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Free-Market Orientalism

26 May

From an interview with Friedrich von Hayek in 1983 (p. 490):

Robert Chitester: Going back to the question I asked you about people you dislike or can’t deal with, can you make any additional comments in that regard, in terms of the characteristics of people that trouble you?

Hayek: I don’t have many strong dislikes. I admit that as a teacher—I have no racial prejudices in general—but there were certain types, and conspicuous among them the Near Eastern populations, which I still dislike because they are fundamentally dishonest. And I must say dishonesty is a thing I intensely dislike. It was a type which, in my childhood in Austria, was described as “Levantine”, typical of the people of the eastern Mediterranean. But I encountered it later, and I have a profound dislike for the typical Indian students at the London School of Economics, which I admit are all one type—Bengali moneylender sons. They are to me a detestable type, I admit, but not with any racial feeling. I have found a little of the same amongst the Egyptians—basically a lack of honesty in them.

H/t loyaltothegroupofseventeen (via Mark Ames)

Reality Bites

13 May

According to Cass Sunstein, studies in psychology and behavioral economics show that 80% of the population is “unrealistically optimistic.” When it comes to their own actions and life prospects, people tend to have unwarranted expectations that things will work out well for them. The other 20%? The realists? They “include a number of people who are clinically depressed.”

The Gender Gap in Political Theory

13 May

I just wanted to give a quick shout-out to an important new blog—Ms. Perestroika—that’s keeping track of the gender gap in academic political theory. It just started, but already it’s got informative posts on recent job searches and hires, the publication record of Political Theory, whose books are getting reviewed and by whom, and the composition of panels at the Western Political Science Association. This seems like an important initiative, so I wanted to make sure folks knew about it.

Machiavelli: The Novel

8 May

For all you readers, teachers, and students of Machiavelli:

There’s a wonderful graphic artist up in Boston named Don MacDonald who wrote a graphic novel Machiavelli. The aim of the novel, beyond its aesthetic and literary qualities, is to bring the scholarly knowledge about Machiavelli that we in the academy have been accumulating over the years—about his republicanism, his humanism, his literary excellence—to the public. That Machiavelli was not, as a famous book would have it, a teacher of evil, that he was not especially Machiavellian, and that his teaching was not especially Machiavellian, at least as we’ve come to understand that term.

Anyway, Don is now launching a Kickstarter campaign in order to raise money for the conversion of the novel from an online text, which is what it is now, into a printed text, an e-book, and a website. I don’t often make pitches for you to contribute money, but this is a worthy cause. One that’s especially dear to me, as a teacher and reader of Machiavelli.

Please make a contribution.

Clarence Thomas’s Counterrevolution

5 May

What follows is the talk I gave at the University of Washington this past weekend on my paper about Clarence Thomas: “Smiling Faces Tell Lies: Pessimism, Originalism, and Capitalism in the Jurisprudence of Clarence Thomas.” The paper is still incomplete. I only managed to write about Thomas’s theories of racism and how they intersect with his philosophy of constitutional interpretation. In the coming months, I intend to expand the paper to talk about Thomas’s views on capitalism, and how they inform his jurisprudence about the Commerce Clause, the Takings Clause, and more. Ultimately, this paper will be published by the University of Chicago Press in a volume on African-American political thought, edited by Melvin Rogers and Jack Turner. Other contributors will include: Cedric Johnson on Huey Newton, Nikhil Singh on Malcolm X, Lawrie Balfour on Toni Morrison, Michael Dawson on Marcus Garvey, Naomi Murakawa on Ida B. Wells, Jason Frank on Langston Hughes, Tommie Shelby on Richard Wright, Danielle Allen on Ralph Ellison, and many many more. It’s going to be fantastic. But until then, here’s my talk on Clarence Thomas.

• • • • • 

Yesterday, Nikhil Singh said that more than any other figure in the African American canon, Malcolm X is someone who everyone thinks they know. Clarence Thomas, I’ve discovered in the past six months, is also a figure who everyone thinks they know. In the interest of dispelling that expectation, which I suspect many of you share, I’d like to present five facts about Clarence Thomas that perhaps you didn’t know.

  1. The first time Clarence Thomas went to Washington, DC, it was to protest the Vietnam War. The last time that Clarence Thomas attended a protest, as far as I can tell, it was to free Bobby Seale and Erikah Huggins.
  2. Clarence Thomas does not believe in color-blindness: “I don’t think this society has ever been color-blind,” he said in 1985, in the third year of his tenure as head of the EEOC. “I grew up in Savannah, Georgia under segregation. It wasn’t color-blind and America is not color-blind today…Code words like ‘color-blind’ aren’t all that useful.” Or, as he told Juan Williams in 1987, “there is nothing you can do to get past black skin. I don’t care how educated you are, how good you are—you’ll never have the same contacts or opportunities, you’ll never be seen as equal to whites.”
  3. When Clarence Thomas was in college he memorized the speeches of Malcolm X; two decades later, he could still recite them by heart. “I’ve been very partial to Malcolm X,” he told a libertarian magazine in 1987. “There is a lot of good in what he says.”
  4. There’s a law review article about Clarence Thomas that’s called “Clarence X?: The Black Nationalist Behind Justice Thomas’s Constitutionalism.”
  5. Clarence Thomas resents the fact that as a black man he’s not allowed to listen to Carole King.

Now, the truth is that there’s nothing all that surprising about the fact that Clarence Thomas is black and conservative. There’s a long tradition of black conservatism in this country. And from Edmund Burke to Ayn Rand, conservatism always and everywhere has been the work of outsiders, men and women who hail from the peripheries or margins of the national experience.

Nor, in the end, is Clarence Thomas’s early engagement with black radicalism all that surprising. After all, one of the great clichés of the twentieth century is the young left-wing radical graduating into middle-aged conservatism. And, of course, as Cedric Johnson, Michael Dawson, and other scholars have reminded us, there’s a deep affinity between conservatism and parts of the Black Power/Black Nationalist tradition.

But here, I think, is what is surprising about Clarence Thomas: First, he’s a Supreme Court justice who has managed in his jurisprudence to incorporate rather than repudiate some of his early commitments to Black Nationalism and Black Power; I think it’s fair to say no other Supreme Court justice has ever done that. And, second, Thomas is a constitutional originalist, and a rather radical one at that. Unlike any other justice—not Scalia, not Roberts, not Alito—Thomas wants to restore the Constitution to the meaning it had in 1789.

How Thomas has been able to marry an incredibly bleak vision of the black past, a vision rooted in black nationalism, to a document that is not only the fountainhead of that past but is also, on his account, the source of an alternative black future—not, as Thurgood Marshall and other liberal constitutionalists would have it, because it is a “living Constitution,” but precisely because it is dead: that is the basic puzzle of Clarence Thomas and what makes him, I think, more interesting than many of us realized.

In my paper, I document both Thomas’s involvement as a younger man in the broad milieu of Black Nationalism and how that involvement carries over into his jurisprudence. I use the phrase “broad milieu” deliberately. I don’t want to overstate the depth or intensity of his involvement, and I don’t want to posit a specificity, a precise location, to that involvement. Reading Cedric Johnson’s paper on Huey Newton, which Cedric presented yesterday, one sees this deep texture and particularity to the different arguments within the Black Power movement. You don’t see that in Thomas. Instead you see someone who breathed in the broader atmosphere of Black Power and Black Nationalism, and never, I argue, stopped entirely breathing it. Or at least never stopped breathing part of it.

Specifically, what I think Thomas took away from that early engagement are two ideas. First, not only is racism a perdurable element of the American experience—and I want to stress that Thomas’s concern, unlike that of more internationally minded figures like Newton, Malcolm X, or Angela Davis, is with racism as an American experience—but it is also a protean and often hidden element of that experience.

