Hitlerian aspects of Trumpism

Sandy Levinson

One should begin with the obvious point that Donald Trump is not Adolf Hitler.  Trump has no obvious commitments beyond self-aggrandizement.  In foreign policy, he seems to be far more an isolationist than someone eager to expand American influence (save through trade wars).  He is more than willing to engage in dog whistles to white supremacy, but even his most vitriolic opponents, among whom I'd count myself, do not believe he has set out a path to a Final Solution, etc.

So why bother to engage in the undoubtedly incendiary comparison of Donald Trump and Hitler?  The quick answer involves a page from a new book I'm currently reading, Benjamin Carter Hett's THE DEATH OF DEMOCRACY:  HITLER'S RISE TO POWER AND THE DOWNFALL OF THE WEMAR REPUBLIC,  a short well-written overview of what was obviously one of the key moments of 20th century political and social history.  The striking discussion occurs on p. 38:

.... While working as a reporter in Munich, Konrad Heiden, a Social Democratic journalist and Hitler's first important biographer, witnessed Hitler speaking many times.  "At the highpoints of his speeches," Heiden wrote, "he is seduced by himself, and whether he is speaking the purest truth or the fattest lies, what he says is, in that moment, so completely the expression of his being . . . that even from the lie an aura of authenticity floods over the listener."  On the other hand, Hitler's finance minister, Count Lutz Schwerin von Krosigk, observed, "He wasn't even honest towards his most intimate confidants. ... In my opinion, he was so thoroughly untruthful that he could no longer recognize the difference between lies and truth."

And, of course, as Hett notes, it was Hitler (and Goebbels) who emphasized the importance of the "big lie."  "In 'the greatness of the lie there is always a certain element of credibility,' Hitler explains, 'because the broad masses of a people can be more easily corrupted in the deeper reaches of their hearts' than consciously or deliberately. 'In the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves sometimes lie about small things but would be too ashamed of lies that were too big.'"

It has been reported, in part based on a statement by hist first wife Ivana and seemingly confirmed by Donald, that a friend had given him a copy of Hitler's speeches (as distinguished from Mein Kampf).  The crucial point is that it can scarcely be denied that we have a pathological liar as president who has seemingly turned that into a feature of his political success.  What is more ominous, in many ways, is the willingness of the GOP to serve as collective useful idiots in Trump's behalf (in order to get the judges they want and tax cuts for the rich), not to mention the stunning support that Trump  continues to receive from the Republican base.

Many "sophisticates" in 1933 believed that they could control the clown who had become Chancellor and therefore gain their own objectives.  Trump might not be Hitler, save in his propensity to lie, but Ryan or McConnell etc. may be the von Papens who believed that they could successfully ride the tiger.  They should be consigned to the 10th circle of hell even ahead of Trump, since as a pathological narcissist he really can't help himself, whatever the consequences for the American constitutional order.  What excuses do Ryan and McConnell have?

Posted 6:41 PM by Sandy Levinson [link] (24) comments

Birthright Citizenship and the 14th Amendment

Gerard N. Magliocca

Michael Anton is a former official in the Trump Administration. He is best known for writing (under the pseudonym Publius Decius Mus)  the "Flight 93" essay during the 2016 presidential campaign, in which he slandered the memories of the passengers of that doomed flight on September 11th, 2001 by comparing their courage to people who should vote for Donald Trump.

In today's Washington Post, Anton celebrates the 150th anniversary of the Fourteenth Amendment by distorting its first sentence. In "Citizenship Shouldn't Be A Birthright," Anton argues that the original understanding of that text excludes people born here to illegal immigrant parents from citizenship. Section One of the Fourteenth Amendment provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States thereof . . ." Anton says that "subject to the jurisdiction" means "not owing allegiance to another country," which would thus exclude children born here to illegal immigrant parents. (Why children born here owe their allegiance to another country is not explained, but that's just one of the many problems with Anton's article.)

I wrote a law review article ten years ago explaining why Anton's argument is wrong. You can read that paper here. "Subject to the jurisdiction," means exactly what you would think from reading that phrase--"subject to American law." Illegal immigrants are, of course, subject to American law. That is why they can be deported. And why their children born here are citizens.

