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.”
Warning: Black Panther spoilers.
Elle Magazine gets it right: one of the best scenes in Black Panther is between Okoye and Nakia, after Killmonger has defeated T’Challa in combat and legally taken control of the country. Nakia has gotten the royal family to safety, and turns to Okoye for help, but Okoye refuses. “I am loyal to that throne,” she says, “no matter who sits upon it.”
Let’s leave aside the wisdom of a hereditary monarchy. It’s a system ripe for abuse, but any system can be abused, and one can imagine Okoye and Nakia’s debate taking place in any government during any period of destabilization. At its heart, the debate is whether one should go outside a system in order to save it.
R. Eric Thomas, the author of the Elle Magazine piece, says that Okoye eventually comes around to Nakia’s point of view:
Ultimately, she and the rest of the Dora Milaje turn on Killmonger and fight for Wakanda because he reveals through his actions that he is less interested in a political shift in the country—one that aligns more closely with Nakia’s missions to save those in peril in other countries—than in destroying the nation, and perhaps the whole world, as a grand act of damaged vengeance.
That’s one reading. But when T’Challa returns he immediately makes a legal argument, that because he neither died nor yielded the challenge is still active. When Killmonger refuses to continue the challenge, he’s violating the rules of the system which Okoye is loyal to. Okoye’s motives in this moment are certainly complex, but it seems plausible, even likely, that she’s driven not by a reassessment of Killmonger’s character but by the change in Killmonger’s relationship to the system.
In some ways, this is a cop out. It allows Okoye to avoid the question of when to go outside the system by offering her a resolution within the system. But I’m okay with her avoiding it. In the United States we place a lot of emphasis on the distinction between military and civilian power. The answer to “When should the Chairman of the Joint Chiefs of Staff act outside the system in order to save it?” is “Pretty much never.” As the country’s most talented fighter and as the head of the its military force, Okoye is the character most analogous to our military leadership. She should remain a loyal enforcer of the system longer than any other character.
But this denies the fundamental complexity of the situation. Whatever Wakanda’s rules actually are, they likely do not contain a clause covering ‘what to do if you think a combatant for the throne is dead but they re-emerge days later’. Once T’Challa returns they are all already, irreversibly ‘outside’ the system. All Okoye can do is make a judgment call about what course of action is most consistent with the system’s traditions and values. And so in that moment she’s analogous not just to the Chairman of the Joint Chiefs but also to the Chief Justice of the Supreme Court – the chief interpreter of law. It’s a tremendous amount of power, and it speaks to Okoye’s integrity that she hesitates to use it.
In a working system, people can specialize and act according to their roles. T’Challa can wield the power the system gives him. Okoye can enforce the law neutrally. But when the system breaks down we may be called upon to act as a whole individual: to use whatever power we have according to our own judgment. This can be restorative, or it can be deeply destructive. It all depends on the situation: on the specific decision being made, on the character of the person making the decision, and on whether the decision is made with the aim of returning the system to a state where such judgments are no longer needed.
It’s easy to complain about “purity politics”. It’s easy to complain about “neoliberals” and “sellouts”. But we live in hard times, and the easy route’s not going to get us anywhere.
Here are two things that are both generally true: you need to compromise sometimes and sometimes you need to stick to your principles. This question is, which times are which?
I thought about this recently when I read, back to back, two stories. The first was about Cyrus Vance, the corrupt Manhattan DA who recently ran unopposed as a Democrat. “Get him out of office!” I thought, angrily. “Even if he gets replaced by a Republican!” Then, I read about the DFA withdrawing their endorsement of Ralph Northam because he came out against sanctuary cities. “That’s terrible,” I thought, about both Northam and the DFA. “I disagree with him on this issue but we’ve still got to get him elected.”
Whenever a Democrat does something wrong (or a Republican does something right) you will find people on the left arguing over whether or not we should support them. There’s always someone saying we need to take our allies where we can get them, and someone saying that this or that is a bridge too far.
This dynamic is especially heated right now, thanks to the Republican party. They’re fueling both groups. The compromisers say, “Look, look at the other option. We need to do all we can to resist these hateful, violent, reckless people.” And the principle-stickers say, “Look, look at what happened to Republicans when they embraced that mindset.”
So how can we figure out when to compromise, and when to stick to principle? We need to get better at articulating the specific context that’s driving our arguments, rather than falling back on statements like “We can’t sacrifice our principles!” or “We need to compromise sometimes!” Not only are those statements obviously true, they read like an attack. No one wants to be told they’re unprincipled or impractical. No one needs to be told that, either.
In that spirit, here is just a starter list of things to consider when making a specific judgment call: