Monday, January 10, 2011


If this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies and saying, "My goodness what can we do to turn this country around?" I'll tell you the first thing we need to do is take Harry Reid out. -- Reid's Republican opponent Sharron Angle (January, 2010)

We're on Sarah Palin's targeted list. But the thing is that the way that she has it depicted has the crosshairs of a gunsight over our district. When people do that, they've gotta realize there's consequences to that action. -- Rep. Gabrielle Giffords (March, 2010)

In this week's Sift:

  • The Rhetoric and Reality of Violence. The shooting of Rep. Giffords calls attention to the sanctioning of violent rhetoric by officials at all levels of the Republican Party.
  • Privilege, Political Correctness, and the New Huck Finn. A bowdlerized new version of the Mark Twain classic gives me a hook to fix conservative rhetoric about political correctness.
  • Scalia's Law. Nobody should be shocked when Justice Scalia denies that the Constitution protects women's rights. All originalists believe that. Their theory needs to be attacked head-on, not issue-by-issue.
  • Look for a double helping of Short Notes next week.

The Rhetoric and Reality of Violence

As of this morning, no one had pinpointed a clear motive for Jared Loughner to shoot Rep. Gabrielle Giffords and 19 other people, six of whom have died, including federal judge John Roll. No one has released a political manifesto, like the one Jim David Adkisson wrote before killing two people at a Knoxville church in 2008. (He claimed to be inspired by Bernard Goldberg's culture-war book 100 People Who Are Screwing Up America.) Or like Scott Roeder, the anti-abortion crusader who murdered George Tiller (also in church) in 2009. Or white supremacist James Von Brunn, who killed a security guard at the Holocaust Museum in 2009. Or anti-tax activist Joe Stack, who crashed an airplane into an IRS office building in Austin in 2010, killing Vernon Hunter.

Loughner appears to be insane to the point that his specific motives, if they ever come out, might be hard to understand. As the NYT editorialized:

It is facile and mistaken to attribute this particular madman’s act directly to Republicans or Tea Party members. But it is legitimate to hold Republicans and particularly their most virulent supporters in the media responsible for the gale of anger that has produced the vast majority of these threats, setting the nation on edge.

As they always do, right-wingers are claiming that both sides are equally responsible. And of course they can point to signs threatening President Bush and so forth.


What they can't produce, though, is any equivalent of the Sharron Angle quote at the top of the page. No Democratic candidate for a major office so directly called for the assassination of an opponent. And that was not a mis-step; Angle stuck by it:

What is a little bit disconcerting and concerning is the inability for sporting goods stores to keep ammunition in stock. That tells me the nation is arming. What are they arming for if it isn't that they are so distrustful of their government? They're afraid they'll have to fight for their liberty in more Second Amendment kinds of ways? That's why I look at this as almost an imperative. If we don't win at the ballot box, what will be the next step?

What indeed? In the Democratic Party, you stand down and start working to win the next election. But within the Republican Party, Angle suffered no consequences for suggesting violence instead. Her statements were not condemned by the leadership, she continued to get funding from national Republican organizations, and big-name Republicans continued to endorse her and campaign for her, causing Rachel Maddow to ask:

Is this considered a mainstream position now? Everybody down with this idea? RNSC, RNC, are you guys okay with this?

Apparently they were and are. At the highest levels of the Republican Party, calling for violence is considered acceptable political rhetoric. In the Democratic Party, it isn't.

There are and always will be nutcases on both ends of the political spectrum. And there will always be ordinary people of all stripes who blow off steam by making meaningless threats. But one party welcomes and stokes that rhetoric, while the other party doesn't.

That's the difference.

I've been on this story for a while: here and here, for example.

Check out this more complete list of recent incidents. Not all of them are conservative-on-liberal. But the vast majority are.

Privilege, Political Correctness, and the New Huck Finn

As soon as I finished How to Speak Conservative: Class warfare, I planned to follow up with a comparable explanation of political correctness. But PC is a little more complicated, so that article kept failing to come together and then getting crowded out by other topics.

