ReligiousLeftLaw.com

Is There a Constitutional Right Not to Wear a Mask?

Millions of our fellow citizens believe there is a fundamental constitutional right not to wear a mask. If there is such a right, it should come as a surprise to anyone who has gone to law school. If the foes of masks are right, they will need to explain why the military draft was not stopped in its constitutional tracks. The conservatives have long insisted that constitutional rights appear in the text of the Constitution or are “deeply rooted in the nation’s tradition” and they typically insist that liberty rights be carefully defined and identified by the specific facts, not by anything as vague as liberty or freedom. That is why the conservatives maintain there is no right to an abortion. Neither “the right not to wear a mask,” nor the right to an abortion is deeply rooted in the nation’s tradition.

Other justices over the years have not looked exclusively or even primarily to tradition to identify unenumerated rights. They have not shied away from using broad concepts such as privacy to assist in identifying constitutional rights. They have drawn analogies to other rights in the Constitution. Indeed, they have looked to see whether the conduct in question is important for a flourishing life. From that perspective, women have the right make choices regarding childbirth; the right to use contraceptives is settled constitutional law; same sex marriage is constitutionally protected. Tradition be damned.

From either perspective, no tradition in our country and no liberty right countenances a right to expose other citizens to disease. Indeed, government has a compelling state interest in requiring its citizens to wear masks in appropriate circumstances. Liberty has always been a qualified right, and it always will be.

Moral Exemplars and Narrative Goodness: basic philosophical literature

       

“It is not implausible to think we are elevated by others who are more developed than ourselves in their striving for harmonious hierarchical development and for a valuable life. We are aided and encouraged along our own path of development by their striving for self-development and purer feeling; contrast the effects on us of encountering those with a sour mixture of one-upmanship, self-aggrandizement, desire to dominate or destroy, and other festering emotions, the effects of wending our way and bending our attention, to their motivations and trajectories. Just as a cacophony of urban noise is an intrusion if you’re are trying to listen to a string quartet or compose your own, so a person in the course of his own self-improvement or development will want, if merely as a means, to help raise the developmental level of those around him (or else to move into an isolated community of like-spirited persons). He will want to help them along. Even if a person were able to maintain his level and rate of (spiritual) advance and development unperturbed by others around him [like Plotinus!], not dragged down by them no matter what their state, he would still lack the benefits of associating with others who are equally or more developed. First, there is the benefit of being helped along by good examples and good companions. We all know people, I hope, who bring out the best in us, people in whose presence we would be embarrassed to speak or act from unworthy motives, people who glow. In their presence we feel elevated. We are pushed or lured or nudged further along a path of development and perfection; rather, we are inspired to move ourselves along, in the direction shown. Second, there is the joy in encountering a like person, in the experience of the other and in the mutual recognition of the mutual joy. The most intense delights, surely, are these experiences, at least as they combine with, enrich, and transfigure other delights more frequently listed. One awful psychological deformity is the resentment of excellence, not merely the inability to delight or take pleasure in it—bad enough—but the envious desire for its absence. To avoid being the object of such envy, people will hide their own excellence and camouflage their delight in it. Not only does this deprive others of the encouragement of an example, and of the opportunity for happy mutual recognition, it also alters the person’s own experience. She does not simply feel the same delight only without expressing it; an unexpressed delight is not as delightful. Resentment and envy of moral and spiritual excellence is most awful. [….] At any rate, persons developing in value will not feel or dwell in such envy; they will seek out opportunities to share the joy of being on and moving along their path. They will aid others in their own (spiritual or developmental) advance, for the pleasure of their company. (In thus aiding, they will not focus their attention upon their own pleasure but rather upon what brings that pleasure—the developed state of the others.) There is a third reason for wanting other equally or more developed persons around: their appreciation is especially worth having. In a loving relationship with another adult, the worth of what they give, including themselves, depends partially upon their estimation of themselves—whether they give something they hold precious and valuable. [….] The developed or developing person will wish for like companions, for inspiring examples to aid him along his path, for joyous company, and for meaningful affirmation of his own worth. This is the opposite of the desire to be surrounded by submissive people less developed than oneself, the desire that they be less developed.’ [….] The developed person will want to help perfect others; this is the most important aid he can give them. We want to find a way of living whereby our best energies and talents are poured out so as to speak to and improve the best energies and talents of others. We want to utilize our highest parts and energies in a way that helps others flourish.” — Robert Nozick

What the late Robert Nozick is speaking to here, as an illustration of what David L. Norton termed eudaimonistic ethics in Democracy and Moral Development: A Politics of Virtue (University of California Press, 1991), is in the realm of everyday living, while our notion of narrative goodness involves that and more: fictional stories or idealized portraits of one kind or another which may be viewed as attempts to depict what might, can, or should occur in our attempts to be moral, to have and cultivate vigilant ethical awareness and sensibilities, to live the good life.