Suppose you are not convinced by my article. After all, I don't support President Trump. So I give you Judge James Ho, named by the President to the Fifth Circuit last year. Judge Ho has impeccable originalist credentials, as a law clerk to Justice Thomas, the Solicitor General of Texas, and a leading private practitioner before he took the bench. When he was in practice, Judge Ho demolished the Anton argument is a couple of published articles (such as here and here). Look at a key passage:

Proponents of ending birthright citizenship claim that aliens--lawful and unlawful--are not "subject to the jurisdiction" of the U.S. because they swear no allegiance to the United States. But neither the text nor the history of the 14th Amendment supports this conclusion. 

When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance. 

The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine. 

Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship --but no one disputed the amendment's meaning. Opponents conceded--indeed, warned -- that it would grant citizenship to the children of those who "owe [the U.S.] no allegiance." Amendment supporters agreed that only members of Indian tribes, ambassadors, foreign ministers and others not "subject to our laws" would fall outside the amendment's reach.

Thus, Anton's claim that "judges faithful to their oaths will have no choice but to agree" that birthright citizenship does not extend to the children born here to illegal immigrant parents is preposterous. Mr. Anton is free, like anyone else, to support for a constitutional amendment that restricts birthright citizenship. He cannot, though, escape the truth that the Constitution as written rejects his view.



Posted 9:09 PM by Gerard N. Magliocca [link] (35) comments

A Question for Judge Kavanaugh

Gerard N. Magliocca

I have never met Judge Brett Kavanaugh. I know him only by reputation. And his reputation is stellar. He is a fine circuit judge and is obviously qualified to sit on the Supreme Court. Moreover, I have supported the confirmation of every Supreme Court nominee during my professional career except Harriet Miers, who was in my view manifestly unqualified for such a position.

Nevertheless, there is something that bothers me about Judge Kavanaugh. Hopefully someone will ask him about this subject during his confirmation hearings. In his speech thanking the President, Judge Kavanaugh said "No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination."

Now if I wrote that sentence in law review article, the first question I would have to answer is: "What is the basis for that statement?" In other words, why do I think this is true? In Kavanaugh's case, the answer is that he cannot possibly know that what he said is true. First, he was not privy to all of the President's conversations about the nomination. Second, he was not privy to the vast majority of the conversations about prior nominations. Third, I see no reason to think that the statement is true.

This leads to a rather unfortunate conclusion. Judge Kavanaugh's first statement to the American people as a Supreme Court nominee was either sloppy, false, or dictated to him by the White House. (It sounds a lot more like something that the President would say.) I don't think this is praiseworthy.

To be fair, Prime Minister Hacker once pointed out that "press statements aren't made under oath." I can certainly understand that hyperbole can happen after receiving the honor of a lifetime. But I think that the Judge might want to consult a little more widely before he makes the same claim under oath.  
Posted 1:34 PM by Gerard N. Magliocca [link] (51) comments

Vladimir Putin Follows Legal Blogs

Gerard N. Magliocca

One remarkable portion of Chris Wallace's interview with the Russian President yesterday is that Putin explained that he was aware of the argument that Special Counsel's Mueller's appointment is unlawful. (Presumably Putin was referring to Steve Calabresi's argument, as I'm unaware of another.) President Putin proceeded to misstate that argument, as he said Mueller's appointment "by Congress" might be illegal under "American legislation." Perhaps Putin didn't have time (with the World Cup and all) to read George Conway's reply to Calabresi.

Who knew constitutional law professors had such a global reach.
Posted 3:03 PM by Gerard N. Magliocca [link] (23) comments

The Loss of the Filibuster and Judicial Confirmation Reform

David Super

Posted 12:42 PM by David Super [link]

The Unintended Consequences of Originalism

Gerard N. Magliocca

The nomination of Judge Kavanaugh to the Supreme Court will raise the profile of originalism in public life, though his confirmation hearings and some of his subsequent opinions. Many people are understandably focused on how a more originalist approach would influence doctrine (say on Roe v. Wade). I want to discuss briefly a different effect that originalism may have on the wider culture.

