ReligiousLeftLaw.com

Anti-Muslim or Not

Donald Trump tells his base that his immigration policy is anti-Muslim, and more than 90% of the people affected by it are Muslim. The Solicitor General tells the Court that the ban is not anti-Muslim because most Muslims in the world do not fall within it. The question is whether the President gets to have it both ways.

Hate Speech, Strossen, and Waldron: Matsuda to the Rescue

Recently I saw a debate about hate speech at Cornell between New York law professor (and former ACLU President) Nadine Strossen and NYU law professor Jeremy Waldron. Strossen is opposed to the prohibition of hate speech because it amounts to point of view discrimination which she claimed is acceptable only in an emergency. She also maintained that hate speech statutes have been used to censor the minorities they have been intended to protect.

In her recent book on hate speech, Strossen admits that libel law is an exception to the “emergency” principle. The reason is that libel causes harm and it need not be immediate harm to warrant regulation in a wide variety of circumstances. And that is precisely the point of Jeremy Waldron’s book, The Harm in Hate Speech. He argues that hate speech is a form of group libel that threatens the quality of life, the dignity, and the reputation of minority members. It poisons our culture in that it undermines our commitment to human dignity and to inclusion and respect for vulnerable minorities.

What of Strossen’s claim that hate speech statutes have been disproportionately used to target vulnerable minorities? Waldron denies this, but University of Hawaii law professor Mari Matsuda in a justly famous article in the Michigan Law Review argued that hate speech statutes should specifically protect members of historically persecuted minorities (not majority members) and she artfully discussed how to apply that principle. To my surprise, Waldron thought Matsuda’s proposal would violate principle of equality. But it does not violate equality to protect the group that suffers the harm. To protect those who are not stigmatized in the eyes of society would be an overbroad limitation on speech. In my view, Matsuda got it right.

Ilham Dilman: a neglected philosopher (comparatively speaking)

Occasionally one comes across a philosopher who, one believes quite strongly, was unduly neglected when alive, and thus virtually forgotten or ignored after his or her death. Ilham Dilman (November 4, 1930 – January 17, 2003) perfectly illustrates such a case (or at least that’s how it appears from my vantage point). I was surprised to discover some years ago from my dear friend, Nandini Iyer, that Dilman, a philosopher par excellence, taught for a brief period at UC Santa Barbara (I doubt they made an offer to keep him, knowing the philosophical or ideological orientation of the department in those days, although I suspect, with very little evidence, that he got along well with Herbert Fingarette). (Incidentally, I was no less surprised to learn that Kristin Shrader-Frechette once taught in the department as well: for two years, in the Philosophy of Science and Environmental Studies).

Among the titles by Dilman in my “library,” three of them I bought as “used” after being drawn to their cover art while browsing in The Book Den in downtown Santa Barbara many years ago, thereby providing proof of a sort that, at least sometimes, and albeit inadvertently and in part retrospectively, one can judge a book by its cover.

I want to bring to your attention four books in particular by Dilman that treat various dimensions of Freudian psychology and psychoanalysis (sometimes in comparison to what is termed ‘academic,’ ‘scientific,’ ‘empirical,’ or ‘experimental’ psychology, that is, that sort of psychology that dominates the academic discipline in the U.S. and perhaps elsewhere) in a manner that is at once incisive, elegant, and accessible if not simply brilliant (one hesitates to use the latter adjective today, given that such adjectives of assessment and praise are all-too-frequently employed for hyperbolic and rhetorical effect in both public and specialized discourses, thereby diminishing their semantic intent and power):

• Freud and Human Nature (Basil Blackwell, 1983).
• Freud and the Mind (Basil Blackwell, 1984).
• Freud: Insight and Change (Basil Blackwell, 1988)
• Raskolnikov’s Rebirth: Psychology and the Understanding of Good and Evil (Open Court, 2000).

Other works by Dilman (not an exhaustive list):

• Morality and Inner Life: A Study in Plato’s Gorgias (Macmillan, 1979).
• Love and Human Separateness (Basil Blackwell, 1987).
• Philosophy and the Philosophic Life: A Study in Plato’s Phaedo (Macmillan, 1992).
• Existential Critiques of Cartesianism (Macmillan, 1993).
• Free Will: A Historical and Philosophical Introduction (Routledge, 1999).
• Wittgenstein’s Copernican Revolution (Palgrave, 2002).
• Philosophy as Criticism: Essays on Dennett, Searle, Foot, Davidson, Nozick (Continuum, 2011).

My bibliography for Freudian Psychoanalytic Psychology is here.

Bomb Power and the Degradation of the Rule of Law in a Compromised Democratic Polity

[….] “Several lawmakers asserted Sunday that the president should have sought congressional approval for the missile strike, launched in response to reports of deadly poison gas strikes on a rebel-held suburb of Damascus. Congress, however, repeatedly has ducked votes on Syria policy since the fighting began there in March 2011.

But even some people who have expressed vehement public disagreement with Trump’s previous actions voiced support for the strike, which was carried out in coordination with Britain and France. Former CIA Director John Brennan was among those who praised the action as ‘proportional and necessary to send a signal.’ Speaking on NBC’s ‘Meet the Press,’ Brennan, who is now an analyst for that network, said that ‘the administration's actions against Syria were appropriate — and I tend to be a critic of this administration.’” [….]