*          *          *

Reading an article online by Junaid Quadri, “Ethical Perfectionism in Fiqh: The Example of Moral Exemplars,” called to mind some earlier thoughts I’ve entertained on “narrative goodness.” The first three paragraphs from his piece should suffice to get a sense of what Quadri is proposing and what motivated my return to the topic of “exemplarist moral theory” and “narrative goodness:”

“How precisely to understand the ethical material found within works of fiqh has been a recurrent question of Western scholarship on Islamic law since its earliest period. If, in the first phase of this interest, scholars tended to find in fiqh a curious (and perhaps, objectionable) amalgam of law, religion and ethics, recent decades have witnessed a robust response. A bulk of this literature has been focused on disentangling the fiqh’s religious or ethical norms from its legal ones, often with a view to locating a place for secular reason within what has been viewed as a sacred law, or a place for liberal rights in what has often been cast as a divinely-willed deontology. This has been a productive turn that continues to generate deep insights into the inner workings of Islamic law. It has been especially successful in identifying the rational and pragmatic elements of fiqh as opposed to the purely revelatory and textual, and in positioning the sharīʿa as a viable legal system suitable for comparison with counterparts.

It is the conceit of this post, however, that there are also alternative ethical visions animating the fiqh literature that merit exploration. What if we regard the apparent commingling of law, religion, and ethics not so much as a problem to be solved, but rather a feature of a distinct normative tradition that invites investigation in its own right? I submit that this opens us up to imagining moral habits and psychological horizons that live beyond our own most immediate normative concerns. Such a reorientation would clear conceptual space for an examination of the intersections of fiqh with a different conception of ethics, a perfectionist ethics directed at cultivating certain qualities, or virtues, in the Muslim subject. This is an ethics that is much more often identified – because more readily apparent – in Sufism or falsafa, fields that are regularly placed in opposition to juristic discourse. Locating evidence of perfectionism in fiqh, then, would offer the further prospect of an overlap in ideas between otherwise distinct normative Islamic traditions, a possibility that is too often overlooked when these bodies of thought are read in isolation.

One avenue of inquiry that presents itself as a result of a shift in focus from rights to perfection is the place of moral exemplars [later Quadri explains why and how Zagzebski’s exemplarist moral theory serves his argument]. The exemplar is that figure in a normative system who exhibits a superior sense for what constitutes the good life and how to live it, and serves as a model for other moral agents aspiring to develop (or approximate) that same awareness and mode of cultivation. To be sure, the idea of a moral exemplar is not strictly speaking a requirement for a perfectionist ethics, and yet such examples as Aristotle’s phronimos and the Confucian sage [or even, and more practically speaking, the junzi] point to the vital importance of a moral model to the process of self-cultivation.”

       

Like Professor Quadri, I too have referenced some of Linda Zagzebski’s arguments from her book, Divine Motivation Theory (Cambridge University Press, 2004)—albeit for different reasons and purposes (e.g., I set aside the ‘divine motivation’ part of her argument)—as critical or essential for how we might or should socialize people into fundamental moral notions and behavior, thus using stories of “moral exemplars” to provide concrete models that are compelling examples of what it means to be moral, to be good, to do, as we say, the right thing. Heretofore, notes Zagzebski, moral philosophers have tended to ground their basic evaluative moral or ethical concepts in presuppositions, assumptions, or beliefs that are non-evaluative, such as human nature, reason, or “the Good” (or, for those who are theological, the ‘will of God;’ our examples of course do not exhaust the possible sources of such grounding, as we see in the metaphysical or ontological possibilities found in classical Indic and Chinese philosophies). Her ideas can be used to appreciate the formative and fundamental role of moral exemplars (parents, caregivers, teachers …) in coming to know and appreciate what precisely is proper moral behavior (as a ‘direct reference’ theory of the good or moral virtues: ‘good person are like that’), in other words, one important part of an assessment of a moral or ethical theory involves “judgments about the identity of paradigmatically good persons.” She terms this “exemplarist ethical (or ‘virtue’) theory.” Importantly, there is a wide variation among both “perfect” and (considerably) less-than-perfect moral (and spiritual) exemplars.

“The alternative that I am suggesting is to anchor moral concepts in an exemplar. Good persons are persons like that, just as gold is stuff like that. The function of an exemplar is to fix the reference of the term ‘good person’ or ‘practically wise person’ without the use of any [other] concepts, whether descriptive or non-descriptive. An exemplar therefore allows the series of conceptual definitions to get started. The circle of conceptual definitions of the most important concepts in a moral theory—virtue, right act, duty, good outcome, and so on—is broken by an indexical reference to a paradigmatically good person.”

And thus we arrive at one of the consequences of this exemplarist ethical theory: we can fill out a notion of “narrative goodness,” one which transcends the divide between religious and non-religious worldviews, while respecting some of their differences, such as the sorts of persons who are identified as moral exemplars (and spiritual exemplars; after John Cottingham, Sudhir Kakar, and Grant Gillett our conception of spirituality extends beyond strictly religious traditions and worldviews):

“Making the exemplar a person has an even more important advantage than its aid to theory. If all the concepts in a formal ethical theory are rooted in a person, then narratives and descriptions of that person are morally significant. It is an open question [at least for some purposes] what it is about the person that makes him or her good. When we say that a good person is like that, and we directly refer to Socrates, Saint Francis of Assisi, or to Mahatma Gandhi [or the pre-school teacher, or grandma, or the character in a novel, and so forth], we are implicitly leaving open the question of what properties of Socrates, Francis, or Gandhi are essential to their goodness [here, the descriptive value of ‘thick’ ethical concepts is germane]. [….] We need to observe the exemplar carefully in order to find out what the relevant properties are. Since narratives can be considered detailed and temporally extended observations of persons, exemplarism gives narrative an important place within the theory.” [emphasis added]

In communities formed and sustained by religious worldviews, we have many instances of this: in Buddhism with the Jātaka tales (largely for children), in Christianity with the Gospel stories of Jesus’s parables, sayings and behavior, and in the Analects of Confucius, for example. In the words of the late philosopher, Robert Nozick,

“There are some individuals whose lives are infused by values, who pursue values with single-minded purity and intensity, who embody value to the greatest extent. These individuals glow with a special radiance. Epochal religious figures often have this quality. To be in their presence (or even to hear about them) is to be uplifted and drawn (at least temporarily) to pursue the best in oneself. There are less epochal figures as well, glowing with a special moral and value loveliness, whose presence uplifts us, whose example lures and inspires us.”