In May, Illinois ratified the ERA. The lead sponsor of that effort in the state House of Representatives explained on the floor that the amendment was necessary because the Constitution as written does not protect equal rights for women. His authority for that proposition was Justice Scalia. In 2011, Justice Scalia gave an interview in which he said: "Certainly the Constitution does not require discrimination on the bass of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that's what it meant. Nobody ever voted for that." The Illinois Representative offered this as support for the argument that the ERA is necessary to protect sex equality. (In what we in the trade call "ironic," this same representative was accused of sexual harassment the next day and resigned his party leadership post in the Legislature.)

One way of describing this argument is fear-mongering. The doctrine is there for sex equality. And a Supreme Court full of originalists is unlikely to repudiate those precedents. Nevertheless, it would be hard to deny that many people might worry (rightly or wrongly) about a constitutional rollback of gender equality. There are two plausible responses. One is to oppose the confirmation of certain types of Justices. The other is to ratify the ERA and make Justice Scalia's comment obsolete. Thus, an unintended consequence of changing the balance of the Court may be a new Article Five amendment.

Broadly speaking, this development is consistent with the originalist vision. The Constitution should be formally amended rather than changed significantly through interpretation.  Taken seriously, an originalist Constitution ought to be much longer than the one we have. The ERA would be a start.
Posted 11:24 AM by Gerard N. Magliocca [link] (56) comments

Talking about Judge Kavanaugh as a Justice

Mark Tushnet

Posted 11:57 AM by Mark Tushnet [link]

"Repealing" Roe v. Wade

Mark Tushnet

Posted 11:37 AM by Mark Tushnet [link]

Brett Kavanaugh's Cliches

Mark Graber

Posted 8:58 AM by Mark Graber [link]

The 150th Anniversary of the Fourteenth Amendment

Gerard N. Magliocca

On July 9th 1868, the Fourteenth Amendment became part of the Constitution. Abraham Lincoln once said that the Constitution is the silver frame that surrounds the golden apple of the Declaration of Independence. Since Section 1 of the Fourteenth Amendment put Jefferson's language on equality into our higher law, I often wonder whether we should think of John Bingham's text as the golden apple and the rest of the Constitution as the silver frame.

On this anniversary, the President will make his next nomination to the Supreme Court. Tonight and in the coming weeks we will hear a great deal about keeping faith with the Founders. Unfortunately, when many people refer to the Founders they mean only the drafters of the flawed document ratified in 1788. They are either unaware or dismissive of the people who saved the Constitution in 1868. We should keep faith with them as well.

In describing Section One of the Fourteenth Amendment to voters in Ohio, Bingham said this:

No state shall deny to any person, no matter whence he comes, or how poor, how weak, how simple--no matter how friendless--no State shall deny to any person within its jurisdiction the equal protection of the laws. If there be any man here who objects to a proposition so just as that, I would like him to rise in his place and let his neighbors look at him and see what manner of man he is. [Nobody stood.]

Posted 11:00 AM by Gerard N. Magliocca [link] (87) comments

Treating Republicans like...

Mark Tushnet

Posted 11:04 AM by Mark Tushnet [link]

The Political Economy of Freedom of Speech in the Second Gilded Age

JB

We are now well into America’s Second Gilded Age. The First Gilded Age was the era of industrial capitalism that begins in the 1870s and 1880s and continued through the first years of the 20th century, ultimately giving way to the reforms of the Progressive Era. The First Gilded Age produced huge fortunes, political corruption, and vast inequalities of wealth, so much so that people became concerned that they would endanger American democracy.

The Second Gilded Age begins, more or less, with the beginning of the digital revolution in the mid-1980s, but it really takes off in the early years of the Internet Age in the mid to late 1990s, and it continues to the present day--characterized by the rise of social media, and the development and implementation of algorithms, artificial intelligence, and robotics. For this reason I call our present era the Algorithmic Society.

