This twitter thread is a great example of “minding the gap”, that is: doing the necessary improvisational work to complete a task that has only been partially, abstractly specified. I recently learned another term for this: bricolage.
A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. In Furman, members of the Court acknowledged what cannot fairly be denied — that death is a punishment different from all other sanctions in kind, rather than degree. A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.
Also from Poetic Justice, a quote from the autobiography of Supreme Court Justice Benjamin Cardozo:
I was much troubled in spirit, in my first years upon the bench, to find how trackless was the ocean on which I had embarked. I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile. I was trying to reach land, the solid land of fixed and settled rules, the paradise of a justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my own vacillating mind and conscience.”
[H]ere’s the thing: the more successful I become, the more shows, the more episodes, the more barriers broken, the more work there is to do, the more balls in the air, the more eyes on me, the more history stares, the more expectations there are. The more I work to be successful, the more I need to work. And what did I say about work? I love working, right? The nation I’m building, the marathon I’m running, the troops, the canvas, the high note, the hum, the hum, the hum. I like that hum. I love that hum. I need that hum. I am that hum. Am I nothing but that hum?
And then the hum stopped. Overworked, overused, overdone, burned out. The hum stopped. […]
But you know, you do, if you make, if you work, if you love what you do, being a teacher, being a banker, being a mother, being a painter, being Bill Gates, if you simply love another person and that gives you the hum, if you know the hum, if you know what the hum feels like, if you have been to the hum, when the hum stops, who are you? What are you? What am I? Am I still a titan? If the song of my heart ceases to play, can I survive in the silence?
And then my Southern waitress toddler asks me a question. I’m on my way out the door, I’m late, and she says, “Momma, wanna play?” […]
The air is so rare in this place for me that I can barely breathe. I can barely believe I’m breathing. Play is the opposite of work. And I am happy. Something in me loosens. A door in my brain swings open, and a rush of energy comes. And it’s not instantaneous, but it happens, it does happen. I feel it. A hum creeps back. Not at full volume, barely there, it’s quiet, and I have to stay very still to hear it, but it is there. Not the hum, but a hum. […]
I’m not perfect at it. In fact, I fail as often as I succeed, seeing friends, reading books, staring into space. “Wanna play?” starts to become shorthand for indulging myself in ways I’d given up on right around the time I got my first TV show, right around the time I became a titan-in-training, right around the time I started competing with myself for ways unknown. 15 minutes? What could be wrong with giving myself my full attention for 15 minutes? Turns out, nothing. The very act of not working has made it possible for the hum to return, as if the hum’s engine could only refuel while I was away. Work doesn’t work without play.
It takes a little time, but after a few months, one day the floodgates open and there’s a rush, and I find myself standing in my office filled with an unfamiliar melody, full on groove inside me, and around me, and it sends me spinning with ideas, and the humming road is open, and I can drive it and drive it, and I love working again. But now, I like that hum, but I don’t love that hum. I don’t need that hum. I am not that hum. That hum is not me, not anymore. I am bubbles and sticky fingers and dinners with friends. I am that hum. Life’s hum. Love’s hum. Work’s hum is still a piece of me, it is just no longer all of me, and I am so grateful.
One prominent idea of rights, common in the US political and legal tradition, understands rights to be barriers against interfering state action: if the state just keeps its hands off, rights are taken to have been secured. The Capabilities Approach, by contrast, insists that all entitlements involve an affirmative task for government: it must actively support people’s capabilities, not just fail to set up obstacles. In the absence of action, rights are mere words on paper. Vasanti was not beaten by the government of Gujarat; she was beaten by her husband. But a government that does not make and then actively enforce laws against domestic violence, or give women the education and skills they need to get a living wage if they leave an abusive marriage, is accountable for the indignity such a woman endures. Fundamental rights are only words unless and until they are made real by government action. The very idea of “negative liberty”, often heard in this connection, is an incoherent idea: all liberties are positive, meaning liberties to do or to be something; and all require the inhibition of interference by others.”
~ Martha Nussbaum, Creating Capabilities: The Human Development Approach, p. 65
This link goes to a fascinating little explainer by Popehat on Twitter. Excerpted here and lightly edited for readability:
The Fifth Amendment says you can’t be “compelled in any criminal case to be a witness” against yourself. The government can’t compel testimony from you if it might incriminate you — at least not without a grant of immunity.