Thomas believes that racism is so profoundly inscribed in the white soul that you’ll never be able to remove it. You see this belief in these quiet, throwaway lines in his opinions, which if you’re reading too fast you’ll miss. In 1992, in one of his early cases, Georgia v. McCollum, Thomas stated, “Conscious and unconscious prejudice persists in our society. Common sense and common experience confirms this understanding.” In Zelman v. Simmons-Harris (2002), he wrote, “If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination’s effects.” That “if” is a conditional only in the grammatical sense – that is, it governs the phrase that comes after – but not in the historical sense. Thomas’s point is that society cannot in fact end discrimination.

Racism is so profoundly inscribed in the white soul, as I’ve said, that you also have to dig deep in order to see its full extent. The deeper you dig, the closer you get to its beating heart. The overt bigotry of the South is merely the surface; its true depths are to be found in the North. Not among the angry white faces throwing rocks in South Boston, but in the genteel white smiles of liberal institutions like Yale Law School, which Thomas attended.

In his memoir, which came out in 2007, Thomas described the difference thus:

At least southerners were up front about their bigotry; you knew exactly where they were coming from, just like the Georgia rattlesnakes that always let you know when they were ready to strike. Not so the paternalistic big-city [Northern and liberal] whites who offered you a helpful hand so long as you were careful to agree with them, but slapped you down if you started acting as if you didn’t know your place. Like the water moccasin, they struck without warning.

If you’re hearing a distant echo in that comment, you should. Think back to that famous passage in Malcolm X’s “Chickens Come Home to Roost” speech:

 The white conservatives aren’t friends of the Negro either, but they at least don’t try to hide it. They are like wolves; they show their teeth in a snarl that keeps the Negro always aware of where he stands with them. But the white liberals are foxes, who also show their teeth to the Negro but pretend that they are smiling. The white liberals are more dangerous than the conservatives; they lure the Negro, and as the Negro runs from the growling wolf, he flees into the open jaws of the “smiling” fox.

You’ve got the same animal imagery; the same emphasis on deceit and insincerity as the crucial marker.

And here we come to the second idea that Thomas develops from his early engagements. And that is that the evil of the color line lies less in the hierarchies of white privilege and the humiliations of black subordination than in the deception and deceit that racism imposes upon blacks and whites alike. Unlike many in the Black Power tradition, or even in the black conservative tradition, Thomas seems never to have developed a political or economic analysis of racism. His is primarily a moral account of racism. Racism is shape-shifting, often hidden; that is its poison. The antidote to racism, the moral answer to it, is race sincerity: being truthful with and to oneself, and seeking truth, in however malignant a form, in and from one’s enemies. The goal is not, and never can be, color-blindness. The goal is racial candor or race sincerity, achieving a congruence between inner feeling and outward form.

For black Americans, that means giving up on the idea of racial authenticity, that there’s an official way to be black: i.e., liberal, Democrat, etc. Hence, the black conservative who listens to Carole King. “How could a black man be truly free if he felt obliged to act in a certain way,” Thomas asks in his memoir, “and how was that any different from being forced to live under segregation?” Now that nod to segregation can sound pretty cheap. But I think it’s a sincere statement from Thomas of the psychological and moral terms in which he understands the harm of racism: that it imposes a false, outward self upon the true, inner self.

For white Americans, race sincerity means owning up to the racism that lurks within. Particularly among white northern liberals, who find in programs like affirmative action a more palatable way to express their racist condescension toward blacks. So many of Thomas’s opinions about affirmative action have far less to do with any commitment to state neutrality or color-blindness—or even a formalistic comparison between the use of race under Jim Crow and today—than they do with a belief that affirmative action is really just the sneaky face of contemporary racism. As he wrote most recently in the Fisher v. University of Texas decision, which was in 2013, “The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.”

While Thomas’s two beliefs—in race pessimism, a belief in the perdurability and protean quality of racism; and race sincerity, the need to be on the outside what you are on the inside—come out of the black freedom movements, the role they assume in his political theory and jurisprudence reflect the waning power of those movements. Like many counterrevolutionary arguments, Thomas’s beliefs about race are symptomatic of a movement in recession or retreat. In three ways.