[….] “At least 1,600 civilians were reported killed in weeks of punishing airstrikes before the main rebel faction in Duma agreed to surrender its last foothold in eastern Ghouta to the government, following the alleged chemical weapons attack. Many of those who survived find the red line drawn by Western governments over a single chemical weapons strike incomprehensible. ‘So it’s OK that I die from barrel bombs, bullets, rocket launchers, hunger, lack of medicine, but it’s not OK if I die from chemical weapons?’ said Bayan Rehan, another activist who recently left the region. ‘What is this idiocy they are offering the Syrian people?’”

First, a few thoughts on President Trump’s exercise of presidential power to set the tone for the rest of the post:

The weak version of the “unitary executive” (constitutional) doctrine of the presidency is disturbing enough from the point of view of democratic theory and praxis, but its dangers become patently obvious in the endeavor to elaborate a “strong” version, one which builds upon the legal scholarship of Steven G. Calabresi and Christopher S. Yoo and comes to fruition in the work of John Yoo (notorious author of the ‘Torture Memos’ and today Emanuel S. Heller Professor of Law at the University of California, Berkeley). Yet we are now witnessing the volatile logical extension and dangerous political conclusion of strong unitary executive theory in the manifestation of the “unilateral” (so to speak) doctrine of executive power. Trump’s presidency, punch drunk on this doctrine, has added injury to insult, exemplifying the unilateral model, albeit in a pathologically hysterical and narcissistic form.

Please see:

• Alford, Ryan. Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law (McGill-Queens University Press, 2017).
• Calabresi, Steven G. and Christopher S. Yoo. The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press, 2008).
• Krent, Harold J. “From a Unitary to a Unilateral Presidency,” Boston University Law Review, Vol. 88, No. 2 (2008): 523-559.
• Wills, Garry. Bomb Power: The Modern Presidency and the National Security State (Penguin Press, 2010).
• Yoo, John. “Unitary, Executive, or Both?” University of Chicago Law Review, Vol. 76, 2009.

In the following I will rely on the expertise and analyses of legal scholars and philosophers to explain why and how the U.S. bombing strikes (in coordination with the U.K. and France) in Syria were blatant violations of both U.S (municipal) constitutional law and international law. Perhaps the most disturbing fact related to acknowledging this manifest illegality is the almost absolute refusal of major mass media sources to address this topic in any significant sense, indeed, TV hosts, commentators and pundits more often than not stood on the sidelines as virtual cheerleaders of this country’s latest bombing campaign. What is worse, the general public by most accounts has lent its explicit and tacit consent, perhaps finding some sort of vicarious satisfaction in bombing a country led by the long-time despot and ruthless war criminal, Bashar Hafez al-Assad. At Opinio Juris, Keven Jon Heller speaks for me as well when he states, at the end of his post:

“I loathe Assad, a murderous dictator who deserves to spend the rest of his life in prison for his innumerable crimes. I understand the desire to something — anything — to prevent further violence against innocent Syrian civilians. I don’t believe, as I said in my response to [Harold] Koh, that attacking Syria would contribute to that goal — particularly if it was limited to aerial warfare, as it almost certainly would be. But even if it would, the prohibition of the use of force still matters. We should not cloak acts that categorically violate that prohibition in a patina of legal respectability.”

*           *           *

“The Unconstitutional Strike on Syria,” by Garrett Epps in The Atlantic, April 14, 2018

The Constitution still requires congressional authorization for an attack on another country. The requirement is not a formality.

[….] “Trump did not have the authority to order any kind of strike on Syria. Congressional authorization was needed before any use of force against Syria; Friday’s attack was unconstitutional. And his pledge that the United States ‘is prepared to sustain this response until the Syrian regime stops its use of prohibited chemical agents’—that is, a unilateral declaration of long-range war aims and a pledge of long-term military involvement—is about as gross a violation of the Constitution as I can think of.

The fact that Trump ordered a one-off missile strike a year ago doesn’t change that calculation. The fact that almost no one in Congress spoke up when he did doesn’t change that calculation. The fact that foreign policy commentators fawned on that decision doesn’t change that calculation.  The Constitution still requires congressional authorization for an attack on another country. The requirement is not a formality. It is in the Constitution for a reason. Congress’s failure to assert its prerogatives is—even though it may have become a craven habit—a matter of life or death for a self-governing republic.

The reason, as I have written before, is that no president—not Barack Obama and not Donald Trump—has the authority under the Constitution to ‘declare war.’ Of all the toxic constitutional developments of the Obama years, by far the most disheartening is this: Obama’s unlawful intervention in Libya garnered strong criticism; but the harshest criticism came when Obama chose to obey the Constitution by asking for congressional authorization to strike Syria. For breaking the mold of presidential unilateralism, he garnered—and continues to garner—the undisguised scorn not only of his political enemies but even of many of his friends. That hostile verdict on his presidential leadership is the clearest sign that we have entered what future historians may describe as a post-constitutional era.