This week I got my hook: There's a new edition of Adventures of Huckleberry Finn that changes the word nigger to slave. It's paired with a new edition of The Adventures of Tom Sawyer that changes Injun Joe to Indian Joe.

I imagine that the editor of this travesty believes he's being a good liberal, but in fact he's being a conservative's parody of a liberal. The conservative assault has been so successful that few people even remember the real liberalism behind the parody and what it has been trying to accomplish.

Let's start with the parody, because it is so much more familiar. As conservatives tell the story, groups that (for only semi-comprehensible reasons) consider themselves to be oppressed -- blacks, women, gays, and some others -- are sensitive to words like nigger, bitch, and fag. The words -- not the people who use the words or the hostile intentions the words embody, but the words themselves -- offend sensitive feelings. Liberals care much more about feelings than about liberty, so they want to ban the words.

This creates absurd situations (similar to the stoning scene in Monty Python's Life of Brian or the porch monkey scene in Clerks 2), and allows conservatives like Rush Limbaugh or Ann Coulter to look brave and edgy by using or hinting at the banned words. Rush and Ann become like the Kevin Bacon character in Footloose, breaking the stupid rules that keep people from having fun.

Start over. Now let's put the conservative parody out of our minds and start over from the absolute beginning. Why, exactly, shouldn't we say nigger?

The serious problem isn't that the word nigger hurts blacks' feelings. What conservatives implicitly deny by focusing on feelings is that blacks are harmed in a very real sticks-and-stones sense by white privilege. White privilege is justified by a negative stereotype of blacks. (We are deserving because they are undeserving.) And the word nigger can be used to invoke and solidify that stereotype.

Now let's go through that a little slower and include some other words.

It starts with privilege. When you boil privilege down to its essence, it amounts to this: If you're privileged, society grants you an exemption from the Golden Rule. You have the right to be outraged if you are not treated with a certain respect, but when others are denied the same respect, that's not your problem. You don't even have to think about it. It's just the way things are.

So, you can use a public bus, but a person in a wheelchair can't; you and your lover can get married, but a same-sex couple can't; a taxi will stop for you, but not for a person of color; public information is displayed in your language, but not somebody else's; police look at your skin and your clothes and decide to hassle somebody else, not you; public officials listen to your complaints, but not to other people's; all over the world, miners and factory workers risk their lives to produce things for you, but you don't have to risk your life for anybody; when someone who looks like you gets an undeserved promotion, everyone takes it in stride, but if someone who looks different from you does, it's an issue.

That's privilege. Don't think about it. You didn't do it; it's just the way things are. If you do think about it, that's so magnanimous of you, to consider granting other people the benefits you enjoy without controversy. Even if you ultimately shake your head and decide that it's too expensive or society isn't ready yet, you're such a great person even to consider it.

Some Golden-Rule exemptions are less passive. You can insult people who don't dare insult you back. You can expect to be waited on, and not wait on anyone else. You can spread malicious gossip about other people, knowing that your lies propagate easily and quickly, while their lies about you die out.

So the first reason to avoid calling someone a nigger or a fag is that there is nothing they can call you back. (Honky? Cracker? Don't be silly. They don't sting the same way. And I can't even think of derogatory term for heterosexuals.) You are doing unto others something that can't be done back to you.

It's the stereotypes, not the words. The reason words like nigger sting is that they refer to detailed stereotypes built up over centuries, stereotypes made up not just of words, but of entire stories and images. So nigger doesn't just mean black, it means lazy, shiftless, stupid, thieving, slutty, drunken, apelike, and more. (That's why there's no comparison between liberals who nicknamed President Bush "Chimpy" and conservatives who marketed the Obama Monkey. "Chimpy" insults Bush exactly to the extent that he personally resembles a chimp. There's no anti-white or anti-anything-Bushlike stereotype for "Chimpy" to evoke.)