First, coming to consciousness at the end of the Black Freedom struggle, Thomas had and has difficulty seeing the achievements of that struggle as black achievements. In Thomas’s eyes, civil rights, anti-discrimination, affirmative action, integration: these were not the work of African-Americans, acting on their own behalf, wrangling power from a power structure that refused to give it to them. They are instead the poisoned apples of white liberals who prefer to give handouts rather than to cede power. Like many counterrevolutionaries (Tocqueville comes to mind), Thomas came too late to the revolution, too late to see the self-formation and self-assertion at work in movements of collective struggle. All he can see is a movement in retreat, and to his mind, the class of passive black dependents, waiting on the largesse of their white patrons of state, that the movement has left in its wake. As he said of his sister, in one of his nastier and truly vicious remarks, “She is so dependent [on the state] that she gets mad when the mailman is late with her welfare check.”

Second, Thomas doesn’t believe in political or collective action. The answer to the persistence of racism is to accept it and to figure out a way around it. A way, however, for individuals only: In Georgia v. McCollum, which I mentioned earlier, the answer to the persistence of white racism in society is to give individual black criminal defendants the right to strike down potential white jurors merely because they are white. Trying to organize collectively to defeat or even confront and call out racism is hopeless. As he told Juan Williams in 1987:

Blacks are the least favored group in this society. Suppose we did band together, group against group—which group do you think would win?…Which group always winds up with the least? Which group always seems to get the hell kicked out of it? Blacks, and maybe American Indians.

Third, the only space for African-American agency is in the market, particularly in the labor that each generation performs on behalf of the next. Where politics is a sphere “you don’t have any control over,” individual action in the market—which Thomas believes, it’s important to stress, can be performed on behalf of the black community—is a space where you can say, “I am in control of what I do today.” This is not an enlarged or particularly hopeful conception of agency; it’s radically circumscribed and contained. The political realities of race cannot be overcome; the best you can do is make your way within those constraints, and whenever or wherever possible, apart from those constraints. That “apart” explains Thomas’s willingness to indulge and support, even at the level of the state, all-black institutions.

This is not the sunny face of Reagan; it’s not morning in Clarence Thomas’s America. It’s twilight: we’re still living in the shadow of Jim Crow. The two most consistent words you’ll find in Thomas’s work are “sustain” and “survive.” The story of black America is a story of black people surviving centuries of horror, from slavery to Jim Crow, by taking care of themselves and each other, and trying to keep away as much as possible from the cruelty around them.

And this, I think, may be why Thomas has such faith in the project of originalism. Where other voices in the Black Freedom struggles either rejected the Constitution or found faith in its evolutionary openness—that is, in the interpretive distance the country has traveled since 1789—Thomas finds a glimmer of hope in the return to its original meaning. The Constitution may be the document of a slave society, but African-Americans survived slavery. By returning to the original meaning of that document, Thomas believes they may find the tools to survive slavery’s aftermath as well.

The Calculus of Their Consent: Gary Becker, Pinochet, and the Chicago Boys

5 May

The economist Gary Becker has died. Kieran Healy has a great write-up on Foucault’s engagement with Becker; Kathy Geier has a very smart treatment of, among other things, feminist critiques of Becker’s theory of the family. And some more personal reminiscences of taking a class with Becker.

Kathy mentions this article that Becker wrote in 1997 about the Chicago Boys who worked with the Pinochet regime. Becker’s conclusion about that episode?

In retrospect, their willingness to work for a cruel dictator and start a different economic approach was one of the best things that happened to Chile.

No real surprise there. Many free-marketeers, including Hayek, either defended the Pinochet regime or defended those who worked with it.