From an “emic” vantage point these are seen as means whereby one learns the terms and conditions of one’s religious (and to some extent philosophical) tradition, but from an “etic” perspective, we can focus on the fundamental features of what it means, generally speaking, to be ethical, to aspire to be good and so forth that, in one very significant sense, transcends the contingencies and unique articulations more or less intrinsic to specific religious worldviews. Thus, in effect, from the outside looking in were are concentrating on their common moral and ethical foci or, if you prefer, their shared stress on spiritual praxis, on therapeutic spiritual “exercises,” moral values, and ethical principles that are part and parcel to what are, in effect, instructions or lessons in the “art of living.”

For vivid examples of moral exemplars who lives are a bit messier or more realistic in comparison to those found in religious worldviews (prophets, saints, bodhisattvas, etc.), and in keeping with a more explicitly secular or widely humanistic outlook, we can look not only to individuals we regularly encounter or interact with in the intimate realm of everyday life, but also modern literature (especially shorts stories, novels, and children’s literature), the works of some playwrights as well as films (a mass media art). The moral psychology here being rather complex if not elusive, works by the French Moralists as well as adages, aphorisms, and proverbs more generally, and even poetry, may further fill out the nature of these forms of narrative goodness, which themselves, in turn, contribute to the larger end of explaining and encouraging spiritual praxis or a profound appreciation of the role of therapeutic spiritual “exercises,” moral values, and ethical principles as lessons in the “art of living.” Of course not all such modern and secular media perform this function, thus parents, critics, philosophers, psychologists and others with some measure of moral knowledge and authority, as well as a corresponding capability of exercising reliable moral judgments, can proffer their guidance in these areas by way of discriminating (thereby helping the rest of us learn how to discriminate) between the ethically availing or ethical troubling or disturbing forms of such material. Whether religious or not, such stories fall under the heading of “narrative goodness.” As Colin McGinn has argued:

“[O]rdinary people—which means all of us—find [the] story mode of moral discourse [i.e., the form which includes parable, the play, short story, the narrative poem, the novel and the film] uniquely palatable and nutritious; it seems perfectly designed to engage our moral faculties. Our moral understanding and the story form seem fitted for one another. No rote learning is necessary: it all seems to flow quite naturally. This is the way our moral faculty likes to operate. It is almost effortless to take in a story, pleasant even, though the story may be replete with moral discourse. The novel, in particular, is a text of a very different kind from the scientific treatise. It is also very different from the philosophical text, which is what philosophers, naturally, are most comfortable with. Thus the novel form has tended to be ignored by moral philosophers: it is not, for them, the place to look for canonical expressions of ethical truth. Yet, quite obviously, it is for most educated people one of the prime vehicles of ethical expression. (Film plays a similar role for the less word-minded.) In reading a novel we have ethical experiences, sometimes quite profound ones, and we reach ethical conclusions, condemning some characters and admiring others. We live a particular set of moral challenges (sitting there in our armchair) by entering into the lives of the characters introduced. [....] Stories can sharpen and clarify moral questions, encouraging a dialectical phenomenology between the reader’s own experiences and the trials of the characters he or she is reading about. A tremendous amount of moral thinking and feeling is done when reading novels (Or watching plays and films, or reading poetry and short stories). In fact, it is not an exaggeration to say that for most people this is the primary way in which they acquire ethical attitudes, especially in contemporary culture. Our ethical knowledge is aesthetically mediated.”

I think McGinn’s conclusion is largely right: our ethical knowledge is, indeed, “aesthetically mediated,” insofar as we learn about the virtues (whatever particular cluster of same our worldviews place emphasis upon), or how to be moral through narrative aesthetic forms, or at the very least, we are moved to think about “the ethical” and its converse. To the extent that such aesthetic mediation is not “spiritual” or religious, it may be less reliable or dependable as a form or medium of moral knowledge or ethical instruction, especially but not only when we are young or if we have not had the seeds of moral sensibility planted in us at a very young age. Put differently, spiritual and religious literature is ideally suited for the aesthetic mediation of moral knowledge, for learning what it means to be virtuous, for it is here we find “exemplars of goodness.” It is not the only or even primary way in which we learn to be moral, for we obviously and ideally learn to live a virtuous life, as both Confucius and Plato would remind us, from those who are responsible for our upbringing: our parents, caregivers, teachers, and others who are, it is hoped, suitable “role models,” those entrusted to take care of us until we reach the “age of reason.” Intriguingly, both Plato and Confucius appear to agree that learning to be ethical for children entails training or discipline in the arts, particular arts to be sure, but there is something about the arts that these two philosophers find integral to the habituation to virtue, as a necessary yet not sufficient condition to being moral. And even as adults, we might learn something about virtuous living from those with whom we come into meaningful personal contact in daily life.