Why, of all the many military misadventures into which Uncle Sam has blundered since 2001, is Syria different? The reason is that, under the Constitution and the War Powers Act, the president has no authority to send military forces into hostilities except after congressional authorization or in response to a direct attack on the U.S. or its forces. The president has no inherent power over war; it is given to Congress. In 2001, George W. Bush grumbled about his supposed executive authority, but went to Congress for approval of a ‘war’ against ‘those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001;’ in 2002, he did the same again, and got approval to ‘defend the national security of the United States against the continuing threat posed by Iraq; and … enforce all relevant United Nations Security Council resolutions regarding Iraq.’ Those resolutions remain, at least technically, in force, and have been used by the Obama and Trump administrations as justification for U.S. efforts on behalf of forces—including some of the Syrian rebels—fighting against the Islamic State, supposedly a ‘successor’ to Al Qaeda.

Republicans in the congressional leadership insist that the 2001 authorization is all that’s needed. ‘The existing AUMF [The Authorization for Use of Military Force (AUMF), Pub. L. 107-40, codified at 115 Stat. 224 and passed as S.J. Res. 23 by the United States Congress on September 14, 2001, authorizes the use of United States Armed Forces against those responsible for the attacks on September 11, 2001 and any ‘associated forces.’ The authorization granted the President the authority to use all ‘necessary and appropriate force’ against those whom he determined ‘planned, authorized, committed or aided’ the September 11th attacks, or who harbored said persons or groups.”] gives him the authority he needs to do what he may or may not do,’ House Speaker Paul Ryan said Thursday. That plough really won’t scour, no matter how you torture the text. The nation of Syria is not the nation of Iraq; and the Syrian government is not Al Qaeda, nor an affiliate, nor a successor, nor anything except a sovereign nation against which the president has decided to go to war.” [….]

*           *           *

Just prior to the coordinated “retaliatory” bombing strikes in Syria by the U.S., the UK and France, Anthony Gaughan at The Faculty Lounge wrote, “If history is any guide, the general public will support Trump’s decision to attack Assad’s regime. 67% of Americans approved last year’s missile strikes on Syria, which reflects a pattern of public support for American bombing campaigns. For example, the Obama Administration’s air strikes in Libya in 2011 received the support of 68% of Americans according to a March 2011 CBS News Poll. Surveys also consistently find high levels of public support for US drone strikes in Pakistan, Afghanistan, Yemen, Somalia, and Iraq. The relatively low-risk posed to American military personnel by air strikes combined with the ‘feel-good’ nature of bombing foreign adversaries have made drone strikes against terrorist cells, and ‘humanitarian’ bombing campaigns against dictators, quite popular with the public.”

Gaughan proceeds to point out that the bombing strikes in Syria continue a U.S. penchant for ignoring and dismissing international law on the use of force (or jus ad bellum more generally):

“Yet, aside from the domestic enthusiasm for bombing raids, it is striking how little concern American presidents give to international law when deciding whether to bomb a country. It’s not just the Trump Administration. For the last 25 years, Democratic and Republican presidents alike have repeatedly bombed countries (and, in the case of Iraq in 2003, invaded and occupied a country for nearly a decade) without a basis in international law for doing so. In each case the public displayed complete indifference to the lack of legal authority for the military operations. 

Consequently, presidents do not even bother any more to make serious legal arguments for dropping bombs on other countries.”

Nonetheless, there is an international law-like justification proffered by the U.S., one that has gained some traction in international law and politics, namely, the moral, legal, and political principle of humanitarian intervention (the various strands of this principle have never been adequately distinguished or made coherent as a triune principle), a principle that is not enshrined in international law and has been routinely invoked in inconsistent and incoherent fashion by a host of states, including most prominently the U.S. Dissatisfaction among legal scholars, practitioners, activists on the ground, and representatives of the less powerful states with the crass exploitation and manipulation of this concept (intended to have normative legal effect), one with patent rhetorical appeal (who could be against anything described as ‘humanitarian’?), has since led to articulation of a possible alternative international norm, Responsibility to Protect (R2P or RtoP). Responsibility to Protect is “based upon the underlying premise that sovereignty entails a responsibility to protect all populations from mass atrocity crimes and [gross or egregious if not systematic] human rights violations,” such as ethnic cleansing, genocide, war crimes, and crimes against humanity, all of which are violations of jus cogens norms, minimally defined as “non-consensual, universal norms concerning what is required of states in international law:”

“In international law, some crimes so clearly harm the international community that they must be proscribed by all societies [hence the need for ‘universal jurisdiction’]. Such crimes are often said to violate jus cogens norms, norms that can be clearly known and understood by all as universally binding. One of the main justifications for prosecuting war crimes, crimes against humanity or genocide is that they violate these jus cogens norms.”

Responsibility to Protect reflects a “global political commitment” insofar as it “was endorsed by all member states of the United Nations at the 2005 World Summit.” The principle has profound conceptual and legal implications for our understanding of sovereignty, armed conflict, human rights, and peace and security in the international system of nation-states.

Gaughan rightly notes that “humanitarian justification” has “become America’s all-purpose rationale for using force against anyone at any time. The pending bombing campaign against Syria is the latest case in point. On Monday night President Trump emphasized the humanitarian necessity of bombing Syria:

‘We can’t let atrocities like we all witnessed, and you can see that and it’s horrible, we can’t let that happen in our world. Especially when we’re able to, because of the power of the United States, because of the power of our country, we’re able to stop it.’