But the Becker piece reminded me of that infamous Mont Pelerin Society (MPS) conference in Viña del Mar in 1981, about which I wrote at length two summers ago. The MPS is an organization of economists, philosophers, and assorted action intellectuals and businessmen dedicated to spreading the free market gospel across the globe. In the late 1970s, at the height of Pinochet’s repression, Hayek and a few grandees from Chile began discussions  about holding the MPS’s annual conference in the seaside city where the coup against Allende had been planned. The purpose in meeting there would prove avowedly propagandist. As the organization’s own newsletter later acknowledged, the conference provided participants with an opportunity

for becoming better acquainted with the land which has had such consistently bad and misrepresenting press coverage (and, perhaps for that reason, it was appropriate to have Reed Irvine, head of Accuracy in Media as one of the first speakers in the first session).

Becker was originally targeted or slated to speak on a conference panel titled “Education, Government or Individual Responsibility?” His name appears on an early agenda with a “T” next to it. For “tentative.” But Becker either never confirmed or pulled out. No matter: Milton and Rose Friedman, along with James Buchanan and Gordon Tullock, were there to show the flag—and the calculus of their consent.

What is Enlightenment when the State is Schizophrenic? It’s The Jewish Question!

29 Apr

The New York Times reports on a complicated Supreme Court case involving the First Amendment rights of a public employee in Alabama (h/t Mark Ames). The case boils down to this: Edward Lane, a state employee, was subpoenaed to testify at a federal trial about the corruption of another state employee. As a result of his testimony, Lane was fired by his boss. Lane claims that his First Amendment rights were violated; the lower courts have ruled against him. Now the Supreme Court is considering the case.

But this in the Times report is what caught my eye:

The federal appeals court in Atlanta said it was unnecessary to decide who was right because public employees have no First Amendment protections in any event for statements they make as part of their official duties.

Since “the record fails to establish that Lane testified as a citizen on a matter of public concern,” the appeals court said in an unsigned opinion, “he cannot state a claim for retaliation under the First Amendment.”

While it seems that the Supreme Court intends to uphold the claim that employees like Lane do have such First Amendment rights (though it’s not clear whether the Court will uphold the claim that Lane himself had such a right at the time of his testimony, or at least that it was a “clearly established” right at that time), I’m struck by this disjuncture between the First Amendment rights one is said to have as a citizen versus the First Amendment rights one does not have as an employee of the government. The federal appeals court puts the contrast clearly:

Although the district court couched its decision in terms of qualified immunity, it determined that Lane’s speech was made pursuant to his official duties as CITY’s Director, not as a citizen on a matter of public concern. We reach the same conclusion.

To establish a claim of retaliation for protected speech under the First Amendment, a public employee must show, among other things, that he “spoke as a citizen on a matter of public concern.” See Garcetti v. Ceballos, 126 S.Ct. 1951, 1958 (2006) (a decision further restricting public employees’ protected speech). A government employee whose speech is made pursuant to his official duties is not speaking as citizen. See id. at 1960; Battle v. Bd. of Regents, 468 F.3d 755, 760 (11th Cir. 2006). Even if an employee was not required to make the speech as part of his official duties, he enjoys no First Amendment protection if his speech “owes its existence to [the] employee’s professional responsibilities” and is “a product that ‘the employer itself has commissioned or created’”. See Abdur-Rahman v. Walker, 567 F.3d 1278, 1286 (11th Cir. 2009)

I’ve reported on this blog many a time about the absence of First Amendment protections for workers in the private sector. And though I’ve talked less about this, some of that also holds true for workers in the public sector.

But what strikes me about this case is how the state’s investment in maintaining the hierarchical relationship of employer to employee (or, at least, its investment in not extending basic constitutional rights to the employee) creates a schizophrenia within the state. On the one hand, the state compels Lane to testify at a federal trial about the corruption of a public employee because, presumably, the state has a vested interest in that testimony; on the other hand, the state does not believe its own constitutional protections protect Lane when he performs what the state compels him to perform. As the federal appeals court puts it:

That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment.

According to the Times, even Chief Justice Roberts seemed to think this was a bridge too far:

Chief Justice John G. Roberts Jr. appeared sympathetic to Mr. Lane. “What is he supposed to do?” he asked Mark T. Waggoner, a lawyer for Mr. Franks [the boss who fired Lane]. If Mr. Lane testified truthfully, the chief justice said, he could be fired. If he lied or failed to appear, he could be punished.

