Critique of Equivalence Theory of U.S. Partisanship

So, I am an open partisan. I'm a lefty, so I cannot be certain that my perspective is fair.

That said, the false equivalence drawn between Republican partisanship and Democratic partisanship is annoying.

I offer three examples to illustrate my point: 2 of Republican intransigence, and 1 of Democratic willingness to deal.

First, Republicans were in favor of Health Care Reform before they were against it. The individual mandate was originally developed by Republicans. Bob Bennet, with possibly the most conservative voting record in the Senate, proposed the Healthy Americans Act, which was substantially the same as the PPAC. So it was really weird when Repubs unanimously opposed Obama's plan, because they supported it before. Obama and the Dems responded graciously to Republican animosity by giving tons of concessions on their Health Care Plan. This bipartisan gesture to the Repubs was ignored. When the PPACA comes up to a vote, only one Repub (in the entire Congress) breaks ranks to vote for the plan that they originally proposed.

Second, in a gesture of political hostility and brinkmanship, the Republicans, as a unified whole, refuse to raise the debt ceiling. This almost brings the nations finances crashing to a halt. Dems finally cave, so as to not plunge the nation into economic crisis, and sign some fairly ugly spending cuts into law. As a result of this stupid gesture of intransigence on the part of Repubs, the rating agency Standard & Poors downgrades the U.S. credit rating, for the first time in history, citing "political brinkmanship" as the problem. Repubs are willing to hold the nation hostage to get what they want. Dems have not yet resorted to such extreme, coercive methods.

Third, despite the hostility and unwillingness to play fair on the part of Repubs, Dems are still willing to help the "Just Say No Republicans" pass legislation for the good of the country. Recently, Obama and the Dems got behind a Republican proposal to make it easier for small businesses to obtain financing and investment. Dems are still willing to listen to Republican ideas.

Finally, political scientists can actually chart the Republicans swift shift to the hard right. This same study shows that Dems haven't moved very much, or at least their not doing so at a rate nearly as fast as Republicans. Therefore, the empirical evidence suggests that the gridlock in Congress is a Republican shift, not a Democratic one.

I know there are some ideologues among the Dems too. But as a rule, the Dems have demonstrated more willingness to listen and compromise than have the Repubs.

The problem with Normativity

The problem with normativity is that "the ideal is always threatening to collapse into the real" (Pierre Schlag). Essentially, the danger is that what we should do, will simply become that which we already do. At that point there is nowhere else to go. Critical reflection ceases. Normative evaluation ceases to be fruitful because all it does is tell us to do what we’re already doing. What’s the point of that?

For this reason, a critical stance is preferable to a normative stance.

I am the Law: Critical Pragmatism

The Law is something. We all seem to agree on that. But none of us seem to agree on what it is. In fact in order to define the Law, a person must resort to some theory about law, which the Law itself cannot provide. This lack, this inability of the law to tell us what it is, makes the law seem somewhat like a void. Different people fill this void with different meanings. Therefore, the meaning of the law, is aporiatic. It exists, but at the same time does not, because it can only be determined by reference to some outside theory. It has no independent existence as existence.

Now, my feeling in the past was that the utter indeterminacy of law made it somewhat of a non-entity, without any kind of existence. However, even phenomenologically, the law seems to persist. Within our minds we struggle against the Law, perhaps as a way to resist the gaze of a popular paradigm, or else to protect what we perceive the popular view of the Law to be from a minority view. (Critical Phenomenology of Judging, Duncan Kennedy, p. 53).

Therefore, the Law does have some kind of existence, even if it is a contingent existence. It occurs to me now that a critical approach does not deny the existence of the Law; Rather, I accept that the Law's has several beings, with no apparent way to rank which theory controls. Because, for instance, the standards by which a textualist would judge an ontology of the Law are are incommensurate with the standards which a pragmatist would use to judge the same interprative paradigm. Because there is no intervening, superseding Master standard which can authoritatively say what the Law is, we are left with many equally suitable definitions for what the law is. As a result, the ontology of the law is dependent on what legal theory one accepts.

From here it is clear that a critical approach gives up on the impossible game of saying which theory is best, because there is no objective plane from which to view the multiplicity of theories. A critical approach is a pluralistic approach which accepts as given every theory of what the law is, especially contradicting theories. Then, going from there one must weigh options, make arguments, and render decisions. A pluralistic approach is ultimately a pragmatic approach, but also one that accepts the limits of discourse, and as such recognizes that at the bottom of each decision is an act of pure will; therefore, whatever binds in the law is internal to the subject (i.e. the gaze, desire for certainty, fear of censure, etc.): The subject cannot be detached from the unit of analysis.

I am the Law. But the Law is not free.

First Semester Law School Stifles Critical Thinking

I thought law school would be creatively challenging. Instead, I have never experienced anything as stifling of critical thinking as the first semester of law school. Is my experience unique, or do other people feel this way? I had professors who really believed that the law had a correct answer for every question. There was no room for indeterminacy in their minds, and questioning or interrogating legal rules was discouraged. Were they really that naive, or do time constraints train legal teachers to treat doctrine as though it is solid and indisputable.

This semester is coming along much better. Pierre Schlag and Ahmed White are much more interested in delving into the aporiatic sea that is the law and taking a look about. As such, my classes are much more enjoyable, but I feel like my mind has been handicapped by last semester's teachers and I'm having a little trouble keeping up with Schlag and White.

Constitutional Law SEX

Part of the reason I originally applied at CU Law was because I am enamored with Pierre Schlag whose writings I find to be quite titillating. I've written about some of his ideas on this blog before. And today I got to meet Schlag.

Today I had my first class with Pierre Schlag. He was on sabbatical in Europe for my first semester, and so very few of my senior classmates knew much about him, which as a fan seemed to further enhance his mystique. Despite my heightened expectations, he did not disappoint. He dresses a little rockstaresque in a blazer and jeans with a tuft of chest hair sticking out of his low-buttoned shirt. He has a mullet. And he speaks with subtle accent which adds to his gravitas without distracting from what he says.

He was quite theatrical and moved about the classroom like he had a nervous tick. Half-way into the lecture he excitedly gushed "Constitutional law is about SEX," rousing several people from slumber he then continued less loudly, "and race, allocation of power between states and the Federal government, and of power between the branches."

Schlag tries to make constitutional law as sexy as possible, but I'm afraid no one will ever get hot thinking about this subject.