions. We hear prisoners crying out in pain from darkened solitary cells. Some even lie bleeding on the floor without medical care.
Ironically, a sign over the stockade reads: "Camp So-and-So : Honor-Bound to Defend Freedom."
What kind of freedom is this? What kind of honor? It is as if the American army in Iraq still believed that it was the "White Knight" of 1945, even though its "intelligence division" members acted more like SS torturers than noble liberators.
There is no honor in torture or inhumane treatment. America said it waged war in Iraq to overthrow tyranny and torture. Yet within weeks, it began committing the same outrages on Iraqi prisoners that Saddam committed against his own people. Of course, war apologists will say that troops in the field must discover valuable battlefield intelligence "by any means necessary." That may be so as a practical matter. But America used to draw ethical strength from its refusal to engage in the unsavory tactics of its enemies. America acquired a sterling reputation because it refused to be Machiavellian.
We have drifted far from our ethical moorings. The war in Iraq has cost this country more than individual soldiers. It has also cost us our international reputation. We are no longer noble liberators committed to justice. Rather, we are now petulant rogues who wage war simply because we want to, without regard to ethics or international law. Our involvement in Iraq is a very dark chapter in American history. It is the chapter in which America became just another Machiavellian State determined to do its will, no matter the cost in blood or principle.
I wonder whether we will ever repair the damage we have done to ourselves.
Showing posts with label Principle. Show all posts
Showing posts with label Principle. Show all posts
Thursday, April 1, 2010
Wednesday, March 24, 2010
AN ETHICAL PRESIDENT? OBAMA, LINCOLN AND THE HEALTH CARE VICTORY
AN ESSAY
While the moment is fresh, I must write a few words about the monumental health care reform bill that passed Congress this week. It is really quite a surprising--and inspiring--development. I had to temper my usual cynicism when I realized that the United States actually took a serious step toward reforming its health insurance system. Although President Obama always said he wanted to change health care, I gradually lost faith that he could penetrate furious Republican resistance. But against all prognostications, he did penetrate the resistance. He may have won only by a small margin. Nonetheless, Obama's principled win over private health insurance companies is unprecedented in modern American history.
Still, I am not writing about the health care bill today per se. I am not going to exhaustively discuss its intricacies, loopholes or missed opportunities. True, it is not fundamental reform. It does not create a European-style "single-payer" government-run health insurance program that guarantees coverage to every citizen as a matter of right. Nonetheless, as President Obama noted, it is "major" reform. It regulates private health insurance companies in significant ways. It prevents them from refusing to cover people with "pre-existing medical conditions" (ie, "most people"). And it mandates that everyone obtain health insurance. Uninsured Americans (including me) will benefit because the legislation provides extremely low-priced coverage from a "high-risk, government-supported" insurance company. In other words, health care won't be free for uninsured people. But it will be close to it.
For almost a century, no President has achieved such meaningful reform to American health care. And it is not just the legislation's substance that bears mention. In my view, the most memorable thing about Obama's health care victory is the ethical manner in which he conducted himself throughout the debate.
Public faith in American politicians is virtually nonexistent. People expect them to lie, hoodwink, steal, gladhand and enrich themselves at public expense. They expect politicians to sacrifice all their principles to save their jobs. When a politician says something, the natural response is to assume that he will do the opposite. In short, most people think that ethics is completely foreign to Washington politics. Promises mean nothing. People expect politicians to break them as soon as the water gets hot. In a word, people are extremely cynical about politicians in America.
But then along came Obama. In 2008, he won a landslide victory by promising "change we can believe in." He seemed a breath of fresh air in the noxious political marshland, a man who did not seem ready to engage in backroom dealing or pork barreling. He talked about principles and truth. He was a "white knight;" he was an uncorrupted soul. Although cynical Americans always have a hard time dropping their natural suspicion about politicians, they did when they elected Obama. They really thought that Obama meant what he said. They thought he would hold to his promises. He promised to reform health care.
In 2009, President Obama began the push for health care reform. Despite his good intentions, mean-spirited Republican resistance undermined his popularity. As the year wore on--and as the economy continued to falter--even Democrats began to question whether Obama could get anything done. They wondered whether all his campaign promises had just been rhetorical fluff. Republicans caricatured Obama as a "law professor," a man who thought too much and did too little. Critics castigated him for being "too polite for Washington." They blamed him for giving too much deference to opposing arguments. In other words, he was too weak to survive Washington's ruthless, dog-eat-dog political atmosphere.
Yet President Obama stayed true to his heart. He did not turn into a conniving Washington technocrat. No, he stood by his promises. He swore to push through health reform no matter the political cost. He did not care whether his commitment to his word would cost him a second term. He said he would fight for health reform. So he kept fighting. And he did not become an ogre in the process, either. He retained his composed decorum, even as Republicans hyperventilated around him and spread outrageous horror stories about "Obamacare."
Obama's fidelity to his own word paid off this week. Despite all the tempests and scares in Congress over the past few months, both the House and Senate passed a substantial reform bill. Although every vote along the way split sharply down party lines, the reform effort pressed forward. Something larger was at work beyond mere politics. Obama's commitment to his word seemed to vault Congress past its stifling political slavishness. What was it? It was the power of ethics.
It is no surprise that Obama quoted Abraham Lincoln the day before the House voted on health care reform. Obama quoted: "I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live up to what light I have." Put another way, it is always more important to do right than it is to worry about your political future. And there are deeper rewards to be gained from ethical fulfillment than mere reelection. No words could have encapsulated Obama's extraordinary commitment to ethics in Washington more poignantly.
Abraham Lincoln is the most inspiring President in American history because he was the most ethical President. He took office as the Nation faced its single worst crisis. He then transformed a War for Union into a crusade to end slavery in the United States. He did this because slavery was simply "wrong" as an ethical matter. His decision was politically unpopular. Someone assassinated him for it. But he did it because it was the ethically right thing to do. Lincoln had no personal interest in freeing the slaves. Politically, it was unnecessary. Yet he did it because he did not just care about "winning." He cared about being "true" and "living up to the light he had." That meant following ethics in his heart, not the politics that raged outside him.
Almost no President has dared to jeopardize his political future to "do the right thing." While health reform may not be as significant as ending slavery in America, President Obama nonetheless followed in Lincoln's footsteps by committing himself to an unpopular cause and risking everything to realize it. That is inspiring. And it is almost shocking, because it contradicts the comfortable cynicism most people adopt when thinking about Washington politicians. After all, can you believe what you just heard? A President is willing to risk everything to reform health care because he promised to risk everything to reform health care? You mean he actually takes his word that seriously? Can't be!
But it is, and that's what is so moving about Obama's victory. It was not just a technical victory over unfairness in health care. It was a victory of ethics over politics. It was a victory of principle over expediency. Obama pushed health care because he said he would. That is almost unprecedented in modern American political history. And it is even more inspiring that he did not let the "turkeys get him down" along the way. He kept his composure. He maintained his respect and dignity. He remained a "law professor," no matter how much people ridiculed him for it.
He didn't just care about winning. Rather, he was "bound to be true." And suddenly I find myself with an anomaly: Ethics just prevailed in Washington. That makes it harder for me to scowl and wax cynical about America.
Now, I'm actually inclined to smile. I feel strangely justified today. I love it when ethical people prevail, even if just for a day.
As I have always said, there is more to life than winning games.
While the moment is fresh, I must write a few words about the monumental health care reform bill that passed Congress this week. It is really quite a surprising--and inspiring--development. I had to temper my usual cynicism when I realized that the United States actually took a serious step toward reforming its health insurance system. Although President Obama always said he wanted to change health care, I gradually lost faith that he could penetrate furious Republican resistance. But against all prognostications, he did penetrate the resistance. He may have won only by a small margin. Nonetheless, Obama's principled win over private health insurance companies is unprecedented in modern American history.
Still, I am not writing about the health care bill today per se. I am not going to exhaustively discuss its intricacies, loopholes or missed opportunities. True, it is not fundamental reform. It does not create a European-style "single-payer" government-run health insurance program that guarantees coverage to every citizen as a matter of right. Nonetheless, as President Obama noted, it is "major" reform. It regulates private health insurance companies in significant ways. It prevents them from refusing to cover people with "pre-existing medical conditions" (ie, "most people"). And it mandates that everyone obtain health insurance. Uninsured Americans (including me) will benefit because the legislation provides extremely low-priced coverage from a "high-risk, government-supported" insurance company. In other words, health care won't be free for uninsured people. But it will be close to it.
For almost a century, no President has achieved such meaningful reform to American health care. And it is not just the legislation's substance that bears mention. In my view, the most memorable thing about Obama's health care victory is the ethical manner in which he conducted himself throughout the debate.
Public faith in American politicians is virtually nonexistent. People expect them to lie, hoodwink, steal, gladhand and enrich themselves at public expense. They expect politicians to sacrifice all their principles to save their jobs. When a politician says something, the natural response is to assume that he will do the opposite. In short, most people think that ethics is completely foreign to Washington politics. Promises mean nothing. People expect politicians to break them as soon as the water gets hot. In a word, people are extremely cynical about politicians in America.
But then along came Obama. In 2008, he won a landslide victory by promising "change we can believe in." He seemed a breath of fresh air in the noxious political marshland, a man who did not seem ready to engage in backroom dealing or pork barreling. He talked about principles and truth. He was a "white knight;" he was an uncorrupted soul. Although cynical Americans always have a hard time dropping their natural suspicion about politicians, they did when they elected Obama. They really thought that Obama meant what he said. They thought he would hold to his promises. He promised to reform health care.
In 2009, President Obama began the push for health care reform. Despite his good intentions, mean-spirited Republican resistance undermined his popularity. As the year wore on--and as the economy continued to falter--even Democrats began to question whether Obama could get anything done. They wondered whether all his campaign promises had just been rhetorical fluff. Republicans caricatured Obama as a "law professor," a man who thought too much and did too little. Critics castigated him for being "too polite for Washington." They blamed him for giving too much deference to opposing arguments. In other words, he was too weak to survive Washington's ruthless, dog-eat-dog political atmosphere.
Yet President Obama stayed true to his heart. He did not turn into a conniving Washington technocrat. No, he stood by his promises. He swore to push through health reform no matter the political cost. He did not care whether his commitment to his word would cost him a second term. He said he would fight for health reform. So he kept fighting. And he did not become an ogre in the process, either. He retained his composed decorum, even as Republicans hyperventilated around him and spread outrageous horror stories about "Obamacare."
Obama's fidelity to his own word paid off this week. Despite all the tempests and scares in Congress over the past few months, both the House and Senate passed a substantial reform bill. Although every vote along the way split sharply down party lines, the reform effort pressed forward. Something larger was at work beyond mere politics. Obama's commitment to his word seemed to vault Congress past its stifling political slavishness. What was it? It was the power of ethics.
It is no surprise that Obama quoted Abraham Lincoln the day before the House voted on health care reform. Obama quoted: "I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live up to what light I have." Put another way, it is always more important to do right than it is to worry about your political future. And there are deeper rewards to be gained from ethical fulfillment than mere reelection. No words could have encapsulated Obama's extraordinary commitment to ethics in Washington more poignantly.
Abraham Lincoln is the most inspiring President in American history because he was the most ethical President. He took office as the Nation faced its single worst crisis. He then transformed a War for Union into a crusade to end slavery in the United States. He did this because slavery was simply "wrong" as an ethical matter. His decision was politically unpopular. Someone assassinated him for it. But he did it because it was the ethically right thing to do. Lincoln had no personal interest in freeing the slaves. Politically, it was unnecessary. Yet he did it because he did not just care about "winning." He cared about being "true" and "living up to the light he had." That meant following ethics in his heart, not the politics that raged outside him.
Almost no President has dared to jeopardize his political future to "do the right thing." While health reform may not be as significant as ending slavery in America, President Obama nonetheless followed in Lincoln's footsteps by committing himself to an unpopular cause and risking everything to realize it. That is inspiring. And it is almost shocking, because it contradicts the comfortable cynicism most people adopt when thinking about Washington politicians. After all, can you believe what you just heard? A President is willing to risk everything to reform health care because he promised to risk everything to reform health care? You mean he actually takes his word that seriously? Can't be!
But it is, and that's what is so moving about Obama's victory. It was not just a technical victory over unfairness in health care. It was a victory of ethics over politics. It was a victory of principle over expediency. Obama pushed health care because he said he would. That is almost unprecedented in modern American political history. And it is even more inspiring that he did not let the "turkeys get him down" along the way. He kept his composure. He maintained his respect and dignity. He remained a "law professor," no matter how much people ridiculed him for it.
He didn't just care about winning. Rather, he was "bound to be true." And suddenly I find myself with an anomaly: Ethics just prevailed in Washington. That makes it harder for me to scowl and wax cynical about America.
Now, I'm actually inclined to smile. I feel strangely justified today. I love it when ethical people prevail, even if just for a day.
As I have always said, there is more to life than winning games.
Tuesday, March 16, 2010
COMMERCE VERSUS JUSTICE : A REAL LIFE EXAMPLE
A REFLECTION
It took me a while to name this blog. I wanted to make it memorable. At the same time, I wanted it to reflect my life philosophy. I didn't want to sound pretentious; rather, I wanted to alert the reader to the big questions that animate me. And I also wanted to hint that I am at heart a "satirical rogue." That's why I added "free beer" at the end.
I chose "Reason," "Commerce" and "Justice" because those subjects focus my critical energy. Everything I write in some way relates to those three concepts. No matter what style I choose, those concepts unite my work.