The titles we have listed below are philosophical in orientation but their aim is to help us—more or less, directly or by implication—understand what is meant or should be meant by “narrative goodness,” in this case, distinguished from (which does not rule out the fact that it can overlap with) the use of “moral exemplars” in religious worldviews.

• Alfano, Mark. Character as Moral Fiction (Cambridge University Press, 2013).
• Booth, Wayne C. The Company We Keep: An Ethics of Fiction (University of California Press, 1988).
• Boruah, Bijoy H. Fiction and Emotion: A Study in Aesthetics and the Philosophy of Mind (Oxford University Press, 1988)
• Bruner, Jerome. Making Stories: Law, Literature, Life (Farrar, Straus and Giroux, 2002).
• Dilman, Ilham. Raskolnikov’s Rebirth: Psychology and the Understanding of Good and Evil (Open Court, 2000)
• Harpham, Geoffrey Galt. Shadows of Ethics: Criticism and the Just Society (Duke University Press, 1999).
• Hutto, Daniel D. Folk Psychological Narratives: The Sociocultural Basis of Understanding Reasons (MIT Press, 2008).
• Hutto, Daniel D., ed. Narrative and Understanding Persons (Cambridge University Press, 2007).
• Hutto, Daniel D., ed. Narrative and Folk Psychology (Imprint Academic/Philosophy Documentation Center, 2009).
• Landy, Joshua. Philosophy as Fiction: Self, Deception, and Knowledge in Proust (Oxford University Press, 2004).
• Martinich, A.P. and Avrum Stroll. Much Ado About Nonexistence: Fiction and Reference (Rowman & Littlefield Publishers, 2007).
• McGinn, Colin. Ethics, Evil, and Fiction (Oxford University Press, 1997).
• Murdoch, Iris (Peter Conradi, ed.) Existentialists and Mystics: Writings on Philosophy and Literature (Penguin Books, 1999).
• Nussbaum, Martha C. Love’s Knowledge: Essays on Philosophy and Literature (Oxford University Press, 1990).
• Velleman, J. David. How We Get Along (Cambridge University Press, 2009).
• Zagzebski, Linda Trinkaus. Divine Motivation Theory (Cambridge University Press, 2004).

The Do Nothing Republicans and the Liberal Media

Gerald Seib, who writes the Capital column for the Wall Street Journal, has an excellent piece on polarization in Saturday’s paper. Nonetheless, I was taken aback by this statement: “Meantime, Republicans, having been pushed entirely into the minority, did not have to bear responsibility for either what transpired or what did not get done.” Instead, even liberal media blame Joe Manchin, Kirstin Sinema, Joe Biden, and the Democrats generally for what has not gotten done.

Apparently, the polls show that the Republicans gain by doing nothing. They offer no alternatives. They just say no, and they are proud to do so. Most of them even bite their tongues about the storm on the capital. They are do-nothings, cowards, moral lepers – who apparently will get away with it. The liberal media has chastised the Republicans for their failure to condemn all manner of sins – from sedition to racism – but they have cast only a passing glance at the Republican’s failure to offer concrete legislative proposals. Maybe it is more interesting to focus each night on Joe Manchin; maybe it’s a story that continues to sell; but Joe Manchin is not a moral leper. To find the moral lepers, you have to look across the aisle.

Ella Baker (December 13, 1903 – December 13, 1986)

Ella ‘Jo’ (Josephine) Baker was born on this date in 1903 (and died on this date in 1986). She was one of the most influential women in the civil rights movement and one of the leading African American activists and organizers on the Left in the twentieth century. In a remarkable biography of Baker, Barbara Ransby characterizes her as “a Freirian teacher, a Gramscian intellectual, and a radical humanist.” It is of course notoriously difficult for biographies to do justice a person’s life, but I suspect Ransby has come damn close in Ella Baker and the Black Freedom Movement: A Radical Democratic Vision (University of North Carolina Press, 2003):

“In much of her adult political life, Ella Baker was a socialist without a party or a party line. As a friend of hers, the author and filmmaker Joanne Grant, observed, Baker was not often explicit about her socialist beliefs, but there were times when she was as straightforward as one could be. ‘The only society that can serve the needs of the large masses of poor people is a Socialist society,’ she declared in a 1977 interview. She was a harsh critic of capitalism, but resisted any hints of sectarianism or ideological orthodoxy. She loathed dogma of any kind and was openly critical when she observed this kind of rigid thinking on the part of friends and colleagues. Her own worldview was constructed from an amalgam of different ideologies and traditions, combining the black Baptist missionary values of charity, humility, and service with the economic theories of Marxists and socialists of various stripes who advocated a redistribution of wealth. She also embraced the militant self-defense tradition of the black South. Here affiliation with the openly Mass Party Organizing Committee (MPOC) and her defense of Communist Party member Angela Davis are further indicators of her unequivocal identification with the left by the 1970s. She had become her own unique kind of revolutionary.”

