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Friday, May 31, 2019

The Wonderfully (if Perhaps Insufficiently) Radical Bill McKibben

[Cross-posted to Front Porch Republic]

I've been a fan of Bill McKibben's writings for close to 30 years. That doesn't mean I've agreed with, or even enjoyed, everything this endlessly prolific journalist-environmentalist-activist-pundit-essayist has produced over the decades (he's had at least a couple of complete misses, in my opinion). But when, back in April, I heard he was returning to Wichita, KS, to promote his latest book, Falter: Has the Human Game Finally Begun to Play Itself Out? at one of our delightful local bookstores, Watermark Books & Cafe, I knew it was a presentation I couldn't miss. Though Falter, and the case McKibben made both for and in that book, isn't one I'm likely to be madly repeating or repeatedly recommending to my students or others, I'm glad I was there.

Like plenty of folks who recognize--whether for reasons scientific or spiritual or social or all three--the environmentally and culturally destructive consequences of modernity's relentless insistence upon economic and technological expansion, my relationship with McKibben's (usually) thoughtful writing began with The End of Nature, his short and, I think, profoundly eye-opening extended essay from 30 years ago. Long before anyone, so far as I know, was using terms like "the Anthropocene," McKibben was presciently leading his readers--like myself, an early 90s college student, someone with little scientific knowledge and only a small sense of how important terms like "community" and "sustainability" would eventually become in my life--through an argument about how the post-WWII human impact upon the climate, the oceans, and the soil, is both greater and more lasting than any previous human intervention. It was, and remains, a beautiful book: "When I say that we have ended nature, I don't mean, obviously, that natural processes have ceased--there is still sunshine and still wind, still growth, still decay. Photosynthesis continues, as does respiration. But we have ended the thing that has, at least in modern times, defined nature for us--its separation from human society" (The End of Nature, Anchor Books, 2nd ed. [1999], p. 64). The hundreds of billions of tons of carbon dioxide we have put into the atmosphere, the hundreds of millions of tons of industrial fertilizer we have put into our farmlands and watersheds: all of it was then warping, and today continues to warp, ecological processes which had evolved over billions of years in a direction reflective of humanity's most short-term and utilitarian preferences. And as for the better human interactions with those natural processes--practices which had been able, in a less expansive and technological era, to become (to quote Wendell Berry and Wes Jackson) "native to their place"? They were being warped, being made crude short-term and technological, too.

Someone familiar with these arguments as they have played out over the decades might notice an imperfect fit here, and they wouldn't be wrong. McKibben and Berry and Jackson all recognize each other has compatriots in the effort to articulate a more sustainable and local way of life, one that is disconnected from the rat race of endless growth and change. Their mutual admiration is well documented. And yet, the place (both geographically and metaphorically) that McKibben is native to is one very different from the agricultural environs and mentality which grounds the reflections of thinkers like Berry and Jackson. McKibben is a Vermont writer, a mountain-climber and a cross-country skier, an organizer of protests across the nation and reporting expeditions around the globe; his adoration for, and his mourning for, nature is grounded not in husbandry but in observation. That is, of course, one of the reasons he has the readership he has: he can take his readers, as he does in Falter, from Alberta's tar sands to Greenland's melting glaciers to the accidentally protected (thanks to the land claimed by Kennedy Space Center) sand dunes along the Florida coast and take it in as a reporter, an admirer, a visitor--which is, of course, all the most of us will ever be.

I don't put this forward as a criticism, but rather as a way of appreciating what McKibben has accomplished with his activism and arguments, while also noting what he, perhaps, can only occasionally authentically grasp. Falter is a fine book, with typically lyrical writing and sharp observations. In my judgment, though, it stumbles occasionally. Much of the anticipation over the book was due to it presenting itself, in part, as an update to The End of Nature, a reflection on the gains and losses of the argument which McKibben, as much as anyone, started 30 years ago. McKibben does not disappoint on this score: the first section of the book, "The Size of the Board," is unsparing (and sometimes uncomfortably earnest) in its description of the complex, entwined environmental, economic, and political crises which rising ocean temperatures, increasing weather extremes, and local ecosystem collapses present us with in 2019. But in the middle portion of the book, McKibben's thoughts lead him in different directions.

First, he takes us through a long polemic against the Koch brothers and a handful of other oil company executives, libertarian economists, and Republican politician whom he holds all but solely responsible for the relative lack of action on climate change over the past 30 years. (I have no problem with the targets he's chosen, but am less than thrilled by the simplistic--and sometimes unsupportable*--ways in which assumes that choices by big money actors automatically control all electoral contests.) Next, he turns to a fascinating excursion through genetic engineering, transhumanism, and other obsessions of the Silicon Valley elite. This is great stuff--and includes many arguments that, in a world with a fierce and well-funded race to perfect in vitro, gene splicing, and AI technologies, deserve a more thorough theoretical unpacking. How it all connects to the "faltering" of the human game is, unfortunately, only inconsistently made clear.