Reason interests me because it encapsulates the human capacity for thought. Reason allegedly separates human beings from other animals. I write about reason's limitations, as well as its less-than-reasonable corollaries: Emotions, reflections, memories, impressions. My fixation on language also involves "reasoned" analysis. No matter the specific subject, however, I cast a critical eye on reason. I do not praise it as an inexorable pathway to truth. Indeed, I maintain a healthy skepticism for reason. I am a qualified empiricist: Reason is just one tool to help me understand existence. But I certainly don't put all my money on it. Too much unreasonable stuff happens in life. In that light, putting full trust in reason is not only unadvisable; it's also really disappointing.
Commerce offers me plentiful material for both satire and commentary. I define myself against commerce. Its values repel me. I do not like promoting myself. I do not like circulating resumes or kissing ass in interviews. I don't like wearing little costumes and going to work for private employers. I also don't like unfairness, inequality and hypocrisy. Commerce is rife with all three. Commerce also interests me because it is all about instrumentalism; and that clashes with my steadfast respect for the individual. In commerce, people play roles to make money: Master, servant, employer, employee, officer, director, customer, client…the list goes on. In the process, they lose their humanity. They also tend to exploit one another for crass personal gain. Commerce is the stage upon which to showcase my ruthless cynicism. It allows me to ironically brandish my own colors while criticizing things I fundamentally don't like.
Moreover, commerce is the perfect context in which to explore the tension between flexibility and principle. I often write about principles and honor. Commerce weighs against both. And sadly, my satires take doubled strength from the unfortunate truth that most people live for commerce rather than honor. Just listen to the radio or watch television. You will see and hear a lot more commercial messages than honorable ones.
Finally, justice draws me because it represents something larger than commerce. Justice has obsessed philosophers for millennia. I am just continuing down the road. In my work, justice stands as something hopeful, something better than ourselves, something transcendent, something to achieve. Justice is that great, intuitive feeling that something is right, not wrong. I do not identify a source for it. It just "is." I am no theologian. But in my heart I know when a situation is just. And I know when a situation is unjust. Injustice reeks. It seems to revolt against nature.
Justice is about ideals. It is about striving for something more than mere convenience or comfort. In that light, I use justice to champion my zeal for principle, honor, equality and "better" things. I use it to underline the key distinction between subjectivity and objectivity, because justice is largely subjective and cannot be objectively measured.
I also use justice as a backdrop to criticize the law. My fascination with ethics relates to my suspicion toward law. Justice and ethics go hand in hand. Ethics clashes with law. Therefore, law and justice clash, too. If you've spent any time studying my writing, you will know that I have very little respect for the law. If anything, I relegate law to the "commercial" category. And that it is ultimate insult, because law claims to advance justice. I make a few exceptions in my criticism for law, especially in cases where the law protects individual rights and enforces principles that restrain commerce. But I castigate everything else. In fact, law in most cases does not serve justice at all. To the contrary, in most cases it serves commerce--my perpetual theoretical foe.
In essence, then, my writing boils down to a battle between justice and commerce. I even thought about renaming my blog "Commerce Versus Justice," because that dichotomy really dominates my arguments. Something is either "just" or "just commercial." No matter what subject I address, chances are good that it involves hopeful ideals and crass realities. I lament the crass realities and wish for the hopeful ideals. The hopeful ideals are "justice." The crass realities are "commerce." In the "real world," commerce usually wins. In my eyes, it is usually an "unjust victory." And that "injustice" provides me fuel for criticism, commentary and satire.
But I decided against renaming my blog. Although I consistently allude to the struggle between commerce and justice, I refuse to abandon my commitment to "reason." There is a significant self-exploratory element to my writing. I write about people, their motivations, thoughts, dreams, hopes, happiness, unhappiness and machinations. While these things often involve commerce, they also implicate reason. I need to retain my focus on "reason" in order to continue writing about human beings--myself included. That is why I am going to keep my original three-part title. Well, four-part when you drink the free beer.
I sketch my thoughts about my blog's title in order to provide background for an important story. After all, one of the reasons I opened this blog was to therapeutically resolve difficulties that began to arise in my mind around 2006. In 2006, three critical events occurred in my life: (1) I finished my legal education; (2) My father died; and (3) I rejected law practice on principle. In essence, my life expectations completely changed. For one, I began thinking about death more than I ever had before. Second, after spending three years submerged in legal study, I recognized that I had no place in legal practice. That forced me to reevaluate my life in a very basic way. Beginning in 2006, I started to understand the distinction between commerce and justice. And when my father died, I used my reason to reflect on life. My philosophical fixation on reason, commerce and justice had begun.
I was not a child anymore. I was suddenly an adult. And life was full of trouble. Wrenching, inscrutable trouble.
In 2007, my focus on reason, commerce and justice sharpened even more. As I have written in several other contexts over the years, 2007 was the year in which my life partner, Steve, suffered a life-altering accident. I have not gone into great detail about the event. Neither has Steve. Yet I am painfully aware of it because I lived through its aftermath. And in truth, Steve's story perfectly illustrates the tension between commerce and justice. In this sense, Steve's story cemented my theoretical focus with a real life example.
Late on August 1, 2007, Steve went to work out at an all-night gym in Chicago. Back in those days, we used to go our own ways. We stayed out late alone sometimes and it never mattered. I went to bed about midnight. At about 2:15 AM, I got a phone call from the Illinois Masonic Hospital. "Are you Steve's partner?" someone asked. Half-asleep, I replied: "Yes. What is it?" "Steve has been badly burned. He wants you to visit him." I could not really understand what that meant, but I was stunned. "I'll be right over," I think I said. Then I hung up. I sat on the edge of the bed for a minute or two thinking. Then I got up and pulled on my jeans. I had no idea what was in store.
I got to the emergency room about 3:00 AM. Steve was laying on a cot, incoherent, drenched in sweat. They had wrapped a huge bulky bandage on his right arm. I could see dark-red bloodstains on the upper part. It looked like his skin had peeled right off midshoulder. Steve managed to tell me that he had been burned in the gym's steam room. He said he had just walked in when suddenly a jet of steam burst from the wall and scorched his arm.
I did not really know what to make of his story at the time. He was delirious. He must have been in shock. He talked about our dog and his clothes. I stayed with him in the emergency room for about two hours while the hospital arranged a transfer to a burn center outside town. I dozed for a while on a folding chair. I remember when the emergency room staff wheeled him away and put him in the back of the ambulance. He was smiling. He said he would be fine. He told me to go home and get some sleep. He told me to meet him at the hospital the next day. Then they closed the ambulance doors. The ambulance rolled off into the brightening summer dawn.
I had a meeting with my law school dean later that morning. I think I wanted to talk to him about getting a job with a federal judge. I somehow managed to attend the meeting with a straight face. At the time, I thought Steve would be all right, so I don't think the meeting went badly. The dean told me he would "put a word in" for me with several judges. I was out within an hour. I immediately hopped in the car and went to visit Steve.
Steve was fine when I arrived. They had his arm suspended above him in a sling. The doctors said they were going to perform skin graft surgery on him at 9 AM the next day, August 3. I spent about 8 hours in Steve's hospital room, assuring him that everything would be all right. Steve was cheery that day. He was happy that I was at his side. I went home about 8 PM. At 9:30 PM, he called me and thanked me for being at the hospital during the day. I told him I wouldn't abandon him for the world. I also told him I would be there as soon as he came out of the recovery room after his surgery. He cried when I said that.
I went to bed that night confident that Steve would be fine. I thought they would just do the surgery, then he would be home in a week or so. I was tired, sure, but I did not think life would be much different after that day.
I got up on August 3 waiting for a phone call to let me know I could visit Steve after his surgery. At about 11:00 AM, I got a call from a nurse who told me the surgeon needed to speak with me. I figured the surgeon was just going to tell me that the surgery had gone well and I could visit. So I called the surgeon back. I didn't reach him. After two more tries, I did reach him. He told me to come to the hospital right away. That was all he said.
I was a little nervous at this point. I had never really spent much time around hospitals. I did not know the procedure for getting news about surgeries. I thought maybe the surgeon could only tell me details about the surgery in person, not on the phone. So I headed back over to the hospital. It was about a 40-minute drive. I remember George Benson's "Affirmation" was on the radio during the trip.
I made it to the hospital and parked my car. First I went to the gift shop. I bought Steve a "Get Well Soon" balloon and a teddy bear. Then, holding the balloon in one hand, I went to the main desk. I said I was here I visit Steve. The guard tapped the keyboard and said: "Burn ICU. Seventh floor."
Now I was getting more nervous: Why is he in the ICU? Why isn't he in the recovery room?
I followed the signs to the Burn ICU. I went through a few automatic double doors into a large room with a nurse's station in the middle. Patient rooms lined the walls in a big circle around the station. I asked one nurse: "I'm here to see Steve."
She pointed to a room on my left. It was full of doctors, nurses, interns, even executives in suits. I pushed my way in. Steve was unconscious on a bed, angled up. He was on a respirator. A thick silver tube stretched from the respirator into a hole punched through his throat. There were two tubes lined into his nostrils. More tubes funneled out from his arms. Wires were tacked on to his chest and legs. There must have been about twenty wires and tubes attached to his body. His mouth was wide open and his eyes were as if glued shut. His tongue was protruding from his mouth slightly and it looked completely parched. There was blood caked on the edges of his lips. Bleeping, whirring machines and monitors ringed his bed.
I let go of the balloon and covered my mouth with my hands. I left the room for minute to reflect on what I was seeing. At that moment, the anesthesiologist approached me and explained nervously that something went horribly wrong during the surgery. Apparently, Steve had a strong reaction to a particular anesthesia and it stopped his heart. He told me that he had jumped on top of Steve to perform CPR and that he finally got his pulse back after 53 seconds. After reviving him, they stabilized his blood pressure and rushed him to the ICU. He told me he was in an induced coma. They wanted to keep him motionless until they could place a stent in his heart. Apparently, his body had convulsed uncontrollably after his heart stopped.
I could not believe what I was hearing and seeing. Here was the man I had loved for seven years, reduced before me to a motionless vegetable. Here was the man who just two days before was strong, enterprising and courageous; and now he was on the verge of death. I felt utterly broken. I immediately thought about my father. Was I going to lose Steve, too, just a year later? What was this life? What was the point? Was I doomed to lose everyone I loved?
At that moment, I thought that Steve would die. At the very least, I thought he would never recover his brain function. The doctors were all very grave. They said: "We have no idea what will happen with him. But he did go without oxygen to the brain for over a minute." I just paced around the ICU all day. I made phone calls. Our best friend was flying in from New York that day. I took a break and picked him up at the airport. That was a good distraction; I needed support that day, and he gave it to me. We spent the rest of the day staring hopelessly at Steve on the respirator. We worried every time a machine made a noise. Finally, we left at about 8 PM.
Over the next two days, Steve was in critical condition. He could not open his eyes. I just sat at his side for hours at a time listening to the respirator and the other beeping machines that kept him alive.
On the third day, however, Steve suddenly opened his eyes. The paralytic had worn off. He looked around as if in a panic. Then he turned and saw me. His face glowed for an instant, then it crumpled into tears. He grabbed for my hand as the nurses struggled to keep all the tubes attached to his body. Tears streamed down my face. I clenched his hand and told him everything would be all right. I tried to explain what had happened, but it was obvious he could not comprehend what was wrong. He could not speak. He could mouth words, but the tracheal tube blocked his throat. Still, as pitiful as he appeared that day, I knew he would survive. It was a huge relief.
Ultimately, Steve stayed 33 more days in the hospital. I was there every day from morning to night. He got the stent he needed in his heart. He underwent three more skin graft surgeries to repair the arm. They had to shear skin off his thighs to replant it on his arm. At one point, the graft did not take; so they had to put cadaver skin on his arm as a "bedding." Toward the end of his stay, they took out the tracheal tube and he could speak again. His voice had changed and he lisped, but he could speak. There had been no brain damage. He was handicapped and slower, but he had survived. He went home September 5, 2007. The hospital bill came to something around $2,000,000.
In the months that followed, Steve pursued a legal case against the gym that caused his injuries. We hired a law firm to investigate and prosecute the claim. As a former trial lawyer, the case seemed a winner to me. There was nothing wrong with his arm before he went into the steam room on August 2. When he came out, he was permanently injured. His "special damages" amounted to at least $2,000,000, not to mention the "loss of a normal life," "disfigurement," "pain and suffering" and "mental anguish." There was no quarrel that the gym's facilities caused these injuries and Steve had no control over those facilities. Based on my experience, I estimated Steve's case at around $7,000,000.
Despite these compelling facts, the case went poorly. For its part, the gym denied it had done anything wrong. It actually came forward with some questionable "incident reports" that said that Steve "laid down in front of the steam vent" and "caused his own injury." The gym manager--who was not there on August 2--claimed that Steve must have "passed out in the steam room," then fallen in front of the vent for a long time. Yet the medical records all corroborated Steve's story. And the emergency responders who took him from the gym said nothing about "fainting" or "falling." They did not treat him as they would have treated someone who had just fainted. Steve's surgeon even said there was no evidence of a fall.
Still, our lawyers found the gym's self-serving reports troublesome. For some reason, they thought that if the gym's story were true, then Steve could not win the case. Yet Steve always told the same story about how he was injured: He walked into the steam room and a jet of steam suddenly burst from the wall. The gym did not provide warnings anywhere about steam vents. It was a very big steam room with several blind corners and crannies. I had been in it myself and often found it difficult to determine where steam was coming from. That is why it did not surprise me when Steve said the steam took him by surprise.
And no matter what story people believed, the logic of the case seemed obvious to me: You shouldn't allow access to something on your property that can cause an injury as bad as Steve's. It's almost like letting a wild animal loose in your house during a dinner party.
But our lawyers did not see it that way. They said they could never sell Steve's story to a jury. They said they could not convince people that steam could emanate from the wall when the pictures showed the vents were only at ankle level. They did not acknowledge the fact, however, that they took the pictures almost a year after the event. Who knows what "improvements" the gym had made in the intervening time.
