You've probably noticed that I haven't posted anything in a few days. Once again, I've been extremely busy handling my partner's health problems. I spent the better part of the last two days in the hospital. I didn't sleep much during that time and when I got up this morning I was too exhausted to think, let alone generate a decent post. Aside from that, I was out of town this weekend and have been occupied with lots of new things; and don't worry: They are good for me!
Still, all these events have denied me my writing time. That bothers me on many levels. It makes me feel better just to let you all know what's going on with me, since I'm accustomed to a certain weekly output. On the other hand, I realize that life does not always offer the best circumstances in which to create. And if I have to go into "writing dormancy" more than usual in the coming weeks, I will have to face it. I apologize in advance if I don't crank out my hoped-for three or four posts every week.
I always get so many ideas during my breaks. When I just live and observe, I amass new thoughts, experiences and impressions. I know those ideas will all buoy me when I settle down into another long writing phase. I've actually jotted down three big ideas for longer pieces in the future. Although I do not have the time or space to discuss them all here, I will say that they involve these issues: Truth; confessions; power; capital punishment; free will; death; sexuality; categorization; identity; desire; subjectivity; happiness; prejudice and reflection. I have conceived both fictional and nonfictional structures in which to explore these themes. But my piece on sexuality will be part reflective, part anecdotal and part polemical. Think of it as a sequel to Foucault's work on sexuality, with a personal twist to make it accessible.
To share some detail from my own personal experience lately, I have been entertaining serious doubts about my own sexuality. And my doubts move in an unconventional direction. Namely, for almost 14 years I have been quick to characterize myself as "gay." But in fact I'm not so sure what that means anymore. By the same token, I cannot say what "straight" means, either. In truth, the only reliable conclusion I've made in this inquiry is that sexual identity is never clear-cut. That is because it reflects basic desire. Basic desire, in turn, is purely subjective. It is impossible to categorize desire because there is no limit to individuals' deepest subjective tastes.
I don't think people appreciate just how fluid sexual identity is. That is what I will address in my piece. In the process, I will discuss the unfortunate human tendency to associate absolute meaning with artificial categories. I plan to show that categories like "gay" and "straight" are not talismanic. Rather, I will show that they are at best "rough guidelines" that exist in various proportions in us all at different times in our lives.
I also plan to discuss why I think the term "gay" is absurd. When it comes to categorizing groups, sexual "orientation" is a dubious--and barely unifying--characteristic. That is not to say that people who identify themselves as "gay" do not merit certain assistance or solicitude under law. My main argument will be that "gay" is not a good identifier, nor is it absolute. There are plenty of people in the world--including me--who find men attractive, yet have no difficulty whatever finding women attractive, too. The bottom line is that one desire never excludes another. And "gay" is a category that essentially implicates a particular sexual desire.
So that's what's on my mind these days. Forgive me for the sparser posting. I promise there is plenty more to come. I have a whole list to get to!
Take care. And thanks as always for reading my archives.
Oesterhoudt
Showing posts with label Foucault. Show all posts
Showing posts with label Foucault. Show all posts
Wednesday, May 12, 2010
Saturday, June 13, 2009
INSCRIBING TRUTH : DO WE EVER KNOW "WHAT ACTUALLY HAPPENED?"
AN ESSAY
We believe what we see with our own eyes. At least, skeptics and empiricists do. When it comes to everyday belief, our senses reign. More particularly, our vision reigns. We must be present to observe something to say for certain that it happened. And if we are not present to observe something, we will only believe it if we can visualize it in our minds as “having reasonably or likely happened.” That is a more complicated endeavor than merely seeing something. But we do it all the time. Our minds constantly alternate between belief and unbelief. Belief reflects our conscious decision whether or not something happened, or whether something exists. We constantly weigh whether or not we believe things. We nurture our beliefs. We express both trust and judgment with belief. If we deem something “worthy of our belief,” we believe it. If not, we say it is “not credible” and dismiss it.
Our eyes and ears have limited range. Our noses and skin nerves have an even more limited range. For better or worse, our immediate ability to sense things is strictly limited to the relatively small size of our bodies. In that light, we have precious limited ability to truly “perceive” things in order to “truly” believe them. Yet our observations and experiences provide us the most reliable pathway to “truth.” We know something is true when we perceive it ourselves. But because our senses are so limited, there are very few things in life we can verifiably believe “true.” For everything else, we must rely on reports. We must accept others’ accounts about “what happened,” then decide for ourselves whether to believe them. Unlike “sensory belief,” this is “second-hand belief.” It does not directly involve the senses. It requires far more intellectual effort than merely seeing something and remembering it.
In general, we can say that we are not bound to believe anything that we do not perceive. If our senses do not directly observe an event, condition or act, there is no way we can say it “actually happened” or “it actually exists.” Rather, we decide whether to believe things we do not observe. Still, we readily believe things we do not observe as long as we satisfy ourselves that the report is “reliable.” What makes stories reliable? This is the core of evidence law. Evidence law aims to regulate the information juries hear in order to provide them only those details that are “most worthy of belief.” In the law—as well as in life—the question for any listener is: What is the truth? That, of course, is the monumental inquiry. And it is not easy, because truth is a tricky subject.
Truth relates to belief. Leaving metaphysics to one side, truth in the law means “what actually happened” in a particular case. That sounds simple, but it is actually immensely complex. After all, “sensory truth” and “sensory belief” only exist in the minds of those who personally experienced an event or perceived a condition. They were “there.” They know “the truth.” But for everyone else—and that means the judge, jury and lawyers—truth is a matter of belief. They were not there. Thus, they must decide for themselves what the “truth” is. It is not what “actually happened.” Only those who perceive something know that. For the listeners, truth becomes a simple question of belief. More to the point, it becomes a subject for judgment. Listeners only believe what they decide “probably happened.” That may be completely different from what “actually happened.” In short, truth in court means nothing more than what the jury is willing to believe.
My evidence professor in law school should have focused on sense and belief before he began teaching us all the Byzantine rules that govern whether particular information is “admissible as evidence” in a court case. If he had begun with belief—and what makes people believe whether something “actually happened”—it would have rendered all the rules easily understandable. The Federal Rules of Evidence methodically screen what information juries may hear before deciding whether to believe a story. In the end, it all comes down to belief. The evidence rules merely channel the information that leads to a jury’s decision whether or not to believe something. No one in the jury has access to “sensory truth” when listening to each side’s story. Rather, like any listener, it must rely on reports. The evidence rules monitor the substance of those reports. In short, they make sense and perception dominant. They allow jurors to hear about what witnesses saw, because vision is supposedly most worthy of belief. Yet the rules carefully restrict a jury’s access to reported language (“hearsay”), because language can distort as much as it can enlighten. And when someone’s life or fortune is on the line, the evidence rules presume that a witness will more likely distort words for his advantage than candidly report what he actually heard. In sum, jurors are free to believe whatever they want. The evidence rules simply try to feed them the “most reliable information” before they decide what is “true.”
But there is more to truth than what a jury decides. Human beings constantly struggle with truth because so much happens that they cannot perceive. They have no choice but to evaluate others’ words. In life, there are no evidence rules to screen out supposedly “unreliable” reports about events, acts and conditions that occur beyond our sensory range. We want the truth, but there is no way we can say it “actually happened.” We must believe things despite imperfect information. We make decisions on imperfect information every day. We judge things “true” even if we cannot verify them.
Still, there are certain institutions that help us believe things we do not perceive. The law provides a ready example. In fact, the law wields a disproportionately large influence on our willingness to believe things we do not perceive. In our legal system, for instance, we theoretically subject suspected criminals to exhaustive procedures designed to affix “truth” to their alleged misdeeds. The State begins by accusing the suspect. Is the accusation “true?” Does the verbal form match what “actually happened?” That is the question. Obviously we cannot know whether it is true for the same reason we cannot know whether anything is true if we are not present to observe it. Yet legal machinery does its utmost to assure us that accused suspects “truly” broke the law. It requires prosecutors to prove “beyond a reasonable doubt” that the suspect committed every single element of the crime. By that requirement, the law seeks to assure the public that the criminal “truly” did what the State says he did, even though the jury never perceived the act. This machinery really has no greater claim on truth than anyone else who was not there to perceive the suspect. Yet it reassures us. It inscribes truth on the offender. After all, truth is persuasive because it reflects belief. If we believe that someone committed a crime, we feel justified in punishing him. Still, just because the law inscribes “an official truth” on a criminal does not verify that he actually did what the State says. We weren’t there. Our senses did not perceive what we believe. To say that the criminal “truly” committed a crime, then, really represents a judgment, not a perception.
Truth is essential to maintain government authority. It is no accident that the State expends maximal effort to affix truth to a criminal’s acts. In so doing, it reminds the people that it not only has the power to punish, but it also has the power to say what “actually happened” without ever perceiving the event. The law, in other words, manipulates public belief and controls truth. Most people readily believe that a convicted criminal did the act for which he received punishment. After all, from a listener’s perspective, there is no reason to doubt the jury’s findings. The listener was not there to witness the criminal’s act. He has no “sensory access” to truth. So he relies on “official channels” to truth. If the State says he committed the crime, and the jury found “beyond a reasonable doubt” that he did, then suddenly the charge becomes “true,” although no one saw it. Listeners comfortably conclude that a convicted criminal did act as charged. They cannot say they know for sure. But they rely on the State’s truth-branding authority. They reward the State with their belief. This is a substantial reward. For when people believe a report, they implicitly approve and respect the person who gives it. The State, then, maintains its control by inspiring belief in its listeners. If the State can cause people to suspend their skepticism and believe things they never see, it truly wields power. In sum, “actual truth” does not really matter. Again, the real question is belief, not “what actually happened.”
Should “actual truth” really matter? I would like to think it does. But that may be asking too much. We cannot sense everything. In fact, considering all the events, acts and conditions that occur and have occurred on this planet, we sense virtually nothing. Everything else comes to us second-hand. We hear, we weigh, we judge, we believe. We make our own truth based on the information before us. Yet many vie for our belief, including the State. We are not bound to give it, but we do. Procedures and rituals awe us. Trials and executions write truth on their subjects. We believe things as long as the State takes the time to grind through the ritual. Does it make an event any more likely to have happened than it would have without the ritual? Not really. If we weren’t there, we can’t really know. Every report is tainted by the bias and perspective of the person who gives it. But we can choose whether or not to believe reports. The State has numerous mechanisms intended to win our belief. And they are quite effective. After all, when we hear that a person has a criminal record, do we believe he committed the crimes, even though we never met him and never saw him do anything? Yes. We have no sensory access to truth in this situation, but we assuage our doubts because the State has written truth upon the man.
In virtually every case, we judge truth. We rarely know it.