If the First Gilded Age is the age of industrial capitalism, the Second Gilded Age is the age of digital or informational capitalism. It too has produced great fortunes and led to concerns that increasing concentrations of wealth and economic inequality are endangering American democracy.  Like the First Gilded Age, it is also a time of deep political corruption and despair about the future of American democracy. It has not yet produced a second Progressive Era, yet every day I see signs that this is where we are headed.

There is a large literature criticizing the judicial doctrines of the First Amendment, and how they are slanted toward the interests of corporations (and capital generally) in the Second Gilded Age. The most obvious examples are the federal courts’ recent decisions on commercial speech and campaign finance regulation. These are interesting and important topics, but they are not the subject of this blog post.

My focus here is on the political economy of free speech in the digital age.  The basic question is this: How does our political and economic system pay for a digital public sphere? It pays for it largely through digital surveillance and through finding ever new ways to make money out of personal data.  Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unbounded freedom to speak in exchange for the right to surveil, govern,  and manipulate end-users.

The recent Facebook/Cambridge Analytica controversy is a characteristic scandal of the Second Gilded Age. That is because it laid bare how social media companies make their money and how they shape the public sphere in the process. The scandal also reveals a basic problem of freedom of speech in the Second Gilded Age: Digital privacy undergirds our freedom of expression, but the way we pay for freedom of expression perpetually threatens our digital privacy.  This is the irony of the digital era: An era that promised unbounded opportunities for freedom of expression is also an era of increasing digital control and surveillance. The same technological advances allow both results. The infrastructure of digital free expression is also the infrastructure of digital surveillance.
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Posted 8:35 PM by JB [link]

"Orthodox" Catholic Judges and Roe v. Wade: A Comment on Coney & Garvey

Mark Tushnet

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Posted 9:21 AM by Mark Tushnet [link]

Interviewing Potential Supreme Court Nominees

Mark Tushnet

Posted 2:17 AM by Mark Tushnet [link]

Contrary to Popular Belief, the Court Did Not Hold that the Travel Ban is Lawful—Anything But. (Which Makes Its Ruling, Justice Kennedy’s Deference, and the President’s Enforcement of the Ban Even More Indefensible.)

Marty Lederman

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Posted 7:07 AM by Marty Lederman [link]

Anthony Kennedy: The Judge Who Never Left the Republican Party

Mark Graber

Posted 4:40 PM by Mark Graber [link]

Abandoning Defensive Crouch Liberalism Redux

Mark Tushnet

Posted 9:41 PM by Mark Tushnet [link]

Constitutional Hardball post below updated to allow comments

Priscilla Smith

Posted 2:23 PM by Priscilla Smith [link] (44) comments

A Fascinating Question

Gerard N. Magliocca

Suppose the President nominates Senator Mike Lee of Utah to the Supreme Court. Would Senator Lee be able to vote for himself or must he abstain on that vote? This may matter because the Senate is closely divided and Senator McCain is absent due to illness.

In the past, many senators were named to the Supreme Court. Back then, though, these nominations typically were confirmed by unanimous consent. (Indeed, I believe Senator Hugo Black was the first member of the Senate nominated for the Court when a vote was even held, though I'd have to check that.) I'm not sure after that whether there is any relevant practice, as no sitting Senator has been sent to the Court since 1949.

Some Senators have been nominated for Cabinet posts (like Jeff Sessions last year). On his vote to be Attorney General, he simply voted "present." Does that custom carry over to a Court confirmation?
   
Posted 11:39 AM by Gerard N. Magliocca [link] (17) comments

"Constitutional Super Hardball"

Priscilla Smith

Posted 1:56 PM by Priscilla Smith [link] (21) comments

Constitutional Political Economy When the Court is to the Right of the Country

Joseph Fishkin

By Joseph Fishkin & William E. Forbath

Most Americans, even well-informed Americans, understand the fight over a new Supreme Court justice largely in terms of certain high-salience issues in constitutional politics such as abortion, affirmative action, the death penalty, or perhaps the religious rights of a conservative Christian to refuse to serve a gay couple. We seem a great distance, in other words, from 1936, when President Roosevelt ran for re-election against the “constitutional-economic philosophy” of the “Nine Old Men” who had recently struck down key New Deal statutes. In 1936, everyone, whatever their views, could see that the constitutional fight ahead had to do with fundamental questions about how the nation’s economy would be organized, and for whose benefit. In Jones & Laughlin in 1937, the Court famously retreated, upholding the National Labor Relations Act (NLRA) (the “Wagner Act”) against a challenge that perfectly encapsulated one side of that debate—a fiercely anti-union and anti-redistributive vision of the demands the constitution places on how we structure economic life.