Yet all these rationalizations took a back seat to an even more compelling problem for our lawyers: They discovered that the gym did not have any liability insurance. Liability insurance means that an insurance company pays if someone gets injured on your land. If you don't have liability insurance, an injured person can go directly after your assets. But if you have no assets--or if the assets are insufficient to cover the injury--it makes little sense for an injured person to pursue you. After all, it takes years to win a judgment, let alone collect on one. Insurance companies shorten the time needed to get money from an accident. Without insurance, most injury lawyers don't waste their time on cases, even if they are meritorious. After all, they don't get paid until they win. If they spend 5 years working a case, then discover no pot of gold at the end of the rainbow, they will have wasted 5 years for nothing. That is a terrifying prospect for a lawyer trying to pay his rent.
So our lawyers fired us. They never said that the gym's insurance situation was the reason they turned us away. But it was obvious to me. The gym got away scot-free because it strategically decided not to buy liability insurance. The gym knew that no personal injury lawyer would waste his time pursuing an entity without insurance, so it just did not buy insurance. In essence, it insured itself against lawsuits by refusing to insure. It understood that civil litigation is a time-consuming, expensive business. So it correctly guessed that most lawyers would avoid a case that does not promise a quick insurance payout.
In short, the gym acted in a commercially prudent manner. It minimized its liabilities. It saved money.
But Steve suffered injustice for it. Steve's life changed because of the gym's conduct. It offered its facilities to the public for a fee. Those facilities nearly killed Steve and gutted his entire existence, not to mention mine. And due to the gym's strategic failure to buy liability insurance, Steve will not even receive the psychic satisfaction that the law avenged the hurt he endured. Put simply, Steve did not get justice. The law failed him.
Or did it? Steve's case confirms me that the law does not serve justice. If it did, lawyers would have flocked to represent him. Yet none did. From an intuitive perspective, Steve suffered a gross injustice due to another's negligence. No one should ever have to endure such clear wrongs in life.
But the lawyers did not flock to his aid because justice does not motivate them. Avenging injustice, after all, does not necessarily pay the bills. Paying the bills is a quintessentially commercial function. And lawyers did not take Steve's case because they could not assure themselves that it would be "worth the investment." It did not matter that he suffered injustice. Rather, his case was not "commercially viable" because the gym did not have insurance.
In Steve's case, commerce won out over justice. That's a lesson in law for you.
I have no more illusions about the law. It is a business like any other. If a case doesn’t promise a quick profit, no lawyer will take it, even if a person has suffered obvious injustice.
It took me a while to name this blog. I wanted to make it memorable. At the same time, I wanted it to reflect my life philosophy. I didn't want to sound pretentious; rather, I wanted to alert the reader to the big questions that animate me. And I also wanted to hint that I am at heart a "satirical rogue." That's why I added "free beer" at the end.
I chose "Reason," "Commerce" and "Justice" because those subjects focus my critical energy. Everything I write in some way relates to those three concepts. No matter what style I choose, those concepts unite my work.
Reason interests me because it encapsulates the human capacity for thought. Reason allegedly separates human beings from other animals. I write about reason's limitations, as well as its less-than-reasonable corollaries: Emotions, reflections, memories, impressions. My fixation on language also involves "reasoned" analysis. No matter the specific subject, however, I cast a critical eye on reason. I do not praise it as an inexorable pathway to truth. Indeed, I maintain a healthy skepticism for reason. I am a qualified empiricist: Reason is just one tool to help me understand existence. But I certainly don't put all my money on it. Too much unreasonable stuff happens in life. In that light, putting full trust in reason is not only unadvisable; it's also really disappointing.
Commerce offers me plentiful material for both satire and commentary. I define myself against commerce. Its values repel me. I do not like promoting myself. I do not like circulating resumes or kissing ass in interviews. I don't like wearing little costumes and going to work for private employers. I also don't like unfairness, inequality and hypocrisy. Commerce is rife with all three. Commerce also interests me because it is all about instrumentalism; and that clashes with my steadfast respect for the individual. In commerce, people play roles to make money: Master, servant, employer, employee, officer, director, customer, client…the list goes on. In the process, they lose their humanity. They also tend to exploit one another for crass personal gain. Commerce is the stage upon which to showcase my ruthless cynicism. It allows me to ironically brandish my own colors while criticizing things I fundamentally don't like.
Moreover, commerce is the perfect context in which to explore the tension between flexibility and principle. I often write about principles and honor. Commerce weighs against both. And sadly, my satires take doubled strength from the unfortunate truth that most people live for commerce rather than honor. Just listen to the radio or watch television. You will see and hear a lot more commercial messages than honorable ones.
Finally, justice draws me because it represents something larger than commerce. Justice has obsessed philosophers for millennia. I am just continuing down the road. In my work, justice stands as something hopeful, something better than ourselves, something transcendent, something to achieve. Justice is that great, intuitive feeling that something is right, not wrong. I do not identify a source for it. It just "is." I am no theologian. But in my heart I know when a situation is just. And I know when a situation is unjust. Injustice reeks. It seems to revolt against nature.
Justice is about ideals. It is about striving for something more than mere convenience or comfort. In that light, I use justice to champion my zeal for principle, honor, equality and "better" things. I use it to underline the key distinction between subjectivity and objectivity, because justice is largely subjective and cannot be objectively measured.
I also use justice as a backdrop to criticize the law. My fascination with ethics relates to my suspicion toward law. Justice and ethics go hand in hand. Ethics clashes with law. Therefore, law and justice clash, too. If you've spent any time studying my writing, you will know that I have very little respect for the law. If anything, I relegate law to the "commercial" category. And that it is ultimate insult, because law claims to advance justice. I make a few exceptions in my criticism for law, especially in cases where the law protects individual rights and enforces principles that restrain commerce. But I castigate everything else. In fact, law in most cases does not serve justice at all. To the contrary, in most cases it serves commerce--my perpetual theoretical foe.
In essence, then, my writing boils down to a battle between justice and commerce. I even thought about renaming my blog "Commerce Versus Justice," because that dichotomy really dominates my arguments. Something is either "just" or "just commercial." No matter what subject I address, chances are good that it involves hopeful ideals and crass realities. I lament the crass realities and wish for the hopeful ideals. The hopeful ideals are "justice." The crass realities are "commerce." In the "real world," commerce usually wins. In my eyes, it is usually an "unjust victory." And that "injustice" provides me fuel for criticism, commentary and satire.
But I decided against renaming my blog. Although I consistently allude to the struggle between commerce and justice, I refuse to abandon my commitment to "reason." There is a significant self-exploratory element to my writing. I write about people, their motivations, thoughts, dreams, hopes, happiness, unhappiness and machinations. While these things often involve commerce, they also implicate reason. I need to retain my focus on "reason" in order to continue writing about human beings--myself included. That is why I am going to keep my original three-part title. Well, four-part when you drink the free beer.
I sketch my thoughts about my blog's title in order to provide background for an important story. After all, one of the reasons I opened this blog was to therapeutically resolve difficulties that began to arise in my mind around 2006. In 2006, three critical events occurred in my life: (1) I finished my legal education; (2) My father died; and (3) I rejected law practice on principle. In essence, my life expectations completely changed. For one, I began thinking about death more than I ever had before. Second, after spending three years submerged in legal study, I recognized that I had no place in legal practice. That forced me to reevaluate my life in a very basic way. Beginning in 2006, I started to understand the distinction between commerce and justice. And when my father died, I used my reason to reflect on life. My philosophical fixation on reason, commerce and justice had begun.
I was not a child anymore. I was suddenly an adult. And life was full of trouble. Wrenching, inscrutable trouble.
In 2007, my focus on reason, commerce and justice sharpened even more. As I have written in several other contexts over the years, 2007 was the year in which my life partner, Steve, suffered a life-altering accident. I have not gone into great detail about the event. Neither has Steve. Yet I am painfully aware of it because I lived through its aftermath. And in truth, Steve's story perfectly illustrates the tension between commerce and justice. In this sense, Steve's story cemented my theoretical focus with a real life example.
Late on August 1, 2007, Steve went to work out at an all-night gym in Chicago. Back in those days, we used to go our own ways. We stayed out late alone sometimes and it never mattered. I went to bed about midnight. At about 2:15 AM, I got a phone call from the Illinois Masonic Hospital. "Are you Steve's partner?" someone asked. Half-asleep, I replied: "Yes. What is it?" "Steve has been badly burned. He wants you to visit him." I could not really understand what that meant, but I was stunned. "I'll be right over," I think I said. Then I hung up. I sat on the edge of the bed for a minute or two thinking. Then I got up and pulled on my jeans. I had no idea what was in store.
I got to the emergency room about 3:00 AM. Steve was laying on a cot, incoherent, drenched in sweat. They had wrapped a huge bulky bandage on his right arm. I could see dark-red bloodstains on the upper part. It looked like his skin had peeled right off midshoulder. Steve managed to tell me that he had been burned in the gym's steam room. He said he had just walked in when suddenly a jet of steam burst from the wall and scorched his arm.
I did not really know what to make of his story at the time. He was delirious. He must have been in shock. He talked about our dog and his clothes. I stayed with him in the emergency room for about two hours while the hospital arranged a transfer to a burn center outside town. I dozed for a while on a folding chair. I remember when the emergency room staff wheeled him away and put him in the back of the ambulance. He was smiling. He said he would be fine. He told me to go home and get some sleep. He told me to meet him at the hospital the next day. Then they closed the ambulance doors. The ambulance rolled off into the brightening summer dawn.
I had a meeting with my law school dean later that morning. I think I wanted to talk to him about getting a job with a federal judge. I somehow managed to attend the meeting with a straight face. At the time, I thought Steve would be all right, so I don't think the meeting went badly. The dean told me he would "put a word in" for me with several judges. I was out within an hour. I immediately hopped in the car and went to visit Steve.
Steve was fine when I arrived. They had his arm suspended above him in a sling. The doctors said they were going to perform skin graft surgery on him at 9 AM the next day, August 3. I spent about 8 hours in Steve's hospital room, assuring him that everything would be all right. Steve was cheery that day. He was happy that I was at his side. I went home about 8 PM. At 9:30 PM, he called me and thanked me for being at the hospital during the day. I told him I wouldn't abandon him for the world. I also told him I would be there as soon as he came out of the recovery room after his surgery. He cried when I said that.
I went to bed that night confident that Steve would be fine. I thought they would just do the surgery, then he would be home in a week or so. I was tired, sure, but I did not think life would be much different after that day.
I got up on August 3 waiting for a phone call to let me know I could visit Steve after his surgery. At about 11:00 AM, I got a call from a nurse who told me the surgeon needed to speak with me. I figured the surgeon was just going to tell me that the surgery had gone well and I could visit. So I called the surgeon back. I didn't reach him. After two more tries, I did reach him. He told me to come to the hospital right away. That was all he said.
I was a little nervous at this point. I had never really spent much time around hospitals. I did not know the procedure for getting news about surgeries. I thought maybe the surgeon could only tell me details about the surgery in person, not on the phone. So I headed back over to the hospital. It was about a 40-minute drive. I remember George Benson's "Affirmation" was on the radio during the trip.
I made it to the hospital and parked my car. First I went to the gift shop. I bought Steve a "Get Well Soon" balloon and a teddy bear. Then, holding the balloon in one hand, I went to the main desk. I said I was here I visit Steve. The guard tapped the keyboard and said: "Burn ICU. Seventh floor."
Now I was getting more nervous: Why is he in the ICU? Why isn't he in the recovery room?
I followed the signs to the Burn ICU. I went through a few automatic double doors into a large room with a nurse's station in the middle. Patient rooms lined the walls in a big circle around the station. I asked one nurse: "I'm here to see Steve."
She pointed to a room on my left. It was full of doctors, nurses, interns, even executives in suits. I pushed my way in. Steve was unconscious on a bed, angled up. He was on a respirator. A thick silver tube stretched from the respirator into a hole punched through his throat. There were two tubes lined into his nostrils. More tubes funneled out from his arms. Wires were tacked on to his chest and legs. There must have been about twenty wires and tubes attached to his body. His mouth was wide open and his eyes were as if glued shut. His tongue was protruding from his mouth slightly and it looked completely parched. There was blood caked on the edges of his lips. Bleeping, whirring machines and monitors ringed his bed.
I let go of the balloon and covered my mouth with my hands. I left the room for minute to reflect on what I was seeing. At that moment, the anesthesiologist approached me and explained nervously that something went horribly wrong during the surgery. Apparently, Steve had a strong reaction to a particular anesthesia and it stopped his heart. He told me that he had jumped on top of Steve to perform CPR and that he finally got his pulse back after 53 seconds. After reviving him, they stabilized his blood pressure and rushed him to the ICU. He told me he was in an induced coma. They wanted to keep him motionless until they could place a stent in his heart. Apparently, his body had convulsed uncontrollably after his heart stopped.
I could not believe what I was hearing and seeing. Here was the man I had loved for seven years, reduced before me to a motionless vegetable. Here was the man who just two days before was strong, enterprising and courageous; and now he was on the verge of death. I felt utterly broken. I immediately thought about my father. Was I going to lose Steve, too, just a year later? What was this life? What was the point? Was I doomed to lose everyone I loved?
At that moment, I thought that Steve would die. At the very least, I thought he would never recover his brain function. The doctors were all very grave. They said: "We have no idea what will happen with him. But he did go without oxygen to the brain for over a minute." I just paced around the ICU all day. I made phone calls. Our best friend was flying in from New York that day. I took a break and picked him up at the airport. That was a good distraction; I needed support that day, and he gave it to me. We spent the rest of the day staring hopelessly at Steve on the respirator. We worried every time a machine made a noise. Finally, we left at about 8 PM.