We believe what we see with our own eyes. At least, skeptics and empiricists do. When it comes to everyday belief, our senses reign. More particularly, our vision reigns. We must be present to observe something to say for certain that it happened. And if we are not present to observe something, we will only believe it if we can visualize it in our minds as “having reasonably or likely happened.” That is a more complicated endeavor than merely seeing something. But we do it all the time. Our minds constantly alternate between belief and unbelief. Belief reflects our conscious decision whether or not something happened, or whether something exists. We constantly weigh whether or not we believe things. We nurture our beliefs. We express both trust and judgment with belief. If we deem something “worthy of our belief,” we believe it. If not, we say it is “not credible” and dismiss it.
Our eyes and ears have limited range. Our noses and skin nerves have an even more limited range. For better or worse, our immediate ability to sense things is strictly limited to the relatively small size of our bodies. In that light, we have precious limited ability to truly “perceive” things in order to “truly” believe them. Yet our observations and experiences provide us the most reliable pathway to “truth.” We know something is true when we perceive it ourselves. But because our senses are so limited, there are very few things in life we can verifiably believe “true.” For everything else, we must rely on reports. We must accept others’ accounts about “what happened,” then decide for ourselves whether to believe them. Unlike “sensory belief,” this is “second-hand belief.” It does not directly involve the senses. It requires far more intellectual effort than merely seeing something and remembering it.
In general, we can say that we are not bound to believe anything that we do not perceive. If our senses do not directly observe an event, condition or act, there is no way we can say it “actually happened” or “it actually exists.” Rather, we decide whether to believe things we do not observe. Still, we readily believe things we do not observe as long as we satisfy ourselves that the report is “reliable.” What makes stories reliable? This is the core of evidence law. Evidence law aims to regulate the information juries hear in order to provide them only those details that are “most worthy of belief.” In the law—as well as in life—the question for any listener is: What is the truth? That, of course, is the monumental inquiry. And it is not easy, because truth is a tricky subject.
Truth relates to belief. Leaving metaphysics to one side, truth in the law means “what actually happened” in a particular case. That sounds simple, but it is actually immensely complex. After all, “sensory truth” and “sensory belief” only exist in the minds of those who personally experienced an event or perceived a condition. They were “there.” They know “the truth.” But for everyone else—and that means the judge, jury and lawyers—truth is a matter of belief. They were not there. Thus, they must decide for themselves what the “truth” is. It is not what “actually happened.” Only those who perceive something know that. For the listeners, truth becomes a simple question of belief. More to the point, it becomes a subject for judgment. Listeners only believe what they decide “probably happened.” That may be completely different from what “actually happened.” In short, truth in court means nothing more than what the jury is willing to believe.
My evidence professor in law school should have focused on sense and belief before he began teaching us all the Byzantine rules that govern whether particular information is “admissible as evidence” in a court case. If he had begun with belief—and what makes people believe whether something “actually happened”—it would have rendered all the rules easily understandable. The Federal Rules of Evidence methodically screen what information juries may hear before deciding whether to believe a story. In the end, it all comes down to belief. The evidence rules merely channel the information that leads to a jury’s decision whether or not to believe something. No one in the jury has access to “sensory truth” when listening to each side’s story. Rather, like any listener, it must rely on reports. The evidence rules monitor the substance of those reports. In short, they make sense and perception dominant. They allow jurors to hear about what witnesses saw, because vision is supposedly most worthy of belief. Yet the rules carefully restrict a jury’s access to reported language (“hearsay”), because language can distort as much as it can enlighten. And when someone’s life or fortune is on the line, the evidence rules presume that a witness will more likely distort words for his advantage than candidly report what he actually heard. In sum, jurors are free to believe whatever they want. The evidence rules simply try to feed them the “most reliable information” before they decide what is “true.”
But there is more to truth than what a jury decides. Human beings constantly struggle with truth because so much happens that they cannot perceive. They have no choice but to evaluate others’ words. In life, there are no evidence rules to screen out supposedly “unreliable” reports about events, acts and conditions that occur beyond our sensory range. We want the truth, but there is no way we can say it “actually happened.” We must believe things despite imperfect information. We make decisions on imperfect information every day. We judge things “true” even if we cannot verify them.
Still, there are certain institutions that help us believe things we do not perceive. The law provides a ready example. In fact, the law wields a disproportionately large influence on our willingness to believe things we do not perceive. In our legal system, for instance, we theoretically subject suspected criminals to exhaustive procedures designed to affix “truth” to their alleged misdeeds. The State begins by accusing the suspect. Is the accusation “true?” Does the verbal form match what “actually happened?” That is the question. Obviously we cannot know whether it is true for the same reason we cannot know whether anything is true if we are not present to observe it. Yet legal machinery does its utmost to assure us that accused suspects “truly” broke the law. It requires prosecutors to prove “beyond a reasonable doubt” that the suspect committed every single element of the crime. By that requirement, the law seeks to assure the public that the criminal “truly” did what the State says he did, even though the jury never perceived the act. This machinery really has no greater claim on truth than anyone else who was not there to perceive the suspect. Yet it reassures us. It inscribes truth on the offender. After all, truth is persuasive because it reflects belief. If we believe that someone committed a crime, we feel justified in punishing him. Still, just because the law inscribes “an official truth” on a criminal does not verify that he actually did what the State says. We weren’t there. Our senses did not perceive what we believe. To say that the criminal “truly” committed a crime, then, really represents a judgment, not a perception.
Truth is essential to maintain government authority. It is no accident that the State expends maximal effort to affix truth to a criminal’s acts. In so doing, it reminds the people that it not only has the power to punish, but it also has the power to say what “actually happened” without ever perceiving the event. The law, in other words, manipulates public belief and controls truth. Most people readily believe that a convicted criminal did the act for which he received punishment. After all, from a listener’s perspective, there is no reason to doubt the jury’s findings. The listener was not there to witness the criminal’s act. He has no “sensory access” to truth. So he relies on “official channels” to truth. If the State says he committed the crime, and the jury found “beyond a reasonable doubt” that he did, then suddenly the charge becomes “true,” although no one saw it. Listeners comfortably conclude that a convicted criminal did act as charged. They cannot say they know for sure. But they rely on the State’s truth-branding authority. They reward the State with their belief. This is a substantial reward. For when people believe a report, they implicitly approve and respect the person who gives it. The State, then, maintains its control by inspiring belief in its listeners. If the State can cause people to suspend their skepticism and believe things they never see, it truly wields power. In sum, “actual truth” does not really matter. Again, the real question is belief, not “what actually happened.”
Should “actual truth” really matter? I would like to think it does. But that may be asking too much. We cannot sense everything. In fact, considering all the events, acts and conditions that occur and have occurred on this planet, we sense virtually nothing. Everything else comes to us second-hand. We hear, we weigh, we judge, we believe. We make our own truth based on the information before us. Yet many vie for our belief, including the State. We are not bound to give it, but we do. Procedures and rituals awe us. Trials and executions write truth on their subjects. We believe things as long as the State takes the time to grind through the ritual. Does it make an event any more likely to have happened than it would have without the ritual? Not really. If we weren’t there, we can’t really know. Every report is tainted by the bias and perspective of the person who gives it. But we can choose whether or not to believe reports. The State has numerous mechanisms intended to win our belief. And they are quite effective. After all, when we hear that a person has a criminal record, do we believe he committed the crimes, even though we never met him and never saw him do anything? Yes. We have no sensory access to truth in this situation, but we assuage our doubts because the State has written truth upon the man.
In virtually every case, we judge truth. We rarely know it.
Thursday, April 23, 2009
LAW IS CUMBERSOME, CRUDE AND MONOTONOUS : POWER AT ITS SIMPLEST
AN ESSAY
Friedrich Nietzsche (1844-1900) did not attract fame or fortune during his lifetime. His ideas were ahead of their time; the world was simply not ready for him. He lost his mind in 1888; he died twelve years later, embittered and alone. Interestingly, you can sense his desperation in his late writings, such as On the Genealogy of Morals (1887). In his Prologue to the Genealogy, Nietzsche wonders why people criticize him for “readability.” He defends his aphoristic style, but he seems to want others to understand him. In his last essay, Nietzsche even ventures an “interpretation” of his own writing. He reaches out to the reader as if to say: “Look! It’s not that complex; this is what I am trying to say.”
Nietzsche explained that there really is no explanation. Truth depends on power and judgment. It depends on the narrator, the legislator and their values. Every story is to some extent a judgment; a story gives voice to only one perspective on unique events. That was Nietzsche’s core point in all his writings. During the 19th Century, people had difficulty grasping that concept. After all, most “good bourgeois citizens” in the Victorian era believed that there was a “single good” and a “single evil.” There was no room for debate. The Bible and “popular morality” told them about right and wrong. They comfortably viewed the world equipped with these metaphysical assumptions. Against such entrenched resistance, Nietzsche was bound to fail. He was too progressive for his time. He was a relativist in an absolute world.
But Nietzsche’s influence survived. Within decades after his death, his ideas took root in numerous intellectual fields. Authors such as Franz Kafka and Albert Camus followed in his footsteps. Psychiatrists such as Sigmund Freud formulated scientific theories that substantiated his thought. And 20th Century philosophers such as Michel Foucault and Martin Heidegger all paid tribute to Nietzsche’s groundbreaking “polyperspectivism.” In death, Nietzsche’s relativism triumphed over metaphysics. For all these disciples, Nietzsche’s message was clear: “Truth is illusory. Only raw power and judgment declare truth. Life is a constant battle between individual perspective and constraining powers that impose rules on the individual in all social circumstances, from education to employment to family to law. In the end, it is a war for individual souls; and in most cases, the individual loses badly.”
Michel Foucault theorized extensively about the “power relations” that constrain individuals in modern society. In that sense, he took up Nietzsche’s mantle and more closely analyzed his general ideas about power and judgment. I admire Foucault because he carried on Nietzsche’s original theories about power. My own life experience confirms to me that both Nietzsche and Foucault were right about power relationships in our world. We live amid unfairness, subjected to power from all directions. As individuals, we have little chance to realize our own potential without in part surrendering to massively more powerful forces that can impact our bodies and our property. These forces cannot directly impact our souls, but by impacting our bodies and our property, they can indirectly affect the way we value ourselves. We may not want to work at a certain job for our soul’s sake, but power relations (the landlord, the tax collector, the family, the student loan creditor) indirectly force us to work in order to satisfy their property demands. By forcing us to do things we do not want to do, these superior forces impact our souls. It is not a direct influence on us, but it is an influence nonetheless.
But it is no easy task to read Foucault. In that sense, he differs from Nietzsche. Nietzsche wrote in extremely clear, accessible prose. Even his aphorisms cut to the heart of a question, sometimes with irony, other times with pure rhetorical clarity. Nietzsche could argue as well as a lawyer and ruminate as well as a theologian; but he was too profound to be either a lawyer or a theologian. He was both cogent and creative. He used many voices. He could imitate other writers and mock them. Nietzsche’s facility as a writer makes him easy—and joyful—to read. With Nietzsche, you never know exactly what style you will get. Yet in the end you know you will get an unmistakably Nietzschean message about power, individuality and judgment.
