Sunday, October 10, 2010

Me and Mike's discussion continued

Mike: On the aesthetics of revolution debate: while certainly kind of nifty, Zizek's arguments are non-responsive - regardless of how potentially liberating and sublime the experience of revolution is, Zizek would intentionally expose people to s...tructural violence to create the conditions for revolution. This is bad for a couple of specific reasons: first, his methodology, in and of itself, is dehumanizing. I'm cross-applying your analysis here: structural violence may not be throwing someone in an oven but it's still dehumanizing and Zizek will throw people under the bus in order to have his revolution, i.e. some people are not worth preserving in order to achieve the greater good. What about the people who, while on the road to revolution, will die because they can't afford chemotherapy or food, etc.? For Zizek, their deaths don't really count for some reason; why are they denied the experience of the "sublime" heroic death in revolution - they literally die because they aren't worth preserving - the revolution is what matters. THAT is the essence of dehumanization. The only way to combat dehumanization is a new aesthetic where anyone and everyone is worth preserving at any cost - even the revolution itself. Dehumanizing people to stop other instances dehumanization isn't exactly the route I feel comfortable taking. While Zizek places a high value on human life, it's not high enough.

On the "alternative": Zizek's critique isn't micropolitical - he's arguing that the Targeted Asset Relief Fund, etc. all should not have happened - that's a fiat-level argument if I've ever seen one. I offered an alternative at each level of the debate: macro and micro. At the macro level, yeah I think the Supreme Court should rule the constitution unconstitutional; I think that would expose the farcical nature of law and allow for a reconceptualization of how progressive politics are possible in this country. Absent the constraints of the founding myth, maybe we could find a way to provide truly universal healthcare. And nationalize the oil and gas industries. And elect Crawford the new premier/chairman/czar. At least that way, I'm not actively letting people die. I mean, while I have my hands on the levers of power I think I do everything I just mentioned.

At this point, I think it's important to throw in a little impact analysis: the chances of Zizek's revolution don't look too good - you never responded to my arguments as to why people are radically defending property rights even as the private sector fucks them over. I think this pretty much makes the probability of revolution zero, that is, if it doesn't make people even more radically conservative as the present situation seems to indicate. However, the probability of dehumanizing people a long the way is 100% - people must literally die via structural violence even to create the conditions for the possibility of revolution; I think Zizek's flat out of luck.

On the micro level, yeah I'm still going for CLS: sure, criticism won't do much on the streets of Los Angeles but it can shake shit up in the institutions that produce lawyers, judges and politicians. And we can continue to help each other survive and patch up the glaring holes in the system. At least we wouldn't be letting our friends die. As I see it, you don't propose any micropolitical action - if you're not advocating Zizek, then I'm not sure what you're saying. I think CLS is a realistic way to go about doing stuff right now.

I'm not copping out on revolution - I'm flat out opposing it. I'm not precluding the possibility of revolutionary politics but what I am saying is that when Zizek goes all "whirling Dervish" on the beauty of the aesthetics of revolution, he sends people to die and for no reason. Given that the rev itself is dehumanizing, shouldn't we care even a little bit what we wake up to? Maybe that makes for some really hot poetry but I think this is why kid's don't run Zizek as their alts anymore - he literally doesn't have any. I think the world has a lot at stake the morning after - I mean, not everyone gets the sublime experience of martyrdom, so what happens to them? They just start doing Dadaist jigs in the streets or do they start over? Obviously something is going to happen and I think the world deserves to know that the likely outcome of the revolution is going to be. Is it going to be Maoism? Stalinism? National Socialism? God, I hope not.

So what's your micro-political event - taking the family van to Jon Stewart's "Rally to Restore Sanity"?

Ok. I'm not advocating a revolution for the very reasons you mention - our lives would become disrupted and it would suck. However, people are already dying due to structural violence - especially in the third world - so obviously something... should be done. In your last post you even suggested that when people are dying due to structural violence we're on the eve of revolution. Are you therefore advocating revolution? Is that the threshold? Aren't deaths resulting from a potentially emancipatory Revolution preferable to deaths due to the ongoing march of the cold machinery of capitalism?

However, I'm still not advocating Revolution. My argument is simply that in order for CLS to make an impact that would have to be some radical re-organization of society, some kind of Event in the Zizekian sense that completely re-orients social forces and opens up space for the CLS critique. We're talking like French Revolution - or ideally the Haitian revolution which is Zizek's personal favorite. Jon Stewart's (lowercase) event doesn't qualify as an (uppercase) Event.