A stereotype also contains judgments: A nigger doesn't really count as a person -- as Mark Twain made explicit in this exchange between Huck and Aunt Sally:

"It warn't the grounding -- that didn't keep us back but a little. We blowed out a cylinder-head."
"Good gracious! anybody hurt?"
"No'm. Killed a nigger."
"Well, it's lucky; because sometimes people do get hurt."

That's how stereotypes hold a system of privilege in place. A nigger, fag, or bitch is someone to whom the Golden Rule doesn't apply. You can't beat up a person who hasn't done anything to you, but you can beat up a fag -- they don't count. If you steal from one of those money-grubbing kikes, you're just taking back something they cheated from somebody else. If you slap a bitch around, she was asking for it -- you know how they are. You don't have to make a specific case against the individual; the case was already made long ago against fags, kikes, and bitches in general.

So the larger point of getting rid of words like nigger is to remove access to the stereotypes they evoke. When the privileged have to refer to other people respectfully (the way they naturally expect other people to refer to them), then the judgments that are implicit in the stereotypes have to be either dropped or explicitly defended. If you're hitting a person, and not a fag or a bitch, you'd better explain yourself. If a young black lawyer (not a buck or a nigger) has applied to your law firm, you need a reason to turn him down. It doesn't go without saying any more. It's not just how things are.

Whitewashing history. You have undoubtedly noticed that in this article I have used all sorts of "bad" words. That's because I wanted to evoke the stereotypes. I wanted to evoke them so that we could look at them.

If we banish the words entirely, we lose our handle on the stereotypes; we lose our ability to critique them or diagnose them properly. And if we banish them from our literature, it's as if the whole history of oppression never happened.

A few years ago on Daily Kos, I started a discussion about the whitewashing of recent history. Some younger Kossacks were shocked to discover that "Eenie, Meenie, Minie, Moe" used to say nigger rather than tiger. How would they have known? The older rhyme has just vanished, as if none of us ever said it.

Whites aren't doing this to diminish the anti-black stereotype. We're doing it to cover our tracks. The history of racial oppression embarrasses us, so we make it nicer.

Here's my conclusion: When you're wondering whether to use a racial slur or some bowdlerized version like the N-word, ask yourself: Am I using the power of the stereotype against the oppressed group, or am I calling out the stereotype to diminish it or to own up to my own role in maintaining it?

If it's the former, back off. If it's the later, go ahead and say the word. Otherwise, the only person you're protecting is yourself.

Huck. One of the many reasonsHuck Finn is a great book is that it accurately documents an era. The world of Huck Finn is not a nice place, just like the worlds of Night and Fog or The Sopranos are not nice places. We can't make them nice without destroying them. Students who aren't mature enough to go there shouldn't go there.

Scalia's Law

Justice Scalia raised a predictable furor with an interview he gave to California Lawyer magazine. But anyone who was shocked to hear a Supreme Court justice deny any constitutional basis for women's rights hasn't been paying attention. Scalia quotes like this are nothing new:

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that.

Scalia says these things because he subscribes to the theory of law known as originalism, which he describes in the interview like this:

In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution.

To an originalist, the meaning of any phrase in the Constitution was frozen at the time it was written. If you want something else to be constitutional, you need to pass an amendment -- which will then mean for all time what you think it means today.

If you want to argue with someone like Scalia, you need to argue with originalism, not just with the idea that women shouldn't have constitutional rights. The point of the law is to be legal, not necessarily moral. ("This is a court of law, young man," legendary Justice Oliver Wendall Holmes is said to have scolded an idealistic young lawyer, "not a court of justice.") So you need more than moral outrage; you need an alternate interpretation.

I've highlighted non-originalist legal viewpoints twice in the previous year: in my review of David Strauss' book The Living Constitution and in excerpts from Justice Souter's commencement address at Harvard Law School.

Let's apply that thinking here. The relevant portion of 14th Amendment says:

No State shall ... deny to any person within its jurisdiction the equal protection of the laws.