President Trump’s words echo the humanitarian rhetoric of his immediate predecessors. In Bosnia in 1995, Kosovo in 1999, Iraq in 2003, and Libya in 2011 the Clinton, Bush, and Obama administrations, respectively, claimed that preventing humanitarian disasters justified the use of American military force.

For example, in 1999 President Clinton declared that NATO’s campaign against Serbia was necessary to stop ‘the unspeakable brutality in Kosovo’ and ‘restore the Kosovars to their homes with security and self-government.’ In 2003 President Bush declared that by invading Iraq the United States would ‘tear down the apparatus of terror’ and help Iraqis ‘build a new Iraq that is prosperous and free.’ In 2011 President Obama defended his bombing campaign in Libya as necessary to prevent a humanitarian disaster. He declared, ’Some nations may be able to turn a blind eye to atrocities in other countries. The United States of America is different.’

Presidents use the humanitarian rationale for a reason: it resonates with both the general public and Congress. For example, a 2017 article in the Journal of Conflict Resolution by Prof. Sarah Kreps and Sarah Maxey found that ‘the public is more likely to support the use of force for humanitarian purposes than for defending another country — by margins of up to 27 percent.’ Fascinatingly, they found that using a humanitarian justification, rather than a national security argument, is particularly effective for building support among Democrats. As they explained in an excellent Washington Post op-ed last weekend, ‘if Trump decides to further involve the U.S. military in Syria, emphasizing humanitarian needs can build a sense of moral obligation and support from both Democrats and Republicans. Focusing narrowly on U.S. national interests won’t do the trick.’

But there is one important catch when presidents make humanitarian-based arguments for military intervention: humanitarian justifications do not constitute a valid legal basis for military operations. 

Under international law, there are only two internationally agreed-upon scenarios for lawfully using military force against another country. The first is when a nation is engaged in individual or collective self-defense. The second is when an offensive use of force is authorized by a United Nations Security Council Resolution. Neither scenario applies to the proposed attack on Assad’s regime. 

First of all, no Security Council Resolution authorizes a U.S. bombing raid in Syria. Russia, a close ally of Syria and a permanent member of the UN Security Council, supports Assad’s regime and adamantly opposes any attack, even one to enforce the Chemical Weapons Convention that Syrian forces violated by using chemical weapons. 

Russia’s opposition is critically important. There are 5 permanent members of the Security Council—the US, the United Kingdom, Russia, China, and France—and each individually possesses a veto over Security Council resolutions. Article 27 of the United Nations Charter states that ‘decisions of the Security Council . . . shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.’

Although the word ‘veto’ does not appear in the United Nations Charter, the term ‘concurring’ has been interpreted by the 5 permanent members of the Security Council as granting each of them a veto power. Accordingly, Russia has the clear legal authority to block any resolution put before the Security Council.  

In the absence of a Security Council resolution, the only other internationally-recognized legal basis for the United States to use force in Syria is self-defense. Article 51 of the United Nations Charter expressly acknowledges: ‘the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’

The problem, of course, is the United States has not been attacked by Assad’s government. Although a theory of self-defense at least arguably provides a plausible justification for U.S. military operations against ISIS terrorist forces in eastern Syria, the self-defense argument cannot be extended to the Assad regime. Assad has ruthlessly murdered tens of thousands of his fellow Syrians, but he has not taken any hostile act with regard to the United States. 

Thus, no matter how compelling the humanitarian case, the United States would clearly violate traditional understandings of international law by attacking the Syrian government.”

Gaughan’s analysis is spot-on and finds, if you will, collaborative endorsement from such eminent international law professors as Kevin Jon Heller, Mary Ellen O’Connell, Marko Milanovic, and Jack Goldsmith and Oona Hathaway, all of whom have well argued, these “unauthorized armed reprisals are [always] unlawful,” for they “do not fit the exception to the prohibition on the use of force for self-defence,” thus they “violat[e] the jus cogens prohibition of the use of force that is enshrined in Art. 2(4) of the UN Charter.”

While, as Gaughan informed us, the U.S. is suspiciously if not cynically fond of vague and ill-considered invocations of a humanitarian rationale, Milanovic distinguishes the resort to this same rationale by the UK, which alone has “attempted to articulate a justificatory legal argument” based on humanitarian intervention. And although prima facie plausible and rhetorically appealing, it is manifestly weak for any number of reasons, the foremost being that “there is no exception to the U.N. Charter regime for humanitarian intervention.” Professor Milanovic has detailed the precise reasons why the UK’s attempt at justification by way of humanitarian intervention is inconsistent to the point of legal (and, I would add, moral) incoherence.