By contrast, Foucault wrote in a much more stilted, academic style. Unlike Nietzsche, Foucault did not write real literature; he wrote academic criticisms. Nietzsche criticized with lively prose or ironic musings; Foucault criticized with analytical university-speak. This is not to say that Foucault did not write excellent criticism. Quite the contrary; Foucault’s work places him among the most cogent 20th Century philosophers. But he is not a writer’s philosopher. It is harder to read his books than it is to read Nietzsche. You need to pore over each page longer. It is worth the effort to read him, of course. It simply takes a bit more work to grasp his points because his language is more obscure and technical than Nietzsche’s.
I enjoy any criticism about law. Foucault wrote extensively about the law because law is an institution of power. During law school, I spent countless hours learning American legal doctrine without really reflecting on the power that created it. Since my last months in law school, I have reflected intensely on that very question. What is law? Where did it come from? How does it operate? Intuitively, I did not buy the American rhetoric about “equality under law” and the neutral “rule of law” that supposedly nullifies all human caprice. No, I thought. Law is not neutral, nor does it apply equally. Law is neither objective nor fair, although it claims to be both.
Why is law so flawed? Simple: Because it is a human invention. Human beings are deeply flawed creatures. They want nothing more than to enrich themselves and win as much power as they can before dying. To achieve that goal, they invent whatever mechanisms necessary to obtain and maintain power. Law represents a way to obtain and maintain power without alienating everyone else. By law, powerful people protect their values and assure their domination over the population. At the same time, the law espouses a superficial appeal that convinces its subjects that they are getting a fair deal, and that the law actually serves them. This encourages them to stay at work, pay their taxes and continue to support a system that really does not care whether they advance or not. In short, I learned that law simply codifies value systems and uses it to cement prevailing power relationships.
When I picked up Foucault, I found confirmation for many of the ideas I formulated after law school. Foucault provided me with additional insights into the power-law connection. Most strikingly, Foucault reminded me that the law is essentially crude and unimaginative. In The History of Sexuality : An Introduction (1976), Foucault asserts that Western discourse about human sexuality has never been repressed. Rather, he argues, we constantly talk about sex; we simply channel our discussions to conform to various power influences. The law is one such “power influence” that channels discussion about sex. In analyzing the law, Foucault writes: “[The law] is defined in a strangely restrictive way, in that, to begin with, this power is poor in resources, sparing of its methods, monotonous in the tactics it utilizes, incapable of invention and seemingly doomed always to repeat itself. Further, it is a power that only has the force of the negative on its side, a power to say no; in no condition to produce, capable only of posting limits, it is basically anti-energy.” The History of Sexuality (Vintage Books Edition 1990) at p. 85.
What a searing critique! Every law professor, lawyer and judge should read that passage and think about it. Why praise the law for its subtlety when it is actually so pathetically simple? When you get right down to it, what is the law except a crude mechanism of repression? What does the law really produce? It does nothing but forbid, then threaten punishment for infractions. It is remarkably simplistic. It is little more than a compendium of general “do’s” and “don’t’s.” Structurally, the law is no different than a kindergarten list that forbids such behavior as “eating crayons,” “punching your neighbor in the face” or “going wee-wee on the floor at nap time.” The lawgiver forbids; he then enforces obedience by punishing those who trespass against his word. It is a power relationship: One speaks; the other obeys. The powerful party inflicts pain; the weaker party submits.
But here we see another weakness in the law. After all, if the law can only say “no” to various human behavior, then the law must also observe and stop the behavior it prohibits. It is one thing to abstractly forbid conduct; it is quite another to find that conduct and punish it. Put simply, it is extremely easy to evade the law because the law has the burden to seek out the prohibited behavior. It is “poor in resources” because there is no way the police can be everywhere all the time. If the law cannot find a violation, it cannot punish. If it cannot punish, it cannot write its power on its subjects. Thus, its general, prohibitory statements mean nothing in practice. On the other hand, if it does find a violation, it punishes. In Foucault’s words, it is “monotonous anti-energy.” You know how it operates. It is simple. It is not subtle. It is not inventive. It “posts limits.” The lawgiver says: “Drive 55.” You drive 56. You transgress. Moreover, law creates nothing. Put simply, we should hesitate before speaking highly about noble legal principles. There is nothing special going on here; the law is little more than a glorified kindergarten “do and don’t” list.
There is reason for all this. The law is simple because it reflects an earlier time. Foucault explains that western legal systems as we know them evolved during the Middle Ages; and they have not essentially changed in the 1000 years since. See History of Sexuality at pp. 86-88. He argues that the law arose around the same time as modern nation-States. Modern nation-States replaced feudal chaos, in which fractured fiefdoms squabbled incessantly because each local prince had his own laws and customs. National Kings, however, imposed uniform rules on the warring nobles, bringing uniformity and peace to splintered realms. Foucault explains: “Faced with a myriad of clashing forces, these great forms of power functioned as a principle of right that transcended all the heterogeneous claims…forming a unitary regime, identifying its will with the law, and [acting] through interdiction and sanction.” Id. at p. 87. In this way, Kings imposed “pax et justitia (peace and justice)” on the land. Their royal courts replaced disruptive private vendettas between aggrieved nobles. Id. at p. 87. The people obeyed their father the King. The King forbade; the people listened. When a child disobeyed the law, the King punished him, assuming he found the transgressor.
This basic structure has not changed. While modern States no longer look to Kings for law, they put their faith in “replacement monarchs,” namely, written Constitutions. As Foucault eloquently points out: “In political thought and analysis, we still have not cut off the head of the King.” History of Sexuality at pp. 88-89. In sum, western societies still follow the “law model” to formulate power. The law has always been simplistic. It still is, even if we make a “Constitution” our sovereign father rather than a King.
Legal theorists applaud the law because it provides “fairness, justice and uniform procedure” for redressing public and private wrongs. In short, these theorists praise “the rule of law,” as if that phrase makes it impossible for tyranny to exist anywhere in a society committed to law. But these theorists unjustifiably elevate the law to a loftier station than it should occupy. They think that the “rule of law” makes it impossible for individual caprice to influence human relationships. Put simply, “rule of law” theorists dress a pig in fine clothes. The law is not ethereal or flawless. It does not provide infallible justice or equal results for all. In fact, contrary to all “rule of law” rhetoric, the law does not apply in all cases to which it should apply. Instead, exemptions, exceptions and immunities to the law are as old as the law itself. This is entirely consistent with the law as a system of power relationships, since powerful people will always treat themselves better than those who must obey. In short, the law is only uniform in theory; in practice, it is exceedingly inconsistent.
Foucault calls this phenomenon “tolerated illegality.” He reasons that every legal system does not enforce laws against certain “unlawful conduct.” It does not matter that certain conduct is “illegal;” power operates by suspending the law in its own favor. See Discipline & Punish (1975) (Vintage Books, 2nd Ed. 1995) at pp. 82-87. In short, every legal system purposely enforces the law in a discriminatory manner in order to favor those who control the system. After all, powerful interests create the law; they will not suffer punishment under rules they created to secure their own advantages. Why become powerful if you are subject to the same laws as the masses? The allure of power lies precisely in the right to play by “different, preferential rules.” In this sense, “rule of law” supporters completely misunderstand the law. The law does not exist to secure common justice and equality. Rather, it preserves the will of powerful interests, and if powerful interests technically violate the law, they will not face punishment. After all, they created the law; it exists to secure them in their superior positions. On this point, Foucault writes: “[The] bourgeoisie was to reserve to itself the illegality of rights: the possibility of getting round its own regulations and its own laws, of ensuring itself an immense sector of economic circulation by a skillful manipulation of gaps in the law—gaps that were foreseen by its silences, or opened up by de facto tolerance.” Id. at p. 87. At the same time, these powerful interests ensured that lower classes faced inexorable punishment for breaking “property rules:” “[This] illegality [of property]…was intolerable in commercial and industrial ownership...the development [of modern commerce] necessitated a severe repression of illegality [against property].” Id. at p. 85. In short, the powerful classes ensured that their conduct would not be punished, while they made every effort to punish conduct that affected their economic interests.
On the whole, then, what is law? A crude, predictable, exception-riddled and ancient system that does little more than “say no,” and even then only selectively. And it is precisely the law’s “selectivity” that makes it so suspect. After all, if all people do not face equal treatment under the law, it supports the argument that law embodies the will of the powerful. Powerful people impose their will on others; they do not allow others to impose their will on them. Law provides a superficially appealing—and straightforward—way for power to maintain itself while allaying popular discord with nice-sounding rhetoric about “equality.” In many individual cases, of course, the law works. It enforces everyday private promises and provides some redress for various wrongs. But this does not make it thematically spectacular, nor does it embody metaphysical truth. It is merely a convenient way to channel power in society. Its goal is not to provide justice or equality. Its goal is to enshrine dominant values in a familiar, awe-inspiring manner: As the father who commands obedience from his children. Yet upon closer inspection, we see that our father is not infallible, nor does he embody metaphysical truth. Instead, he is simply a metaphor for power.
There is nothing grandiose about human attempts to obtain and maintain power. This is law’s function, and the law operates crudely. This is why I disagree with the starry-eyed “rule of law” fanatics. There is nothing spectacular about the law. It is merely power incarnate. And its methods are easy to decipher. As Foucault said, law is “monotonous” and “uninventive.” Power, too, is “uninventive.” It has two simple goals: (1) To stay where it is; and (2) to restrict others from joining its ranks. The law facilitates these two goals.
Friedrich Nietzsche (1844-1900) did not attract fame or fortune during his lifetime. His ideas were ahead of their time; the world was simply not ready for him. He lost his mind in 1888; he died twelve years later, embittered and alone. Interestingly, you can sense his desperation in his late writings, such as On the Genealogy of Morals (1887). In his Prologue to the Genealogy, Nietzsche wonders why people criticize him for “readability.” He defends his aphoristic style, but he seems to want others to understand him. In his last essay, Nietzsche even ventures an “interpretation” of his own writing. He reaches out to the reader as if to say: “Look! It’s not that complex; this is what I am trying to say.”
Nietzsche explained that there really is no explanation. Truth depends on power and judgment. It depends on the narrator, the legislator and their values. Every story is to some extent a judgment; a story gives voice to only one perspective on unique events. That was Nietzsche’s core point in all his writings. During the 19th Century, people had difficulty grasping that concept. After all, most “good bourgeois citizens” in the Victorian era believed that there was a “single good” and a “single evil.” There was no room for debate. The Bible and “popular morality” told them about right and wrong. They comfortably viewed the world equipped with these metaphysical assumptions. Against such entrenched resistance, Nietzsche was bound to fail. He was too progressive for his time. He was a relativist in an absolute world.