The conservative "judicial activism" trope claims that liberal judges just project their own feelings into the Constitution, but that's plainly not what's happening here with women's rights. If you read the text in the most obvious way, women are "persons" and any law that discriminates against them does not give them the "equal protection" promised by the amendment. It's a no-brainer.

"But wait," an originalist would say, "you're reading the text through 21st century eyes. The people who passed the 14th Amendment in 1868 discriminated against women all the time, and most of that discrimination wasn't even controversial. They clearly didn't believe they were establishing equal rights for women."

And that's absolutely true. If the people of 1868 had held our current interpretation of the 14th Amendment, the people of 1920 wouldn't have had to pass the 19th Amendment giving women the right to vote. Surely any law that gives men (but not women) the right to vote is denying "the equal protection of the laws" to women. Right?

But here's the problem with originalism: What people think they're doing at any given point in time is usually not completely coherent. As Justice Souter said:

[The Constitution's] language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.

So the people of 1868 were simultaneously guaranteeing "equal protection of the laws" to all "persons" and denying women the right to vote. According to Jack Balkin, here's how that worked, at least for married women:

under [the common-law doctrine of coverture] women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands.

Today, after countless laws have ignored coverture without repealing it, how are judges supposed to apply the "original intent" of the 14th amendment? It's not enough to say, "The people of 1868 would have made sense out of that somehow." We, today, need to have some coherent account of what "equal protection of the laws" means. And we need to be able to apply it in situations that the people of 1868 never envisioned. (Does a transgendered person have the rights of a man or a woman?)

And that brings us to Strauss' common-law theory of interpretation. Strauss takes for granted that as times change, we are increasingly confronted with the incoherence of the intentions of past lawmakers. They wanted "many good things" and didn't foresee all the ways that change would bring those good things into conflict. They espoused high principles without grasping all the ways that the practices of their era contradicted those principles.

They were, in short, human.

The job of the judge, then, is not just to apply lawmakers' intentions, but also to resolve inconsistencies in lawmakers' intentions, so that the law continues to be applicable. That's what is meant by a "living Constitution". It's an ongoing process, and occasionally so much change has happened or the original intentions were so contradictory that we wind up with interpretations that would have appalled the original lawmakers. (Same-sex marriage, for example.)

Judges have an obligation to use their interpretative power prudently, responding to real inconsistencies and resolving them with as little violence to the original intentions as possible. And overwhelmingly throughout our history they have, even in decisions that are sweeping reversals of past interpretations. (Strauss describes Brown v. Board of Education not as a sudden revolution, but as the culmination of a decades-long case-by-case process in which courts tried to make separate-but-equal work, until by 1954 it was obvious that it couldn't work. A similar story can be told about Roe v. Wade.)

Most work that gets characterized as "liberal judicial activism" is like that: the end of a long prudent process of resolving inconsistencies, not a sudden attack of some judge's personal idealism.

So when Scalia contends that the only alternative to originalism is anarchy:

Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all.

he's sweeping the real problem under the rug. It isn't that we want these phrases to mean whatever we want; it's that we want them to mean something coherent. Interpreting equal protection to defend women's rights may not be original, but it is coherent. What alternative interpretation is?

Of course there's simpler objection to Scalia's position, which is that he doesn't apply originalism consistently. The 14th Amendment is also the basis of the Citizens United decision (which Scalia supported) and all decisions that uphold corporate personhood.

Corporate personhood is indefensible from an originalist point of view. No one can make the case that the people of 1868 believed that they were granting rights to corporations. The only explanation I can find for an originalist to support corporate personhood is partisanship: The Court's majority is conservative, and conservative bread is buttered by corporations.

Jack Balkin notes some additional inconsistencies in Scalia's originalism.

The Weekly Sift appears every Monday afternoon. If you would like to receive it by email, write to WeeklySift at Or keep track of the Sift by following the Sift's Facebook page.

1 comment:

xine said...

Does next week's "How to Speak Conservative" cover blood libel?