One of the issues the courts have had to confront is this question: what is testimony? Is a sobriety test testimonial, especially if you have to talk? A blood test? Mandatory filing of tax returns? A handwriting sample? And so forth.
Now, pre-existing items and documents are not testimony. It’s not testimonial if you’re forced to turn them over — in the abstract. But there’s a nuanced, complicated exception. Sometimes the “act of production” can be testimonial.
The idea is that if the government subpoenas you for documents, and you turn them over, you are admitting the existence, authenticity, and your possession of the documents — and those may be incriminating. So even if the documents aren’t testimony, producing them might be.
So years ago, the Supreme Court decided that sometimes, if it wants to compel production of documents, the government will have to offer what’s called “act of production immunity” — they can’t use your production of the documents against you.
Then, in 2000, the Supreme Court expanded the doctrine in the case of Clinton associate Webster Hubbell. The case involved very broad fishing-expedition style subpoenas from Independent Counsel Ken Starr.
The subpoenas were very broad — they asked for things like “any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to” Hubbell.
The Court found that because of how the questions were framed, identifying documents in response to them was “the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition.”
Put another way, rather than simply physically turning over documents, Hubbell had to use “the contents of his own mind” to select documents responsive to the government’s broad fishing questions. That made his response testimonial, and thus protected by the Fifth Amendment.
There is a lot to be said about what happened to Serena Williams and Naomi Osaka yesterday, but this tweet by Jennifer Richeson captures the analysis of the incident that’s most relevant to this blog:
It is in the very nature of a question like “What do I owe my parents?” that there is not and can never be a final, numerically answer. It is a question that we re-visit and re-negotiate every minute we are with them; obligation and love form an endless Möbius strip, through which our complex interdependence on each other makes the idea of paying off that debt – and of thereby severing the relationship – a sort of bitter joke. Precisely because it is a non-monetary “debt,” its function is to be an unpayable and unbreakable bond, one whose dividends never end and one that could and will never default.
By contrast, Graeber argues that purely monetary debts – such as the $14k I owe in student debts to a variety of banks – legitimize violence and exploitation precisely because they take an otherwise irreducibly complex human relation and reductively simplify it into a number. When you quantify a debt with financial precision – and especially when you invest paying it off with profound moral gravity, making it a fundamental moral imperative – you take what was a human relationship of mutual imbrication and co-implication into a financial one based on a kind of moral dominance, and thereby subject the indebted party to the mechanisms of financial debt collection instead of the precepts of human morality. If my relationship to my parents was a financial one, then I could pay it off and be done with them (or they could forgive the debt and be done with me). Or (and here is where it gets interesting), they could present me with a bill, demand that I pay it, and throw me in jail if I failed to do so.
This is just a thought experiment, of course, but the point of it is to bring out and make explicit that contrast. While the perversity of paying off your debts to your parents hardly needs comment – or of them garnishing your wages to pay for the hospital costs of birthing you – it is just as unspeakably normal for our debts to banks to seem, always and forever, the first thing we need to honor and respect. Graeber argues that this contrast, and our failure to register it as such, demonstrate the conceptual constriction of possibility that has come to be built into the moral landscape of our present: it is because a quantifiable debt could be paid off, with numerical precision, that it can therefore be seen as an imperative to do so, and becomes a moral failing when it is not. More than that, it becomes not only a moral failing that is enforceable and punishable, but a moral reasoning which makes the violence of that constraint your own fault, your own choice: no one forced me to take on student debt, goes the reasoning; it was my own choice. And so, the violence of debt collection is just chickens coming to roost.