Over the next two days, Steve was in critical condition. He could not open his eyes. I just sat at his side for hours at a time listening to the respirator and the other beeping machines that kept him alive.
On the third day, however, Steve suddenly opened his eyes. The paralytic had worn off. He looked around as if in a panic. Then he turned and saw me. His face glowed for an instant, then it crumpled into tears. He grabbed for my hand as the nurses struggled to keep all the tubes attached to his body. Tears streamed down my face. I clenched his hand and told him everything would be all right. I tried to explain what had happened, but it was obvious he could not comprehend what was wrong. He could not speak. He could mouth words, but the tracheal tube blocked his throat. Still, as pitiful as he appeared that day, I knew he would survive. It was a huge relief.
Ultimately, Steve stayed 33 more days in the hospital. I was there every day from morning to night. He got the stent he needed in his heart. He underwent three more skin graft surgeries to repair the arm. They had to shear skin off his thighs to replant it on his arm. At one point, the graft did not take; so they had to put cadaver skin on his arm as a "bedding." Toward the end of his stay, they took out the tracheal tube and he could speak again. His voice had changed and he lisped, but he could speak. There had been no brain damage. He was handicapped and slower, but he had survived. He went home September 5, 2007. The hospital bill came to something around $2,000,000.
In the months that followed, Steve pursued a legal case against the gym that caused his injuries. We hired a law firm to investigate and prosecute the claim. As a former trial lawyer, the case seemed a winner to me. There was nothing wrong with his arm before he went into the steam room on August 2. When he came out, he was permanently injured. His "special damages" amounted to at least $2,000,000, not to mention the "loss of a normal life," "disfigurement," "pain and suffering" and "mental anguish." There was no quarrel that the gym's facilities caused these injuries and Steve had no control over those facilities. Based on my experience, I estimated Steve's case at around $7,000,000.
Despite these compelling facts, the case went poorly. For its part, the gym denied it had done anything wrong. It actually came forward with some questionable "incident reports" that said that Steve "laid down in front of the steam vent" and "caused his own injury." The gym manager--who was not there on August 2--claimed that Steve must have "passed out in the steam room," then fallen in front of the vent for a long time. Yet the medical records all corroborated Steve's story. And the emergency responders who took him from the gym said nothing about "fainting" or "falling." They did not treat him as they would have treated someone who had just fainted. Steve's surgeon even said there was no evidence of a fall.
Still, our lawyers found the gym's self-serving reports troublesome. For some reason, they thought that if the gym's story were true, then Steve could not win the case. Yet Steve always told the same story about how he was injured: He walked into the steam room and a jet of steam suddenly burst from the wall. The gym did not provide warnings anywhere about steam vents. It was a very big steam room with several blind corners and crannies. I had been in it myself and often found it difficult to determine where steam was coming from. That is why it did not surprise me when Steve said the steam took him by surprise.
And no matter what story people believed, the logic of the case seemed obvious to me: You shouldn't allow access to something on your property that can cause an injury as bad as Steve's. It's almost like letting a wild animal loose in your house during a dinner party.
But our lawyers did not see it that way. They said they could never sell Steve's story to a jury. They said they could not convince people that steam could emanate from the wall when the pictures showed the vents were only at ankle level. They did not acknowledge the fact, however, that they took the pictures almost a year after the event. Who knows what "improvements" the gym had made in the intervening time.
Yet all these rationalizations took a back seat to an even more compelling problem for our lawyers: They discovered that the gym did not have any liability insurance. Liability insurance means that an insurance company pays if someone gets injured on your land. If you don't have liability insurance, an injured person can go directly after your assets. But if you have no assets--or if the assets are insufficient to cover the injury--it makes little sense for an injured person to pursue you. After all, it takes years to win a judgment, let alone collect on one. Insurance companies shorten the time needed to get money from an accident. Without insurance, most injury lawyers don't waste their time on cases, even if they are meritorious. After all, they don't get paid until they win. If they spend 5 years working a case, then discover no pot of gold at the end of the rainbow, they will have wasted 5 years for nothing. That is a terrifying prospect for a lawyer trying to pay his rent.
So our lawyers fired us. They never said that the gym's insurance situation was the reason they turned us away. But it was obvious to me. The gym got away scot-free because it strategically decided not to buy liability insurance. The gym knew that no personal injury lawyer would waste his time pursuing an entity without insurance, so it just did not buy insurance. In essence, it insured itself against lawsuits by refusing to insure. It understood that civil litigation is a time-consuming, expensive business. So it correctly guessed that most lawyers would avoid a case that does not promise a quick insurance payout.
In short, the gym acted in a commercially prudent manner. It minimized its liabilities. It saved money.
But Steve suffered injustice for it. Steve's life changed because of the gym's conduct. It offered its facilities to the public for a fee. Those facilities nearly killed Steve and gutted his entire existence, not to mention mine. And due to the gym's strategic failure to buy liability insurance, Steve will not even receive the psychic satisfaction that the law avenged the hurt he endured. Put simply, Steve did not get justice. The law failed him.
Or did it? Steve's case confirms me that the law does not serve justice. If it did, lawyers would have flocked to represent him. Yet none did. From an intuitive perspective, Steve suffered a gross injustice due to another's negligence. No one should ever have to endure such clear wrongs in life.
But the lawyers did not flock to his aid because justice does not motivate them. Avenging injustice, after all, does not necessarily pay the bills. Paying the bills is a quintessentially commercial function. And lawyers did not take Steve's case because they could not assure themselves that it would be "worth the investment." It did not matter that he suffered injustice. Rather, his case was not "commercially viable" because the gym did not have insurance.
In Steve's case, commerce won out over justice. That's a lesson in law for you.
I have no more illusions about the law. It is a business like any other. If a case doesn’t promise a quick profit, no lawyer will take it, even if a person has suffered obvious injustice.
Tuesday, February 9, 2010
STARE DECISIS, SHMARE DECISIS : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG
AN ESSAYPART 2
Yesterday I wrote to explain how the Supreme Court erred in its recent decision granting corporations unlimited freedom to make "independent expenditures" that advocate for Federal election candidates: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). I confined my analysis to the assertion that Congress had good reason to restrict corporations' ability to distort public debate by buying up all the airtime around elections. See, e.g., 2 U.S.C. § 441(b). I noted that according full First Amendment protection to corporations makes it difficult for individuals to voice their First Amendment rights. I also lamented the Court's decision to overrule an earlier case that concluded the same things: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).
Today I continue my analysis on a new point: The Court's utterly hypocritical "commitment" to the legal doctrine "stare decisis." In my view, the Court overrules prior cases when its membership changes, not because monumental social changes render prior decisions "unworkable" or "anachronistic." Citizens United affirms my cynicism on this issue: The fact that both men (Republicans) who voted against Austin in 1990 now vote to overrule it in 2010 says it clearly enough. This is not about policy. It is about politics.
Stare decisis is a judicial custom in common law countries like Great Britain and the United States. In Latin, it means "stand by the decision." Its technical legal meaning does not differ much. It admonishes judges to decide cases according to principles announced in similar past cases. When an older case provides an answer to a question, stare decisis obligates judges to provide the same answer in a case raising the same question. In practice, stare decisis reinforces respect for the judicial system because it informs citizens how judges will rule in particular circumstances. It also reinforces respect for the so-called "rule of law" in society: The idea that power flows from neutral legal principles, not men's individual caprice.
Yet everyone agrees that stare decisis is not the right policy in every circumstance. It makes no sense to follow ancient cases to resolve modern dilemmas. After all, if judges strictly observed stare decisis in every case, we would still live under cases like Plessy v. Ferguson, 163 U.S. 537 (1896), the infamous decision that permitted legal racial segregation in 1896. Everyone knows that Brown v. Board of Education, 347 U.S. 483 (1954), overruled Plessy in 1954. The Supreme Court refused to follow stare decisis in that case; and for good reason. Plessy did not make sense any more. It could not be reconciled with constitutional liberty and equality principles. And society had changed in fundamental ways between 1896 and 1954. Those considerations all warranted abandoning stare decisis to overrule the past decision: By 1954, Plessy had degenerated into a pernicious historical "anachronism."
But the Court wanders into extremely dangerous territory when it overrules cases on less compelling grounds. Stare decisis is the rule, not the exception. And when the Supreme Court overrules cases every few years simply because its membership changes, it inflicts the damage that stare decisis is intended to avoid: The cynical public perception that the Court is not committed to law and constitutional principle, but rather to politics and raw power.
Politics and raw power certainly won the day in Citizens United. I have long been cynical about the Supreme Court and its increasingly mordant, political tone. I have long known that its current conservative majority will not "stand by decisions" it does not like. Yet it will certainly "stand by decisions" that match its political colors. That is why it does not surprise me that it lightly overruled Austin on the corporate election funding question, even though people do not view that question much differently today than they did in 1990. If anything, the reasons that justified Austin's hostility toward corporate political power are more compelling today than they were then.
Justice Kennedy knows this all too well. After all, none other than Justice Kennedy sang a sweeping ode to stare decisis just eighteen years ago in the case that saved abortion rights: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It was Justice Kennedy who signed on to this formula for stare decisis: "[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Id. at 854-855. Sounds like he takes stare decisis pretty seriously, doesn't it?
You have no idea how seriously. Justice Kennedy even approved four detailed factors to determine whether it would "undermine the rule of law" to overrule a prior constitutional case: "[W]e may ask whether (1) the rule has proved intolerable simply in defying practical workability, whether (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether (4) facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification." Casey, 505 U.S. 833, 855 (enumeration and emphasis added).
In Casey, the Court spent many painstaking pages applying the four stare decisis factors. Justice Kennedy joined the analysis in full. He thought it would "undermine the rule of law" to overrule Roe v. Wade, 410 U.S. 110 (1973), just nineteen years after the Court decided it. In sum, Justice Kennedy doggedly defended stare decisis in Casey. He voted to "stand by" the decision.
But where was that doggedness in Citizens United? And what happened to the delicate, detailed stare decisis factors that guided Justice Kennedy's analysis in Casey? They are nowhere to be found. Rather, Justice Kennedy employs a much more nebulous stare decisis test in Citizens United: "Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned." Citizens United, 558 U.S. __ (slip op. at 47)(emphasis added).
What the hell does "well reasoned" mean? What possible objective guidance does that factor provide? It is no surprise that the Court in Casey did not employ a "well reasoned" test in deciding whether to overrule Roe v. Wade. If it had, it would have merely invited the Justices to import their own political sensibilities to determine whether to overrule it. Yet that is Justice Kennedy's test in deciding whether to overrule a 20-year-old precedent about the integrity of American democracy. And with a standard like "well reasoned," you know how it came out.
I find it significant that Justice Kennedy changed his own standards to overrule Austin. After all, if he had applied the painstaking stare decisis factors he endorsed in Casey, he would not have reached the same conclusion. In Austin, the Court held that restrictions on corporate "independent expenditures" advocating Federal candidates were justified in order to curb "corruption and the appearance of corruption," as well as to curtail the disproportionate influence that "immense aggregations of wealth" wield upon the American political process. Austin, 494 U.S. 659-660.
Under the Casey standard for stare decisis, I do not see how this rule has become "unworkable." For generations now, corporations have learned to cope with campaign financing restrictions. They know they have to create "political action committees" in order to advertise for candidates they like. This satisfies Casey's "practical workability" factor.
Second, the American public has placed reliance on Austin's rule. Americans understand that corporations project enormous power in government; and most Americans rightly worry that corporations' financial advantages grant them unfair political leverage. Congress' corporate campaign funding restrictions assured the American people that the law acts to "prevent corruption" in the political process and to curtail the "corrosive" effects of "immense aggregations of wealth" on elections. In this sense, Austin's rule satisfies Casey's "reliance" factor.
Third, the law has not substantially changed on the corporate political speech question since 1990. Not much can happen in constitutional law over such a short period. Constitutional developments take decades. Historically, they coincide with social upheaval. Social changes in American society rewrote the law when the Court overruled Plessy v. Ferguson in 1954. Sixty years, two world wars, a Depression and an atomic bomb had intervened to completely change the way Americans viewed the world. Against that backdrop, it is not surprising that the Court changed the law to keep up.
It is facetious to argue that such monumental social and legal changes have occurred in American society since 1990. In fact, Americans expect government to act against corporate overreaching. By overruling Austin's rule on this point, the Court completely ignores Casey's third factor concerning "fundamental legal change." That is why Justice Kennedy did not even mention this factor in his opinion. See Citizens United, 558 U.S. __(2010)(slip op. at 47).
Fourth, all the facts that supported Austin remain as true today as they did in 1990. Austin posited that restrictions on corporate speech were necessary to prevent corruption and unfairness in the American political process engendered by "massive aggregations of corporate wealth." Those facts formed the basis for the decision. Congress proceeded on those facts when it enacted the corporate campaign finance law.
If anything, those facts are even more true today. There is a rampant public perception that corporate wealth skews political transparency. Cynicism dominates rhetoric about corporate interference in politics. Austin fulfilled Casey's fourth factor on this point: Facts about corporate political spending have not "so changed or become so different as to have robbed [Austin's] rule of significant application or justification." Casey, 505 U.S. 833, 855. Put succinctly, those facts have not changed at all.
Again, it is hardly surprising that Justice Kennedy did not list the "factual change" factor in his Citizens United analysis. Instead, he merely invents a new standard: Whether the prior case was "well reasoned." See Citizens United, 558 U.S. __(2010)(slip op. 47). After all, if he had applied his own test from 1992, he could not in good faith have argued that "facts about corporate influence on politics" have significantly changed in twenty years. So he just ignored what he said in 1992 and made up something else.
See how easy it is to be a Supreme Court justice? You don't even have to stick to what you said before. You can just make things up as you go--as long as you get five votes on it.