By way of illuminating some features of her political activism in the in the civil rights struggle, we need first to introduce the Highlander Folk School. The Highlander Folk School (HFS) is an exemplum of what Aldon Morris memorably termed a “movement halfway house” in his classic study, The Origins of the Civil Rights Movement: Black Communities Organizing for Change (Free Press, 1984). Morris defines a movement halfway house as

“an established group or organization that is only partially integrated into the larger society because its participants are actively involved in efforts to bring about a desired change in society. The American Friends Service Committee, the Fellowship of Reconciliation, the War Resisters League, and the Highlander Folk School are examples of modern movement halfway houses.”[1]

Importantly, Morris proceeds to add the Southern Conference Education Fund (SCEF) to this list. As Clayborne Carson points out in his definitive examination of the Student Nonviolent Coordinating Committee (SNCC; pronounced as if an acronym, with an added vowel sound: ‘snick’): “SNCC’s relations with SCEF illustrated a growing willingness of SNCC workers to associate with leftist groups,”[2] in this instance, a comparatively small—in the sense of lacking a mass base—and predominantly white organization with goals close to, when not identical with, the civil rights movement. Although communists helped found this formally interracial organization in the 1930s, its ranks and supporters included non-communists as well. SCEF, for better and worse, attracted disproportionate attention given its fairly small size, while the steadfast and courageous efforts of its most active members speak to its equally disproportionate impact on other individuals and groups in the civil rights movement:

“During the late 1950s SCEF became a target of the southern press when one of its representatives, Carl Braden, refused to answer questions before HUAC [House Committee on Un-American Activities] and was later sentenced to a year in prison. Despite the controversy, SNCC leaders as early as the fall of 1960 developed close ties with Braden and his wife Anne. SCEF’s newspaper, The Southern Patriot, devoted considerable coverage to SNCC activists at a time when the organization received little attention elsewhere, and during 1960 and 1961 the paper contained essays written by Ella Baker and James Lawson.

The Bradens had gained the trust of SNCC workers because they understood better than most white leftists the militant mood of black activists, and they respected the desire of those in SNCC to remain independent of all outside control.”[3]

Both Anne Braden and Ella Baker attended Highlander Folk School workshops (in particular for our purposes, its ‘college workshops’). In fact, it was shortly after the HFS’s seventh annual college workshop on April 1, 1960 that sit-in leaders from the college ranks met to form SNCC under the initiative of Ella Baker, then serving as executive director of the Southern Christian Leadership Conference (SCLC). The formal structure for SNCC was created in October 1960.

HFS, like other movement halfway houses, provided an array of “social change resources such as skilled activists, tactical knowledge, media contacts, workshops, knowledge of past movements, and a vision of a future society”[4] for existing and future SNCC activists. The pedagogical, epistemic, and political functions performed so ably by HFS for SNCC and the civil rights movement generally, were strategically significant in (1) the coalescing and coordination of young black leaders, men and women; (2) in the provision of a mass education program that “was revolutionary from an educational, political, and social standpoint,” this being directly linked to mobilization outcomes; and (3) through its partial but no less exemplary instantiation of a “visible and successful model of a future integrated society.”[5] The second and third strategic functions illustrate dimensions of what Wini Breines describes as “prefigurative politics,”[6] at least insofar as we detect belief in and reliance on the theory and methods of participatory and deliberative democracy, as part of the greater attempt to embody here-and-now the future—socially integrated—society.

This society is not so much evidenced in direct action tactics and protests (although these are largely parasitic on the virtues of prefigurative community), but in the blurring and transcending of public and private boundaries that serve to privatize moral life on the one hand, and leave the work of politics to elites (politicians, bureaucrats, corporate lobbyists, professional experts…) on the other. This makes for the propitious emergence of moral if not “spiritual” communities whose members have devoted much of their lives to discerning—through thought and deed—the lineaments of the “good society,” of psychologically meaningful yet elusive notions of “happiness,” of the terms and conditions of human fulfillment. The interpersonal nature of these intimate communities is grounded in intrapersonal values, commitments, hopes and the like of self-defining and self-actualizing individuals who practice a revolutionary and eudaimonistic “politics of virtue.”[7] Such communities are not “communitarian” if by that one means individuals are constitutionally deferent to existing traditions and social norms but rather emblematic of a eudaimonistic individualism in which communities serve as fora for interdependent values realization of persons who have come to feel a compelling and urgent obligation (from the outside looking in, this may appear as supererogatory) to realize objective values in the world, each individual serving as a unique locus for such values realization. In the words of the late David L. Norton,

“For eudaimonism the common good is no more and no less than the particular good of individuals in complementary interrelationship. The requirement for complementary interrelationship is implicit in the fact that the good to be actualized, conserved, and defended—the good that represents the individual’s achieved identity—is an objective good, that is, it is of value to others no less than to the individual who realizes it. [….] [E]very well-lived life must utilize values produced by (some) other well-lived lives. And that is to say that within a society, every person has a legitimate interest in the personhood of every other. [….] In this form of community individual self-determination, self-direction and self-fulfillment are not sacrificed to the ‘common good’ but nurtured as the foundation of the common good.”[8]

The prefigurative politics of virtue in the moral and spiritual communities nurtured by HFS and SNCC was revolutionary or radical to the degree that it went beyond the goals of the mainstream civil rights organizations and the conventional politics of constitutional Liberalism in seeking societal wide systemic change involving socio-cultural and economic spheres and institutions heretofore structurally resistant to the imperatives of egalitarian distributive justice and the extension of the principles and practices of participatory and deliberative democracy. This revolutionary politics involves the struggle to generalize the welfare and individual well-being of all members of society so as to collectively supply as a moral and political entitlement grounded in human dignity, the conditions and opportunities of moral and psychological individuation and self-determination insofar as these cannot be self-supplied by individuals (alone or in community). SNCC’s Mississippi Summer Project of 1964 was a vivid and inspiring demonstration of the germination of seeds sown by earlier traditions of radical black activism (especially communists, and both here and abroad), civil rights organizations (e.g., NAACP, CORE, and SCLC), and movement halfway houses like HFS. It is no exaggeration to characterize HFS’s pivotal halfway house role here as “the educational center of the civil rights movement during the 1950s and early 1960s” (emphasis added) and, “until 1961…in the forefront of the drive to end racial segregation in the South.”[9]

