Tag Archives: U.S. Constitution

Contempt of court

Posted by Jason on

The Supreme Court’s recent upholding of the Muslim Ban is significantly worse than a mere “unconstitutional” violation of “religious liberty.” Indeed, the problem is precisely that it is not those things; it is entirely justifiable on legal grounds while also being plainly evil. It is, therefore, not a mere failing of the present composition of the Court, but an indictment of its very existence.

Arguing against something by calling it “unconstitutional” is facile in the best of cases (as with laws and standards in general, the mere existence of something says nothing about whether it’s right or wrong. Slavery was constitutional for a pretty long time), but here it’s just plainly false. What the constitution actually says about religion is the Congress shall make no law respecting its establishment. The executive branch is not Congress, and an executive order is not a law. In fact, the Constitution doesn’t really say a whole hell of a lot about any constraints on immigration policy, which is part of why various governments have pretty much made it up as they’ve gone along. We’ve had quotas before, you know. And in the absence of explicit legal standards, questions such as whether a face-neutral policy that was clearly motivated by religious resentment qualifies as “religious discrimination” or whether a particular action is justified in terms of national security ultimately have to be judgment calls.

Of course, this isn’t a slam-dunk case in favor of the ban, either. Just because an action is within the purview of the executive doesn’t mean that any such action is beyond reproach. And this is precisely the issue. As long as there is not a specific law addressing the exact case in question, the Court is, in a very fundamental sense, free to do as it wishes. And they’re not actually required to adhere to precedent, either, so ultimately the only thing preventing any given case from descending into a free-for-all is personal restraint. The question of whether to ban Muslims becomes simply the question of whether five lawyers want to ban Muslims.

Obergefell is an even clearer example. Scalia was entirely correct that the case was decided not because a particular decision was required by existing law, but simply because the majority wanted to legalize gay marriage. The reason he was full of shit is that the exact same argument applies to his own opinion. While he claimed that he didn’t care either way about the political question, the argument at issue was that gay people have the right to get married, so what this actually means is that he believed that gay people did not have such a right. This is exactly as much of an ideological position as Kennedy’s was – the only difference between the two is that Kennedy was a mushhead while Scalia was a liar. The only way to decide the case was to bring in a political opinion from outside existing law, and that’s exactly what both the majority and the dissenters did.

Given what’s been happening, this might seem obvious enough, but the problem is that it completely delegitimizes the existence of the Supreme Court, as such. That is, it is not the case that the Court is now illegitimate because it has become politicized. Its very conception is illegitimate a priori.

The reason the Supreme Court is an undemocratic and unaccountable body with lifetime membership is precisely because it is not supposed to address political questions. Its composition is explicitly intended to be unresponsive to democratic pressures. It’s supposed to be a technical institution, which is why it’s the only one staffed by actual professionals. And as far as the typical nitpicky lawyer case about whether a taco counts as a sandwich goes, this is all well and good. Cases with defined legal standards and without obvious political implications can in fact be adjudicated technically, by field experts.

But, while there are many such cases, their existence is ultimately a coincidence. Laws affect real-world material outcomes, so there’s never actually an “apolitical” law. It’s just that in some cases the political effects are narrow or obscure, and in others they’re obvious and far-reaching. In some cases, a legal question about whether a particular standard for operating a medical facility is justified is a simple technicality, while in others it is a fundamental judgment about whether abortion should be accessible or not. What distinguishes these cases is not the law itself, but the social circumstances surrounding it, which is why this problem is unavoidable. You can’t pick only the “non-ideological” cases for the Court to hear, because it is not the case itself that determines its political significance.

Thus, it is necessarily the case that the Supreme Court cannot function as intended. The question of whether this or that judge is a “moderate” or an “ideologue” is entirely beside the point. It is a logical impossibility. There will always be some number of cases whose outcomes are unavoidably political, such that the only way to judge them will be on the basis of political ideology. Which is exactly what happens.

It is important to emphasize, repeatedly, that this is not a matter of “corruption” or “decay” or “extremism” or what the fuck ever. It’s a matter of design. The “Founding Fathers” fucked this up: they designed a system that can’t work as intended, because they weren’t smart enough to figure out the stuff that I just described. I obviously have the benefit of hindsight, but wrong is wrong, and the design of the United States government is in this respect objectively wrong. You’re not going to get anywhere until you give up your childish fantasies about the “wisdom” of “great men” and start looking at how things actually function.

