Individual Rights are Trumps

Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them. This characterization of a right is, of course, formal in the sense that it does not indicate what rights people have or guarantee, indeed, that they have any.  But it does not suppose that rights have some special metaphysical character…

Ronald Dworkin, Taking Rights Seriously

Top Five Posts that No One Read: 2012

I may post the top posts from the past year based on views, but I first thought I might do a list of posts that didn’t get much traffic that I wish had. Here they are, in no particular order. [This post edited slightly]

Law and the Politics of Legitimacy

The word ‘law,’ itself, is always a primary object of contention. People argue and fight over ‘what is law’ because the very term is a valuable resource in the enterprises that lead people to think and talk about law in the first place….On a political level, it connotes legitimacy in the exercise of coercion and in the organization of authority and privilege.  On a philosophical plane it connotes universality and objectivity….The struggle over what is ‘law’ is then a struggle over which social patterns can plausibly be coated with a veneer which changes the very nature of that which it covers up. There is not automatic legitimation of an institution by calling it or what it produces ‘law,’ but the label itself is a move, the staking out of a position in the complex social game of legitimation. The jurisprudential inquiry into the question ‘what is law’ is an engagement at one remove in the struggle of what is legitimate.

Robert M. Cover, “The Folktales of Justice: Tales of Jurisdiction.” (pdf)

On Facts in Politics

Political and ideological debate consists very largely of efforts to win acceptance of a particular categorization of an issue in the face of competing efforts in behalf of a different one; but because participants are likely to see it as a dispute either about facts or about individual values, the linguistic (that is, social) basis of perceptions is usually unrecognized.  The authoritative status of the source of a categorization makes his or her definition of an issue more readily acceptable for an ambivalent public called upon to react to an ambiguous situation.

Murray Edelman, Political Langauge: Words That Succeed and Policies That Fail.

An Electoral Mandate is a Claim, Not a Fact

From four decades of intensive research on voting behavior, political scientists know a great deal about the determinants of individual voting choices.  We know much less, however, about elections—the institutions in which these individual choices take place.  This is a serious shortcoming, for it is elections that link voters to governance.  The nature and quality of this linkage has long been a primary concern in the study of politics, especially democratic theorists.  To some, the only purpose of elections is the permit voters to choose among political leaders; in short, that voters cannot or should not control the choice among politics in any more direct way.  Many others, finding such limited control insufficient for a democracy, seek to show that elections can and should have policy meaning if subsequent government programs are to be seen as legitimate.  [snip]

The idea of a mandate…plays a major role in the justification of elections as institutions and in the effort to construct explanations for particular election results.  It helps also to reassure citizens that their primary forms of political participation–the vote-had an impact on the policies to which they will be subjected.

These words were written by Marjorie Randon Hershey in 1996.  They are, admittedly, a bit disturbing.  I’d like to believe things have improved since that time, but I’m not so sure.  Since the 1950s (at least) political science has looked to individual formal decisions as the key to understanding politics, and often towards some internal factors, be they interests, attitudes, or ideas, as the causes of those decisions.  Votes, court rulings, roll calls–these are the sorts of things political science has focused on. Things which fit comfortably with this sort of approach were foregrounded, things which did not were obscured.  While plenty of criticisms of this approach have been voiced, the basic model has remained.  A certain idealized view of democratic elections serves the same role for political science does for markets–it is the starting point no matter how much research suggests it is not  a very useful way of making sense of the world.

What’s more, there is a presumption–especially in the field of judicial politics–that elected officials were presumptively legitimate, whereas judges, are not, especially when they challenge the decisions of elected officials (i.e. when they exercise judicial review to strike down a law or executive action) .  That’s not true on either account.  Elected officials may find their legitimacy challenged, and judges often act to strike down laws without controversy.   This notion confuses democracy as a normative idea with democracy as an empirical explanation.

The standard move for a political scientist when confronted with the idea that an idea is an essentially contested concept, one that necessarily blends normative and empirical dimensions, one that, as a result, cannot be settled with facts, is to abandon the idea.  That which cannot be settled should be abandoned for terms that can be operationalized.  But this means avoiding talking about things that political actors take very seriously.  As Hershey says:

No matter how difficult it may be to agree on a definition of mandate or to locate one in practice, it remains a powerful concept in political discourse.  Politicians claim mandates in order to legitimize bold actions, journalists use the term frequently in interpreting elections, and scholarly studies continue to focus on various aspects of the idea of a mandate.  In short, mandates are a central democratic myth–”an unquestioned belief held in common by a group of people that gives events and actions a particular meaning.”  As a myth, the idea of a mandate gives meaning to election results and thus has a potentially important effect on the abilities of administration to govern.

I started to think of this excellent piece as I read various discussions of what the meaning of the upcoming presidential election would be from a few left leaning sources. While they disagreed on the answers, all asked the same questions–would there be a mandate, what would its content be?  Lost here is that a mandate is not a thing that exists, like a chair or an apple, but a claim.  It results from politics, as politics is largely a contest of claims.