But this is all very sad. After all, stare decisis exists to preserve public faith in our Judiciary. If the public sees--as it must now--that the Court willingly discards recent precedent simply because Republicans have more seats than Democrats, it will conclude that the Court is no better than Congress. Yet the Court is supposed to be our "independent branch," an erudite institution that rules on lasting constitutional principle, not casual politics. When the Court coarsely disregards recent precedent--especially on explosive political issues like election control--it sullies itself in ways that are difficult to repair. When the Court acts like this, it invites the same dismissive cynicism that the public usually reserves for elected officials. Principle means nothing. The Court just devolves into another political battleground.
And shame on Justice Kennedy. His hypocrisy has reached epic levels. He does not even apply his own lofty rhetoric about stare decisis. Rather, he abandons it the moment he encounters a case with which he "disagrees." He dissented in Austin twenty years ago. Then he joined an opinion that passionately defended stare decisis two years later. On that basis, one might think he would think twice about lightly overruling recent cases. But instead he overruled Austin without even using the grandiose stare decisis test he so forcefully advocated in Casey. This time, he did not even spend three pages dismissing stare decisis.
He really must not have liked Austin.
Apparently, our Constitution now functions according to a new test: Whether Justice Kennedy likes a case. Thankfully for him, he has four guys who will stand with him in most situations. And all you need is five.
Thursday, February 4, 2010
OUR SHAMELESS, DISGUSTING SUPREME COURT
OESTERHOUDT STRIKES
Today I am reading the Supreme Court's decision about corporate funding in Federal election campaigns: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(No. 08-205 slip op.). I have already heard horror stories about this case. But I am always careful to judge Supreme Court cases without actually reading them. The press usually distorts what Supreme Court cases actually say. Sometimes they exaggerate. Other times they leave out disturbing (or encouraging) nuances. If my legal education taught me anything, it was always to read a text carefully before saying anything about it. And you really have to do that in order to understand a Supreme Court case.
That is not to say that magic lies within Supreme Court cases. Far from it. In most cases, Supreme Court decisions represent nothing more than gross political prejudice masquerading as erudite legal science. Justices make up their minds about the political issues at stake in a constitutional question. Then they instruct their law clerks to dress up their prejudices in neat legal rhetoric for the presses. Principle rarely plays a role in this process. It's just power and political judgment operating as law.
In law school, I read old Supreme Court cases and marveled at them. In the 1950s and 1960s, the Court actually seemed to want to find justice in American law. I even dreamed about becoming a justice myself: It seemed that they could actually do some good in the world. Men like William J. Brennan, Jr., Thurgood Marshall and William O. Douglas became my intellectual heroes because they spoke out against entrenched American injustice. And they bent positive law in order to achieve justice: They knew that positive law could legally create injustice just as easily as a mob could inflict injustice without law.
But those days are long, long gone. Supreme Court justices today do not fight the good fight. They are tired, uninspiring, lukewarm political actionaries who do less to enlarge individual rights than to stamp out what few liberties Americans still have. Worse, the current five-member conservative alliance is far more concerned with corporate freedom than individual rights. Under Chief Justice John G. Roberts, Jr., the Constitution stands for corporations, not people.
That is not inspiring. It is just disgusting.
It is doubly disgusting because justices today actually reference Supreme Court precedent enlarging individual freedom to defend massive corporations. I have only made it through the first 12 pages in Citizens United v. Federal Election Commission, and already Justice Kennedy cited two cases in which Chief Justice Roberts referenced cases from the liberal 1960s to argue that "corporations need freedom, too." This is like the KKK using Brown v. Board of Education, 347 U.S. 483 (1954) to argue that "murderous white bigots are people, too." This sheer dishonesty--and ignorant contempt for American history--makes my jaw drop.
First, Chief Justice Roberts cited New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, arch-liberal justice William J. Brennan, Jr., concluded that newspapers could not be sued for libel when publishing stories about "public figures" and "matters of public concern." The case stands as a testament to individual free speech rights. It established a principle that the people can speak freely about the powerful without substantial legal worry under the First Amendment. It reinforced the idea that the First Amendment is the people's check on the powerful: They have a right to speak no matter how exulted their target.
But now comes Chief Justice Roberts. He rips Sullivan's hopeful constitutional language from its context to support a conclusion that the First Amendment "must give the benefit of any doubt to protecting rather than stifling speech." Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007)(opinion of Roberts, C.J.).
Justice Brennan wrote those words to promote public speech by individuals against powerful interests. They made sense in that context. But now Chief Justice Roberts shamelessly co-opts them to promote corporate speech designed to influence elections and ram corporate messages down people's throats. This is the ultimate misuse of Sullivan. Justice Brennan would have been horrified to see his language warped for this purpose.
Chief Justice Roberts does not end here. He uses another classic liberal First Amendment standard from the 1960s to support neoconservative corporate license in the 2010s: NAACP v. Button, 371 U.S. 415 (1963). In that case, the Court struck down segregationist Virginia laws that banned black political agitators from promoting civil rights. Justice Brennan--the liberal champion--again wrote the opinion, remarking: "First Amendment freedoms need breathing room to survive." Id. at 433.
Chief Justice Roberts used the same sentence to defend the corporate freedom to ram political advertisements down people's throats. Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 468-469 (2007).
This is so outrageous it is almost satirical. To even imagine that a Republican Chief Justice would steal language from a symbolically liberal free speech case to aggrandize corporate power is so shocking that it prompts disbelieving laughter. But Chief Justice Roberts did exactly that: He used a 1960s civil rights case about the First Amendment's importance in the individual's arsenal against injustice to bolster a corporation's power to maintain its strength over individuals.
That is almost as inappropriate as prying random words from a Hitler speech to commend Jewish freedom.
Sadly, this is how the Supreme Court operates these days. It has no respect for principle, no respect for American history and no respect for consensus. It ignores the fact that the Constitution should provide guiding unity on major principles, not an excuse for discord. On hot-button issues, its members dig in their heels and act like children--or Congressmen. They cannot agree on anything except their own base prejudices, which they enshroud in law as soon as they get a fifth vote--just like Congressmen.
Maybe this is just how any human being would behave in the circumstances. But these are Supreme Court justices; we should hold them to a higher standard. They say they are not politicians. They say they rule "on the law and nothing else."
But I see through the charade. It's all nonsense. It's all just crude power play. And it's disgusting because it's so dishonest. If a Chief Justice can corrupt hopeful language from 1960s civil rights cases to enlarge corporate power today, it is obvious that the Supreme Court has no shame at all. Just like any political group, it will use whatever means at its disposal to achieve particular results.
Yet the Constitution is more concerned with means than ends. The People adopted the Constitution because they demanded respect for individual rights against the government and larger powers. While corporations may not have been as powerful in 1787 as they are today, it is indisputable that they now wield enormous influence over American lives. Corporations can dominate debate about public issues in a way the Framers could scarcely have imagined. That is dangerous for individual First Amendment rights.
Apparently, this Supreme Court does not understand that. Now I'm afraid to continue reading the case. Who knows what terrors lurk in its later pages.
On the other hand, I might get a few guffaws along the way--and more ideas for satire.
I can't write the shit Supreme Court justices come up with.
Today I am reading the Supreme Court's decision about corporate funding in Federal election campaigns: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(No. 08-205 slip op.). I have already heard horror stories about this case. But I am always careful to judge Supreme Court cases without actually reading them. The press usually distorts what Supreme Court cases actually say. Sometimes they exaggerate. Other times they leave out disturbing (or encouraging) nuances. If my legal education taught me anything, it was always to read a text carefully before saying anything about it. And you really have to do that in order to understand a Supreme Court case.
That is not to say that magic lies within Supreme Court cases. Far from it. In most cases, Supreme Court decisions represent nothing more than gross political prejudice masquerading as erudite legal science. Justices make up their minds about the political issues at stake in a constitutional question. Then they instruct their law clerks to dress up their prejudices in neat legal rhetoric for the presses. Principle rarely plays a role in this process. It's just power and political judgment operating as law.
In law school, I read old Supreme Court cases and marveled at them. In the 1950s and 1960s, the Court actually seemed to want to find justice in American law. I even dreamed about becoming a justice myself: It seemed that they could actually do some good in the world. Men like William J. Brennan, Jr., Thurgood Marshall and William O. Douglas became my intellectual heroes because they spoke out against entrenched American injustice. And they bent positive law in order to achieve justice: They knew that positive law could legally create injustice just as easily as a mob could inflict injustice without law.
But those days are long, long gone. Supreme Court justices today do not fight the good fight. They are tired, uninspiring, lukewarm political actionaries who do less to enlarge individual rights than to stamp out what few liberties Americans still have. Worse, the current five-member conservative alliance is far more concerned with corporate freedom than individual rights. Under Chief Justice John G. Roberts, Jr., the Constitution stands for corporations, not people.
That is not inspiring. It is just disgusting.
It is doubly disgusting because justices today actually reference Supreme Court precedent enlarging individual freedom to defend massive corporations. I have only made it through the first 12 pages in Citizens United v. Federal Election Commission, and already Justice Kennedy cited two cases in which Chief Justice Roberts referenced cases from the liberal 1960s to argue that "corporations need freedom, too." This is like the KKK using Brown v. Board of Education, 347 U.S. 483 (1954) to argue that "murderous white bigots are people, too." This sheer dishonesty--and ignorant contempt for American history--makes my jaw drop.
First, Chief Justice Roberts cited New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, arch-liberal justice William J. Brennan, Jr., concluded that newspapers could not be sued for libel when publishing stories about "public figures" and "matters of public concern." The case stands as a testament to individual free speech rights. It established a principle that the people can speak freely about the powerful without substantial legal worry under the First Amendment. It reinforced the idea that the First Amendment is the people's check on the powerful: They have a right to speak no matter how exulted their target.
But now comes Chief Justice Roberts. He rips Sullivan's hopeful constitutional language from its context to support a conclusion that the First Amendment "must give the benefit of any doubt to protecting rather than stifling speech." Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007)(opinion of Roberts, C.J.).
Justice Brennan wrote those words to promote public speech by individuals against powerful interests. They made sense in that context. But now Chief Justice Roberts shamelessly co-opts them to promote corporate speech designed to influence elections and ram corporate messages down people's throats. This is the ultimate misuse of Sullivan. Justice Brennan would have been horrified to see his language warped for this purpose.
Chief Justice Roberts does not end here. He uses another classic liberal First Amendment standard from the 1960s to support neoconservative corporate license in the 2010s: NAACP v. Button, 371 U.S. 415 (1963). In that case, the Court struck down segregationist Virginia laws that banned black political agitators from promoting civil rights. Justice Brennan--the liberal champion--again wrote the opinion, remarking: "First Amendment freedoms need breathing room to survive." Id. at 433.
Chief Justice Roberts used the same sentence to defend the corporate freedom to ram political advertisements down people's throats. Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 468-469 (2007).
This is so outrageous it is almost satirical. To even imagine that a Republican Chief Justice would steal language from a symbolically liberal free speech case to aggrandize corporate power is so shocking that it prompts disbelieving laughter. But Chief Justice Roberts did exactly that: He used a 1960s civil rights case about the First Amendment's importance in the individual's arsenal against injustice to bolster a corporation's power to maintain its strength over individuals.
That is almost as inappropriate as prying random words from a Hitler speech to commend Jewish freedom.
Sadly, this is how the Supreme Court operates these days. It has no respect for principle, no respect for American history and no respect for consensus. It ignores the fact that the Constitution should provide guiding unity on major principles, not an excuse for discord. On hot-button issues, its members dig in their heels and act like children--or Congressmen. They cannot agree on anything except their own base prejudices, which they enshroud in law as soon as they get a fifth vote--just like Congressmen.
Maybe this is just how any human being would behave in the circumstances. But these are Supreme Court justices; we should hold them to a higher standard. They say they are not politicians. They say they rule "on the law and nothing else."
But I see through the charade. It's all nonsense. It's all just crude power play. And it's disgusting because it's so dishonest. If a Chief Justice can corrupt hopeful language from 1960s civil rights cases to enlarge corporate power today, it is obvious that the Supreme Court has no shame at all. Just like any political group, it will use whatever means at its disposal to achieve particular results.
Yet the Constitution is more concerned with means than ends. The People adopted the Constitution because they demanded respect for individual rights against the government and larger powers. While corporations may not have been as powerful in 1787 as they are today, it is indisputable that they now wield enormous influence over American lives. Corporations can dominate debate about public issues in a way the Framers could scarcely have imagined. That is dangerous for individual First Amendment rights.
Apparently, this Supreme Court does not understand that. Now I'm afraid to continue reading the case. Who knows what terrors lurk in its later pages.
On the other hand, I might get a few guffaws along the way--and more ideas for satire.
I can't write the shit Supreme Court justices come up with.
Monday, December 21, 2009
WHAT WOULD YOU DO FOR $40,000? THE PRICE OF BELIEF
AN ESSAY
Sometimes I wish I weren't so cynical. Cynicism is my life philosophy. Although it almost invariably leads me to the truth, I don't really like it. Although it has predicted the future for me more than once, I wish it hadn't. After all, cynicism assumes that everyone has selfish motives and will ultimately take action to satisfy their own interests. That is a pretty bleak view. Yet in our obligation-filled commercial world, it is a consummately realistic one.
I wish I weren't so cynical because I want to believe that everyone does not have a price. Whenever I think about cynicism, I inevitably struggle with principles. After all, a principle stands at odds with expediency. Self-interested people are always "expedient" when it is necessary to fulfill their aims. Principles, by contrast, are inflexible; they do not bend to expediency. Yet all too often in history we hear about "principled" men who stood up for larger ideas to a point, then caved in order to enrich themselves. In other words, every man--and every principle--has a price. The question is merely how much money it takes to convince a man to abandon what he believes.