Except that’s not quite true either, because, despite the fact that the actual operation of the government today is quite far removed from how it was when it was first designed, there’s a significant sense in which we really do have the society that the founders wanted. “Democracy” for them meant something completely different than it does to us – there’s a reason they felt no compunctions talking big about it while denying the franchise to the vast majority of the population (and also raping slaves). What it meant for them was, rather than the rule of a specific class of elites (royals), rule by the elites in general. Non-elites did not, for the sake of political representation, qualify as people.

The reason we have a society dominated by businessmen and lawyers is that the founding fathers were businessmen and lawyers who wanted to dominate society. That’s the order they created, and it’s the order we still have today, with the Supreme Court acting as one of its most powerful enforcers. So, from one point of view, the founders were even wiser then they’re given credit for: even after thoroughly misunderstanding, distorting, and bastardizing their vision, we’re still pretty much doing what they wanted. (On the other hand, creating a new order just to re-replicate the same patterns that have existed for all of human history isn’t, like, particularly impressive.)

To be fair, though, there really isn’t a solution to this problem. If you have a society of laws, you do have to have some sort of body for adjudicating them, and doing so is unavoidably going to be a political endeavor a lot of the time. The solution for us, though, once we’ve cleared away the obfuscating fog, shines though with painful clarity. Because the Supreme Court cannot ever be relied upon for anything, it must never be the case that it matters at all to our political activity. The whiny liberals screeching about how important it is to Vote Democratic for the sake of the Supreme Court have it exactly backwards: if all you can rely on to advance your agenda is friendly judicial rulings, you have already lost. You are relying solely on rearguard actions that will never allow you to claim new territory.

The looming fate of Roe is the perfect example here. The only reason that decision matters is that abortion is already inaccessible, so its technical legality is the only thread it has left to hang on to. By contrast, this isn’t a problem for birth control in general. The same zealots would also love to ban birth control, but that aspect of their cause is a complete non-starter, because the battle for birth control has already been won. It’s a normal thing that everyone uses openly in their daily lives. Despite noble efforts from many quarters (well, one quarter), the same cannot yet be said of abortion. But that’s the only way to actually resolve this; a technical legal argument in favor of abortion doesn’t do anything for anybody. Avoiding the fight by adhering to the garbage status quo is a coward’s plan. The only moral option is to win the war.

Also, we really need to admit that Roe was a shit decision in the first place. Establishing a touchy-feely sort-of-right to abortion that came with built-in restrictions ensured that actual access would inevitably be chipped away by a bunch of bullshit pseudo-regulations while obligating absolutely no action toward helping people actually utilize their supposed rights. The correct decision is for abortion to be established as a positive right that the government is obligated to provide, based on the fundamental right to bodily autonomy – which is not enumerated in the Bill of Rights. Also, this is identical to the argument for universal health care, which is the only workable way to implement it. The Constitution won’t tell you any of that, though. You have to figure it out for yourself.

Jurisprudence is not going to save you. The political institution that is responsible for the advancement of values is you.

A god damned piece of paper

Posted by Jason on

As you surely cannot have failed to recently become aware, Khizr Khan set the political world ablaze with his speech at the Democratic convention, wherein he “humiliated” Orange Julius Caesar by whipping out his pocket Constitution. Khan is not a political operative, he’s clearly nothing more than an honest man trying to do the right thing, but this was nevertheless a stunt, and I am embarrassed to see so many people falling for it. Brandishing the Constitution is not only not an argument, it is precisely the type of non-argument that liberals so frequently accuse conservatives of using to avoid the actual substance of the issues. More than that, it is exactly the sort of contentless, TV-friendly grandstanding that is the stock in trade of Khan’s declared adversary.

Rather than celebrating this speech as a PR victory, Democrats ought to be deeply concerned about the direction that it portends for their party. Because of course it wasn’t just one speech; the entire convention was a grotesque rightward lurch, an attempt by the Democrats to claim the mantle of jingoistic military fetishism, consolidate the economic ruling class, and rebrand themselves as the true “party of Reagan.” I find it horrifying how few people find this horrifying. Let us not forget that Humayun Khan was killed in the Iraq War, which was and remains a great crime that cannot be forgiven, a storm of death and destruction that accomplished nothing, and a craven act of political dickswinging in which the Democrats were fully complicit. His sacrifice is something to be mourned and not celebrated, on both the personal and the political level. He died for no reason, and holding up his family’s suffering as a totem of political legitimacy is deeply sick. I mean, it’s not like Hillary Clinton has sacrificed anything either. And it’s a shit argument either way; if “sacrifice” is the main qualifier for office, then John McCain should have been President this whole time. If politics is to be good for anything, it ought to be aimed at preventing people from making these sorts of sacrifices for their country.