*           *           *

Further Reading:

• Abiew, Francis Kofi. The Evolution of the Doctrine and Practice of Humanitarian Intervention. The Hague: Kluwer Law International, 1999.
• Arend, Anthony Clark and Robert J. Beck. International Law and the Use of Force: Beyond the UN Charter Paradigm. New York: Routledge, 1993.
• Bellamy, Alex J. Responsibility to Protect: The Global Effort to End Mass Atrocities. Cambridge, MA: Polity Press, 2009.
• Bellamy, Alex J. and Tim Dunne, eds. The Oxford Handbook of the Responsibility to Protect. Oxford, UK: Oxford University Press, 2016.
• Buchanan, Allen. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
• Chatterjee, Deen K. and Don E. Scheid, eds. Ethics and Foreign Intervention. Cambridge, UK: Cambridge University Press, 2003.
• Chesterman, Simon. Just War or Just Peace? Humanitarian Intervention and International Law. New York: Oxford University Press, 2001.
• Evans, Gareth. The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All. Washington, DC: Brookings Institution Press, 2008.
• Fletcher, George P. and Jens David Ohlin. Defending Humanity: When Force is Justified and Why. New York: Oxford University Press, 2008.
• Fox, Gregory H. Humanitarian Occupation. Cambridge, UK: Cambridge University Press, 2008.
• Gaus, Gerald F. Justificatory Liberalism: An Essay on Epistemology and Political Theory. New York: Oxford University Press, 1996.
• Glennon, Michael J. Limits of Law, Prerogatives and Power: Intervention after Kosovo. New York: Palgrave Macmillan, 2001.
• Greenwood, Christopher. Humanitarian Intervention: Law and Policy. Oxford, UK: Oxford University Press, 2001.
• Harriss, John, ed. The Politics of Humanitarian Intervention. London: Pinter, 1995.
• Hoffman, Stanley. The Ethics and Politics of Humanitarian Intervention. Notre Dame, IN: University of Notre Dame Press, 1996.
• Holzgrefe, J.L. and Robert O. Keohane, eds. Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge, UK: Cambridge University Press, 2003.
• Jokic, Aleksander, ed. Humanitarian Intervention: Moral and Philosophical Issues. Orchard Park, NY: Broadview Press, 2003.
• Kennedy, David. The Dark Side of Virtue: Reassessing International Humanitarianism. Princeton, NJ: Princeton University Press, 2004.
• Loughlin, Martin and Neil Walker, eds. The Paradox of Constitutionalism: Constituent Power and Constitutional Form. New York: Oxford University Press, 2007.
• May, Larry. Crimes Against Humanity: A Normative Account. New York: Cambridge University Press, 2005.
• Orford, Anne. Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law. Cambridge, UK: Cambridge University Press, 2003.
• Orford, Anne. International Authority and Responsibility to Protect. Cambridge, UK: Cambridge University Press. 2011.
• Pattison, James. Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? Oxford, UK: Oxford University Press, 2010.
• Tanaka, Yuki and Marilyn B. Young, eds. Bombing Civilians: A Twentieth-Century History. New York: The New Press, 2009.
• Tesón, Fernando R. Humanitarian Intervention: An Inquiry into Law and Morality. Ardsley, NY: Transnational, 3rd ed., 2005.
• Thakur, Ramesh. The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect. Cambridge, UK: Cambridge University Press, 2^nd, 2017.
• Welsh, Jennifer M., ed. Humanitarian Intervention and International Relations. New York: Oxford University Press, 2004.
• Wheeler, Nicholas J. Saving Strangers: Humanitarian Intervention in International Society. Oxford, UK: Oxford University Press, 2000.

The following bibliographies are also relevant: International Criminal Law; International Law; and Violent Conflict & The Laws of War.

Images (from top to bottom):

• The night sky over Damascus (Hassan Ammar/Associated Press)
• The destroyed Scientific Research Center in Damascus (Reuters)
• Protestors demonstrate against any UK military escalation in Syria on Whitehall in London (Reuters)

Oliver Sacks & Psychoanalysis

“In an extraordinary decision, the Library of Congress this week bowed to pressure from angry anti-Freudians and postponed for as long as a year a major exhibition called ‘Sigmund Freud: Conflict and Culture.’ According to a front-page story in The Washington Post, some library officials blamed the delay on budget problems; but others contended the real reason was heated criticism of a show that might take a neutral or even favorable view of the father of psychoanalysis. Some fifty psychologists and others, including Gloria Steinem and Oliver Sacks, signed a petition denouncing the proposed exhibit; as Steinem complained to the Post, it seemed to ‘have the attitude of “He was a genius, but…” instead of “He’s a very troubled man, and….”’ Though the library assured them that the exhibit ‘is not about whether Freudians or Freud critics, of whatever camp, are right or wrong,’ the critics refused an offer to contribute to the catalog or advise on the show.”

This is the opening paragraph from Jonathan Lear’s article, “The Shrink Is In,” The New Republic, December 25, 1995. The entire essay was reprinted (with slight modifications), albeit with a new title: “On Killing Freud (Again),” in Lear’s book, Open Minded: Working Out the Logic of the Soul (Harvard University Press, 1998): 16-32.

I’m sharing this, not only to let you know of an important and compelling article by Lear (assuming you’ve not read it; if you have, forgive my presumption), but because I was taken aback by the fact that Sacks was one of the signatories to the petition. Of course I don’t know what precisely motivated him to add his well-known name—hence, authority—to this document, but it’s rather curious or perhaps even disturbing in light of the fact that Sacks himself saw a psychoanalyst for over 40 years, beginning in 1966 when he was struggling with an inordinate desire for (if not addiction to) amphetamines. In an article on Sacks by Michael Roth* in The Atlantic (May 16, 2015), not long after we learned from Sacks himself that he was suffering from terminal cancer, Roth quotes from Sacks’ “glorious memoir:”

“In brief remarks on his almost 50 years of psychoanalysis, Sacks tells the reader that his analyst, Leonard Shengold, ‘has taught me about paying attention, listening to what lies beyond consciousness or words.’ [In an interview Sacks once described this as listening with a ‘third ear.’] This is what Sacks has taught so many through his practice as a healer and through his work as a writer.”