But Nietzsche’s influence survived. Within decades after his death, his ideas took root in numerous intellectual fields. Authors such as Franz Kafka and Albert Camus followed in his footsteps. Psychiatrists such as Sigmund Freud formulated scientific theories that substantiated his thought. And 20th Century philosophers such as Michel Foucault and Martin Heidegger all paid tribute to Nietzsche’s groundbreaking “polyperspectivism.” In death, Nietzsche’s relativism triumphed over metaphysics. For all these disciples, Nietzsche’s message was clear: “Truth is illusory. Only raw power and judgment declare truth. Life is a constant battle between individual perspective and constraining powers that impose rules on the individual in all social circumstances, from education to employment to family to law. In the end, it is a war for individual souls; and in most cases, the individual loses badly.”
Michel Foucault theorized extensively about the “power relations” that constrain individuals in modern society. In that sense, he took up Nietzsche’s mantle and more closely analyzed his general ideas about power and judgment. I admire Foucault because he carried on Nietzsche’s original theories about power. My own life experience confirms to me that both Nietzsche and Foucault were right about power relationships in our world. We live amid unfairness, subjected to power from all directions. As individuals, we have little chance to realize our own potential without in part surrendering to massively more powerful forces that can impact our bodies and our property. These forces cannot directly impact our souls, but by impacting our bodies and our property, they can indirectly affect the way we value ourselves. We may not want to work at a certain job for our soul’s sake, but power relations (the landlord, the tax collector, the family, the student loan creditor) indirectly force us to work in order to satisfy their property demands. By forcing us to do things we do not want to do, these superior forces impact our souls. It is not a direct influence on us, but it is an influence nonetheless.
But it is no easy task to read Foucault. In that sense, he differs from Nietzsche. Nietzsche wrote in extremely clear, accessible prose. Even his aphorisms cut to the heart of a question, sometimes with irony, other times with pure rhetorical clarity. Nietzsche could argue as well as a lawyer and ruminate as well as a theologian; but he was too profound to be either a lawyer or a theologian. He was both cogent and creative. He used many voices. He could imitate other writers and mock them. Nietzsche’s facility as a writer makes him easy—and joyful—to read. With Nietzsche, you never know exactly what style you will get. Yet in the end you know you will get an unmistakably Nietzschean message about power, individuality and judgment.
By contrast, Foucault wrote in a much more stilted, academic style. Unlike Nietzsche, Foucault did not write real literature; he wrote academic criticisms. Nietzsche criticized with lively prose or ironic musings; Foucault criticized with analytical university-speak. This is not to say that Foucault did not write excellent criticism. Quite the contrary; Foucault’s work places him among the most cogent 20th Century philosophers. But he is not a writer’s philosopher. It is harder to read his books than it is to read Nietzsche. You need to pore over each page longer. It is worth the effort to read him, of course. It simply takes a bit more work to grasp his points because his language is more obscure and technical than Nietzsche’s.
I enjoy any criticism about law. Foucault wrote extensively about the law because law is an institution of power. During law school, I spent countless hours learning American legal doctrine without really reflecting on the power that created it. Since my last months in law school, I have reflected intensely on that very question. What is law? Where did it come from? How does it operate? Intuitively, I did not buy the American rhetoric about “equality under law” and the neutral “rule of law” that supposedly nullifies all human caprice. No, I thought. Law is not neutral, nor does it apply equally. Law is neither objective nor fair, although it claims to be both.
Why is law so flawed? Simple: Because it is a human invention. Human beings are deeply flawed creatures. They want nothing more than to enrich themselves and win as much power as they can before dying. To achieve that goal, they invent whatever mechanisms necessary to obtain and maintain power. Law represents a way to obtain and maintain power without alienating everyone else. By law, powerful people protect their values and assure their domination over the population. At the same time, the law espouses a superficial appeal that convinces its subjects that they are getting a fair deal, and that the law actually serves them. This encourages them to stay at work, pay their taxes and continue to support a system that really does not care whether they advance or not. In short, I learned that law simply codifies value systems and uses it to cement prevailing power relationships.
When I picked up Foucault, I found confirmation for many of the ideas I formulated after law school. Foucault provided me with additional insights into the power-law connection. Most strikingly, Foucault reminded me that the law is essentially crude and unimaginative. In The History of Sexuality : An Introduction (1976), Foucault asserts that Western discourse about human sexuality has never been repressed. Rather, he argues, we constantly talk about sex; we simply channel our discussions to conform to various power influences. The law is one such “power influence” that channels discussion about sex. In analyzing the law, Foucault writes: “[The law] is defined in a strangely restrictive way, in that, to begin with, this power is poor in resources, sparing of its methods, monotonous in the tactics it utilizes, incapable of invention and seemingly doomed always to repeat itself. Further, it is a power that only has the force of the negative on its side, a power to say no; in no condition to produce, capable only of posting limits, it is basically anti-energy.” The History of Sexuality (Vintage Books Edition 1990) at p. 85.
What a searing critique! Every law professor, lawyer and judge should read that passage and think about it. Why praise the law for its subtlety when it is actually so pathetically simple? When you get right down to it, what is the law except a crude mechanism of repression? What does the law really produce? It does nothing but forbid, then threaten punishment for infractions. It is remarkably simplistic. It is little more than a compendium of general “do’s” and “don’t’s.” Structurally, the law is no different than a kindergarten list that forbids such behavior as “eating crayons,” “punching your neighbor in the face” or “going wee-wee on the floor at nap time.” The lawgiver forbids; he then enforces obedience by punishing those who trespass against his word. It is a power relationship: One speaks; the other obeys. The powerful party inflicts pain; the weaker party submits.
But here we see another weakness in the law. After all, if the law can only say “no” to various human behavior, then the law must also observe and stop the behavior it prohibits. It is one thing to abstractly forbid conduct; it is quite another to find that conduct and punish it. Put simply, it is extremely easy to evade the law because the law has the burden to seek out the prohibited behavior. It is “poor in resources” because there is no way the police can be everywhere all the time. If the law cannot find a violation, it cannot punish. If it cannot punish, it cannot write its power on its subjects. Thus, its general, prohibitory statements mean nothing in practice. On the other hand, if it does find a violation, it punishes. In Foucault’s words, it is “monotonous anti-energy.” You know how it operates. It is simple. It is not subtle. It is not inventive. It “posts limits.” The lawgiver says: “Drive 55.” You drive 56. You transgress. Moreover, law creates nothing. Put simply, we should hesitate before speaking highly about noble legal principles. There is nothing special going on here; the law is little more than a glorified kindergarten “do and don’t” list.
There is reason for all this. The law is simple because it reflects an earlier time. Foucault explains that western legal systems as we know them evolved during the Middle Ages; and they have not essentially changed in the 1000 years since. See History of Sexuality at pp. 86-88. He argues that the law arose around the same time as modern nation-States. Modern nation-States replaced feudal chaos, in which fractured fiefdoms squabbled incessantly because each local prince had his own laws and customs. National Kings, however, imposed uniform rules on the warring nobles, bringing uniformity and peace to splintered realms. Foucault explains: “Faced with a myriad of clashing forces, these great forms of power functioned as a principle of right that transcended all the heterogeneous claims…forming a unitary regime, identifying its will with the law, and [acting] through interdiction and sanction.” Id. at p. 87. In this way, Kings imposed “pax et justitia (peace and justice)” on the land. Their royal courts replaced disruptive private vendettas between aggrieved nobles. Id. at p. 87. The people obeyed their father the King. The King forbade; the people listened. When a child disobeyed the law, the King punished him, assuming he found the transgressor.
This basic structure has not changed. While modern States no longer look to Kings for law, they put their faith in “replacement monarchs,” namely, written Constitutions. As Foucault eloquently points out: “In political thought and analysis, we still have not cut off the head of the King.” History of Sexuality at pp. 88-89. In sum, western societies still follow the “law model” to formulate power. The law has always been simplistic. It still is, even if we make a “Constitution” our sovereign father rather than a King.
Legal theorists applaud the law because it provides “fairness, justice and uniform procedure” for redressing public and private wrongs. In short, these theorists praise “the rule of law,” as if that phrase makes it impossible for tyranny to exist anywhere in a society committed to law. But these theorists unjustifiably elevate the law to a loftier station than it should occupy. They think that the “rule of law” makes it impossible for individual caprice to influence human relationships. Put simply, “rule of law” theorists dress a pig in fine clothes. The law is not ethereal or flawless. It does not provide infallible justice or equal results for all. In fact, contrary to all “rule of law” rhetoric, the law does not apply in all cases to which it should apply. Instead, exemptions, exceptions and immunities to the law are as old as the law itself. This is entirely consistent with the law as a system of power relationships, since powerful people will always treat themselves better than those who must obey. In short, the law is only uniform in theory; in practice, it is exceedingly inconsistent.
Foucault calls this phenomenon “tolerated illegality.” He reasons that every legal system does not enforce laws against certain “unlawful conduct.” It does not matter that certain conduct is “illegal;” power operates by suspending the law in its own favor. See Discipline & Punish (1975) (Vintage Books, 2nd Ed. 1995) at pp. 82-87. In short, every legal system purposely enforces the law in a discriminatory manner in order to favor those who control the system. After all, powerful interests create the law; they will not suffer punishment under rules they created to secure their own advantages. Why become powerful if you are subject to the same laws as the masses? The allure of power lies precisely in the right to play by “different, preferential rules.” In this sense, “rule of law” supporters completely misunderstand the law. The law does not exist to secure common justice and equality. Rather, it preserves the will of powerful interests, and if powerful interests technically violate the law, they will not face punishment. After all, they created the law; it exists to secure them in their superior positions. On this point, Foucault writes: “[The] bourgeoisie was to reserve to itself the illegality of rights: the possibility of getting round its own regulations and its own laws, of ensuring itself an immense sector of economic circulation by a skillful manipulation of gaps in the law—gaps that were foreseen by its silences, or opened up by de facto tolerance.” Id. at p. 87. At the same time, these powerful interests ensured that lower classes faced inexorable punishment for breaking “property rules:” “[This] illegality [of property]…was intolerable in commercial and industrial ownership...the development [of modern commerce] necessitated a severe repression of illegality [against property].” Id. at p. 85. In short, the powerful classes ensured that their conduct would not be punished, while they made every effort to punish conduct that affected their economic interests.
On the whole, then, what is law? A crude, predictable, exception-riddled and ancient system that does little more than “say no,” and even then only selectively. And it is precisely the law’s “selectivity” that makes it so suspect. After all, if all people do not face equal treatment under the law, it supports the argument that law embodies the will of the powerful. Powerful people impose their will on others; they do not allow others to impose their will on them. Law provides a superficially appealing—and straightforward—way for power to maintain itself while allaying popular discord with nice-sounding rhetoric about “equality.” In many individual cases, of course, the law works. It enforces everyday private promises and provides some redress for various wrongs. But this does not make it thematically spectacular, nor does it embody metaphysical truth. It is merely a convenient way to channel power in society. Its goal is not to provide justice or equality. Its goal is to enshrine dominant values in a familiar, awe-inspiring manner: As the father who commands obedience from his children. Yet upon closer inspection, we see that our father is not infallible, nor does he embody metaphysical truth. Instead, he is simply a metaphor for power.