As a cynic, I find it almost axiomatic that men sell their principles for the "right price." If human beings truly have innately selfish motivations and act ultimately to satisfy their own interests, then no larger idea could ever induce them to ignore themselves. It is natural to expect men to sell out or betray their beliefs when enough gold appears on the table. Although popular mythology teaches us to revile men who do this (the Judas story is the classic Biblical example), we are never surprised when it happens. We live in a difficult world. No one wants to go hungry or die. If it came between adhering to principle and eating, how can we blame a man for simply "betraying what he believes?" It is easier to revile a man who sells out simply to profit. But sometimes men sell their beliefs just to eat or sleep--or to save their families.
Yet we admire men who refuse to compromise their principles for a price. We admire them precisely because they are so rare. Again, cynicism provides a good way to understand why we deify "martyrs" like Jesus Christ and Saint Thomas More. Both men died because they refused to abandon their principles despite pressure. Both had opportunities to take payment and shut up. Both knew they would die for refusing to renounce their beliefs. And they still refused.
From a cynical perspective, we assume that men will always sacrifice their principles for personal gain or to save themselves. Overwhelmingly in human experience, that is what happens. But when it does not happen, we immortalize the person who resisted the impulse to be selfish. Put another way, when a person defies the cynical expectation to act only for himself, he becomes a saint-like figure--or a saint outright. This is what happens when men adhere to their principles. It leads to eternal honor. And that explains why both saints and honor are rare. Everyone has a price: But those who don't become legends.
But I'm not writing about legends today. I'm writing about everyone else who does have a price. And while it might be pathetic to have a price, I argue that it is completely forgivable.
Why is it forgivable to be a dishonorable person who abandons principle whenever profit beckons? It is forgivable because we inhabit a world that expects us to value profit more than honor. No one pays our way in this life. We learn early that we must make our way through the commercial thicket by any means necessary. Without money, we are finished. We can't pay our rent, we can't feed our children and we can't eat. We spend our lives struggling to find ways that yield money; and we never get enough. We learn that profit is good because profit protects us from hardship. When we profit, we stave off bill collectors, bankers and landlords. We feed our children. We increase our comfort and avoid worry. We stay warm. By eliminating a key source for worry, we actually gain the capacity to enjoy ourselves--at least in theory. We are only human; we have bodies. Profit protects our bodies from ruin. If it comes between preserving our bodies from ruin and adhering to a principle that could cost us our bodily comfort, the natural human response is to preserve our bodies.
Only saints spite their bodies for their beliefs. For everyone else, a price will suffice to buy belief.
Some people require less enticement than others. Potential profits not only dissuade men from adhering to principle. They also encourage men to brutalize their fellow man. Profit underlies criminal motivations crime as well as dishonorable ones. In the movie Fargo, for example, two ex-cons agree to kidnap a man's wife for $40,000. Various difficulties intervene and they murder three people in the process. Due to these "unforeseen complications," they demand $80,000 rather than $40,000. Before the drama ends, another two people die and no one makes a dime. The detective who arrests the killer--exceptionally played by Frances McDormand--then says: "All that for a little bit of money. There's more to life than a little bit of money, you know."
That may be so. But money motivates just about everything that people do, even murder. Contract killings have price. Lives--like everything else in the free market-- have a price, too. How much does it take to encourage someone to kill another? Is $40,000 too much? Some people in American society make $40,000 a year; others make it in one day. How about $10,000? $1,000?
This might all seem macabre. Still, the fact remains that potential profits bring out the worst in people. As bad as that is, however, I still think there is a good explanation for it: People in our society learn to be desperate for profit. Without it, they think they will come to ruin. So for those closer to ruin, there is a greater motivation to do unspeakable things for relatively little money. There might be more to life than money. But try telling that to those who don't have much. They are willing to do just about anything for what seems a pittance to others.
How much potential profit would it take to convince the average person to commit murder? How about lying? How about sacrificing integrity or honor? How about acting in a way that clashes with one's conscience? What if a job requires a person to violate his conscience, but if he loses the job, he loses his livelihood? How much does a conscience cost?
Against this background, can anyone resist a sufficient price? Is anyone noble enough to ignore themselves? That's my real question. All I can say is this: Cynicism tells me, as a general matter, that people can be bought. But there are a few extremely rare cases in which they cannot. I find this sad because it really does not take much for a stronger person to cast aside a weaker person's beliefs. Beliefs and conscience are individual. They are subjective. They belong to the person who holds them and no other. If a "little bit of money" is all it takes to sweep them away, what does that say about the value of individuality in our society? Where are the courageous people? Where are the people who will not abandon their beliefs for a price?
All I know is that they are not in the United States Congress.
Sometimes I wish I weren't so cynical. Cynicism is my life philosophy. Although it almost invariably leads me to the truth, I don't really like it. Although it has predicted the future for me more than once, I wish it hadn't. After all, cynicism assumes that everyone has selfish motives and will ultimately take action to satisfy their own interests. That is a pretty bleak view. Yet in our obligation-filled commercial world, it is a consummately realistic one.
I wish I weren't so cynical because I want to believe that everyone does not have a price. Whenever I think about cynicism, I inevitably struggle with principles. After all, a principle stands at odds with expediency. Self-interested people are always "expedient" when it is necessary to fulfill their aims. Principles, by contrast, are inflexible; they do not bend to expediency. Yet all too often in history we hear about "principled" men who stood up for larger ideas to a point, then caved in order to enrich themselves. In other words, every man--and every principle--has a price. The question is merely how much money it takes to convince a man to abandon what he believes.
As a cynic, I find it almost axiomatic that men sell their principles for the "right price." If human beings truly have innately selfish motivations and act ultimately to satisfy their own interests, then no larger idea could ever induce them to ignore themselves. It is natural to expect men to sell out or betray their beliefs when enough gold appears on the table. Although popular mythology teaches us to revile men who do this (the Judas story is the classic Biblical example), we are never surprised when it happens. We live in a difficult world. No one wants to go hungry or die. If it came between adhering to principle and eating, how can we blame a man for simply "betraying what he believes?" It is easier to revile a man who sells out simply to profit. But sometimes men sell their beliefs just to eat or sleep--or to save their families.
Yet we admire men who refuse to compromise their principles for a price. We admire them precisely because they are so rare. Again, cynicism provides a good way to understand why we deify "martyrs" like Jesus Christ and Saint Thomas More. Both men died because they refused to abandon their principles despite pressure. Both had opportunities to take payment and shut up. Both knew they would die for refusing to renounce their beliefs. And they still refused.
From a cynical perspective, we assume that men will always sacrifice their principles for personal gain or to save themselves. Overwhelmingly in human experience, that is what happens. But when it does not happen, we immortalize the person who resisted the impulse to be selfish. Put another way, when a person defies the cynical expectation to act only for himself, he becomes a saint-like figure--or a saint outright. This is what happens when men adhere to their principles. It leads to eternal honor. And that explains why both saints and honor are rare. Everyone has a price: But those who don't become legends.
But I'm not writing about legends today. I'm writing about everyone else who does have a price. And while it might be pathetic to have a price, I argue that it is completely forgivable.
Why is it forgivable to be a dishonorable person who abandons principle whenever profit beckons? It is forgivable because we inhabit a world that expects us to value profit more than honor. No one pays our way in this life. We learn early that we must make our way through the commercial thicket by any means necessary. Without money, we are finished. We can't pay our rent, we can't feed our children and we can't eat. We spend our lives struggling to find ways that yield money; and we never get enough. We learn that profit is good because profit protects us from hardship. When we profit, we stave off bill collectors, bankers and landlords. We feed our children. We increase our comfort and avoid worry. We stay warm. By eliminating a key source for worry, we actually gain the capacity to enjoy ourselves--at least in theory. We are only human; we have bodies. Profit protects our bodies from ruin. If it comes between preserving our bodies from ruin and adhering to a principle that could cost us our bodily comfort, the natural human response is to preserve our bodies.
Only saints spite their bodies for their beliefs. For everyone else, a price will suffice to buy belief.
Some people require less enticement than others. Potential profits not only dissuade men from adhering to principle. They also encourage men to brutalize their fellow man. Profit underlies criminal motivations crime as well as dishonorable ones. In the movie Fargo, for example, two ex-cons agree to kidnap a man's wife for $40,000. Various difficulties intervene and they murder three people in the process. Due to these "unforeseen complications," they demand $80,000 rather than $40,000. Before the drama ends, another two people die and no one makes a dime. The detective who arrests the killer--exceptionally played by Frances McDormand--then says: "All that for a little bit of money. There's more to life than a little bit of money, you know."
That may be so. But money motivates just about everything that people do, even murder. Contract killings have price. Lives--like everything else in the free market-- have a price, too. How much does it take to encourage someone to kill another? Is $40,000 too much? Some people in American society make $40,000 a year; others make it in one day. How about $10,000? $1,000?
This might all seem macabre. Still, the fact remains that potential profits bring out the worst in people. As bad as that is, however, I still think there is a good explanation for it: People in our society learn to be desperate for profit. Without it, they think they will come to ruin. So for those closer to ruin, there is a greater motivation to do unspeakable things for relatively little money. There might be more to life than money. But try telling that to those who don't have much. They are willing to do just about anything for what seems a pittance to others.
How much potential profit would it take to convince the average person to commit murder? How about lying? How about sacrificing integrity or honor? How about acting in a way that clashes with one's conscience? What if a job requires a person to violate his conscience, but if he loses the job, he loses his livelihood? How much does a conscience cost?
Against this background, can anyone resist a sufficient price? Is anyone noble enough to ignore themselves? That's my real question. All I can say is this: Cynicism tells me, as a general matter, that people can be bought. But there are a few extremely rare cases in which they cannot. I find this sad because it really does not take much for a stronger person to cast aside a weaker person's beliefs. Beliefs and conscience are individual. They are subjective. They belong to the person who holds them and no other. If a "little bit of money" is all it takes to sweep them away, what does that say about the value of individuality in our society? Where are the courageous people? Where are the people who will not abandon their beliefs for a price?
All I know is that they are not in the United States Congress.
Monday, December 14, 2009
DEMOCRACY : AN AMERICAN MYTH
AN ESSAY
Americans learn to revere the word "democracy." In public school, they learn that the American government is "democratic." They take pride in "democracy" because "democracy" is a "free" form of government that is "better" than other governments. After all, when students learn about the American Revolution, they inevitably hear that our Framers established a "democracy." And "democracy" is "better" than the unjust "monarchy" that led them to revolt. Applying these indoctrinated ideals, Americans claim that they never believe in "family distinctions," "aristocracy" or other "elitism" based on inherited titles.
I venture that this is all nonsense. The United States is not--and certainly never was--a democracy. And Americans believe in aristocracy far more than they like to publicly admit: The truth is that both democracy and equality are American myths.
I first doubted the rhetoric about American democracy when I read history books about ancient Greece. In those books, I learned that pure "democracy" imposed no limitation on a person's participation in government. Every voice was equal. Everyone could vote and every decision required majority approval by all. There was no "representative body" that made decisions "in the people's name." No, in pure democracy, the people rule--literally. Everyone has an equal say in policy, from the richest landowner to the lowliest beggar.
Democracy sounds like a wonderful idea. After all, don't we all want to be equal to one another? Should we not all have an equal right to decide on important public questions? Isn't it somehow reassuring to know that the government works for you, and that you have a real chance to influence it? Of course it sounds great. Democracy is idealistic. It lends itself to myths. And like all myths, it does not really exist.
Lately, I've been re-reading Aristotle's Politics. As the world's first real political scientist, he presaged almost every significant political debate that came after him. By categorizing governmental forms, he created the vocabulary of modern political discussion. And Aristotle's text gives me immense support for my contention that the United States is no democracy--not even close. Rather, the United States is an oligarchy.
In criticizing Plato's Laws, Aristotle makes some cogent observations about voting. Americans learn that "democracy" is all about voting. They learn that "going to the polls" proves that "everybody means something" in our political system. There is a theme in American voting rhetoric about equality and dignity. Because we all can supposedly vote, that makes us all equally powerful and worthy. But Aristotle says: "The practice of selection by lot from a number chosen by election is common to both oligarchy and democracy; but to impose upon the richer citizens, and upon them only, the obligation to be members of the Assembly, to vote for office-bearers and do any other duty that falls upon a citizen--that is oligarchical." The Politics, Book II, ch. vi, § 1266a5.
In early America, only white men with sufficient landholdings could vote for representatives. In other words, the "obligation to be members of the Assembly" and "vote for office-bearers" fell solely upon the "richer citizens." Women, slaves and the vast majority of white men had no say whatsoever in government. They could not even go to the polls. Although voting restrictions have certainly diminished over time, it is still no easy thing to vote in the United States. State laws impose numerous handicaps on citizens' right to vote. And in a good year, we're lucky if 50% of the eligible voters actually show up to cast their ballots. Other State laws completely disable people from voting. For example, if you commit a felony--even a relatively minor one, like writing a bad check--you might lose the right to vote for the rest of your life.
In this light, America has historically been far more "oligarchical" than "democratic." If this were a true democracy, everyone would have been able to actively participate in government from the outset. We know this is not the case. Americans have never actively participated in their government. Rather, they elect "particularly distinguished people" from "particular social strata" to rule for them. This, too, is oligarchical. Think about where the Representatives and Senators come from. They are all generally wealthy, white and well-educated. They do not represent a fair cross-section of American society. If anything, they resemble the "richer citizens" Aristotle mentions in The Politics. Just look at Congress. These are not typical Americans: They are 535 people who are far more powerful and wealthy than the people who elected them. And for over a century in this country, they were exclusively landed white males.
Aristotle provides further support for the conclusion that the United States has been--and in many ways, still is--an oligarchy. Concerning oligarchy, he writes: "So also is the attempt to secure that a majority of the office-holders should come from among the wealthy, and that highest offices should be filled by those from the highest property-classes." The Politics, Book II, ch. vi § 1266a5.