It is thus clear that in both his personal and professional life that Sacks was deeply indebted to the founder of psychoanalytic therapy. Indeed, Roth writes that “Sacks sees himself in the tradition of Freud and of the Russian neurologist A. R. Luria, medical men who took upon themselves the depiction of the fullness of a patient’s life and not just the course of an illness.” So it remains a bit puzzling that Sacks would have lent his good name to the animus directed at the Library’s planned exhibition.

Incidentally, the Library of Congress exhibition eventually took place: October 15, 1998 – January 16, 1999.

* Yes, this is the same Michael S. Roth that was Curator of the Exhibition on Freud for the Library of Congress (at that time Associate Director, The Getty Research Institute for the History of Art and the Humanities, Los Angeles; he became the 16th president of Wesleyan University in 2007).

Image (top): “The Unconscious” (1915) Manuscript Division, Library of Congress

Image (bottom): Oliver Sacks

Toward New Models for the Scale and Practice of Agriculture, No. 3

Our first and second posts in this series are, respectively, here and here. 

“The logistics of a just, equitable, and healthy agricultural landscape here in the United States would remain a problem if Michael Pollan himself, Wendell Berry, or better yet Fred Magdoff were appointed Secretary of Agriculture. Decades-long efforts pealing back agribusiness both as paradigm and infrastructure, however successful, would require a parallel program. With what would we replace the present landscape?

As a black hole about its horizon, a poverty in imagination orbits the question stateside. The vacuum is most recently felt in the developing animus between public health officials and artisan cheesemakers. What Europe has long streamlined into amicable regulation, the United States has lurched into clumsy opposition: cheese wheels are increasingly treated as suitcase bombs filled with Listeria.

After [more than] sixty years of industrial production Americans have quite forgotten the logistics of real food.

There are three broad classes of alternatives floating about the small but growing food movement. Prelapsarian fantasies widely prevalent would have us return to the family farm as it never existed. On the other hand, the microgeographic localism now emerging appears as much a victim of diminished expectations, provisional classism, and the constraints imposed by a scarcity of working examples as of agribusiness’s stranglehold on the market. If pursued to the logical and logistical conclusions, both options, as geographer David Harvey noted in a recent radio interview, would likely contribute to the kinds of famines that predated industrial development (as opposed to the very different famines that originate in today’s global capitalism).

There are, however, visionaries here and abroad who have blocked out broader possibilities tied to both the contours of our historical present and the globalized economy. This third class appears based on real-life experience and some intriguing, albeit often preliminary, experimentation:

1) In his campaign for Iowa Secretary of Agriculture, dairy farmer Francis Thicke (pronounced TICK-ee) described a regionalization encompassing trade policy, energy, farm structure, and environmental regulation. [….]

2) With the support of the Mexican government, Zapotec Indians have developed a certified-sustainable, community-controlled forestry. Plain pine is sold to the government and … finished goods, including furniture, are produced in an on-site factory. The Oaxaca cooperative, still a work in progress, plows a third of its profits back into the business, a third into forest preservation, and the rest into its worker and the local community, including pensions, a credit union, and housing for its children studying at university.

3) Dialectical biologist Richard Levins, collaborating with Cuban colleagues on ecological approaches to local agriculture and public health summarizes some of the many adjustments a new agriculture anywhere may require … :

‘Instead of having to decide between large-scale industrial type production and a ‘small is beautiful’ approach a priori, we saw the scale of agriculture as dependent on natural and social conditions, with the units of planning embracing many units of production. Different scales of farming would be adjusted to the watershed, climatic zones and topography, population density, distribution of available resources, and the mobility of pests and their enemies.

The random patchwork of peasant agriculture, constrained by land tenure, and the harsh destructive landscapes of industrial farming would both be replaced by a planned mosaic of land uses in which each patch contributes its own products but also assists the production of other patches: forests give lumber, fuel, fruit,, nuts, and honey but also regulate the flow of water, modulate the climate to a distance of about 10 times the height of the trees, create a special microclimate downwind from the edge, offer shade for livestock and the workers, and provide a home to the natural enemies of pests and pollinators of crops. There would no longer be specialized farms producing only one thing. Mixed enterprises would allow for recycling, a more diverse diet for the farmers, and a hedge against climatic surprises. It would have a more uniform demand for labor throughout the year.’

Rather than to the expectations of an abstract neoclassical or all-too-real neoliberal model of production, the scale and practice of agriculture can be flexibly tailored to each region’s physical, social, and epidemiological landscapes on the ground, interconnecting ecology and the economy. Under such an arrangement not all parcels will be necessarily profitable. As Levins points out, whatever reductions in income farms accrue in protecting the rest of the region must be offset by regular redistributive mechanisms. [….]

There is a dawning realization that Big Ag, whatever its power and infrastructure, is, to use an iconic Texanism, all hat and not cattle. Propping up the empire is little else but a raw greed and political power turning biology—human and animal—into cash at any and all costs. The paradigm behind the food and farming—ostensibly the industry’s raison d’être—is bankrupt to its core.