Among the remarkable men and women in the civil rights movement who spent time at the Highlander Folk School, we find Rosa Parks, Septima Clark, and Ella Baker. Parks believed that the

“only black female leader … compar[able] to Clark was Ella Baker, who was emerging as one of civil rights movement’s boldest and most versatile leaders. She had taken charge of all the NAACP branches in the 1940s, would coordinate Dr. King’s Southern Christian Leadership Conference [SCLC] in the late 1950s, and later gained renown as the founding mother and guiding spirit of the Student Nonviolent Coordinating Committee [SNCC] in the early 1960s. Baker inspired groups to recognize that leadership works best when shared widely and cooperatively.

[Rosa] Parks had met Baker when she delivered keynote addresses at two different NAACP leadership conferences in the mid-1940s. Calling Baker ‘beautiful in every way,’ Parks opened up her home to Baker whenever she visited Montgomery. Baker’s approach to community leadership, which closely paralleled Highlander’s method, called to Parks. People didn’t really need to be led, Parks recalled Baker insisting. They needed to be given the skills, information, and opportunity to lead themselves.

Now, thanks to [a] Highlander workshop on civil rights, Septima Clark joined Baker in Parks’s exclusive club of outstanding leaders. The fact that they both led fearlessly and powerfully mattered a great deal to Parks. But just as important, they exemplified the caring, dignified, unshakeable person Parks aspired to become. [….]

Late on the afternoon of December 1, 1955, less than four months after attending the Highlander workshop, Rosa Parks absentmindedly boarded a Montgomery bus …. [I’m assuming our readers know the rest of this fateful event, one in which her act of civil disobedience in violating Alabama segregation laws … ‘helped inspire the black community to boycott the Montgomery buses for over a year,’ and soon led to a successful federal lawsuit, Browder v. Gayle, 142 F. Supp. 707 (1956), challenging the City of Montgomery and Alabama bus segregation laws.] [….]

On Easter weekend 1960, just two weeks after the sit-in protesters met at Highlander, Ella Baker convened a meeting that she called the Southwest Student Leadership Conference on Nonviolent Resistance to Segregation. Many of the same students, joined by scores of others, converged on Shaw University in Raleigh, North Carolina, the historically black university where Baker herself had been valedictorian. The avowed purpose was to conceptualize a new, independent, student-focused civil rights organization. Widely regarded as one of the African American community’s most effective organizers, Baker, like [Myles] Horton, recognized the untapped potential of young people. She lamented the lack of racial progress made since the Montgomery bus boycott and saw in student leadership an opportunity to electrify the civil rights movement by bringing youth and adults together into a stronger, more unified movement. At the same time, she rejected efforts by Dr. King and other members of the SCLC ‘to capture the youth movement.’ She believed that students’ strength would come from their independence, which would also empower them to become more constructive partners of groups like the SCLC and the NAACP. Inspired by her confidence and vision, students emerged from the Raleigh conference as members of a new organization—the Student Nonviolent Coordinating Committee (SNCC), with Ella Baker serving as the group’s primary adult adviser.

Baker was not only a great organizer but also renowned for her first-rate skills as an educator and developer of grassroots leaders. She often argued, as least as insistently as Horton, that strong, that strong charismatic leadership in a movement for participatory democracy was self-defeating. A different kind of leadership worked better, she contended—more humble, caring, and behind the scenes. For Baker, leadership had little to do with filling a position and almost everything to do with collaborating with others to support a group’s collective development. Her response in 1970 to historian Gerda Lerner’s question about community leadership directly aligned he with Horton when she said, ‘I have always thought what is needed is the development of people who are interested not in being leaders as much as in developing leadership in others.’

Like Horton, Baker believed that one principal way activists exerted leadership was through carefully crafted questions. Prathia Hall, a SNCC member and Baker admirer, praised her for her nondirective and question-centered teach style: ‘Raising a question and then raising another question and then helping us to see what was being revealed through the answer was her mode of leadership.’ Another activist, Lenora Taitt-Magubane, commented that Baker’s inclination to rely on ‘key questions’ frequently wasn’t recognized or appreciated as leadership. She delayed intervening, Taitt-Magubane pointed out, ‘because she wanted the decision to come out of the group and not be hers.’ Still another SNCC activist, Mary King, observed that Baker maintained a ‘Socratic presence’ by asking questions that brought the focus of discussions back to purpose and intent. ‘Now let me ask this again, what is our purpose here? What are we trying to accomplish? Again and again she would force us to articulate our assumptions.’ As biographer Barbara Ransby notes, Baker acted on the belief that ‘people had many of the answers within themselves; teachers and leaders simply had to facilitate the process of tapping and framing that knowledge, of drawing it out.’ As at Highlander, ‘debate and the open exchange of ideas became critically important.’ [….]