Mr. Waggoner said that he “would never suggest that anybody not comply with a subpoena, comply with an investigation or testify truthfully.”

The chief justice responded, “But you are suggesting he can be fired if he does it.”

The whole distinction between the freedom we enjoy as citizens versus the non-freedom we suffer as private individuals (albeit individuals employed by the government) reminds me of Kant’s essay “What is Enlightenment?” Attempting to delineate the various uses and imports of reason, Kant make a sharp distinction between the importance and protection of reason in the public sphere and the absence of that protection in the private sphere. More specifically, he makes a distinction between the public use of reason and the private use of reason.

For enlightenment of this kind, all that is needed is freedom. And the freedom in question is the most innocuous form of all—freedom to make public use of one’s reason in all matters. But I hear on all sides the cry: Don’t argue!The officer says: Don’t argue, get on parade! The tax official: Don’t’ argue, pay! The clergyman: Don’t argue, believe!…All this means restrictions on freedom everywhere. But which sort of restriction prevents enlightenment, and which, instead of hindering it, can actually promote it? I reply: The public use of man’s reason must always be free, and it alone can bring about enlightenment among men; the private use of reason may quite often be very narrowly restricted, however, without undue hindrance to the progress of enlightenment. But by the public use of one’s own reason I mean that use which anyone may make of it as a man of learning addressing the entire reading public. What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.

In other words, rather than distinguishing between institutional spheres of public versus private, we might say that Kant is distinguishing between our different orientations of mind. When we reason publicly, we are thinking of the public; when we reason privately, we are thinking about narrower matters. Regardless of where we are (though I think Kant believes that where we are matters a great deal).

But even if we adopt that more generous reading, one could make the case that the judges on the federal appeals court are acting like good Kantians. As they write:

Although not dispositive, we consider it pertinent that the subject matter of Lane’s testimony touched only on acts he performed as part of his official duties. See Abdur-Rahman, 567 F.3d at 1282. As in Morris, nothing evidences that Lane testified at Schmitz’s trial “primarily in [his] role as a citizen” or that his testimony was an attempt to comment publicly on CITY’s internal operations.

In other words, if Lane had been speaking out or to the public about taxes, say, or even about government corruption, his First Amendment rights might have come into play (the same, of course, cannot be said if he were an employee in the private sector). But because he was speaking about matters pertaining and pursuant to his job, his First Amendment rights are irrelevant. Even though the matters he was speaking of were of vital interest to the government and the public. The fact that he was speaking as a job-holder about his job rather than as a citizen about public issues is what matters.

This distinction, of course, was precisely what Marx was targeting in his essay “On the Jewish Question.” Thanks to Piketty, Marx the economist is back in the news. But before he turned to economics, Marx was a political theorist of the disjunctures the modern state creates between our emancipated lives as public citizens and our dominated lives as private men and women. Though he was mostly focused in “On the Jewish Question” on the question of religion (and sometimes in yucky ways), the distinctions he drew there apply more generally to the divisions between private man—residing in “the sphere of human needs, labour, private interests and civil law”—and “political man,” the citizen who “is only abstract, artificial man, man as an allegorical, moral person.”

Liberalism, Marx claimed, had emancipated the second (sort of); the real task was to emancipate the first.

Human emancipation will only be complete when the real, individual man has absorbed into himself the abstract citizen; when as an individual man, in his everyday life, in his work, and in his relationships, he has become a species-being; and when he has recognized and organized his own powers (forces propres) as social powers so that he no longer separates this social power from himself as political power.

Tell it to the judge.

Update (5:30 pm)

My CUNY colleague Ruthann Robson has a useful analysis of the case over at SCOTUSblog. (By the way, once I’m in a position of power , I’m going to ban all uses of SCOTUS and POTUS and FLOTUS and other OTUS’s. I feel about those words the way I feel about the phrase public intellectual.)

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