When the use value of food, of all things, is traded in for surplus value, humanity’s survival is nothing less than threatened (and the integral pleasures of eating abandoned). When most commercial grade poultry feed is purposely laced with arsenic to keep bird flesh pink over shipment and sale, there is seriously sociopathic denialism at work. When U.S. livestock are stuffed with up to 28 million pounds of antibiotics annually solely to accelerate growth to a finishing weight, providing stock enough protection only until their industrial diet kills them, perversity verges on perversion. When livestock monopolies manipulate already cheap and highly subsidized prices by forcing farmers to sell their animals all at the same time, a criminality masquerades as the law of the land.

And yet even in the face of such unprecedented power and a relentless propaganda, a swelling number of Americans are coming around.” [….]

Rob Wallace, from an article in Farming Pathogens, 16 December 2010 (Big Farms: 118-123)

Trump and Cohen Plan a Crime: FBI in Hot Pursuit

According to the Washington Post this morning (see here), pursuant to a search warrant, FBI investigators seized records of Attorney Michael Cohen including communications with many of his clients, Donald Trump among them. In order to get this warrant, among other things, the FBI would have had to show that there was at least probably cause to show that Trump and Cohen conspired to commit a crime.

It is not clear to me why this did not fall under the purview of Mueller’s investigation, but it is not a “witch hunt.”

Uncomfortable History and the Civil War Amendments

Kurt T. Lash, the E. Claiborne Robins Distinguished Professor of Law at the University of Richmond posted this eye opening post on Facebook:

Next term I will teach a course entitled "Abolishing Slavery, Building Liberty: The Adoption of the Thirteenth, Fourteenth and Fifteenth Amendments." This coming Monday, I will give a lunchtime presentation for the students at Richmond Law School talking about the research which led to the creation of the course. In doing so, I will discuss three things I suspect students don't know about these three amendments:

First, the Thirteenth Amendment abolishing slavery was preceded by a thirteenth amendment protecting slavery. Both “thirteenth” amendments were sent to the states for ratification. Before he supported the abolition Thirteenth Amendment, Abraham Lincoln supported the pro-slavery thirteenth amendment which would have made slavery an unamendable part of our Constitution.

Second, most students have studied Section One of the Fourteenth Amendment—it requires the states to protect the privileges and immunities of citizenship and the rights of due process and equal protection. Students also may have also studied Section Five of the 14th Amendment which gives Congress power to enforce Section One. But most student have not studied what, at the time of the amendment’s adoption, most people viewed as the most important and controversial part of the Fourteenth Amendment: Section Two. That section was so important, Congressional Republicans risked triggering a second civil war just to get it adopted.

Third, the Fifteenth Amendment prohibits racial discrimination in the right to vote. At the time of its adoption, there was only one part of the country that denied blacks the right to vote: the north. The strongest supporters of the amendment were voters in the former rebel states of the south. Among the strongest opponents of giving blacks the right to vote were northern women’s rights groups and equal rights advocates like Elizabeth Cady Stanton and Susan B. Anthony.

It occurs to me that I knew none of this before I started working on the history of the Reconstruction Amendments.

Toward New Models for the Scale and Practice of Agriculture, No. 2

                                    

Our first post, with an introduction to this series, is here.

“Dumping grain on another country is a classic maneuver in economic warfare. When a country’s borders are opened by force or by choice, by structural adjustment or by neoliberal trade agreement, when tariffs and other forms of protectionism are finally scotched, heavily subsidized multinational agribusinesses can flood the new market with commodities at prices less than their production costs.

That is, these companies are happy to sell their foodstuffs abroad at a loss. That doesn’t make sense, you say. Aren’t these guys in business for profit? They are indeed. The deficits are in actuality a cold-blooded calculation. The objective is to drive previously domestic sectors unable to compete with that kind of pricing, out of business. Once the mom-and-pop competition is rubbed out, Walmart-style, the multinationals, their competition cleared off the field, can impose what prices they please across a market they now dominate. [….]

When what is illegal at home in the United States is perfectly legal elsewhere, move your operations offshore. In many countries of the Global South, few labor laws and environmental regulations are on the books. For those that are, enforcement is lax or bribed away. On the other hand, when what is legal in the United States in banned elsewhere, export U.S. rules. Subject other countries’ domestic operations to the kind of discipline of the invisible hand one’s own multinationals avoid like the plague. Impose a protectionism in reverse. [….]

In a kind of bioeconomic warfare, agribusiness can prosper when deadly influenza strains originating from their own operations spread out to their smaller competition. No conspiracy theory need apply. No virus engineered in a laboratory. No conscious acts of espionage or sabotage. Rather we have here an emergent neglect from the moral hazard that arises when the costs of intensive husbandry are externalized. The financial tab for these outbreaks is routinely picked up by governments and taxpayers worldwide. So why should agribusiness bother with ending practices that repeatedly interrupt economies and will someday produce a virus that kills hundreds of millions of people? Companies are often compelled to invest in livestock vaccination and biosecurity—however incomplete—but if the full costs of outbreaks were placed on their balance sheets larger operations as we know them would cease to exist.