So there’s that, and there’s also the fact that the Constitution just has no applicability here whatsoever. The policy under discussion is the proposal to Ban All Muslims, so the implication is apparently supposed to be that this would be unconstitutional, but that’s obviously not true. We’re so far gone on this topic that I’m afraid the only option is to hit it grade-school style. The U.S. Constitution has two aspects. The main body of the document defines the branches of the federal government, including how they are to be staffed and which powers accord to which branch. Naturally, these sections have nothing to say about whether any particular policy is allowed or not; they only cover which branch has the power to enact which types of policies. For example, the power to declare war is granted to the Congress, but nothing is said about the conditions under which a particular declaration of war is permissible or not – any declaration of war authorized by the Congress is “constitutional.” Regarding immigration specifically, this is the only mention:

“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

So yeah, not terribly relevant. And remember, this is the main part of the Constitution; everything else is an “amendment.” It was never intended to function as a human rights document. There originally wasn’t even going to be a “Bill of Rights”; it was thought that such a thing would be unnecessary or perhaps even counterproductive. That may have been a good instinct.

Turning then to the amendments, we again find nothing about immigration, or even about religious discrimination. Of course, Congress is prohibited from making any law respecting the establishment of religion, but this is not the same thing as saying that citizens can’t be treated differently based on their beliefs. (By the way, gender discrimination is also constitutional; that one failed.) Furthermore, the rights guaranteed by the amendments necessarily apply only to U.S. citizens, so looking here for guidance on immigration policy is a clear category error. Khan cites the phrase “equal protection of the laws” from the 14th Amendment, but this obviously does not apply to people who are not yet subject to the laws of the United States.

Since I suppose it must be said, restricting immigration based on anything other than direct substantiated danger related to a specific individual is bad and wrong. The point is precisely that making this argument is easy, and should not require recourse to the Constitution. Indeed, it is not at all clear what people expect to get by hitching their horses to the unsteady wagon of the Constitution. It is neither the first nor the last word on human rights, nor is it any kind of political-theoretical apotheosis. Like, the whole idea behind having “amendments” is that the Constitution is not to be considered perfect, that it was written in a specific place and time under a specific set of assumptions, and it can be changed at any time as needed. Remember how prohibition of alcohol was added to the Constitution and then repealed 14 years later? The presence of those amendments is probably the most valuable part of the entire document: they serve as a reminder that politics is never settled, and that what seems correct today can easily become a punchline tomorrow. The fact that the Constitution agrees with you says nothing about the validity of your argument; it is just as likely that you and the people who wrote the Constitution are equally depraved and/or stupid.

Constitution fetishism is correctly understood as the province of know-nothings whose only use for formal procedures is to deflect moral considerations. We ought to keep it that way. I understand the utility of argumentative heuristics; I am not insisting that everything be argued from the ground up. But I am insisting that we get better fetishes.

A hole in the head

Posted by Jason on

Obama did a thing about guns. It was very serious and emotional, because Obama is very serious about this issue and he’s seriously going to take serious actions about it, while also having emotions about it.

(Quick hit about the crying thing: Gawker’s headline for this was “Barack Obama Just Cried on National Television“, which falls squarely into the category of Not Helping. Gawkeristas are presumably the type of people who believe that crying is normal human behavior and that we should allow public figures to be honest with their emotions, but by making this the lede, let alone hamming it up for the headline, they’re implicitly portraying it as aberrant behavior. The way you help normalize something is, by definition, by not making a big deal about it.)

Obama is better than most politicians at saying the right thing, and the right thing he’s said about gun violence is that this is a problem that exists in America and in no other comparable nation.

Here’s Obama in the New York Times saying this, and another right thing:

“Every year, more than 30,000 Americans have their lives cut short by guns. Suicides. Domestic violence. Gang shootouts. Accidents.”