Ella Baker’s most important contribution as a teacher and a leader was probably her notion of group-centered leadership. One of the educational assumptions that united Baker and Horton, as well as the world-renowned educator Paulo Freire, was this notion that learning is ‘a collective and creative enterprise requiring collaboration and exchange at every stage.’ For Baker, this especially meant creating a space for everyone to speak and contribute. Learning to be silent had real value, as did learning to interrupt ‘to make sure that others were allowed to speak and that the more confident speakers were made to listen.’ In order for group-centered leadership to work, no single person could be designated as the leader or the official spokesperson all the time. Rather, as many participants as possible had to assume multiple leadership roles so that the contribution of individuals more accurately reflected the broad range of viewpoints and feelings represented in the group.

Ella Baker, like Septima Clark, ‘functioned as an organic intellectual for groups’ because ‘she validated and relied on the collective wisdom that resided in poor and oppressed communities. She had enormous respect for the everyday experience of marginalized populations and believed they possessed the thoughtfulness and social intelligence to generate discerning critiques and take informed actions. Although she personally received a rigorous forma education, she reserved her greatest admiration for people with street smarts, for the learning that took place ‘in the meeting places and unions hall of New York City, as well at rural and urban churches, barber shops and kitchen tables throughout the South.’ She recognized that retreat centers like Highlander proved a central location where the everyday wisdom of ordinary people could be brought to bear on the most difficult problems, while also diminishing the barriers of race, class, sexism, and elitism that so often derailed productive dialogue.”[10]

Notes:

1. Aldon D. Morris, The Origins of the Civil Rights Movement: Black Communities Organizing for Change (New York: Free Press, 1984): 39.
2. Clayborne Carson, In Struggle: SNCC and the Black Awakening of the 1960s (Cambridge, MA: Harvard University Press, 1995 ed.): 51.
3. Ibid., 51-52.
4. Morris, 139-140.
5. Ibid., 141.
6. “Prefigurative politics” is discussed in the chapters 1 and (especially) 4 in Wini Breines, Community and Organization in the New Left, 1962-1968: The Great Refusal (New Brunswick, NJ” Rutgers University Press, 1989).
7. See David L. Norton, Democracy and Moral Development: A Politics of Virtue (Berkeley, CA: University of California Press, 1991). On “community” in SNCC, consider what James Forman wrote at the time of SNCC’s fourth general conference in April 1963. After first noting the group’s achievement of organizational security, in the sense that it was no longer insecure about its survival, he says, “The meeting was permeated by an intense comradeship, born out of sacrifice and suffering and a commitment to the future, and out of knowledge that we were indeed challenging the political structure of the country, and out of a feeling that our basic strength rested in the energy, love, and warmth of the group. The band of sisters and brothers, in a circle of trust, felt complete at last.” Quoted in Carson, 82.
8. Ibid., 124.
9. John M. Glen, Highlander: No Ordinary School (Knoxville, TN: University of Tennessee Press, 2nd ed., 1996): 3 and 154 respectively.
10. Stephen Preskill, Education in Black and White: Myles Horton and the Highlander Center’s Vision for Social Justice (Oakland, CA: University of California Press, 2012): 161-164 and 211-214 respectively.
    

References and Recommended Reading

• Adams, Frank (with Myles Horton). Unearthing Seeds of Fire: The Idea of Highlander. Winston-Salem, NC: John F. Blair, Publisher, 1975.
• Asch, Chris Myers. The Senator and the Sharecropper: The Freedom Struggles of James O. Eastland and Fannie Lou Hamer. New York: The New Press, 2008.
• Berman, Ari. Give Us the Ballot: The Modern Struggle for Voting Rights in America. New York: Farrar, Straus and Giroux, 2015.
• Blain, Keisha N. Until I Am Free: Fannie Lou Hamer’s Enduring Message to America. Boston, MA: Beacon Press, 2021.
• Bledsoe, Thomas. Or We’ll All Hang Separately: The Highlander Idea. Boston, MA: Beacon Press, 1969.
• Braden, Anne. The Wall Between. Knoxville, TN: University of Tennessee Press, 2^nd ed., 1999.
• Brooks, Maegan Parker. Fannie Lou Hamer: America’s Freedom Fighting Woman. Lanham, MD: Rowman & Littlefield, 2020.
• Brooks, Maegan Parker and Davis W. Houck, eds. The Speeches of Fannie Lou Hamer: To Tell It Like It Is. Jackson, MS: University Press of Mississippi, 2011.
• Carawan, Guy and Candie Carawan. Ain’t You Got a Right to the Tree of Life: The People of Johns Island, South Carolina. Athens, GA: University of Georgia Press, 1989.
• Carson, Clayborne. In Struggle: SNCC and the Black Awakening of the 1960s. Cambridge, MA: Harvard University Press, 1995 ed. (1981).
• Charron, Katherine Mellen. Freedom’s Teacher: The Life of Septima Clark. Chapel Hill, NC: University of North Carolina Press, 2009.
• Clark, Septima (Cynthia Stokes Brown, ed.) Ready from Within: Septima Clark and the Civil Rights Movement: A First Person Narrative. Navarro, CA: Wild Trees Press, 1986.
• Cotton, Dorothy. If Your Back’s Not Bent: The Role of the Citizenship Education Program in the Civil Rights Movement. New York: Atria, 2012.
• Fosl, Catherine. Subversive Southerner: Anne Braden and the Struggle for Racial Justice in the Cold War South. New York: Palgrave Macmillan, 2002.
• Glen, John M. Highlander: Nor Ordinary School. Knoxville, TN: University of Tennessee Press, 1996.
• Holsaert, Faith S., et al., eds. Hands on the Freedom Plow: Personal Accounts by Women in SNCC. Urbana, IL: University of Illinois Press, 2010.
• Horton, Myles and Paulo Freire (Brenda Bell, John Gaventa, and John Peters, eds.) We Make the Road by Walking: Conversations on Education and Social Change. Philadelphia, PA: Temple University Press, 1990.
• Jacobs, Dale, ed. The Myles Horton Reader: Education for Social Change. Knoxville, TN: University of Tennessee Press, 2003.
• Lee, Chana Kai. For Freedom’s Sake: The Life of Fannie Lou Hamer. Urbana, IL: University of Illinois Press, 1999.
• Morris, Aldon D. The Origins of the Civil Rights Movement: Black Communities Organizing for Change. New York: Free Press, 1984.
• Moye, J. Todd. Ella Baker: Organizer for the Civil Rights Movement. New York: Rowman and Littlefield, 2013.
• Parks, Rosa. Rosa Parks: My Story. New York: Puffin, 1999.
• Payne, Charles M. I’ve Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle. Berkeley, CA: University of California Press, 1995.
• Preskill, Stephen. Education in Black and White: Myles Horton and the Highlander Center’s Vision for Social Justice. Oakland, CA: University of California Press, 2021.
• Ransby, Barbara. Ella Baker and the Black Freedom Movement: A Radical Democratic Vision. Chapel Hill, NC: University of North Carolina Press, 2003.
• Reed, David (Preface by Anne Braden). Education for Building a People’s Movement. Boston, MA: South End Press, 1981.
• Stefani, Anne. Unlikely Dissenters: White Southern Women and the Fight for Racial Justice, 1920-1970. Gainesville, FL: University Press of Florida, 2015.
• Theoharis, Jeanne. The Rebellious Life of Mrs. Rosa Parks. Boston, MA: Beacon Press, 2013.

