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?

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