So the better question is, what claims will be made in terms of the meaning of the elections, and which ones will be successful?  How would the two main parties interpret it, and how would the media treat those claims?  For what it’s worth, I think the right largely appreciates this. I doubt they would ask these questions.  If Romney were to win, they will claim it’s a mandate for conservative policies.  If Obama wins, no matter how large, they will claim it means little.  How about the other side?  I doubt the Democrats will claim any victory, no matter how large, is a mandate for liberalism.  Those who hold the reins of power in the party have long been neoliberals.

As a result, no amount of polling evidence would lead to voters being seen as demanding some liberal outcome.  Any such claim would not be seen as ‘reasonable’, but rather ‘political,’ in large part because it would be outside the bounds of what either party would accept.

This is why I get frustrated with repeated efforts to show that Americans don’t support this, or American oppose that, by those who seek to challenge far right positions or bipartisan consensus.  It quite simply doesn’t matter.  Either activists mobilize those opinions by engaging people to hold them to act, which has to be something more than voting, or such opinions will have no impact. Citing polls won’t change that (although polls can and should inform efforts to mobilize people).

Scholars and activists would do well to understand that democracy isn’t a particularly useful analytic framework, but that it is a powerful myth, that can be mobilized.

The Uses, and Abuses, of the Term ‘Markets’

When you come down to it, the word market is a negation.  It is a word to be applied to the context of any transaction so long as that transaction is not directly dictated by the state.  The word has no content of its own because it is defined simple, and for reasons of politics, by what it is not.  The market is nonstate, and thus it can do everything the state can do with none of the procedures or rules or limitations.  It is a cosmic and ethereal space, a disembodied decision maker–a Maxwell’s Demon–that, somehow and without effort, balances and reflects the preferences of everyone participating in economic decisions.  It is a magic dance hall where Supply meets Demand, flirts and courts; a magic bedroom where the fraternal twins Quantity and Price are conceived.  It can be these things precisely because it is nothing.

Because the word lacks any observable, regular, consistent meaning, marvelous powers can be assigned to it.

James K. Galbraith, The Predator State

Agreeing with Hayek: ‘Interference’ is Incoherent

The question whether the state should or should not ‘act’ or ‘interfere’ poses an altogether false alternative, and the term ‘laissez faire’ is a highly ambiguous and misleading description of the principles on which a liberal policy is based. Of course, every state must act and every action of the state interferes with something or other.  Friedrich Hayek, The Road to Serfdom via Bernard Harcourt

Economic Rights Must Be Contested

Mike Konczal has a good post asking What Policy Agenda Follows From “You Didn’t Build That?” It’s well worth reading (and not just for all the great FDR quotes), and I agree wholeheartedly with the rejection of the idea that economic rights are pre-political and natural.  But I have one objection.

And so “liberty” for one comes at an expense of “liberty” for another. Since there’s no neutral way for the government to set these rules, certainly no abstraction like “economic liberty” to guide the path, the question over social control of property, as Leonard Trelawny Hobhouse put it, is “not of increasing or diminishing, but of reorganizing, restraints.” The issue here isn’t that everything is up for grabs – it’s that there is no “neutral,” and appealing to higher abstractions as “rights” or “ownership” don’t get you anywhere.

Now it’s true that there’s no neutral way to settle these questions.  But politics is rarely about neutral terms.  Liberty, like freedom and equality, are what Gallie called inherently contested concepts (pdf).  They are terms that have a evaluative dimension, that have a relatively uncontested core, but extensions will be disputed.  As Lakoff has long argued, it won’t do to abandon terms that are contested.  That just allows conservatives to advance their own vision of these terms.  It strikes me that conservatives have long since figured out that they can make anything contested simply by contesting it, which is a central way they seek to change the boundaries of the possible.

Because the New Deal ultimately rested on the Constitutional foundation of the Commerce Clause, it’s easy to forget that activists didn’t.  They relied instead on a contested version of economic freedom,  drawing on the Thirteenth Amendment, barring slavery and involuntary servitude, to justify labor rights and government efforts to manage the economy to ensure it met human needs and human dignity.* (By the way, Balkin and Levinson have a new paper on The Dangerous Thirteenth Amendment I haven’t had a chance to check out but looks very interesting).

The conservative view of liberty is one of  domination–that employers should be free to dominate their employees, that the ability of capital to organize in corporations is a fundamental right but the ability of workers to organize in unions violates the rights of employers, that the right of the rich to further enrich themselves at the expense of workers inheres in the right of property while the right of workers to make enough to live is “socialism.”  Oligarchy unchecked by government or free association by workers.

Personally, I don’t believe that is an attractive view. And I don’t think most Americans think so either. But they rarely hear it put in such stark terms.  Bu they will only hear it if we engage in vigorous contestation. Avoiding contestable terms gets in the way of that, as does allowing the limits of the politics of the day to narrow our own conversations about what is to be done.

*The same thing happened during the Civil Rights Movement, where activists drew on notions of freedom and equality (not just the latter) and the Equal Protection Clause (which clearly requires government to affirmatively use law to protect people, not simply refrain from discriminating itself) but the DOJ and ultimately the Supreme Court relied on the Commerce Clause.