What McKibben needs--and, to be fair, the book's wonderful concluding section, "An Outside Chance," occasionally provides it--is a strong argument about what human being is. Nature and wildness, community and connection, and a sense of both physical and temporal space (and hence an acknowledgement of the limits inherent to such)--all are necessary components of a flourishing human existence; that his writing makes, in my view, a strongly persuasive case for. But how to tie it together, such that it makes sense to say that, in the face of all of the above, the "human game" is "playing itself out"? That's a deeper theoretical project, one that McKibben, an inveterate observer and experimenter and writer, perhaps can only gesture towards. That's no small thing, to be sure--and when your gestures are as striking and thoughtful as McKibben's often are, then his valued role as a much-needed seeder and agitator of ideas is assured.

Two gestures--just random implications that struck me as I worked through his thoughtful sentences--of McKibben's stand out most particularly to me. One has to do with technology; the second has to do with scale. The first is rooted in "obsolescence," and how that fact is reflected in both our destructive (and only partly unknowing) efforts to transform the planet into a simple source of energy extraction, and in the modern obsession with technological and genetic improvement. In both cases, we can see, at bottom, the desire to make other people, other things, and even ourselves and our immediate environs, into things that can be controlled, used, reliably replicated...and then, presumably, disposed of.

Current humans have changed so little over the millennia that, say, Stonehenge still makes us feel something. It was created by creatures genetically very much like us, creatures who processed dopamine the same way we do. They are much more like us than our grandchildren would be, should be go down [the designer baby] path. But those modified grandchildren will also no longer be really related to their future....When we engineer and design, we turn people into a form of technology, and obsolescence is an utterly predictable feature of every technology we've ever seen...The randomnness of our current genetic inheritance allows each of us a certain mental freedom from determinism, but that freedom disappears the day we understand ourselves [or, I would add, our natural environment] to be, in essence, a product (pp. 170-172).

McKibben, perhaps to his discredit, has never really been any kind of Luddite; he recognizes the arguments against invasive technologies, but he's always liked his doo-dads and toys. Still, here he has stumbled upon something important--the fact that there is a freedom which is lost when one puts one's lifestyle, or indeed one's very life, on the technological treadmill. The freedom I'm talking about is one that McKibben, good liberal Methodist that he is, would quickly recognize: the freedom of knowing, and disciplining oneself to, the truths of creation, and finding an open-ended space of meaningful action therein. To get off that treadmill, and save that freedom, one could see McKibben as calling for, shall we say, "counter-technologies." He focuses on the possibility of solar energy (the cost and capacities of which are improving every year) to liberate us from corporate energy dominance, and non-violent resistant (such as McKibben, through his organization 350.org, has been able to use, sometimes even successfully) to liberate us from corporate financial and political dominance. An odd duo, to be sure. But in the language of his reflections, their potential to free us from looming disposability, from the sense of the "inevitability" of the warped systems around us which Wendell Berry has rightly condemned, make sense: "Solar energy and nonviolence are technologies less of expansion than of repair, less of growth than of consolidation, less of disruption than of healing. They posit that we've grown powerful enough as a species, and that the job now is to make sure that that power is shared and controlled" (p. 226).

To gesture towards humankind as a species that has "grown powerful enough" is to bring us to his other vital, if insufficiently explored, idea, and that is scale. (Though to be fair, McKibben has written a whole book which revolves around the subject before--it's his best book, I think, one that I've used often.) Obsolescence--and the short-cuts, expediencies, and conveniences which it is the inevitable end point of--often feels forced upon us by the systems and expectations that we can't imagine managing a complex society without. That is not a flawed observation; complexity does produce its own relentless logics. So perhaps what we most need is to simplify, to retreat from connections that suck our paychecks, educational goals, military obligations, and most of all our hearts and minds, into the cult of Big and More:

If the only things you wanted in the world were efficiency and growth, then you'd scale things up--and we have: large corporations, large nations. But we've reached the point where size hinders as much as it helps, where it reduces the many ways the human game might be played down to just a few....[B]oth nonviolence and solar panels nudge us, at least a little, toward a smaller-scale world less obsessed with efficiency....We'll have to fight to make sure this happens--that communities control their local energy sources, and that those sources are developed with everyone's interests in mind--but at least it's a possibility. Home, community, is the ground on which we can actually play the human game, and it is a false efficiency to undermine it....There a time and a place for growth, and a time and a place for maturity, for balance, for scale (pp. 231-233).