These things are how gun deaths actually happen in the numbers that they do. Roughly 60% of gun deaths are suicides. This makes suicide alone the primary issue with gun violence – more important than all types of homicides and accidents combined. Mass shootings specifically are not actually a big deal, policy-wise. As with terrorism in general, the threat from mass shootings is subjectively dramatic but statistically negligible.

And this is why all of Obama’s proposals are useless at addressing this issue on the level of the epidemic that it actually is. Specifically, the four proposed actions are: the usual shibboleths of “background checks” and “mental health,” “making our communites safer,” which apparently consists of, um, a phone call from the Attorney General, and “safety technology,” which is a particularly bizarre thing to focus on, for reasons we’ll get to later.

The great volume of talk about “background checks” and “reasonable restrictions” to keep guns out of “the wrong hands” is all a massive dodge. Let’s be serious. When politicians yammer on about “mental health,” they aren’t talking about depression. They’re scapegoating people with mental health issues as crazy killers, as though the only possible explanation for arbitrary murder is “craziness,” as though a proper patriotic American could never dream of doing something as unseemly as taking a life. They don’t want to admit that killers are in fact acting in accordance with American values.

It bears repeating that people with mental health issues are not more likely to commit violence; there’s no entry in the DSM for “psycho killer.” Mental health as politicians talk about it has fuckall to do with gun violence. As for depression and suicide, they’re never seen as real issues, since the only harm they do is to remove unpleasant people who we’d rather ignore anyway.

Now, regarding this, one of the actions is:

The Administration is proposing a new $500 million investment to increase access to mental health care.

Which is great. Money well spent (and it should of course be done regardless of gun violence). Except for the word “proposing,” and the fact that $500 mil on the federal level is chump change (it’s about 0.013% of the total budget, and 0.05% of expenditures on health care. Can you name 2,000 issues that are more important than mental health care? Probably not, seeing as suicide is the 10th leading cause of death in America). The issue isn’t that any of these proposals are bad things. Assuming they actually result in some sort of action, they will save a nonzero number of lives. But Obama is pushing these tepid policies while simultaneously playing up the dramatic horror of the issue. You don’t treat an epidemic with aspirin.

There are two real things that could be done. One is to treat guns like cars, dangerous objects that we allow people to own under the condition that they are licensed, trained, and insured. This is a perfectly reasonable course of action that is well within the confines of neoliberal political discourse. The fact that it is 100% impossible for this to happen in America illustrates the way in which American society is actually deranged.

But this still wouldn’t solve the problem. It would reduce gun deaths somewhat, just by making it slightly more onerous to actually get a gun. Actually, the most effective thing would probably be the insurance part, since it would actually create a corporate disincentive to spread guns around, and corporate incentivization is the only thing that actually makes things happen in America. But all you need to kill yourself is whatever the weakest type of handgun is and one bullet for it (and this applies at basically the same strength to killing other people; the “assault weapons” angle ignores how fantastic even basic handguns are at killing people), so any proposal that still allows people to get any kind of gun under basically any reasonable conditions will not solve the main issue.

This is why the second thing that could theoretically be done is the only way to actually improve the general situation. That thing is to ban guns.

The most charitable version of the argument against this is: you can’t uninvent guns, and a person without a gun is helpless against a person with a gun, so allowing gun ownership is the only thing that provides the possibility of self-defense. This isn’t wrong, argumentatively speaking, but it’s practically irrelevant. It’s not just that perfect safety is a fantasy, it’s that you really can’t protect yourself at all from the overwhelming majority of lethal threats that you face every day. You’re in far more danger driving a car onto the freeway than you ever will be from gun violence.

Also, there’s no need to argue hypothetically; we already know that this isn’t a real problem. As Obama didn’t quite get all the way to pointing out, other countries have banned guns and they’re doing just fine. We know for a fact that it is not the case that British cities are controlled by roving gangs of gunhavers while ordinary law-abiding citizens desperately try to defend themselves with kitchen knives.

The other accidental point that gun advocates make is that gun violence is the cost of a free society. This is true, assuming you count “freedom to own guns” as part of what “free society” means. You don’t have to do that, though. There’s no comprehensive definition of “freedom” such that a society that meets it is “maximally free.” Every freedom entails a corresponding restriction. Free speech entails people being harmful assholes. Free trade entails economic exploitation. And free ownership of lethal weapons entails death.