What a striking insight. It is as if Aristotle predicted what the United States government would look like 2000 years later. Think about the "majority of the office-holders" in American government. What social class do they represent? You guessed it: They largely come from the "highest property-classes," or at least act like they do. Even President Obama made quite a bit of money as a lawyer and law professor before diving into politics. The fact that there are only two political parties reinforces the oligarchical nature of American government. Unlike European parliamentary systems, Americans have only two choices: Liberal rich guy #1 (the Democrat) or Conservative rich guy #2 (the Republican). There are no "Greens," "Socialists," "Labor Men," "Women for Animals' Rights" or "Christian Theologues." In the American system, every "high office holder" is basically the same: A wealthy believer in free market capitalism who owns significant amounts of property. That is oligarchy.
In the final analysis, it is clear that people from the "highest property-classes" run the American government. They always have, and they always will. Let's just be honest about our terminology: This is an oligarchy, not a democracy. It is simply false to call our system a "democracy," no matter how many people can technically vote. Despite this, it works in the government's favor to identify itself as a "democracy." After all, "democracy" has a magical ring to it. It conjures all kinds of hopeful ideals. It also fools the people into believing that they actually have a say in policy. History shows that people revolt when they feel they are powerless. But when they think their government actually speaks for them, they refrain from revolution. In that sense, calling America a "democracy" maintains social control, even if it is untrue. Calling America a "democracy" keeps things quiet. And that's just how oligarchs like it: It lets them continue to hold all the power.
Oligarchy proceeds on the premise that only a few hold political power. It implies inequality. Democracy, on the other hand, proceeds on the premise that everyone holds political power. It implies equality. Yet a quick look at inequalities in the American political system beginning in 1787 reveals just how absurd it is to call the United States a "democracy." And a quick look at the "kind of people" who have held high office in the United States over the years--Presidents, Senators, Supreme Court justices--merely confirms Aristotle's analysis: These guys (well, almost all guys) all came from the "highest property-classes."
In this light, it is simply disingenuous to delude our children into thinking that they live in a democracy. If they do not come from "high property-classes," they stand a much lower chance to ever influence government. That does not mean that they cannot rise into a "high property-class." It simply means that they must first obtain wealth before even thinking about politics. After all, it wouldn't be an oligarchy if poor folks suddenly held all the high government jobs.
In truth, no country can ever be fully democratic. Could a country in good faith entrust its most pressing concerns to half-fed beggars, idiots and wage laborers? Certainly not. It is reasonable to put political power into "competent" hands. And generally the wealthy are those most competent to administer the State. I simply believe we must be honest in the way we think about our government. That means dropping all aspirations to "equality" and "dignity." The sad fact is that perfect equality is a very bad idea when it comes to government. It would be better if we simply acknowledged that and stopped perpetuating myths that "everyone is equal" in American society. That is not the goal, nor can it ever be. Yet even the oligarchs in power circulate meaningless rhetoric about democratic opportunity and equality for all in America.
We are oligarchs; why not just admit it? Let's at least stop lying to our children about democracy.
Americans learn to revere the word "democracy." In public school, they learn that the American government is "democratic." They take pride in "democracy" because "democracy" is a "free" form of government that is "better" than other governments. After all, when students learn about the American Revolution, they inevitably hear that our Framers established a "democracy." And "democracy" is "better" than the unjust "monarchy" that led them to revolt. Applying these indoctrinated ideals, Americans claim that they never believe in "family distinctions," "aristocracy" or other "elitism" based on inherited titles.
I venture that this is all nonsense. The United States is not--and certainly never was--a democracy. And Americans believe in aristocracy far more than they like to publicly admit: The truth is that both democracy and equality are American myths.
I first doubted the rhetoric about American democracy when I read history books about ancient Greece. In those books, I learned that pure "democracy" imposed no limitation on a person's participation in government. Every voice was equal. Everyone could vote and every decision required majority approval by all. There was no "representative body" that made decisions "in the people's name." No, in pure democracy, the people rule--literally. Everyone has an equal say in policy, from the richest landowner to the lowliest beggar.
Democracy sounds like a wonderful idea. After all, don't we all want to be equal to one another? Should we not all have an equal right to decide on important public questions? Isn't it somehow reassuring to know that the government works for you, and that you have a real chance to influence it? Of course it sounds great. Democracy is idealistic. It lends itself to myths. And like all myths, it does not really exist.
Lately, I've been re-reading Aristotle's Politics. As the world's first real political scientist, he presaged almost every significant political debate that came after him. By categorizing governmental forms, he created the vocabulary of modern political discussion. And Aristotle's text gives me immense support for my contention that the United States is no democracy--not even close. Rather, the United States is an oligarchy.
In criticizing Plato's Laws, Aristotle makes some cogent observations about voting. Americans learn that "democracy" is all about voting. They learn that "going to the polls" proves that "everybody means something" in our political system. There is a theme in American voting rhetoric about equality and dignity. Because we all can supposedly vote, that makes us all equally powerful and worthy. But Aristotle says: "The practice of selection by lot from a number chosen by election is common to both oligarchy and democracy; but to impose upon the richer citizens, and upon them only, the obligation to be members of the Assembly, to vote for office-bearers and do any other duty that falls upon a citizen--that is oligarchical." The Politics, Book II, ch. vi, § 1266a5.
In early America, only white men with sufficient landholdings could vote for representatives. In other words, the "obligation to be members of the Assembly" and "vote for office-bearers" fell solely upon the "richer citizens." Women, slaves and the vast majority of white men had no say whatsoever in government. They could not even go to the polls. Although voting restrictions have certainly diminished over time, it is still no easy thing to vote in the United States. State laws impose numerous handicaps on citizens' right to vote. And in a good year, we're lucky if 50% of the eligible voters actually show up to cast their ballots. Other State laws completely disable people from voting. For example, if you commit a felony--even a relatively minor one, like writing a bad check--you might lose the right to vote for the rest of your life.
In this light, America has historically been far more "oligarchical" than "democratic." If this were a true democracy, everyone would have been able to actively participate in government from the outset. We know this is not the case. Americans have never actively participated in their government. Rather, they elect "particularly distinguished people" from "particular social strata" to rule for them. This, too, is oligarchical. Think about where the Representatives and Senators come from. They are all generally wealthy, white and well-educated. They do not represent a fair cross-section of American society. If anything, they resemble the "richer citizens" Aristotle mentions in The Politics. Just look at Congress. These are not typical Americans: They are 535 people who are far more powerful and wealthy than the people who elected them. And for over a century in this country, they were exclusively landed white males.
Aristotle provides further support for the conclusion that the United States has been--and in many ways, still is--an oligarchy. Concerning oligarchy, he writes: "So also is the attempt to secure that a majority of the office-holders should come from among the wealthy, and that highest offices should be filled by those from the highest property-classes." The Politics, Book II, ch. vi § 1266a5.
What a striking insight. It is as if Aristotle predicted what the United States government would look like 2000 years later. Think about the "majority of the office-holders" in American government. What social class do they represent? You guessed it: They largely come from the "highest property-classes," or at least act like they do. Even President Obama made quite a bit of money as a lawyer and law professor before diving into politics. The fact that there are only two political parties reinforces the oligarchical nature of American government. Unlike European parliamentary systems, Americans have only two choices: Liberal rich guy #1 (the Democrat) or Conservative rich guy #2 (the Republican). There are no "Greens," "Socialists," "Labor Men," "Women for Animals' Rights" or "Christian Theologues." In the American system, every "high office holder" is basically the same: A wealthy believer in free market capitalism who owns significant amounts of property. That is oligarchy.
In the final analysis, it is clear that people from the "highest property-classes" run the American government. They always have, and they always will. Let's just be honest about our terminology: This is an oligarchy, not a democracy. It is simply false to call our system a "democracy," no matter how many people can technically vote. Despite this, it works in the government's favor to identify itself as a "democracy." After all, "democracy" has a magical ring to it. It conjures all kinds of hopeful ideals. It also fools the people into believing that they actually have a say in policy. History shows that people revolt when they feel they are powerless. But when they think their government actually speaks for them, they refrain from revolution. In that sense, calling America a "democracy" maintains social control, even if it is untrue. Calling America a "democracy" keeps things quiet. And that's just how oligarchs like it: It lets them continue to hold all the power.
Oligarchy proceeds on the premise that only a few hold political power. It implies inequality. Democracy, on the other hand, proceeds on the premise that everyone holds political power. It implies equality. Yet a quick look at inequalities in the American political system beginning in 1787 reveals just how absurd it is to call the United States a "democracy." And a quick look at the "kind of people" who have held high office in the United States over the years--Presidents, Senators, Supreme Court justices--merely confirms Aristotle's analysis: These guys (well, almost all guys) all came from the "highest property-classes."
In this light, it is simply disingenuous to delude our children into thinking that they live in a democracy. If they do not come from "high property-classes," they stand a much lower chance to ever influence government. That does not mean that they cannot rise into a "high property-class." It simply means that they must first obtain wealth before even thinking about politics. After all, it wouldn't be an oligarchy if poor folks suddenly held all the high government jobs.
In truth, no country can ever be fully democratic. Could a country in good faith entrust its most pressing concerns to half-fed beggars, idiots and wage laborers? Certainly not. It is reasonable to put political power into "competent" hands. And generally the wealthy are those most competent to administer the State. I simply believe we must be honest in the way we think about our government. That means dropping all aspirations to "equality" and "dignity." The sad fact is that perfect equality is a very bad idea when it comes to government. It would be better if we simply acknowledged that and stopped perpetuating myths that "everyone is equal" in American society. That is not the goal, nor can it ever be. Yet even the oligarchs in power circulate meaningless rhetoric about democratic opportunity and equality for all in America.
We are oligarchs; why not just admit it? Let's at least stop lying to our children about democracy.
Friday, November 20, 2009
SHAME OR GUILT : WHAT'S THE DIFFERENCE?
AN ESSAY
I tried to answer this question during a conversation I had with one of my best friends. We often talk about philosophy and power, and we both agreed that "shame" and "guilt" are "kindred spirits." They are both strongly negative words. No one likes to feel guilty or shameful. They both imply that you have done "wrong." But are they really the same? That's the question.
Both "shame" and "guilt" flow from an acknowledgment of power. We only feel shameful or guilty when we recognize that we have failed to conform to a standard that we probably did not make. Someone else made the standard, someone we recognize as "superior" to us. In this sense, both guilt and shame emanate from below; the person who makes the rules that induce guilt or shame at most feels "disappointed" that his "subject" broke a rule. Shame and guilt, then, are for those who occupy an inferior power position. This is why Nietzsche called shame and guilt Sklavenmoral--Slaves' Morality. The rule-maker (or "master") does not feel them. Rather, he causes others to feel them because they do not adhere to his standards. They solidify his grasp over them.
But this does not mean that a single "superior person" causes others to feel guilt or shame. While a "superior person" may have originally laid down external standards, in most cases today external standards proceed from institutions. After all, power is deeply entrenched. It emanates from manifold places. It operates in virtually every conceivable manner, whether subtle or overt. Power radiates in families, in schools, in laws, in social settings and in professional relationships. It exists in commerce and in property. Most relationships involve a party with advantages and a party without them. That disparity provides an opportunity for dominance by one party over the other. And this is the setting in which guilt and shame flourish.
Guilt is more extrinsic that shame. Although both guilt and shame flow from an acknowledgment of power, the power that induces guilt is predominantly external. When we feel guilty, we feel bad because we know we have transgressed against some common rule or understanding. Our negative emotion springs from our awareness that we have violated an external expectation. This includes everything from the criminal law (an external authority about which we are conscious) to our parents (an external authority whose commands we respect). A person feels guilty when he steals or when he knowingly fails to attend a dinner he promised his parents he would attend. In both cases, the person knew he was obligated to do something by some external authority, yet he failed to adhere to the obligation. That conscious failure creates guilt.
With guilt, then, the inquiry is external. We feel guilty only when we acknowledge that some external authority holds power over us. When we break its rules, we feel guilt to the extent that we deviate from the "expected standard." Guilt requires an acquiescence to "superior" people or ideas. It necessarily makes the subject "inferior" to the standard he violates. And unlike shame, it can be objectively measured: The "superior" party can declare a subject "guilty" because the subject verifiably deviated from an external standard. This is why the law uses the term "guilt" rather than "shame." Guilt is a conclusion as well as an emotion. You just need to see whether a person met the standard.
Not so with shame. Although shame might feel similar to guilt, it flows from an entirely different conceptual source. Shame has internal origins. A person feels ashamed when he fails to meet a standard that he expects from himself, not a standard some external authority set for him. An external authority might encourage a person to expect certain behavior from himself. But in the final analysis, only an individual can decide whether to adhere to certain principles or beliefs. In this sense, shame intertwines with honor. An honorable person swears to himself that he will not act in a certain way to achieve certain results. He expects certain behavior from himself. He commits himself to certain principles and beliefs. When he fails to act in the way he expects, he feels shame, not guilt. He failed to meet his own standard, not an external one.
Consider a man who commits himself to respecting others and telling the truth. He makes these commitments because he personally believes that respect and truth are honorable principles. If one day he lies and disrespects a competitor to win a job, he deviates from his own standard. If he truly has honor, he would feel ashamed for breaking his own commitments to good principles. He might also be guilty of violating some external standard against perjury or untruthfulness, but that has nothing to do with his own internal transgression. And that internal violation creates shame. In short, shame is ethical (internal), while guilt is legal (external).