Those fundamental questions of constitutional political economy were never settled. After 1954, Brown and debates about school busing became the main axis around which our constitutional politics turned; liberals took to defending the Warren Court while conservatives found success running against it; and this pattern has basically continued ever since, despite changes in the mix of salient issues and despite the fact that conservatives, not liberals, have controlled the Court since the mid-1970s. Since that time, American political economy has changed. Inequality has skyrocketed; unions have been ravaged; workers’ share of national income has declined; the cost of health care, higher education, and for that matter, political campaigns have gone through the roof in ways that make access to any of them perilous and unequal. Groups favoring an ever more hierarchical and anti-democratic vision of American political economy, from the Chamber of Commerce to the Koch brothers’ network, have found enormous success not only in the Republican party but also in the courts. In court, instead of building their political-economic vision through the old constitutional claims of property and contract rights and substantive due process of the Lochner era, these groups today use different doctrinal tools, of which perhaps the most powerful is the newly “weaponiz[ed]” First Amendment.* The objectives, and the political-economic stakes, remain the same.

The Roberts-Kennedy Court, as perhaps the first years of the Roberts Court may eventually be known, began to make interventions in our constitutional political economy forceful enough that Americans started to take notice. Citizens United, in particular, drew a powerful public response; it was the first case in a long time that vividly illustrated to large numbers of Americans that the Supreme Court is in the business of deciding profound questions of political economy. When faced with Obamacare, the single largest egalitarian intervention in American economic life in a generation, Chief Justice Roberts stepped back from the brink, issuing some wild Commerce Clause dicta but ultimately upholding the law as an exercise of Congressional power to tax.

Well, buckle your seat belts. Justice Kennedy’s retirement announcement yesterday means that we are on the cusp of a bolder Roberts Court, one poised to push much harder for a neo-Lochnerite individualistic vision of constitutional political economy. The evidence is already before us. Indeed we need look no further than the case decided yesterday, Janus v. AFSCME, the Court’s latest effort to nationalize some states’ anti-union policies that are aimed, undisguisedly, at breaking some of the last bulwarks of workers’ political power. (More about the case below.)

President Trump responded to Janus with predictable bluntness: “Big loss for the coffers of the Democrats!” In this case, his lack of interest in legal doctrine actually brought him fairly close to the core of what the case was about. The remarkable thing is how close the majority opinion, by Justice Alito, itself comes to revealing that this decision’s purpose and effect are essentially about economic and political power. If Justice Kennedy’s successor is anyone from President Trump’s list (outsourced to the Federalist Society) of potential nominees, it will be time for everyone who disagrees with the political-economic course the Court is charting to begin to reorient our constitutional politics. The next decades will be a period of progressive constitutional politics outside, and largely in opposition to, a hostile Court.

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Posted 12:01 PM by Joseph Fishkin [link]

Williams v. Mississippi, the Travel Ban and Justice Kennedy's Legacy

Mark Graber

Posted 5:14 PM by Mark Graber [link]

Justice Kennedy's Legacy

Mark Tushnet

Posted 4:10 PM by Mark Tushnet [link]

The Standing-on-One-Leg Version of Constitutional Law, circa and post-2018

Mark Tushnet

Posted 3:53 PM by Mark Tushnet [link]

Truly the Roberts Court

Gerard N. Magliocca

With the announcement of Justice Kennedy's retirement today, Chief Justice Roberts is primed to become the most powerful occupant of that office since Earl Warren. We do not know, of course, who will replace Justice Kennedy. (Personally, I would love to see Kevin Newsom, just recently confirmed to the Eleventh Circuit, get the nod.) But there is a strong likelihood that the Chief Justice will be the swing vote as well as the head of the conservative bloc.
Posted 2:10 PM by Gerard N. Magliocca [link] (109) comments

Why was Korematsu wrong?