The problem which McKibben has been struggling with, on and off, for more than three decades is unlike any that we know of any human society having had to struggle with before. It is a problem rooted in our own perceptions, and the way our technologies and economies have (both metaphorically and literally) warped and shrunk our planet and its organic, created rhythms so thoroughly that we often can neither perceive or even perhaps conceive of what we have lost. No loss is total, of course; McKibben knows that (and, more over, knows that selling the apocalypse is the shortest short-term strategy of all). But just because nature--of some sort--continues, and human life--or some definition thereof--keeps on stumbling forward, doesn't mean we shouldn't pay close attention to what harms and losses we're experiencing along the way. Whatever confusion or frustration or limitations attend McKibben's writing, he's always helped me see thing worth seeing, and think things worth thinking. And I'm not alone in thinking that way--Wichita, KS, is hardly a haven for environmentalist, localist, anti-capitalist, small-c conservative thought, but his presence at Watermark brought the whole gang of us out; my only regret was that it was the end of the semester, and I couldn't bring any students out to meet him. Fortunately, he'll be back in Kansas next September, speaking at The Land Institute (under Wes Jackson's kindly eye, no less!). I'll be there, students in tow, hoping they, like me 30 years ago, will hear or read something that, even if they don't fully agree with or appreciate it, will get them to think and see differently.

*For the problems with McKibben's reliance upon Nancy MacLean's screed against James Buchanan, public choice theory, and the supposed secret libertarian plot to destroy democracy, see here, here, and here.

Listening to Macca #5: Wings Errata, McCartney II, and Tug of War

I want to begin this entry with a rethinking of some of my comments last month, as I finished up McCartney's musical history with Wings. I'm not taking any of it back, but I feel like some additional context is necessary. Partly this is because of Tom Doyle's Man on the Run, which I read this month and thought was a pretty wonderful series of reflections on Macca in the 1970s. That book gave me some insight into McCartney's terribly conflicted feelings about the break-up of the Beatles, and the combination of immaturity, resentment, and heartache that accompanied the legal wranglings and sniping which followed in its wake. What does that have to do with Wings? Simply that I think Doyle's thesis is a persuasive one: Wings was, from its stumbling beginning to its anti-climactic end, inseparable from Paul's alternately generous, demanding, doubtful, adventurous, and (unfortunately, far too often) pot-beclouded efforts at trying to figure out how to be an ex-Beatle. It makes me more convinced than ever that Wings really could have taken flight beyond the brief Band on the Run-Venus and Mars-Wings at the Speed of Sound run from 1973 to 1976, given a few different breaks. There was frequently genius in there; the fact that McCartney was able--in the midst of decisions that were often clumsyand self-centered--to come out of the world of experience that was the Beatles and still create some pretty wonderful pop-rock music ("Get on the Right Thing," "Let Me Roll With It," "Junior's Farm," "Magneto and Titanium Man," "Beware My Love," to say nothing of all his other hits) is something that, in itself, deserves applause.

The other part of it is that I realized, in wrapping up my attempt at a comprehensive listening to Wings, that I'd nonetheless missed one of that band's final, great tunes, "Goodnight Tonight," which was left off of Back to the Egg. (Doyle has a nice snark about the fact that Macca continued to insist upon releasing promotional singles that were left off the albums they were nominally a part of all the way through the end of the 1970s, even though the economy of record sales had completely changed by then.) I wouldn't make a big deal about this, except that "Goodnight Tonight" is not only a terrific pop concoction, but is really one of the best examples McCartney's tremendous skill with the bass from his entire career, and that deserves mentioning. I mean, the flamenco guitar licks are great, the disco beat is groovy, but really, it's the bass line that makes the song. And one thing which Doyle's book didn't do enough of, in the midst of all its observations about McCartney's doubts and decisions and drug habits, was to talk about Macca as a musician, as a talented instrumentalist who loves to just play. When he did, he was one of the best bass players from the whole formative pop-rock era of the 1960s and 1970s, I think.

Anyway, enough of that. On to McCartney's first two post-Wings albums.

Having got my wish to give McCartney and Wings their proper due out of the way, allow me to admit that I think McCartney II kind of stinks. Like the first McCartney, this album was recorded almost entirely solo, with Paul, feeling bored and frustrated with Wings, just playing around with synthesizers, drum machines, and everything else that was changing pop music in 1979. I can understand that--and it's not as though anything that he came up with and decided to release on this album is actually bad. Just mostly simplistic, incomplete, and kind of pointless. He's having fun with the synths on "Temporary Secretary," "Front Parlour," and "Frozen Jap," and sure, he comes up with some cool beats there--but honestly, you'd be pleasantly surprised, but not shocked, to hear your kid in high school orchestra came up with the exact same thing on the keyboards one Saturday. You expect more than some skilled teen-age noodling from McCartney. Yes, "Waterfalls" has its defenders--McCartney definitely among them--but it's an undeveloped tune, one that needed some push-back from someone. "Coming Up" is the only fully realized song on the album, and it's pretty good, but unlike "Maybe I'm Amazed" on McCartney, it isn't enough on its own to lift this album above the D grade it deserves.