Miscellaneous

• The Wikipedia entry on Baker: https://en.wikipedia.org/wiki/Ella_Baker
• Baker’s page from the Zinn Education Project: https://zinnedproject.org/materials/baker-ella/
• My alma mater, the University of California, Santa Barbara, established in 2014 a visiting professorship in her honor: https://www.jbhe.com/2014/10/shana-redmonds-named-to-professorship-honoring-civil-rights-activist-ella-baker/
• The Ella Baker Center for Human Rights is in Oakland, California: https://ellabakercenter.org/contact-us/
• Ella Baker at the SNCC Digital Gateway: https://snccdigital.org/people/ella-baker/

Relevant Bibliographies at my Academia page:

• After Slavery and Reconstruction: The Black Struggle in the U.S. for Freedom, Equality, and Self-Realization
• The Black Panther Party
• Blacks on the (radical) Left
• Conflict Resolution and Nonviolence
• Democratic Theory and Praxis
• Elections and Voting
• The History, Theory and Praxis of the Left in the 1960s
• Malcolm X

Judicial Politics and Roe

Justice Felix Frankfurter once said that Supreme Court justices are molders of policy rather than impersonal vehicles of revealed truth. He was right. So, when members of the Supreme Court give speeches asserting that they are not political, they speak only partial truths. When Chief Justice Roberts said a Supreme Court justice was like an umpire calling balls and strikes, he was way off the mark. To borrow a locution Fred Schauer used in a different context, it is like saying a butterfly is an adjusted camel.

This does not mean that there are no limits on the Court. Two of them are crucial. First, it is illegitimate for the Court to make decisions based on which political party would be benefited – as the Court did in Bush v. Gore. Second, although the Court can overrule precedent in an appropriate case, depending on the circumstances there can be a heavy burden against doing so. In my view, the burden is insurmountable regarding the right recognized in Roe and Casey wholly apart from the merits of the decisions. First, several of the justices who will vote to make Roe meaningless testified under oath to the Senate in a way that indicated they would respect Roe. To move away from that testimony would be indefensible. Second, the Court in Casey reaffirmed the central holding of Roe in a thorough review of the question when to respect a precedent and when not.  There is more, but overturning Roe – a decision backed at the time by a Republican majority of justices – will leave a “stench” that no amount of pious speeches will be able to overcome.

Abortion and the Democrat's Reading of the Constitution

In listening to the oral arguments this week,  I could not help but think how different things would be if the Democrats controlled the Court. Most obviously, Roe would be settled law. Furthermore, the right of poor women to secure government funding for an abortion would be put in place.

Somewhat less obvious, the notion that a finding of discrimination requires discriminatory intent would be cast aside. Instead, at the very least, government action resulting in disparate impact on the basis of race would be unconstitutional in the absence of a strong justification. If a state can outlaw abortion, the harm will fall disproportionately on the basis of race, sex, and class. Forcing a woman to carry a child to term is itself problematic, but there are strong grounds to doubt that the interests of poor black women are properly valued in the “great state” of Mississippi.

To narrow the point, Washington v. Davis (requiring a showing of discriminatory intent) was wrong the day it was decided. It is too easily disguised, and, as Ken Karst argued, even good judges shy from branding an action as being stained by discriminatory intent.