Let us, then, look with new eyes at the fact that when a dictator takes out a loan from a Western bank – pledging as his surety the future revenues produced by the people who he uses men with guns to rule — we can be utterly sure that long after he is dead and gone, that debt will live on. Banks will not only claim the right to be paid back, but the moral force of the world’s political and ruling classes will assent to the proposition that children unborn when their nation went into debt will somehow still be on hold as the debt’s guarantors. This will appear normal. This will not seem a monstrous perversity.
from Aaron Bady’s review of David Graeber’s Debt: The First 500 Years
Socrates, however, who is commonly said to have believed in the teachability of virtue, seems indeed to have held that talking and thinking about piety, justice, courage, and the rest were liable to make men more pious, more just, more courageous, even though they were not given either definitions or “values” to direct further conduct. What Socrates actually believed in in such matters can best be illustrated by the similes he applied to himself. He called himself a gadfly and a midwife, and, according to Plato, was called by somebody else an “electric ray”, a fish that paralyzes and numbs by contact, a likeness whose appropriateness he recognized under the condition that it be understood that “the electric ray paralyzes others only through being paralyzed itself. It isn’t that, knowing the answers myself I perplex other people. The truth is rather that I infect them also with the perplexity I feel myself.”
The trouble – and the reason why the same man can be understood and understand himself as gadfly as well as electric ray – is that this same wind, whenever it is aroused, has the peculiarity of doing away with its own previous manifestations. It is in its nature to undo, unfreeze as it were, what language, the medium of thinking, has frozen into thought – words (concepts, sentences, definitions, doctrines), whose “weaknesses” and inflexibility Plato denounces so splendidly in the Seventh Letter. The consequence of this peculiarity is that thinking inevitably has a destructive, undermining effect on all established criteria, values, measurements for good and evil, in short on those customs and rules of conduct we treat of in morals and ethics. These frozen thoughts, Socrates seems to say, come so handy you can use them in your sleep; but if the wind of thinking, which I shall now arouse in you, has roused you from your sleep and made you fully awake and alive, then you will see that you have nothing in your hand but perplexities, and the most we can do with them is share them with each other.
Hence, the paralysis of thought is twofold: it is inherent in the stop and think, the interruption of all other activities, and it may have a paralyzing effect when you come out of it, no longer sure of what had seemed to you beyond doubt while you were unthinkingly engaged in whatever you were doing. If your action consisted in applying general rules of conduct to particular cases as they arise in ordinary life, then you will find yourself paralyzed because no such rules can withstand the wind of thought. To use once more the example of the frozen thought inherent in the word “house”, once you have thought about its implied meaning – dwelling, having a home, being housed – you are no longer likely to accept for your own home whatever fashion of the time may prescribe; but this by no means guarantees that you will be able to come up with an acceptable solution for your own housing problems. You may be paralyzed.
This leads to the last and, perhaps, even greatest danger of this dangerous and resultless enterprise. In the circle around Socrates, there were men like Alcibiades and Critias – God knows, by no means the worst among his so-called pupils – and they turned out to be a very real threat to the polis, and this not by being paralyzed by the electric ray but, on the contrary, by having been aroused by the gadfly. What they had been aroused to was license and cynicism. They had not been content with being taught how to think without being taught a doctrine, and they changed the nonresults of the Socratic thinking examination into negative results: if we cannot define what piety is, let us be impious – which is pretty much the opposite of what Socrates had hoped to achieve by talking about piety.
The quest for meaning, which relentlessly dissolves and examines anew all accepted doctrines and rules, can at every moment turn against itself, as it were, produce a reversal of the old values, and declare these as “new values”. This, to an extent, is what Nietzsche did when he reversed Platonism, forgetting that a reversed Plato is still Plato, or what Marx did when he turned Hegel upside down, producing a strictly Hegelian system of thinking in the process. Such negative results of thinking will then be used as sleepily, with the same unthinking routine, as the old values; the moment they are applied to the realm of human affairs, it is as though they had never gone through the thinking process. What we commonly call nihilism – and are tempted to date historically, decry politically, and ascribe to thinkers who allegedly dared to think “dangerous thoughts” – is actually a danger inherent to the thinking activity itself. There are no dangerous thoughts; thinking itself is dangerous, but nihilism is not its product. Nihilism is but the other side of conventionalism; its creed consists of negations of the current, so-called positive values to which it remains bound. All critical examinations must go through a stage of at least hypothetically negating accepted opinions and “values” by finding out their implications and tacit assumptions, and in this sense nihilism may be seen as an ever-present danger of thinking. But this danger does not arise out of the Socratic conviction that an unexamined life is not worth living but, on the contrary, out of the desire to find results which would make further thinking unnecessary. Thinking is equally dangerous to all creeds and, by itself, does not bring forth any new creed.