There is nothing grandiose about human attempts to obtain and maintain power. This is law’s function, and the law operates crudely. This is why I disagree with the starry-eyed “rule of law” fanatics. There is nothing spectacular about the law. It is merely power incarnate. And its methods are easy to decipher. As Foucault said, law is “monotonous” and “uninventive.” Power, too, is “uninventive.” It has two simple goals: (1) To stay where it is; and (2) to restrict others from joining its ranks. The law facilitates these two goals.
Saturday, January 3, 2009
YOU CAN'T ESCAPE THE POLICE -- OR THE EXECUTIVE
AN ESSAY
In law school, I loved Constitutional Law because it addressed issues larger than mere property ownership. It provided insights into American history and American values. It also revealed our government’s intricate structure, as well as the theories intended to preserve that structure. When the Framers drafted the Constitution in 1787, they had only one thing in mind: To ensure that Americans did not live in an absolute monarchy.
As a law student, I did not have time to consider the historical context to my studies. I simply tried to memorize the catchphrases and verbal formulas needed to correctly analyze questions on an examination. Thankfully, however, I had enough intellectual curiosity to recognize that something much larger was afoot in constitutional doctrine. These cases, I thought, discuss monumental questions about government, power and civilization that have persisted for centuries—and in many different countries than the United States. After law school, I readjusted my mind away from pure legal doctrine. I freshened my legal knowledge with my background in history, language and literature. With time, I began to truly understand Constitutional Law.
In 1787, Americans did not want absolute monarchy because they saw that unchecked executive power can subjugate a society. During the colonial period, royal agents roamed at will in North America, levying taxes, conducting searches, suppressing political dissent and throwing people into prison without charges. By constitutional text, the Framers clearly delineated between legislative, executive and judicial authority. Any power delegated to one branch could not be exercised by another branch. Article I specifically listed Congressional powers, and they far outnumbered executive powers. Benjamin Franklin so loathed executive power that he proposed a two-branch government. He thought that a Congress and a Supreme Court would be sufficient. In the end, the Framers agreed on a three-branch system, confident that the executive would remain in check.
But has the executive remained in check? And why were the Framers so wary about the executive? Even during law school, I saw the reason. Executive power is ominous because it is uncertain. The Constitution simply says: “The executive Power shall be vested in a President of the United States of America.” Article II, § 1. There is no further definition. Later in the text, the Article II tells us that the President shall be the “Commander in Chief of the Army and Navy of the United States,” Article II, § 2, and that he “shall take Care that the Laws be faithfully executed.” Article II, § 3. What can we infer from these cryptic words? We see first that the President has “the” executive power. Second, we see that the President controls the military. We can infer that the military, then, is under executive control. We begin to see the nature of executive power: It is armed force. The executive is the guy with the guns. This accords with historical understanding. Absolute monarchs in Europe wielded absolute power because they controlled the armed forces. If someone did something they did not like, they simply crushed them with military power.
He who controls the army generally controls everything. This has been true since Greco-Roman times. Roman emperors could never count on lasting power without the army behind them. In medieval times, lords dominated their lands because they had armed knights to intimidate their rivals. And in the era of early European nation-states, Kings kept power by marshaling large national armies that could crush dissent. The Framers knew this history well. They knew that in England, absolute monarchs with absolute executive power could do much more than crush dissent. They could alter a nation’s religious beliefs, summarily punish “undesirables” and keep people imprisoned without charge. They could penalize speech simply because they disagreed with its content. Apparently, the Framers thought they could create a “tempered” executive that would maintain military control without using it to tyrannize the population. They trusted the Constitution’s divided structure—as well as human reason—to prevent individual Presidents from running amok. They also put their trust in something that seems archaic to us today: An oath. Incoming Presidents must publicly declare: “I solemnly swear [to] faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Article II, § 1, Clause 7. Lesser executive officers must make a similar oath “to support the Constitution.” Article VI, § 3.
Are oaths and hypertechnical textual niceties enough to keep executive power in line? I have often marveled at this Nation’s ability to keep the constitutional order. After all, a ruthless President could easily use his military power to fatally undermine the supposedly “coequal” Congress and Supreme Court. After all, in practical terms, what could stop the President from ordering the army to take over the Supreme Court if it rendered a decision he did not like? True, another court would say he needs to show cause for “seizing” the justices under the Fourth Amendment, but if the President controls the executive, who will execute the law against him? Courts would merely breathe hot air in his direction. Without force, legal pronouncements mean nothing. Cf. Immanuel Kant, The Metaphysics of Morals, Introduction to Legal Doctrine, § D (“The law is bound up with the authority to compel.”). Perhaps military officers would refuse to carry out such an order. But military officers are executive officers loyal to the President. If a President were truly ruthless, he would simply put guns in the faces of anyone who stood in his way. Only his “oath” prevents him from doing exactly that.
We do not yet live under an executive dictatorship. But that is not to say that the executive has not amassed enormous power in our everyday lives. Because executive power is so fluid, it can easily spawn new subsidiary organizations to do its work. In 1787, the Framers mentioned only the “Army and Navy” as executive weapons. In the intervening generations, however, the executive has added new weapons to its arsenal.
In both the federal government and in every State, executive institutions have organized police forces. I wrote several months ago that modern-day uniformed police forces were nonexistent in the 18th Century. Monarchs used “constables” and “magistrates” to carry out individual arrests and investigations. There was no generalized “social surveillance” or “patrolling” as there is now. Monarchs also used their constables and magistrates to summarily detain people without charge. The Framers were keenly aware of this and recoiled from unjust detention practices. Reformers in both America and France associated imprisonment with the “excesses of sovereign power” and “arbitrary royal decision.” Michel Foucault, Discipline and Punish (1975), p. 119. But in the 19th Century, executive power introduced “centralized police” to carry out a whole new program of “[searching for] criminals, urban surveillance and political supervision.” Id. at p. 213. This was a new development, because unlike the old royal magistrates, these police forces concerned themselves with “minuteness of detail,” creating a “permanent, exhaustive omnipresent surveillance” through “thousands of eyes posted everywhere, mobile attentions ever on the alert.” Id. at pp. 213-214. Executive intrusion into everyday life, then, ceased to be arbitrary or sporadic. Through modern police practice, such intrusion became systematic.
Modern police power does not just supervise; it also collects information about everyone and everything. Foucault noted that 19th Century police forces assembled “immense texts, reports and registers” that compiled a “permanent account of individuals’ behavior.” Discipline and Punish, at p. 214. In this light, we see that the executive controls far more than brute military force. It also controls an insidious surveillance apparatus that obtains knowledge about almost every citizen. The Framers could not have foreseen this development. Yet it has undeniably increased executive power, for increased knowledge inevitably leads to greater political authority. The Constitution’s text can do little against modern police practices, because the text dates from an era when such practices did not exist. The industrial revolution introduced monumental social and philosophical changes, including the social tendency to more scrupulously “discipline” individual citizens as “parts” in an efficient new industrial economy. But these changes postdated the Constitution. Without core constitutional text to constrain them, executive practices grew freely to accommodate the new society.
I mention all this to underscore how powerful the police can be. This troubles me, because I know—as a matter of constitutional law—that no governmental branch should wield excessive power in relation to the other two. Modern police power translates into increased executive power. Modern police power was largely unknown to the Framers, and the Constitution serves as a poor check upon it. The Framers did not live in a world where uniformed executive deputies roamed the landscape exercising executive power over every citizen within their view. True, one may argue that constant executive power vindicates the legislative will because it leads to more rigorous enforcement. But enforcement carries a price. After all, the People created the Constitution on the understanding that their individual rights would be protected. Overly zealous police authority creates untold opportunities for government to violate those rights. It also creates an aura of suspicion between government and the individual, because police authority constantly watches individuals with a view to “catching wrongdoers.” No one likes to be watched, especially when he knows that the observer is scrutinizing every action for signs of “illegality.” Worse, the modern police officer has enormous discretionary power. It is his call whether or not to arrest someone for something he sees. That is genuine executive power: One man decides—without consulting a court—whether another man goes to jail. If he is in a good mood, he may look the other way. If he is not—or if he simply does not like the man he watches—he may decide to lock the “suspect” up. Just as in Henry VIII’s time, one man’s bodily liberty and comfort depends upon the whim of another man.
In America, we do not live in a true “police state.” But we do live with an executive that enjoys far more power than was originally intended. To illustrate just how dangerous modern police forces can be, consider the German example. Recently, I learned that in early Nazi Germany a massive power struggle took place between Heinrich Himmler and Hermann Goering for control over Germany’s local police forces. Although we tend to think that Hitler had absolute control over Germany’s executive power from the moment he seized power in 1933, in fact it took several years for him to consolidate his enforcement apparatus. Without controlling all local police forces, the Nazis could not implement their horrific surveillance and detention practices. To literally spy on, arrest and detain people, the Nazis needed armed men with “the appearance of legal authority.” Himmler understood that, and he knew he could increase his own political power by consolidating control over the police. By 1935, he absorbed all local police forces under SS control, which in turn allowed him to investigate, arrest, detain and “legally kill” people at will. Put simply, without a comprehensive police force, the Nazis could not have perpetrated their atrocities. The police knew where to find people and where to arrest them. They had all the information they needed.
Although such excesses could not happen in America today under current law, this example shows how dangerous the police can be in a modern state. If applied to the wrong ends, police forces can make any citizen “disappear.” They have the information. They have the brute force. And they have the “legal authority” to carry out a tyrant’s wishes. In other words, they have the capacity to allow executive domination over society. They are a miniature “civil army” that stands ready to make war on any private citizen. In America, we can only trust that principled judges and elected officials will faithfully interpret the Constitution to protect us from unbridled executive power. Even then, judges stand at a disadvantage, because—as Hamilton said—they have only “reason,” not the “purse or the sword.” Federalist No. 78. The executive has the sword; and in unscrupulous hands, the sword beats reason.
During President George W. Bush’s presidency, America flirted with executive excess. Although the Framers could not have foreseen the power of modern police forces, they did know that executive tyranny depends on arbitrary detention. That is why they specifically safeguarded the “writ of habeas corpus” in the Constitutional text. Article I, § 9, Clause 2. Basically, any detained person may demand to know the legal reason why he is being detained. He may submit a “writ” to the person detaining him, which requires the jailer to tell a judge the exact legal authority authorizing detention. If there is no legal authority authorizing detention, the prisoner must be released. Habeas corpus puts a premium on individual liberty, and it forces the executive to follow written law when it detains people. After all, the worst tyrants detain people for no reason other than personal whim. Under habeas corpus, that is not allowed. Nonetheless, during the “War on Terror,” President Bush repeatedly detained suspects without charge, hearing, or access to counsel, sometimes for years on end. Even a generally conservative Supreme Court recognized that this represented a dangerous increase in executive power because it directly violated constitutional text. Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. __ (2008). Still, the Court could not categorically agree that Bush acted wrongly. They never reached anything approaching consensus on detainees’ rights. Dissenting justices even went so far as to say that the President could summarily jail anyone on his own authority as long as he tendered a “national security” reason or afforded some “modified” hearing process.