Joseph Fishkin

Amid the general horror show today at the Supreme Court (sequel tomorrow), one small point that could easily get lost, but should not, is the majority’s effort in the travel ban case to distinguish Korematsu.  Read more »
Posted 5:20 PM by Joseph Fishkin [link]

Carpenter's Curiosities (and its Potential to Unsettle Longstanding Fourth Amendment Doctrines)

Marty Lederman

Not surprisingly, there are already a slew of reactions to the Court's landmark decision on Friday in Carpenter v. United States.  Most observers understandably have focused on two major aspects of the ruling:

(i) The Court held that customers have at least some "reasonable expectation of privacy" in the cell-site location information (CSLI) records that their service providers maintain about them--a new "exception" to the so-called "third-party doctrine," and thus a repudiation of the principle the Court announced in Smith v. United States that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”  (Such a categorical principle was obviously vulnerable and inadequate from the outset--indeed, it can't be reconciled with the landmark Katz holding itself, in which he Court found that Katz had at least some reasonable expectation of privacy in information that he "voluntarily" shared with a third party, namely, his bookie.)  After the Court's decision in Carpenter, the fact that one has shared information with a third party is relevant to the Fourth Amendment analysis but it does not, in and of itself, resolve the question of whether an expectation of privacy in that information is legitimate, and thus subject to some Fourth Amendment solicitude, including in cases where the state directs the third party to produce the records. 

(ii) Carpenter also confirms the Court's recent willingness to shape its Fourth Amendment doctrine to address the extraordinary new technological surveillance capabilities of the state--in particular, its ability to glean huge amounts of detailed information about individuals, without significant cost, using computer searches of now-ubiquitous databases that track our every transaction, communication, and movement.  (In this respect the best early take, emphasizing the possible implications of Carpenter for "bulk" foreign intelligence surveillance collections, is this piece by David Kris.  [UPDATE:  And this post by my colleague Paul Ohm is also must reading.])

Those aspects of the decision are certainly momentous, but they don't begin to tell the whole story.  Indeed, at least on my preliminary first reading, Carpenter appears to be even more extraordinary and groundbreaking than the initial reports have suggested, for at least three reasons.

1.  It's actually a 6-3 decision--and Justice Gorsuch's rationale might be even broader than the Chief Justice's


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Posted 1:30 PM by Marty Lederman [link]

The Glaring Omission in the Chief Justice's Opinion

Gerard N. Magliocca

Whatever you think of the Chief Justice's opinion in Trump v. Hawaii. there is one obvious problem with his analysis. There is no reference to Masterpiece Cakeshop. The dissents both discuss the case, which is clearly relevant to the Establishment Clause claim. The Chief Justice decided to pretend that the case was not decided a few weeks ago.

In a federal court of appeals, this sort of omission would amply support a petition for rehearing pointing out that the Court overlooked a pertinent authority in rendering its judgment. Once in a blue moon, the Supreme Court grants a petition for rehearing. This case will not come out any differently if they grant one in Trump, but the challengers deserve a fair assessment of the relevant case law.
Posted 11:24 AM by Gerard N. Magliocca [link] (79) comments

Two Different Constitutional Ideas

Gerard N. Magliocca

"We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents . . ."

President Donald Trump (June 24, 2018)

"Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?"