However, nonthinking, which seems to recommendable a state for political and moral affairs, also has its dangers. By shielding people against the dangers of examination, it teaches them to hold fast to whatever the prescribed rules of conduct may be at a given time in a given society. What people then get used to is not so much the content of the rules, a close examination of which would always lead them into perplexity, as the possession of rules under which to subsume particulars. In other words, they get used to never making up their minds. If somebody then should show who, for whatever reasons and purposes, wishes to abolish the old “values” or virtues, he will find it easy enough provided he offers a new code, and he will need no force and no persuasion – no proof that the new values are better than the old ones – to establish it. The faster men held to the old code, the more eager will they be to assimilate themselves to the new one; the ease with which such reversals can take place under certain circumstances suggests that indeed everybody is asleep when they occur. This century has offered us some experience in such matters: How easy it was for the totalitarian rulers to reverse the basic commandments of Western morality – “Thou shalt not kill” in the case of Hitler’s Germany, “Thou shalt not bear false testimony against thy nature” in the case of Stalin’s Russia.
Hannah Arendt, Responsibility and Judgment, p. 173-178
Associations and groups that are substantial enough to fulfill needs for belonging and meaning, powerful enough to check the power of the state or to organize democratic life, or institutionally complete enough to offer authoritative norm-generation for their members, are also substantial, powerful, and authoritative enough to potentially threaten the freedom of their members. That is, it is not just an unfortunate accident that groups come with features that, from a liberal perspective, are both good and bad.
The point is partly an intergenerational one. Recall from the previous chapter the idea that inequalities of outcomes in one generation becomes inequalities of opportunity in the next and its analog: free associations in one generation become inherited ways of life in the next. This is a necessary truth; children are born into particular times and places and social worlds that have been shaped by the choices their parents have made. This does not simply mean that the parents were free and the children were not; it was also true of the parents that they were born into particular times and places and social worlds. If the parents had some freedom to reshape their worlds in partially original ways, to join or form groups into which they were not born, then the children also have some such freedom. But there could be a narrowing over time; parents can join groups or adopt ways of life that leave their children with fewer choices than they themselves had.
But the point is only partly intergenerational. It is, more simply, a point about power, even within one generation. Robert Michels taught us that ‘who says organization, says oligarchy’. That could suffice as a statement of the problem, but I propose to instead frame it as: whoever says authority, says power – and whoever says organization, says authority.
Jacob Levy, Rationalism, Pluralism and Freedom, p. 71
I detest and fear dogma. I know that all revolutions must have ideologies to spur them on. That in the heat of conflict these ideologies tend to be smelted into rigid dogmas claiming exclusive possession of the truth, and the keys to paradise, is tragic. Dogma is the enemy of human freedom. Dogma must be watched for and apprehended at every turn and twist of the revolutionary movement. The human spirit glows from that small inner light of doubt whether we are right, while those who believe with complete certainty that they possess the right are dark inside and darken the world outside with cruelty, pain, and injustice. Those who enshrine the poor of Have-Nots are as guilty as other dogmatists and just as dangerous. To diminish the danger that ideology will deteriorate into dogma, and to protect the free, open, questing, and creative mind of man, as well as to allow for change, no ideology should be more specific than that of America’s founding fathers: ‘For the general welfare’. (p. 4)
A free and open society is an on-going conflict, interrupted periodically by compromises – when then become the start for the continuation of conflict, compromise, and on ad infinitum. Control of power is based on compromise in our Congress and among the executive, legislative, and judicial branches. A society devoid of compromise is totalitarian. If I had to define a free and open society in one word, the word would be ‘compromise’. (p. 59)
No organization, including organized religion, can live up to the letter of its own book. You can club them to death with their ‘book’ of rules and regulations. That is what the great revolutionary, Paul of Tarsus, knew when he wrote to the Corinthians: “Who also hath made us able ministers of the New Testament; not of the letter, but of the spirit; for the letter killeth.” (p. 152)
All quotes taken from Rules for Radicals.