Bush’s actions set a bad precedent for executive power. As we have seen, executive power is hard to define and even harder to contain. Once an executive institution implements a practice without criticism, it is impossible to take it back. It “becomes” executive power. By manipulating public fears about national security, Bush managed to circumvent a core constitutional protection for all Americans. The Supreme Court’s reaction to this usurpment left much to be desired. The executive is strong enough to sustain itself even if the Court does not intervene against it. But when the Court is partially complicit in executive excess, it irretrievably damages individual liberties.
In short, Bush added another weapon to the executive’s considerable arsenal. We should fear the executive because the executive has guns, wiretaps, roaming investigators and the power to detain. In coming years, we can only hope that the American people act to curtail some of this accumulated executive authority. Still, the executive does not lightly relinquish its powers. Why should it? Can an “oath” really stand up to armed men? Will the People deny executive authority if the executive trumps up “national security” fears? In the final analysis, we live under a limited government of separated powers. But when one branch has overwhelming practical and institutional advantages over the others, can we really trust it to protect us? Perhaps I exaggerate slightly to make my point, yet my point remains: There is nothing but tenuous principle to defend us against executive tyranny. We have already acquiesced in many abuses. A truly unscrupulous executive has the weapons to sweep away any opposition, judicial or legislative. All he needs is an “emergency” to rally frantic public support.
In law school, I loved Constitutional Law because it addressed issues larger than mere property ownership. It provided insights into American history and American values. It also revealed our government’s intricate structure, as well as the theories intended to preserve that structure. When the Framers drafted the Constitution in 1787, they had only one thing in mind: To ensure that Americans did not live in an absolute monarchy.
As a law student, I did not have time to consider the historical context to my studies. I simply tried to memorize the catchphrases and verbal formulas needed to correctly analyze questions on an examination. Thankfully, however, I had enough intellectual curiosity to recognize that something much larger was afoot in constitutional doctrine. These cases, I thought, discuss monumental questions about government, power and civilization that have persisted for centuries—and in many different countries than the United States. After law school, I readjusted my mind away from pure legal doctrine. I freshened my legal knowledge with my background in history, language and literature. With time, I began to truly understand Constitutional Law.
In 1787, Americans did not want absolute monarchy because they saw that unchecked executive power can subjugate a society. During the colonial period, royal agents roamed at will in North America, levying taxes, conducting searches, suppressing political dissent and throwing people into prison without charges. By constitutional text, the Framers clearly delineated between legislative, executive and judicial authority. Any power delegated to one branch could not be exercised by another branch. Article I specifically listed Congressional powers, and they far outnumbered executive powers. Benjamin Franklin so loathed executive power that he proposed a two-branch government. He thought that a Congress and a Supreme Court would be sufficient. In the end, the Framers agreed on a three-branch system, confident that the executive would remain in check.
But has the executive remained in check? And why were the Framers so wary about the executive? Even during law school, I saw the reason. Executive power is ominous because it is uncertain. The Constitution simply says: “The executive Power shall be vested in a President of the United States of America.” Article II, § 1. There is no further definition. Later in the text, the Article II tells us that the President shall be the “Commander in Chief of the Army and Navy of the United States,” Article II, § 2, and that he “shall take Care that the Laws be faithfully executed.” Article II, § 3. What can we infer from these cryptic words? We see first that the President has “the” executive power. Second, we see that the President controls the military. We can infer that the military, then, is under executive control. We begin to see the nature of executive power: It is armed force. The executive is the guy with the guns. This accords with historical understanding. Absolute monarchs in Europe wielded absolute power because they controlled the armed forces. If someone did something they did not like, they simply crushed them with military power.
He who controls the army generally controls everything. This has been true since Greco-Roman times. Roman emperors could never count on lasting power without the army behind them. In medieval times, lords dominated their lands because they had armed knights to intimidate their rivals. And in the era of early European nation-states, Kings kept power by marshaling large national armies that could crush dissent. The Framers knew this history well. They knew that in England, absolute monarchs with absolute executive power could do much more than crush dissent. They could alter a nation’s religious beliefs, summarily punish “undesirables” and keep people imprisoned without charge. They could penalize speech simply because they disagreed with its content. Apparently, the Framers thought they could create a “tempered” executive that would maintain military control without using it to tyrannize the population. They trusted the Constitution’s divided structure—as well as human reason—to prevent individual Presidents from running amok. They also put their trust in something that seems archaic to us today: An oath. Incoming Presidents must publicly declare: “I solemnly swear [to] faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Article II, § 1, Clause 7. Lesser executive officers must make a similar oath “to support the Constitution.” Article VI, § 3.
Are oaths and hypertechnical textual niceties enough to keep executive power in line? I have often marveled at this Nation’s ability to keep the constitutional order. After all, a ruthless President could easily use his military power to fatally undermine the supposedly “coequal” Congress and Supreme Court. After all, in practical terms, what could stop the President from ordering the army to take over the Supreme Court if it rendered a decision he did not like? True, another court would say he needs to show cause for “seizing” the justices under the Fourth Amendment, but if the President controls the executive, who will execute the law against him? Courts would merely breathe hot air in his direction. Without force, legal pronouncements mean nothing. Cf. Immanuel Kant, The Metaphysics of Morals, Introduction to Legal Doctrine, § D (“The law is bound up with the authority to compel.”). Perhaps military officers would refuse to carry out such an order. But military officers are executive officers loyal to the President. If a President were truly ruthless, he would simply put guns in the faces of anyone who stood in his way. Only his “oath” prevents him from doing exactly that.
We do not yet live under an executive dictatorship. But that is not to say that the executive has not amassed enormous power in our everyday lives. Because executive power is so fluid, it can easily spawn new subsidiary organizations to do its work. In 1787, the Framers mentioned only the “Army and Navy” as executive weapons. In the intervening generations, however, the executive has added new weapons to its arsenal.
In both the federal government and in every State, executive institutions have organized police forces. I wrote several months ago that modern-day uniformed police forces were nonexistent in the 18th Century. Monarchs used “constables” and “magistrates” to carry out individual arrests and investigations. There was no generalized “social surveillance” or “patrolling” as there is now. Monarchs also used their constables and magistrates to summarily detain people without charge. The Framers were keenly aware of this and recoiled from unjust detention practices. Reformers in both America and France associated imprisonment with the “excesses of sovereign power” and “arbitrary royal decision.” Michel Foucault, Discipline and Punish (1975), p. 119. But in the 19th Century, executive power introduced “centralized police” to carry out a whole new program of “[searching for] criminals, urban surveillance and political supervision.” Id. at p. 213. This was a new development, because unlike the old royal magistrates, these police forces concerned themselves with “minuteness of detail,” creating a “permanent, exhaustive omnipresent surveillance” through “thousands of eyes posted everywhere, mobile attentions ever on the alert.” Id. at pp. 213-214. Executive intrusion into everyday life, then, ceased to be arbitrary or sporadic. Through modern police practice, such intrusion became systematic.
Modern police power does not just supervise; it also collects information about everyone and everything. Foucault noted that 19th Century police forces assembled “immense texts, reports and registers” that compiled a “permanent account of individuals’ behavior.” Discipline and Punish, at p. 214. In this light, we see that the executive controls far more than brute military force. It also controls an insidious surveillance apparatus that obtains knowledge about almost every citizen. The Framers could not have foreseen this development. Yet it has undeniably increased executive power, for increased knowledge inevitably leads to greater political authority. The Constitution’s text can do little against modern police practices, because the text dates from an era when such practices did not exist. The industrial revolution introduced monumental social and philosophical changes, including the social tendency to more scrupulously “discipline” individual citizens as “parts” in an efficient new industrial economy. But these changes postdated the Constitution. Without core constitutional text to constrain them, executive practices grew freely to accommodate the new society.
I mention all this to underscore how powerful the police can be. This troubles me, because I know—as a matter of constitutional law—that no governmental branch should wield excessive power in relation to the other two. Modern police power translates into increased executive power. Modern police power was largely unknown to the Framers, and the Constitution serves as a poor check upon it. The Framers did not live in a world where uniformed executive deputies roamed the landscape exercising executive power over every citizen within their view. True, one may argue that constant executive power vindicates the legislative will because it leads to more rigorous enforcement. But enforcement carries a price. After all, the People created the Constitution on the understanding that their individual rights would be protected. Overly zealous police authority creates untold opportunities for government to violate those rights. It also creates an aura of suspicion between government and the individual, because police authority constantly watches individuals with a view to “catching wrongdoers.” No one likes to be watched, especially when he knows that the observer is scrutinizing every action for signs of “illegality.” Worse, the modern police officer has enormous discretionary power. It is his call whether or not to arrest someone for something he sees. That is genuine executive power: One man decides—without consulting a court—whether another man goes to jail. If he is in a good mood, he may look the other way. If he is not—or if he simply does not like the man he watches—he may decide to lock the “suspect” up. Just as in Henry VIII’s time, one man’s bodily liberty and comfort depends upon the whim of another man.
In America, we do not live in a true “police state.” But we do live with an executive that enjoys far more power than was originally intended. To illustrate just how dangerous modern police forces can be, consider the German example. Recently, I learned that in early Nazi Germany a massive power struggle took place between Heinrich Himmler and Hermann Goering for control over Germany’s local police forces. Although we tend to think that Hitler had absolute control over Germany’s executive power from the moment he seized power in 1933, in fact it took several years for him to consolidate his enforcement apparatus. Without controlling all local police forces, the Nazis could not implement their horrific surveillance and detention practices. To literally spy on, arrest and detain people, the Nazis needed armed men with “the appearance of legal authority.” Himmler understood that, and he knew he could increase his own political power by consolidating control over the police. By 1935, he absorbed all local police forces under SS control, which in turn allowed him to investigate, arrest, detain and “legally kill” people at will. Put simply, without a comprehensive police force, the Nazis could not have perpetrated their atrocities. The police knew where to find people and where to arrest them. They had all the information they needed.
Although such excesses could not happen in America today under current law, this example shows how dangerous the police can be in a modern state. If applied to the wrong ends, police forces can make any citizen “disappear.” They have the information. They have the brute force. And they have the “legal authority” to carry out a tyrant’s wishes. In other words, they have the capacity to allow executive domination over society. They are a miniature “civil army” that stands ready to make war on any private citizen. In America, we can only trust that principled judges and elected officials will faithfully interpret the Constitution to protect us from unbridled executive power. Even then, judges stand at a disadvantage, because—as Hamilton said—they have only “reason,” not the “purse or the sword.” Federalist No. 78. The executive has the sword; and in unscrupulous hands, the sword beats reason.