There’s a popular liberal saying, “my rights end where yours begin,” but this doesn’t actually mean anything, because defining where that line is is the entire question. A society where face-punching is illegal is a society where you are free to walk down the street without the threat of being punched in the face, but you are not free to punch somebody in the face if they’re annoying you. A society where face-punching is legal is a society where you are free to punch people in the face for arbitrary reasons, but you are not free to avoid the possibility of being punched in the face yourself. The question of which of these freedoms we value more is a real question that we really have to answer. In this case it’s not particularly controversial, but the issue with guns has exactly the same dynamic.

This is the real point that is missing from the mainstream debate about guns: we are choosing what kind of society we want to have. Everyone pretends like the issue has a “solution,” like if we find just the right combination of regulations we can have a society where everyone owns a gun but there’s no gun violence, or at least not so much that we have to read about it in the paper sometimes and get sad. But the truth is that it is a choice; the truth is that we’ve already made this choice, and we’ve chosen guns.

But it’s not just guns, this same point is missing from literally every mainstream debate about everything. The idea of choosing values does not enter into the neoliberal conception of politics as a process of optimization. This is why neoliberalism is the invisible ideology: it only talks about means, pretending that it doesn’t have ends.

This is where the technology bit comes in. The proposal here is that we can develop “smart guns” that have fingerprint locks or whatever, and this will prevent thefts and accidents and soforth. Let’s assume that this is true, that we can develop guns that are 100%, uh, “safe” (see, just talking about this is bizarre). The actual effect of this will be basically dick. First, there are already an unbelievable shitton of non-magic-robot guns floating around, and they aren’t going anywhere unless we, you know, ban them. Furthermore, there will obviously continue to be a demand for non-magic-robot guns, since being dangerous is the point of guns and because guns are overwhelmingly bought as fetish objects (since they do so little for actual security); buying a safe gun is almost exactly like buying censored porn.

This is why technology cannot solve political problems. Political problems are problems of competing interests. All technology can do is give people more capacity to fulfill their desires (the fact of your desires becoming fulfillable can also change them, which is an actual problem with technology, but let’s keep this simple); it does not resolve conflicts, because nothing can fulfill competing desires simultaneously. It is to obscure this point that neoliberalism so zealously imports the language of technology into political discourse. As another example, some politicians have called for the development of new encryption technology that is more secure but also allows the government’s intelligence agencies to do whatever they want with it. This is not possible; encryption is either secure or it isn’t. The point of such a proposal, of pretending that there’s a technological “solution” that addresses all concerns, is precisely to elide the fact that the government wants to be able to spy on people, because politicians would rather not have to actually make that argument.

In the same way, this is the actual function of the Constitution in American political discourse. It provides us with a readymade set of values, such that we never have to think about issues on that level. You see this all the time in gun control debates: the Second Amendment is always the stopping point, and we poke and prod at the exact meaning of its comma placement as though that matters, as though the question were not precisely whether we agree that gun ownership ought to be constitutionally protected. There is only one serious gun control position: repeal the Second Amendment.

Of course, this applies just as well to the entire Constitution (notwithstanding the fact that the Ninth Amendment exists; you’ll never hear that one brought up in a political debate). By setting unassailable limits on political discourse, the Constitution acts as a bulwark against radicalism. It allows us to pretend that we’ve got it all figured out already, that a bunch of rich slave-owning rapists solved the problem of values for us, that all we have to do is flesh out the implementation details. This is why Constitution fetishism is another of neoliberalism’s weapons of choice.

And this is why Obama, who is in many ways the apotheosis of American politics, raises big issues but only ever talks about them in terms of reform. It allows him to avoid the responsibility of actually advocating for a system of values – which would, of course, entail attacking those with opposing values instead of fantasizing that every issue can be solved through compromise. I recently read Jimmy Carter’s so-called “malaise” speech for the first time, and I realized why everyone got so pissed about it: he actually had the audacity to suggest that Americans examine their values and modify their behavior accordingly. (Of course, he got the direction wrong: he thought the problem was that Americans needed to commit more strongly to their traditional values.)

As convenient as it is to pretend otherwise, there’s actually no such thing as not having ends. If you’re not consciously aiming your actions at chosen ends, your ends will by default become whatever the actual results of your actions are. So if neoliberalism actually succeeds and we end up locked into an optimization process without an awareness of what it is we’re optimizing, the end result really will be a perfect society – one that is perfectly in accord with a value system that no human would ever have chosen.