Congressman John Bingham (February 28, 1866)
Posted 8:46 PM by Gerard N. Magliocca [link] (69) comments

Draft Paper on the Equal Rights Amendment

Gerard N. Magliocca

Here is my draft article on the status of the proposed Equal Rights Amendment to the Constitution. I welcome any and all comments.
Posted 4:34 PM by Gerard N. Magliocca [link] (10) comments

Data Nationalization in the Shadow of Social Credit Systems

Guest Blogger

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Posted 9:00 AM by Guest Blogger [link]

Cultural contradictions of capitalism II

Sandy Levinson

Ross Douthat has a very interesting column in today's Times (online) noting the transformation in views especially by feminists with regard to the use of surrogates to carry children.  Without expressing my own view on the merits, I do find it a wonderful illustration of Bell's (and Deneen's) overall point that the power of libertarian-capitalist ideology, even for people who undoubtedly identify themselves as one the left, does indeed lead to a lot that was formerly solid melting into air.  Not surprisingly, a number of the hostile comments to Douthat's column denounced him for his failure to respect the capacity of women to make autonomous choices on how to use their bodies, including, of course, in effect renting them out to more affluent persons and couples.  All we have to do, of course, is to define exactly what constitute the conditions for "autonomous choice," as Kanye West recently reminded us (with stunning ineptitude).  The one thing we can be relatively certain about is that the judiciary will provide almost no help, since all American lawyers are socialized into a theory of contract that basically ignores, save, at most for a day, the problems of "duress" or "unconscionability" in favor of a model of arms-length bargaining and contractual freedom, as with, say, plea bargaining.



Posted 4:52 PM by Sandy Levinson [link] (57) comments

Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?

Guest Blogger

• In recent weeks, the explosive revelations about Cambridge Analytica and its systemic data-mining of Facebook profiles has cast into relief the way in which our contemporary digitized public sphere is not a neutral system of communication but rather a privately built and operated system of mass surveillance and content manipulation.
  
• Meanwhile, Alphabet has announced that its subsidiary, Sidewalk Labs, will take over management of a major redevelopment of part of Toronto’s waterfront, in an effort to build from the ground up a modern “smart city.”
• These developments come amidst the longer-term development of new forms of technological transformations of our political economy, from the rise of Amazon to its position as the modern infrastructure for the retail economy, to the ways in which technology is transforming the nature of work and the social safety net.

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Posted 3:35 PM by Guest Blogger [link]

The Cultural Contradictions of Capitalism

Sandy Levinson

I mentioned in a previous post some of my reactions to Patrick Deneen's interesting book Why Liberalism Failed.  I noted that many of his arguments are evocative of earlier critiques of liberalism written in the 1960s and early '70s.  One of the most important of those critiques was Daniel Bell's "The Cultural Contradictions of Capitalism."  As Marx had noted, one effect of capitalism was to disrupt settled societies, to "make all that is solid melt into air."  The decidedly anti-Marxist Joseph Schumpeter emphasized the importance of "creative destruction" in the capitalist project, i.e., to destroy existing industries and the communities that might have been based upon them upon the discovery of new and better mousetraps.  Although it is not my primary interest in this post, I do note a story in today's New York Times that emphasizes, altogether accurately, the extent to which  Donald Trump is engaging in the political economy of nostalgia, trying to restore industries, most obviously the coal industry, that will never ever make a come back because it has in fact been creatively destroyed by other sources of energy.  Texas, for example, is now the largest source of wind power in the US, and one finds very few Texans, other than the hapless Rick Perry, who believes that valuable dollars should be wasted on trying to revive a dying coal industry.  One might make much the same argument about steel.  But, as I say, that's not the primary focus of this comment.

Instead, I am completely fascinated by the column in Friday's Wall Street Journal, part of its regular series "Houses of Worship," on various religions in America.  The Journal, of course, is to be commended for taking an interest in American religious communities.  This weeks column, by Kim Woodward Osterholzer, is about "Faith and Family Among the Amish."  She herself is a home-birth midwife, now living in Colorado, having earlier lived for nine years in the Amish country in Pennsylvania.  She scarcely presents an attractive picture of the Amish; it is very different, for example, from the high-romanticism offered by Chief Justice Burger in Yoder.  Thus she writes that she "found barely functional homes filled with a bustling, Spartan folk wearing patched and sweat-stined clothes.  I was taken aback by the rough hands, the weather-battered faces, the round and weary shoulders, the bare and blackened feet, the swollen ankles, and the legs stranger with bulging veins.  I glanced when I saw how many young families lived in barns, shed and the basements of partly constructed homes....  I learned to regard with nonchalance the rolls of flypaper that dangled from the ceilings.  After a while, I hardly noticed the mice scampering under doors and along the edges of baseboards,,,, "  She also describes herself as "unfazed by the severity of the religion," which is structured around following the Ordnung, as interpreted by a bishop and two local ministers, "who are selected by lottery and serve for life while keeping their day jobs."  Perhaps needless to say, "women are never allowed to preach."