Corporate farms are also able to skirt the economic punishments of the outbreaks they cause by their horizontal integration. They can weather the resulting bad publicity and intermittent breaks in their commodity chains by increasing production in affiliates elsewhere. [….] A supply chain arrayed across multiple countries can compensate for the interruptions in business, even as it also, ironically enough, increases the risk of influenza spread.

In contrast, many small farmers suffer catastrophically from this virus dumping, even when they’re under contract to agricultural companies. Smallholders typically can’t afford the biosecurity changes needed to protect themselves from such outbreaks in the first place or the wholesale repopulation of their livestock in the aftermath (even when subsidized in part by the government). Living market day to day, they can’t afford the losses incurred upon their already thin margins when their operations are disrupted by the government-imposed quarantines and culling campaigns that follow.

That’s nasty. But the insult to injury is in agribusiness’s faux-righteous follow-up. And here we see the kind of conscious manipulation at the heart of grain dumping. In an act of evil genius, multinationals support national efforts to institute biosecurity standards only the largest companies can afford. [….] The diseases that wipe out Big Food’s smaller competitors also offer an opportunity to cripple them between outbreaks.”

Rob Wallace, from an article in Farming Pathogens, 11 November 2010 (Big Farms: 112-117)

Stereotyping Pro Lifers

One of the great questions of the day is to ask why evangelicals and conservative Catholics continue to support Donald Trump. One of the answers is abortion, and accompanying that is the view that the pro life movement favors life until a baby is born.

This misses the fact that millions of pro lifers do not support Donald Trump and that the traditional Catholic view supports social justice in ways that are too often not recognized. For a strong statement of this por life view, see these eloquent remarks of Sister Joan Chittister from an interview with Bill Moyers. http://billmoyers.com/story/what-pro-life-means/ 

Thanks to Nancy De Coster for posting this interview on facebook.

 

Toward New Models for the Scale and Practice of Agriculture

Among other things, and cross-posted at the Agricultural Law blog, I’m going to occasionally post snippets from a handful of Rob Wallace’s rhetorically pungent, intellectually incisive, and politically powerful collection of essays in his book Big Farms Make Big Flu: Dispatchers on Infectious Disease, Agribusiness, and the Nature of Science (Monthly Review Press, 2016). Early last year I posted notice of an article in New Left Review, 102 (Nov/Dec 2016): “Ebola’s Ecologies: Agro-Economics and Epidemiology in West Africa,” co-authored by Rob Wallace and Rodrick Wallace, appending a list of suggested reading that included Big Farms. I will post bits and pieces from the book sans the notes and with slight editing (e.g., in the interest of length, I’ve left out some of the many examples that illuminate the arguments), although I may provide some embedded links (some of which may be in the book’s notes). As this work—with notes—is well over 400 pages, the material I’m sharing is best viewed as providing but the slightest taste of its contents, although I hope it is sufficiently representative and enticing enough to stimulate your desire to read it in toto.

Rob Wallace, an evolutionary biologist, is currently an advisor for the Institute for Agriculture & Trade Policy (IATP) and a visiting lecturer at the University of Minnesota’s Institute for Global Studies. He blogs at Farming Pathogens.

*           *           *

“For the past three decades, the International Monetary Fund and the World Bank have made loans to poorer countries conditioned on removing supports for domestic food markets. Small farmers cannot compete with cheaper corporate imports subsidized by the Global North. Many farmers either give up for a life on peri-urban margins or are forced to contract out their services—their land, their labor—to livestock multinationals now free to move in. The World Trade Organization’s Trade-Related Investment Measures permit foreign companies, aiming to reduce production costs, to purchase and consolidate small producers in poorer countries. [….]

Clearly agribusiness, structural adjustment, global finance, environmental destruction, climate change, and the emergence of pathogenic influenzas are more tightly integrated than previously thought. The nest of dependencies requires fuller investigation. [….]

While the argument has been made that corporate food supplies the cheap protein many of the poorest need, the millions of small farmers who fed themselves (and many millions more) would never have needed such a supply if they had not been pushed off their lands in the first place. A reversal need not involve ending global trade or an anachronistic turn to the small family farm, but might include domestically protected farming at multiple scales. Farm ownership, infrastructure, working conditions, and animal health are inextricably linked. Once workers have a stake in both input and output—the latter by outright ownership, profit sharing, or the food itself—production can be structured in such a way that respects human welfare, and, as a consequence, animal health. With locale-specific farming, genetic monocultures of domesticated animals which promote the evolution of virulence can be diversified back into heirloom varieties that can serve as immunological firebreaks. The economic losses influenza imposes upon global livestock can be tempered: fewer interruptions, eradication campaigns, price jolts, emergency vaccinations, and wholesale repopulations. Rather than jury-rigged with each outbreak, the capacity for restricting livestock movement is built naturally into the regional farm model. [….]

Rather than to the expectations of an abstract neoclassical model of production, the scale and practice of agriculture can be flexibly tailored to each region’s physical, social, and epidemiological landscapes on the ground. At the same time, it needs to be acknowledged that under such arrangements not all parcels will be routinely profitable. As [Richard] Levins points out, whatever reductions in income farms accrue in protecting the rest of the region must be offset by regular redistributive mechanisms.” [….]

From the article, “The Political Virology of Offshore Farming,” first published in Antipode, November 2009 (Big Farms …: 50-84).