But shame still requires an "inferior" mental outlook. Although an honorable person decides for himself whether to believe in certain principles, in many cases he does not decide freely. The decision whether to believe certain things often depends on social circumstance and expectation. An external rulemaker has as great an interest in creating strong internal shame in his subjects as he does in crushing them under external guilt. A rulemaker wants his subjects to decide to believe in principles that could induce individual shame. All this inures to his benefit. For example, a person learns to believe that "it is good to respect private property." He also learns that it is "illegal to steal." If he steals something, he suffers both shame and guilt: On the one hand, he failed to meet his own internal standard about respecting private property; on the other, he knowingly violated the external command not to steal others' property.
Both emotions are negative. They flow from different sources. But in the end, they both serve to reinforce the "superior rulemaker's" control over his subjects. Guilty and shameful people are easier to manage than willful ones.
Shame seems purer than guilt. It is more individual than guilt because it depends on the individual's own moral ordering. But if a person's own moral ordering is not voluntary--and if individual moral ordering merely substitutes for external rulemaking--then the net effect of shame is no different than guilt: They both reinforce dominant values by inducing negative emotions in those bold enough to "transgress."
I tried to answer this question during a conversation I had with one of my best friends. We often talk about philosophy and power, and we both agreed that "shame" and "guilt" are "kindred spirits." They are both strongly negative words. No one likes to feel guilty or shameful. They both imply that you have done "wrong." But are they really the same? That's the question.
Both "shame" and "guilt" flow from an acknowledgment of power. We only feel shameful or guilty when we recognize that we have failed to conform to a standard that we probably did not make. Someone else made the standard, someone we recognize as "superior" to us. In this sense, both guilt and shame emanate from below; the person who makes the rules that induce guilt or shame at most feels "disappointed" that his "subject" broke a rule. Shame and guilt, then, are for those who occupy an inferior power position. This is why Nietzsche called shame and guilt Sklavenmoral--Slaves' Morality. The rule-maker (or "master") does not feel them. Rather, he causes others to feel them because they do not adhere to his standards. They solidify his grasp over them.
But this does not mean that a single "superior person" causes others to feel guilt or shame. While a "superior person" may have originally laid down external standards, in most cases today external standards proceed from institutions. After all, power is deeply entrenched. It emanates from manifold places. It operates in virtually every conceivable manner, whether subtle or overt. Power radiates in families, in schools, in laws, in social settings and in professional relationships. It exists in commerce and in property. Most relationships involve a party with advantages and a party without them. That disparity provides an opportunity for dominance by one party over the other. And this is the setting in which guilt and shame flourish.
Guilt is more extrinsic that shame. Although both guilt and shame flow from an acknowledgment of power, the power that induces guilt is predominantly external. When we feel guilty, we feel bad because we know we have transgressed against some common rule or understanding. Our negative emotion springs from our awareness that we have violated an external expectation. This includes everything from the criminal law (an external authority about which we are conscious) to our parents (an external authority whose commands we respect). A person feels guilty when he steals or when he knowingly fails to attend a dinner he promised his parents he would attend. In both cases, the person knew he was obligated to do something by some external authority, yet he failed to adhere to the obligation. That conscious failure creates guilt.
With guilt, then, the inquiry is external. We feel guilty only when we acknowledge that some external authority holds power over us. When we break its rules, we feel guilt to the extent that we deviate from the "expected standard." Guilt requires an acquiescence to "superior" people or ideas. It necessarily makes the subject "inferior" to the standard he violates. And unlike shame, it can be objectively measured: The "superior" party can declare a subject "guilty" because the subject verifiably deviated from an external standard. This is why the law uses the term "guilt" rather than "shame." Guilt is a conclusion as well as an emotion. You just need to see whether a person met the standard.
Not so with shame. Although shame might feel similar to guilt, it flows from an entirely different conceptual source. Shame has internal origins. A person feels ashamed when he fails to meet a standard that he expects from himself, not a standard some external authority set for him. An external authority might encourage a person to expect certain behavior from himself. But in the final analysis, only an individual can decide whether to adhere to certain principles or beliefs. In this sense, shame intertwines with honor. An honorable person swears to himself that he will not act in a certain way to achieve certain results. He expects certain behavior from himself. He commits himself to certain principles and beliefs. When he fails to act in the way he expects, he feels shame, not guilt. He failed to meet his own standard, not an external one.
Consider a man who commits himself to respecting others and telling the truth. He makes these commitments because he personally believes that respect and truth are honorable principles. If one day he lies and disrespects a competitor to win a job, he deviates from his own standard. If he truly has honor, he would feel ashamed for breaking his own commitments to good principles. He might also be guilty of violating some external standard against perjury or untruthfulness, but that has nothing to do with his own internal transgression. And that internal violation creates shame. In short, shame is ethical (internal), while guilt is legal (external).
But shame still requires an "inferior" mental outlook. Although an honorable person decides for himself whether to believe in certain principles, in many cases he does not decide freely. The decision whether to believe certain things often depends on social circumstance and expectation. An external rulemaker has as great an interest in creating strong internal shame in his subjects as he does in crushing them under external guilt. A rulemaker wants his subjects to decide to believe in principles that could induce individual shame. All this inures to his benefit. For example, a person learns to believe that "it is good to respect private property." He also learns that it is "illegal to steal." If he steals something, he suffers both shame and guilt: On the one hand, he failed to meet his own internal standard about respecting private property; on the other, he knowingly violated the external command not to steal others' property.
Both emotions are negative. They flow from different sources. But in the end, they both serve to reinforce the "superior rulemaker's" control over his subjects. Guilty and shameful people are easier to manage than willful ones.
Shame seems purer than guilt. It is more individual than guilt because it depends on the individual's own moral ordering. But if a person's own moral ordering is not voluntary--and if individual moral ordering merely substitutes for external rulemaking--then the net effect of shame is no different than guilt: They both reinforce dominant values by inducing negative emotions in those bold enough to "transgress."
Wednesday, November 11, 2009
HORSE-TRADING DEMOCRACY : COMPROMISES ARE WEAK
OESTERHOUDT STRIKES
Yesterday I read an article about the health care reform bill that narrowly passed the House. The author said the bill faced a "hard time" in the Senate. Just a few votes could decide the issue. Not surprisingly, Obama is now "courting" those few votes, including some "moderate Republican woman from Maine." In essence, then, this means that health care reform for all Americans hinges on the individual proclivities of one or two wealthy Senators.
I call this "horse-trading" democracy. When a political system is as divided as ours today, something truly pernicious happens: A few "swing voters" wind up holding all the power. These "swing voters" know that they hold the key to legislative victory, so they exploit their unique "middle" position to wring concessions from both sides. In essence, they have "really good horses," so they can go to market and really get a good price.
This is not public service. This is crass individual power play.
Some say that American government has persisted for so long because it has a "genius for compromise." They say that real progress flows not from imposing one vision over another, but rather from reasonable dialogue among several visions. That dialogue, in turn, transforms legislative bombast into modest, deliberate action for the Nation as a whole. Compromise, so the wisdom goes, trims radicalism and results in the greatest good for all.
All that may have been true at earlier times in our history. But today the national debate is hopelessly splintered. Democrats don't agree with Republicans. Republicans would rather die than give Obama anything he wants, even in a compromised form. By the same token, Democrats would have rather died than have given Bush anything he wanted when he was President, even in a compromised form. Both sides lambaste and criticize one another with hellish vitriol. Both sides claim that the world will end if "the other side" prevails. It is neither reasonable nor even collegial. In such a poisonous atmosphere, there is no room for genuine dialogue. That is why "real compromise" is an impossibility in modern American government. The two ideological camps are too well entrenched. Nobody budges for the "public good" anymore.
This is not good for the country. Reform suffocates amid compromise and party infighting. Real reform requires a hard look at old problems with new eyes. Yet modern Washington politics rule out any fresh ideas on old problems. Unless a solution fits party-line ideological demands, no one will support it. In the end, this leads to two possible outcomes: "Tyranny by a small majority over a large minority;" or compromise. In either situation, truly sweeping reform cannot prevail. In the first case, the small majority (51%) imposes its will against ferocious opposition; the large minority (49%) then becomes so outraged that it actively undermines the reform's function. In the second case, reform loses its character as reform, because compromise necessarily dilutes its force through myriad concessions.
And then there is horse-trading. To get health care reform through the Senate, Obama must "play ball" with the tiny number of Senators who have not already declared their allegiance on the issue. These "swing voters" not only have an opportunity to enrich their constituents, but also to shape the bill's substance. In essence, "horse-traders" like the "moderate Republican from Maine" get the final say on a momentous national issue. They get to say not only whether the bill passes; they also get to dictate what the law says. After all, they have the horses. They won't sell if they don't get the price they want. So they name the price and everyone else has to follow along. At the same time, horse traders can pander to the opposition by refusing to support the bill. They can achieve advantages from that stance, too.
What does all this have to do with meaningful reform? What does all this petty power posturing have to do with substantial change in a modern world? Nothing.
I don't like compromise government. Yet for better or worse, modern American government has degenerated into an acrimonious two-player game. One side believes the opposite of the other, and one or two individuals on either side can tip the balance one way or the other. In such circumstances, it is impossible to govern by principle or even by popular will. While Congressmen are supposed to represent the people, in the final analysis they are individuals. They can do what they please when voting for bills. In a democracy as splintered as ours, that means a few individuals can block legislative initiatives that millions dearly want. Or they can demand concessions or compromises that gut a hopeful bill's reform effort.
Compromise government never delivers hot or cold; it only delivers mild. Yet life at times demands hot or cold; mild water does not boil tea, nor does it make ice. And when both parties in government cannot reasonably talk to each other, it opens the door to horse-trading. In sum, this entrusts all authority over public issues to a few lucky Senators who are neither hot nor cold.
I do not call this "the genius of compromise government." I call it theoretical weakness and mediocrity. And at a moment when America needs hot or cold, this government will deliver mild at best--if anything at all.
But at least the "moderate Republican from Maine" will get something from the deal. And who cares about what everyone else wants?
Yesterday I read an article about the health care reform bill that narrowly passed the House. The author said the bill faced a "hard time" in the Senate. Just a few votes could decide the issue. Not surprisingly, Obama is now "courting" those few votes, including some "moderate Republican woman from Maine." In essence, then, this means that health care reform for all Americans hinges on the individual proclivities of one or two wealthy Senators.
I call this "horse-trading" democracy. When a political system is as divided as ours today, something truly pernicious happens: A few "swing voters" wind up holding all the power. These "swing voters" know that they hold the key to legislative victory, so they exploit their unique "middle" position to wring concessions from both sides. In essence, they have "really good horses," so they can go to market and really get a good price.
This is not public service. This is crass individual power play.
Some say that American government has persisted for so long because it has a "genius for compromise." They say that real progress flows not from imposing one vision over another, but rather from reasonable dialogue among several visions. That dialogue, in turn, transforms legislative bombast into modest, deliberate action for the Nation as a whole. Compromise, so the wisdom goes, trims radicalism and results in the greatest good for all.
All that may have been true at earlier times in our history. But today the national debate is hopelessly splintered. Democrats don't agree with Republicans. Republicans would rather die than give Obama anything he wants, even in a compromised form. By the same token, Democrats would have rather died than have given Bush anything he wanted when he was President, even in a compromised form. Both sides lambaste and criticize one another with hellish vitriol. Both sides claim that the world will end if "the other side" prevails. It is neither reasonable nor even collegial. In such a poisonous atmosphere, there is no room for genuine dialogue. That is why "real compromise" is an impossibility in modern American government. The two ideological camps are too well entrenched. Nobody budges for the "public good" anymore.
This is not good for the country. Reform suffocates amid compromise and party infighting. Real reform requires a hard look at old problems with new eyes. Yet modern Washington politics rule out any fresh ideas on old problems. Unless a solution fits party-line ideological demands, no one will support it. In the end, this leads to two possible outcomes: "Tyranny by a small majority over a large minority;" or compromise. In either situation, truly sweeping reform cannot prevail. In the first case, the small majority (51%) imposes its will against ferocious opposition; the large minority (49%) then becomes so outraged that it actively undermines the reform's function. In the second case, reform loses its character as reform, because compromise necessarily dilutes its force through myriad concessions.
And then there is horse-trading. To get health care reform through the Senate, Obama must "play ball" with the tiny number of Senators who have not already declared their allegiance on the issue. These "swing voters" not only have an opportunity to enrich their constituents, but also to shape the bill's substance. In essence, "horse-traders" like the "moderate Republican from Maine" get the final say on a momentous national issue. They get to say not only whether the bill passes; they also get to dictate what the law says. After all, they have the horses. They won't sell if they don't get the price they want. So they name the price and everyone else has to follow along. At the same time, horse traders can pander to the opposition by refusing to support the bill. They can achieve advantages from that stance, too.
What does all this have to do with meaningful reform? What does all this petty power posturing have to do with substantial change in a modern world? Nothing.
I don't like compromise government. Yet for better or worse, modern American government has degenerated into an acrimonious two-player game. One side believes the opposite of the other, and one or two individuals on either side can tip the balance one way or the other. In such circumstances, it is impossible to govern by principle or even by popular will. While Congressmen are supposed to represent the people, in the final analysis they are individuals. They can do what they please when voting for bills. In a democracy as splintered as ours, that means a few individuals can block legislative initiatives that millions dearly want. Or they can demand concessions or compromises that gut a hopeful bill's reform effort.
Compromise government never delivers hot or cold; it only delivers mild. Yet life at times demands hot or cold; mild water does not boil tea, nor does it make ice. And when both parties in government cannot reasonably talk to each other, it opens the door to horse-trading. In sum, this entrusts all authority over public issues to a few lucky Senators who are neither hot nor cold.
I do not call this "the genius of compromise government." I call it theoretical weakness and mediocrity. And at a moment when America needs hot or cold, this government will deliver mild at best--if anything at all.
But at least the "moderate Republican from Maine" will get something from the deal. And who cares about what everyone else wants?
Subscribe to:
Posts (Atom)