CLS simply can not change anything, and is going to be permanently relegated to the margins without such a radical restructuring. I mean seriously if CLS could make a difference merely by circulating around academic circles, it should have already done so. CLS was hot in the 70's and 80's but people sort of lost enthusiasm for it and it fizzled out without making that much of an impact - at least no revolutionary proclamations from SCOTUS resulted.

Likewise, you’re hand on the lever thing would be OK if either of us ever had a chance to be in power, but I kind of doubt that ever happening. I don’t think either of us have the ambition to ever be in a particularly powerful position of influence. People, especially those in power, just don’t like CLS because it undermines the edifice that their power is built on. There’s no way SCOTUS will ever rule the Constitution Unconstitutional because that would expose the empty seat of power and render them completely useless - and once one has attained that level of power being useless just isn't an option anymore.

So this brings us to the micro-political level, which is the only level that we'll ever work from. I feel we can do much more to slowly change things via less radical critiques, which don’t undermine the entire legal edifice the way CLS does. This is less radical (and therefore less dependent on revolution) and has the best chance of at least softening the impact of structural violence, so I’m winning you’re impact analysis regarding dehumanization. Again, CLS is pretty much certain to do nothing to influence the legal/political powers-that-be. Instead more limited academic pursuits are much more likely to resonate and make themselves felt in ways that will actually make a difference in decisions rendered by SCOTUS. For instance, Brown and Roe – arguably about as radical as SCOTUS gets – are probably indebted somewhat to the work by radical legal theorists, but they still conform to the regular legal systems internal mechanisms. Thurgood Marshall's method of practical adjudication has done more to change things and help people than Duncan Kennedy's radical interrogations will ever do from his ivory tower at Harvard. I’m afraid we’re stuck working within the system of (at least superficially) textual legal reasoning if we’re going to make any difference at the micro-political level in minimizing dehumanization without resorting to revolutionary violence.

I'm somewhat surprised to find myself advocating this position, but this discussion was too much fun for me to just agree with you like usual.

Wednesday, October 6, 2010

Why Conservatives should hate Citizens United - or Why Those Gosh-Darn Activist Judges is Ruinin' the Country

First off, for all I know Conservatives already do hate SCOTUS's decision in Citizens United vs. FEC. If you're a conservative and you disagree with the court on this one, then congrats, you're in good company.

If there is such a thing as Judicial Activism (judges overstepping the bounds of their authority in order to change the law with far reaching political and social consequences) then this is a clear-cut case. So if you're that guy, who is always harping on how judicial activism is ruining the country, then this decision had better loom large in your view of mistakes made by the US Supreme Court.

You see the way the Supreme Court was designed - as an appellate system - limits the scope and power of Supreme Court decisions, insofar as the Supreme Court can only exercise their power if a question of constitutionality is brought before them by another party. This important check on the Judiciary which is built into our constitutional system serves to help prevent so-called "activist" judges from interfering too often in the process of law-making. Unlike Congress, the judiciary doesn't have general law-making power and can't just change the law whenever they choose. Regardless of the constitutionality of any law or set of law, SCOTUS can only change law through judicial review if the problem is large enough to percolate all the way up the appellate process without fizzling out in one of the many appellate courts. If a constitutional question never reaches them, then no big deal, the popular will expressed through the US Legislature holds. This system seems to work pretty well for the most part.

This is why the decision rendered in Citizens United, which ruled that large portions of the Bipartisan Campaign Reform Act are unconstitutional, is so problematic. The question of the facial constitutionality of the controlling provisions in the Bipartisan Campaign Reform Act was never raised by the claimants before the court. The question that Citizens United brought to the court was merely whether their instance of Video on Demand electioneering, funded 99% by non-corporate donors, should be subject to the same regulation as TV and radio electioneering, payed for directly by corporations. A decision which could have been decided quite easily and modestly without having to resort to overturning nearly two-hundred years of case law in clear violation of the logic of stare decisis.

However, the court didn't like being limited to this rather small role, merely determining how Video on Demand, the latest in an ongoing wave of new media formats, fits in with years of First Amendment jurisprudence. Apparently, they had an itch to exercise some power; Maybe a bone to pick with McCain/Feingold. So instead of accepting their proscribed role in rendering a decision, they went out of their way to invite the claimants back to the court in order to argue the question of the Acts unconstitutionality on face. Such invitations by the court are rare and this was a bold move on the part of the Roberts court in clear violation of the conservative ideal of judicial constraint. Therefore, Roberts = activist judge.