Lest one think that the column is a criticism of this completely totalitarian enclave of those who might be described by the unsympathetic as religious fanatics, the author in fact ends up with a tribute to what she saw.  "The Amish are a God-fearing, family-centered people.  They work hard, but they also relax and play.  Their lives are so untarnished by the broader culture that to be with them is refreshing...  The fruit of the Amish way i\of life is that it keeps its people better focused on what truly matters--faith and family.  They intimately understand the resilience and fragility of life and the certainty of death.  It keeps them close to the earth, in sync with its rhythms.  Whenever I departed from a visit, I would ask myself:  Do we really need the fear of hell driving us before we can make time to be with one another and enjoy the magnificent world God created for us?"  I suspect that one might find some similar elegies about some Hasidic Jews, who equally withdraw from the world and do everything they can to make sure that their children are indoctrinated into the ostensible virtues of the integral community and rendered basically unfit to exist in the outside world.

Deneen is Catholic, so I doubt that he would be completely taken with these descendants of German Anabaptists.  But they do instantiate the kind of small integral communities whose destruction by liberalism--defined either as the strong consolidated state favored by contemporary progressives or the buccaneer capitalism embraced by libertarians--he laments and seemingly wishes to return to.  There is an obvious problem, though.  If a significant number of Americans were persuaded even that milder versions of Amish austerity were desirable, American capitalism would collapse.  The Wall Street Journal devotes itself to covering those whose lives are devoted to extending the reach of capitalism, including, all importantly, the consumer-oriented societies that define success as owning the next big thing, whether the latest number IPhone or expensive watches or whatever.

I suspect that the Wall Street Journal would be hesitant to open its columns to serious hippies, assuming any are left, who call for the rejection of consumption in favor of the simple life.  Ordinary radicals, who might believe that everyone deserves an equal opportunity to buy Mercedes etc. are far less dangerous to the overall capitalist ethos than someone who preaches the virtue of asceticism, as do the Amish.  So why do they publish the column, and its conclusion?  I suspect it is because they recognize that almost literally none of their readers are likely to find asceticism a genuine virtue.  The Amish play the function of exotic animals at the zoo.  We can feel better about ourselves for tolerating them, but only so long as they do not in fact present a genuine threat to a society built on almost everything the Amish reject.

But Bell wasn't really concerned about the Amish. Rather, he noted that capitalism depends on the destruction, creative or otherwise, of existing ways of life.  My home town of Hendersonville, North Carolina is now a quaint tourist town instead of a community of local small businesses, etc, (where I worked when I was growing up, beginning when I was a ten-year old), because of Walmart, etc.  Donald Trump promises to restore communities in West Virginia and Kentucky that were built around coal, or Gary, Indiana, built around steel.  But, tellingly, he isn' promising to go after Walmart and other denizens of modern American capitalism that have destroyed many small communities.  (Nor do I necessarily think he should.  That, too, is the topic for other conversations.)

The Journal instantiates the most bizarre feature of the contemporary Right, i.e., the alliance between religious conservatives, many of whom genuinely yearn for community, and the agents of American capitalism who are completely and utterly indifferent about the consequences of their prosperity.  Think only of Facebook in this regard.  And, of course, the Journal adamantly supports the further destruction of labor unions, a destruction accurately credited by Stephen Brill in his own book Tail  Spin, as one of the sources of American decline over the past half century.  Opioids and suicide are genuine problems of public health, and they are in part a response to the "creative destruction" of modern capitalism.   





Posted 11:00 PM by Sandy Levinson [link] (56) comments