During President George W. Bush’s presidency, America flirted with executive excess. Although the Framers could not have foreseen the power of modern police forces, they did know that executive tyranny depends on arbitrary detention. That is why they specifically safeguarded the “writ of habeas corpus” in the Constitutional text. Article I, § 9, Clause 2. Basically, any detained person may demand to know the legal reason why he is being detained. He may submit a “writ” to the person detaining him, which requires the jailer to tell a judge the exact legal authority authorizing detention. If there is no legal authority authorizing detention, the prisoner must be released. Habeas corpus puts a premium on individual liberty, and it forces the executive to follow written law when it detains people. After all, the worst tyrants detain people for no reason other than personal whim. Under habeas corpus, that is not allowed. Nonetheless, during the “War on Terror,” President Bush repeatedly detained suspects without charge, hearing, or access to counsel, sometimes for years on end. Even a generally conservative Supreme Court recognized that this represented a dangerous increase in executive power because it directly violated constitutional text. Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. __ (2008). Still, the Court could not categorically agree that Bush acted wrongly. They never reached anything approaching consensus on detainees’ rights. Dissenting justices even went so far as to say that the President could summarily jail anyone on his own authority as long as he tendered a “national security” reason or afforded some “modified” hearing process.
Bush’s actions set a bad precedent for executive power. As we have seen, executive power is hard to define and even harder to contain. Once an executive institution implements a practice without criticism, it is impossible to take it back. It “becomes” executive power. By manipulating public fears about national security, Bush managed to circumvent a core constitutional protection for all Americans. The Supreme Court’s reaction to this usurpment left much to be desired. The executive is strong enough to sustain itself even if the Court does not intervene against it. But when the Court is partially complicit in executive excess, it irretrievably damages individual liberties.
In short, Bush added another weapon to the executive’s considerable arsenal. We should fear the executive because the executive has guns, wiretaps, roaming investigators and the power to detain. In coming years, we can only hope that the American people act to curtail some of this accumulated executive authority. Still, the executive does not lightly relinquish its powers. Why should it? Can an “oath” really stand up to armed men? Will the People deny executive authority if the executive trumps up “national security” fears? In the final analysis, we live under a limited government of separated powers. But when one branch has overwhelming practical and institutional advantages over the others, can we really trust it to protect us? Perhaps I exaggerate slightly to make my point, yet my point remains: There is nothing but tenuous principle to defend us against executive tyranny. We have already acquiesced in many abuses. A truly unscrupulous executive has the weapons to sweep away any opposition, judicial or legislative. All he needs is an “emergency” to rally frantic public support.
Thursday, October 9, 2008
EXECUTIVE BEATS COURT - AGAIN
AN ESSAY
In Discipline & Punish (Surveillier et Punir)(1975), Michel Foucault discusses the origin both of prisons and the police force. Both prisons and police forces are relatively new developments in Western society. And they both perform “surveillance” functions. In Foucault’s view, industrialized society is a “disciplinary” society, and discipline only works when the ruling power carefully scrutinizes its subjects with a view to controlling, exploiting and—ultimately—improving them. Good State surveillance, therefore, is essential to achieving these ends.
Professional police forces perform “surveillance” on the population. They not only investigate reported crimes, but they also closely observe everyday behavior in a quest to find violators. They subject everything within their gaze to constant judgment to determine whether they see any “violations.” In modern society, the police act as the sovereign’s all-seeing eye. In order to maintain the disciplinary State, the police keep watch on all the sovereign’s subjects, rigorously monitoring even the most banal behavior for infractions. To quote Foucault, modern police power “must bear ‘over everything’: …the dust of events, actions, behavior, opinions—‘everything that happens;’ the police are concerned with ‘those things of every moment,’ those ‘unimportant details[].’” Discipline & Punish, p. 213. In a word, modern police power embraces all actions all the time.
Today, we are accustomed to public surveillance. It is part of modern life. But we do not even really consider how revolutionary a police force was when it first appeared in the 19th Century. As we understand them, police forces did not exist when the Framers introduced the Bill of Rights in 1791. To that extent, most basic American criminal procedure rights were not answers to modern police practice; modern police practice arose after the Constitution was written. If anything, many guarantees contained in the Bill of Rights (ie, protection against “unreasonable searches;” “compelled self-incrimination;” “quartering of soldiers in private residences;” and “warrants,” to name a few) were directed toward the abusive practices of occupying British armies during the colonial era. Yet today, jurists attempt to reconcile 18th Century legal abstractions with domestic practices developed in the 19th Century and beyond. This is a difficult venture, and it is understandable why the police can do as much as they can. If the Constitution were written in 2000, doubtless many well-established police practices would be outlawed as a matter of individual right. But our Constitution dates from 1787. It was reacting to royal abuses by George III in the 18th Century, not domestic practices introduced in a completely different historical context. Thus, modern police forces had a clean analytical slate when they emerged in the 19th Century.
From whence come the police? As Foucault recognized, the police are the “eyes of the sovereign.” In strict form, the “sovereign” or “King” is the Executive Branch. In the American constitutional system, the federal Executive power is vested in the President of the United States, see U.S. Const. Art. II, § 1, while the State Executive power is vested in State Governors under their respective Constitutions. In constitutional terms, these Executive powers have authority to “faithfully execute the laws,” see U.S. Const. Art. II, § 3, and that means they can create police forces. This is exactly what State governments did in the 19th Century when they minted municipal and State police forces. And the federal government followed suit by creating the Department of Justice and Federal Bureau of Investigation (FBI). These new Executive “offshoots” set about developing practices to enforce the myriad laws that arose well after the Bill of Rights came into effect.
In effect, the “myriad laws” that sprang up in the 19th Century coincided with industrial development. In 1787, the United States was not an industrial power. It was largely an agrarian, trading Nation. Heavy industry did not yet exist. There was no steam engine, railroad or electricity. By 1850, the United States was a leading industrial power. This change mirrored changes in values. The law enforced the values of the new society. In the mid-19th Century, States wanted productivity. Productivity in industrial society, in turn, demanded respect for property and detailed attention to work. Foucault reasoned that “discipline” was essential to enforce these values, and “surveillance” was the way to maintain discipline and attention to detail. Police forces represented the ideal method to “keep an eye” on the population and to ensure adherence to “industrialized” laws.
To achieve maximal surveillance and obedience to the new values, the police had to develop specific practices for enforcement. Searches, interrogations, undercover operations and wiretapping all helped them “see” behavior that potentially violated the new laws. Only the constitutional prohibitions laid down in 1791 blocked their way. Certainly there were searches and interrogations in 1791, but they did not measure up to modern police procedures. In 1791, constables investigated crime. There were no uniformed police on the street at all times. There were no central police offices or databases storing information on offenders. Constables only began their work when someone lodged a complaint. They did not stand on the street observing potentially criminal behavior. By 1850, uniformed police did prowl the streets observing potentially criminal behavior. There were central police offices that constantly strengthened crime detection and suppression. They were enforcing the sovereign’s laws 24 hours a day, with or without specific complaints. How were they to know whether they were violating constitutional principles that could never have contemplated the historical circumstances in which the State now found itself? After all, the Constitution said nothing about “surveillance.” Such a thing really did not exist in 1791. Yet now it was the bulwark of police practice.
It fell to the Judiciary to determine whether modern practices violated the Constitution. In the American constitutional system, many refer to the Judiciary as the “Third Branch” or—as Hamilton said—the “Least Dangerous Branch.” Federalist No. 78. Historically speaking, the American Judiciary was completely unprecedented because it was intended to be “independent” of both the Congress and the Executive. In Hamilton’s words, the Judiciary’s power lay solely in its “judgment,” not in “the sword or the purse.” Id. In theory, the Judiciary has the sole power to say whether any action by either the Executive or the Congress violates the letter or spirit of the Constitution. In practice, however, the Judiciary rarely exercises its independent authority. Especially in modern times, the Judiciary defers to the Executive or Congress without ever exercising the unprecedented “judgment” power that Hamilton envisioned.
Foucault understood this judicial weakness. He wrote that the police—and by extension, the Executive—offered “slight resistance to the reorganization of the Judicial power,” because the police have “never ceased to impose [their] prerogatives upon it, with ever-increasing weight, right up to the present day.” Discipline & Punish, p. 215.
These words have special resonance as they apply to the United States Supreme Court in its occasional confrontations with the Executive and the police. Amazingly, until the 20th Century, the Supreme Court never interfered with State criminal practices; it simply ignored the question by reasoning that the Bill of Rights did not apply to State governments. In the 1950s and 1960s, the Court took a bolder stance on the Bill of Rights, holding in numerous decisions that the prohibitions laid down in 1791 not only acted upon State governments (and their police forces), but restricted their criminal practices as well. Famous decisions such as Mapp v. Ohio, 367 U.S. 643 (1961), Miranda v. Arizona, 384 U.S. 436 (1966), Duncan v. Louisiana, 391 U.S. 145 (1968) and Terry v. Ohio, 392 U.S. 1 (1968) expressly held State police forces accountable for violating constitutional guarantees. Similarly, the Court expressly reversed the Executive in its famous Steel Seizure decision. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In this era, the Supreme Court actually exercised its “independent judgment power” over the inherently more powerful Executive and its police force.
But this judicial insurrection did not survive long. Beginning in the 1970s, the Supreme Court began to resume its more complicit role with respect to Executive and police authority. In the ensuing years, the Court has largely eradicated the decisions that had breathed life into its “independent judgment power.” In case after case, it sided with the police in its efforts to make investigating and prosecuting crime easier. In case after case, it permitted greater search powers and surveillance. While it did not expressly overrule the critical constitutional rules it announced in cases such as Miranda, Mapp, Duncan or Gideon v. Wainwright, 372 U.S. 335 (1963), it introduced a whole range of qualifications, restrictions and explanations that largely eviscerated their significance. Furthermore, the Court has never declared any capital punishment method (another core Executive power) applied by the States or the federal government to be “cruel and unusual” under the Eighth Amendment. Never. In this light, the Court has largely confirmed Foucault’s observation that the police and Executive may freely “impose [their] prerogatives upon it.” Discipline & Punish, p. 215. In sum, the Supreme Court is a model of institutional weakness. It does not seriously challenge the real power in government. In fact, it devotes much of its intellectual energy to doctrines such as “standing,” “justiciability,” “mootness” and “ripeness,” which are specifically designed to sidestep answering constitutional questions altogether.