In his dissent Justice Stevens explains:

"It is 'only in the most exceptional cases' that we will consider issues outside the questions presented, Stone v. Powell , 428 U. S. 465, 481, n. 15 (1976)... Setting the case for reargument was a constructive step, but it did not cure this fundamental problem. Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law."

So for the record, if you are "that guy", harping on activist judges, it ain't just the "liberals" you've got to blame. In fact the original judicial activists were free-market conservatives who severely undermined the intended meaning of the civil rights amendments in the slaughter-house cases at the turn of twentieth century; by re-interpreting "privileges and immunities" guaranteed to citizens, the sweeping and far-reaching post-cataclysmic amendments intended as memorial to the sacrifice of Lincoln, and millions of slaves and soldiers, as only having application to travel visas and port policy. These are the sorry predecessors to the modern day Roberts' Court - who have now made into law the ridiculous claim that a corporation is a person with the same constitutional protections as you or me.

Tuesday, October 5, 2010

Citizens United - It sucks, but what do we do about it...?

Alright this is a facebook discussion with my buddy mike about Citizens United and the proper methodology for challenging the decision. Should we use the logic of textualism and stare decisis to oppose the decision on traditional grounds – like the video that spawned this discussion – or make a radical departure from the entire system of jurisprudential logic and critique the system for allowing such a horrible decision to enjoy the privilege of law in the first place. I think we’ve got a pretty cool dialogue going so far.

Mike: I think [the video] needs to go farther by problematizing the particular jurisprudential logic that created the legal environment for Citizens United vs. FCC in the first place. Enter Critical Legal Studies: the decision itself is consistent with SC...OTUS precedent on First Amendment issues--any examination of the decision, on face, reveals that the court's decision (from the standpoint of being a neutral arbiter of the law) makes sense and is difficult to repudiate. But the fact remains that something is horribly amiss with the decision and I think that feeling has its origin in the things that the decision itself justifies, i.e. rolling back fifty years of campaign finance law. I think the CLS critique of law in general is really apt at explaining the "real" problem of Citizens United--that law itself is not objective but, rather, a political tool that usually ends up "protecting" (destroying) private space by diminishing and disempowering (if that's a word) public space. Whoever the monoliths are in the world of the Private end up benefiting the most from law. And the rest of us (even mini-Private entities) suffer.

Jon: Agreed, Mike. I don't object to Citizens United vs. FCC on legal grounds, but utilitarian ones.

PS: I love having smart friends like you two.

Me: I'll join the lovefest. i agree with mike. conceptualizing the law as static is just silly; however, the law's effect is to freeze the social and has the effect of creating stasis in power dynamics - protecting the privileged over the masses. however, i would still contest Citizens United on legal grounds. i would contest Citizens United on any grounds available including the CLS angle. i think there's plenty of room to attack Citizens United, using the albeit fatally imperfect, tools of the law, and at least 4 members of SCOTUS agree with me. or maybe we should take the zizekian approach and not pretend that the law, founded on a broken system, can ever reach the right answer; rather force the united states to take the hardline on private property that is built into the founding ideology; thereby creating misery and fomenting revolutionary potential resulting in an eventual explosion of the popular without "the People". But what to do the morning after...? I'm still not ready to accept the disruption that revolution creates, and no one seems to have a great strategy for dealing with excesses of revolutionary terror, which is why i keep thinking we should just patch things up where we can - the band-aid approach - and learn to live the best we can despite the inherent contradictions in our political and social lives.
Please contradict me Mike.

Mike: Yeah, Zizek's methodology seems really problematic to me. First, how do we go about forcing the U.S. to take the "hardline" on private property and expose the "true" end of the logic? Do we just sit around and let shit happen or do we don t...he Tea Party wig and clamor for an end to all social programming? Either way, Zizek uses the end to justify the means, i.e. purposely inducing (or not preventing) suffering so as to foster a spirit of revolution in the American people. That reeks of bullshit. I mean if the ends can be used that way, then the Iraq war all of a sudden makes a lot more sense, so do camps delta and X-ray at Guantanamo Bay. In debate, I'd say he's failing to articulate a few very important internal links, like, "what's the threshold for the erosion of the public sector that will lead to an actual revolution" and "why are people increasingly defending property rights even as the private sector continues to screw them over?" I can think of a few possible explanations for the latter but, either way, Zizek's argument sounds like a disad run by a novice in high school--"passing plan reduces suffering which is bad because then people won't revolt." It even evokes Malthusian style arguments: "stopping is war is bad because then fewer people will die and there are too many people on the planet and then we'll all be sad." Granted, I've not read the particular Zizek book you're referencing but, from what it sounds like, I don't think his position is very defensible.