Should we be surprised that the Court so easily yields to Executive and police pressure? Probably not. In large measure, Foucault is correct about natural judicial weakness. When Hamilton envisioned a bold new federal Judiciary, he was speaking in theoretical abstraction. He could not have foreseen that his theory would not have worked in practice. After all, the Judiciary has nothing but “judgment;” it does not have the “sword” to compel allegiance with its rulings. Rather, the Executive holds the sword, and the Executive—through its police apparatus—holds the real power in our society. Even in those cases in which the Supreme Court has defiantly resisted the Executive, the Executive has simply chosen to ignore the Court. President Jackson, for example, famously ignored a Supreme Court ruling (Worcester v. Georgia, 31 U.S. 515 (1832)) that favored the Cherokee Indians by evicting them from their tribal lands in the 1830s. How? Because he controlled the army and the Court did not. At most, the Court can rebuke the President with rhetoric. But rhetoric does not stop armed men from doing what they wish.
There are larger social issues at work behind judicial weakness. After all, the Executive—through its police force—has an interest in maintaining dominant social values. Surveillance and police power are designed to maintain the “disciplinary” society necessary to maximize industrial production. And productivity is the overreaching goal. In some sense, the Court must know this. Its members come from a social class that has in interest in maintaining dominant social values. That is why it does not tread too heavily on practices that are designed to further our industrial society’s quest for stable, uninterrupted productivity. After all, blessing the people with too many “rights” would put an undue burden on enforcement. Without easy enforcement through pervasive discipline, the social order—with its intrinsic inequalities—would be much more difficult to sustain. Perhaps that best explains why the Executive always beats the Court: This Nation will never permit anyone to rock the boat too much.
In Discipline & Punish (Surveillier et Punir)(1975), Michel Foucault discusses the origin both of prisons and the police force. Both prisons and police forces are relatively new developments in Western society. And they both perform “surveillance” functions. In Foucault’s view, industrialized society is a “disciplinary” society, and discipline only works when the ruling power carefully scrutinizes its subjects with a view to controlling, exploiting and—ultimately—improving them. Good State surveillance, therefore, is essential to achieving these ends.
Professional police forces perform “surveillance” on the population. They not only investigate reported crimes, but they also closely observe everyday behavior in a quest to find violators. They subject everything within their gaze to constant judgment to determine whether they see any “violations.” In modern society, the police act as the sovereign’s all-seeing eye. In order to maintain the disciplinary State, the police keep watch on all the sovereign’s subjects, rigorously monitoring even the most banal behavior for infractions. To quote Foucault, modern police power “must bear ‘over everything’: …the dust of events, actions, behavior, opinions—‘everything that happens;’ the police are concerned with ‘those things of every moment,’ those ‘unimportant details[].’” Discipline & Punish, p. 213. In a word, modern police power embraces all actions all the time.
Today, we are accustomed to public surveillance. It is part of modern life. But we do not even really consider how revolutionary a police force was when it first appeared in the 19th Century. As we understand them, police forces did not exist when the Framers introduced the Bill of Rights in 1791. To that extent, most basic American criminal procedure rights were not answers to modern police practice; modern police practice arose after the Constitution was written. If anything, many guarantees contained in the Bill of Rights (ie, protection against “unreasonable searches;” “compelled self-incrimination;” “quartering of soldiers in private residences;” and “warrants,” to name a few) were directed toward the abusive practices of occupying British armies during the colonial era. Yet today, jurists attempt to reconcile 18th Century legal abstractions with domestic practices developed in the 19th Century and beyond. This is a difficult venture, and it is understandable why the police can do as much as they can. If the Constitution were written in 2000, doubtless many well-established police practices would be outlawed as a matter of individual right. But our Constitution dates from 1787. It was reacting to royal abuses by George III in the 18th Century, not domestic practices introduced in a completely different historical context. Thus, modern police forces had a clean analytical slate when they emerged in the 19th Century.
From whence come the police? As Foucault recognized, the police are the “eyes of the sovereign.” In strict form, the “sovereign” or “King” is the Executive Branch. In the American constitutional system, the federal Executive power is vested in the President of the United States, see U.S. Const. Art. II, § 1, while the State Executive power is vested in State Governors under their respective Constitutions. In constitutional terms, these Executive powers have authority to “faithfully execute the laws,” see U.S. Const. Art. II, § 3, and that means they can create police forces. This is exactly what State governments did in the 19th Century when they minted municipal and State police forces. And the federal government followed suit by creating the Department of Justice and Federal Bureau of Investigation (FBI). These new Executive “offshoots” set about developing practices to enforce the myriad laws that arose well after the Bill of Rights came into effect.
In effect, the “myriad laws” that sprang up in the 19th Century coincided with industrial development. In 1787, the United States was not an industrial power. It was largely an agrarian, trading Nation. Heavy industry did not yet exist. There was no steam engine, railroad or electricity. By 1850, the United States was a leading industrial power. This change mirrored changes in values. The law enforced the values of the new society. In the mid-19th Century, States wanted productivity. Productivity in industrial society, in turn, demanded respect for property and detailed attention to work. Foucault reasoned that “discipline” was essential to enforce these values, and “surveillance” was the way to maintain discipline and attention to detail. Police forces represented the ideal method to “keep an eye” on the population and to ensure adherence to “industrialized” laws.
To achieve maximal surveillance and obedience to the new values, the police had to develop specific practices for enforcement. Searches, interrogations, undercover operations and wiretapping all helped them “see” behavior that potentially violated the new laws. Only the constitutional prohibitions laid down in 1791 blocked their way. Certainly there were searches and interrogations in 1791, but they did not measure up to modern police procedures. In 1791, constables investigated crime. There were no uniformed police on the street at all times. There were no central police offices or databases storing information on offenders. Constables only began their work when someone lodged a complaint. They did not stand on the street observing potentially criminal behavior. By 1850, uniformed police did prowl the streets observing potentially criminal behavior. There were central police offices that constantly strengthened crime detection and suppression. They were enforcing the sovereign’s laws 24 hours a day, with or without specific complaints. How were they to know whether they were violating constitutional principles that could never have contemplated the historical circumstances in which the State now found itself? After all, the Constitution said nothing about “surveillance.” Such a thing really did not exist in 1791. Yet now it was the bulwark of police practice.
It fell to the Judiciary to determine whether modern practices violated the Constitution. In the American constitutional system, many refer to the Judiciary as the “Third Branch” or—as Hamilton said—the “Least Dangerous Branch.” Federalist No. 78. Historically speaking, the American Judiciary was completely unprecedented because it was intended to be “independent” of both the Congress and the Executive. In Hamilton’s words, the Judiciary’s power lay solely in its “judgment,” not in “the sword or the purse.” Id. In theory, the Judiciary has the sole power to say whether any action by either the Executive or the Congress violates the letter or spirit of the Constitution. In practice, however, the Judiciary rarely exercises its independent authority. Especially in modern times, the Judiciary defers to the Executive or Congress without ever exercising the unprecedented “judgment” power that Hamilton envisioned.
Foucault understood this judicial weakness. He wrote that the police—and by extension, the Executive—offered “slight resistance to the reorganization of the Judicial power,” because the police have “never ceased to impose [their] prerogatives upon it, with ever-increasing weight, right up to the present day.” Discipline & Punish, p. 215.
These words have special resonance as they apply to the United States Supreme Court in its occasional confrontations with the Executive and the police. Amazingly, until the 20th Century, the Supreme Court never interfered with State criminal practices; it simply ignored the question by reasoning that the Bill of Rights did not apply to State governments. In the 1950s and 1960s, the Court took a bolder stance on the Bill of Rights, holding in numerous decisions that the prohibitions laid down in 1791 not only acted upon State governments (and their police forces), but restricted their criminal practices as well. Famous decisions such as Mapp v. Ohio, 367 U.S. 643 (1961), Miranda v. Arizona, 384 U.S. 436 (1966), Duncan v. Louisiana, 391 U.S. 145 (1968) and Terry v. Ohio, 392 U.S. 1 (1968) expressly held State police forces accountable for violating constitutional guarantees. Similarly, the Court expressly reversed the Executive in its famous Steel Seizure decision. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In this era, the Supreme Court actually exercised its “independent judgment power” over the inherently more powerful Executive and its police force.
But this judicial insurrection did not survive long. Beginning in the 1970s, the Supreme Court began to resume its more complicit role with respect to Executive and police authority. In the ensuing years, the Court has largely eradicated the decisions that had breathed life into its “independent judgment power.” In case after case, it sided with the police in its efforts to make investigating and prosecuting crime easier. In case after case, it permitted greater search powers and surveillance. While it did not expressly overrule the critical constitutional rules it announced in cases such as Miranda, Mapp, Duncan or Gideon v. Wainwright, 372 U.S. 335 (1963), it introduced a whole range of qualifications, restrictions and explanations that largely eviscerated their significance. Furthermore, the Court has never declared any capital punishment method (another core Executive power) applied by the States or the federal government to be “cruel and unusual” under the Eighth Amendment. Never. In this light, the Court has largely confirmed Foucault’s observation that the police and Executive may freely “impose [their] prerogatives upon it.” Discipline & Punish, p. 215. In sum, the Supreme Court is a model of institutional weakness. It does not seriously challenge the real power in government. In fact, it devotes much of its intellectual energy to doctrines such as “standing,” “justiciability,” “mootness” and “ripeness,” which are specifically designed to sidestep answering constitutional questions altogether.
Should we be surprised that the Court so easily yields to Executive and police pressure? Probably not. In large measure, Foucault is correct about natural judicial weakness. When Hamilton envisioned a bold new federal Judiciary, he was speaking in theoretical abstraction. He could not have foreseen that his theory would not have worked in practice. After all, the Judiciary has nothing but “judgment;” it does not have the “sword” to compel allegiance with its rulings. Rather, the Executive holds the sword, and the Executive—through its police apparatus—holds the real power in our society. Even in those cases in which the Supreme Court has defiantly resisted the Executive, the Executive has simply chosen to ignore the Court. President Jackson, for example, famously ignored a Supreme Court ruling (Worcester v. Georgia, 31 U.S. 515 (1832)) that favored the Cherokee Indians by evicting them from their tribal lands in the 1830s. How? Because he controlled the army and the Court did not. At most, the Court can rebuke the President with rhetoric. But rhetoric does not stop armed men from doing what they wish.
There are larger social issues at work behind judicial weakness. After all, the Executive—through its police force—has an interest in maintaining dominant social values. Surveillance and police power are designed to maintain the “disciplinary” society necessary to maximize industrial production. And productivity is the overreaching goal. In some sense, the Court must know this. Its members come from a social class that has in interest in maintaining dominant social values. That is why it does not tread too heavily on practices that are designed to further our industrial society’s quest for stable, uninterrupted productivity. After all, blessing the people with too many “rights” would put an undue burden on enforcement. Without easy enforcement through pervasive discipline, the social order—with its intrinsic inequalities—would be much more difficult to sustain. Perhaps that best explains why the Executive always beats the Court: This Nation will never permit anyone to rock the boat too much.
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