I haven't read the dissenting justices' opinions but I'd be curious as to how they (and you) would contest Citizens United on legal grounds. After taking Strickler's class on constitutional interpretation, I've been pretty convinced that the logic of precedent, etc. is pretty solid (hence my renewed interest in CLS).

What do we do to "patch" things up? I guess the CLS methodology might entail revolution but I tend to think just a radical interrogation of legal methodology in general can result in the kind of deconstruction that will move the courts in the direction of Ginsberg and Sotomayor. I think those of the "anti-activist" persuasion will always have the upperhand if we play on their turf, i.e. continue to operate within the parameters of prevailing "legal" discourse--it will always make more "sense" to people to follow precedent and abide by the "principles" of the founders then to do the right thing for people. The "logic" itself must be radically opposed, and not by toeing the line and trying to find some textual basis for an interpretation. Rather, we should just say "fuck ya'll" and rule that the Constitution is unconstitutional. Now that would be a radical gesture, ala good 'ol Zizek.

Me: I think Zizek avoids being a novice disad, or a borderline Malthusian, because he does place a high value on human life. His calculations are the opposite of ends based utilitarian analysis, which simply counts up the number of bodies. He even says in Defense of Lost Causes that by relying on utilitarian ends based analysis, the Allies’ actions resulting in the killings of innocent Germans is equivalent to the Nazi crime of systematically killing Jews – More Germans were killed than Jews, so the allies actions were worse? No. The Nazis were worse. But in order to arrive at this conclusion you must go beyond the merely ontic and look at the violence at the ontological level. The shear terror of the Nazi camps denied the captives their humanity; their lives (and deaths) were denied the significance of heroic martyrs; instead, turning them into the raw material for a horrific circus of a regimented, wholesale machinated death. For this reason Zizek says all portrayals of the holocaust – in movies, TV, books – are comedies, not tragedies, in that the aspect of heroic struggle is absent. It’s farcical the absolutely meaninglessness of all those killings! Why? We still fail to comprehend, Why? Nazi’s reduced the body of the Jew through this process to bare life, homo sacer. Thus, the Nazi atrocities are infinitely worse than soldiers dyeing on a battlefield.

Zizek would save the soul of humanity and considers the ontological as well as the merely ontic impacts of his politics (ala Heidegger). Revolution is violent, but the suffering of the revolutionary is sublime. As opposed to the slow death of the humanity via capitalist commodification – even humanist concerns such as health and psychological well-being are appropriated by the capitalist machinery, insofar as they allow capitalists to maker workers more productive. People/Workers have become commodities to be invested and divested according to cold hard rules of profitability. Nowadays when you talk to an economist (our wise-men) about the value of human life, they mean just that the value that can be extracted packaged and sold from human lives. Millions of people are systematically denied their dignity in the globalized economic behemoth that is our contemporary world. While life at the top is for us vacuous and devoid of meaning. This kind of calculation also reduces the subject to a kind of bare life, yes? Zizek’s not being utilitarian, there is no big Other or ideal universe born the morning after the revolution; revolution is an end unto itself; for Zizek – and I think for Nietzsche too – the misery and suffering that precede and proceed from the revolution are part of this beautiful struggle which catches everything and everyone up in a de-subjectivizing frenzy (ala Foucault) and simultaneously elevates life and humanity to heroic proportions (ala Nietszche).

So if I understand you correctly the solution to Citizens United is for us – on a micro political level – to critique the crap out of the legal system using the tools of CLS. This culminates for us not in revolution, but in an impotent “fuck ya’ll”? Isn’t this ultimately just a withdrawal from politics and an admission of powerlessness? Robespierre accused his detractors of wanting “revolution without revolution.” I’m afraid your argument falls into this category. Without some kind of EVENT to re-orient the socio-political landscape and open up space for such radical departures, I don’t think there is any hope of changing the legal system, except piecemeal from within the system.

I know I’m not answering all you’re internal links presses, but I’m not advocating for Zizek. I just think without revolutionary potential (and without revolution!) nothing revolutionary happens. Therefore, you’re stuck working within the system, trying to use the legal systems internal logic to disrupt dehumanization as much as possible.

But maybe Robespierre is wrong. Can you have “Revolution without a Revolution”?

I think you're winning that SCOTUS should make a radical intellectual break from textualism. But will any amount of kritiking at the micro-political level ever have the chance of creating the kind of intellectual pressure necessary for such a radical departure?