Tug of War, on the other hand, is wonderful, an album as good as Band on the Run, maybe even better. This was Paul working with ex-Beatles for the first time: Ringo is on the drums, and George Martin producing, and it shows--there is a Beatlesesque shine to the album, a tightness that McCartney never seemed to be able to do on his own (at least, not by this point in his career, anyway). "Take it Away" is the album's masterpiece--a witty, groovy, reflective, and utterly infectious celebration of the music business, one of the best I know of from the whole history of pop music, up there with Jackson Browne's "Load Out" or Robyn Hitchcock's "Mr. Kennedy." (The single's B-side, "I'll Give You a Ring" is quite good, a charming throwback to the Macca of "When I'm Sixty-Four" or "Honey Pie," and one that should have been on the album, as it's a great companion to the album's equally fine, equally "granny" song, "Ballroom Dancing.") In totally different veins, "Here Today" is a plaintive, folky tribute to John (written not long after his murder), "What's That You're Doing?" is a glorious slice of electronica-funk (and a dozen times better than the other duet with Stevie Wonder on the album, the innocuous "Ebony and Ivory"), "The Pound is Sinking" is a clever medley of 70s rock tropes, and if "Tug of War" is an earnest rock anthem that perhaps tries a bit too hard, "Wanderlust" is a brassy pop anthem that hits it out of the park. (It, along with "What's That You're Doing?," should have been monster hits along with "Take it Away.") And I have to mention "Get It," a solid rockabilly number with Carl Perkins that, had it been released 25 years earlier, would have sounded just perfect on AM radio. So, in other words, a great album, with only a couple of bumps along the way (the disco beats on "Dress Me Up Like a Robber" are a little much, I think). A solid A- for Sir Paul, as he threw himself onward and upward into the 1980s.

Monday, May 27, 2019

Michael Austin's Enemies, and What He Says About Them

[Cross-posted to By Common Consent]

Michael Austin (who, for the record, is an old and close friend) does not fit most people's stereotype of a "patriot," the sort of person would would proudly fly an American flag and attend parades on Memorial Day. After all, he's an academic, a cosmopolitan, a liberal Democrat, a scholar of 17th-century English rhetoric, Mormon environmentalism, world literature, and the book of Job; when he wrote an earlier book about the Founding Fathers, it was entirely about how right-wing patriots completely misunderstand them. So it would be easy to assume that Michael's attachment to the idea of "America" would be distant, contextual, and intellectual at best.

That assumption would be wrong--or mostly wrong, anyway. You'd very likely be correct about the flag and the parades. But Michael's latest book, We Must Not Be Enemies: Restoring America's Civic Tradition, makes it clear that his attachment to--indeed, his "belief" in--the civic idea of America is both serious and strong. As long as I've known the man, it surprised me to see in these pages so much genuine passion and concern over the direction of the United States at the present moment. When he takes a line from the famous closing paragraph of Abraham Lincoln's First Inaugural Address--"We are not enemies, but friends. We must not be enemies"--as his title, he really means it: he really believes that America's liberal democracy both provides a vital opportunity for, and levies upon us all a specific demand for, friendship. That friendship is, in his view, essential to America's "civic tradition"; democratic legitimacy in the American state--to say nothing of good government--is impossible without it.

Joseph Smith, the founder of the religious tradition that Michael and I share, famously stated that "friendship" is a "foundational principle," a "revolution" that could "civilize the world." This is not the sort of friendship that Michael is talking about. He does not conceive of the United States as a family or a community characterized by--or one that needs to be characterized by--deep senses of affection or charity; indeed, he starts his book out making it clear that he is not talking about how we all need to be nicer, or how we need to change the U.S. Constitution in a more communitarian or participatory direction, or how we just need to figure out who is worthy of friendship and who isn't. Michael instead proposes that the friendship which America needs is "civic friendship," and he uses Lincoln and a great many other historical examples--from the long, once broken, ultimately repaired friendship of John Adams and Thomas Jefferson; to Preston Brook's violent response to Charles Sumner's furious speech in the Senate against slavery; to the little known story of President Chester Arthur's willingness to change his mind, profoundly improve the functioning of America's bureaucracy, and accept the political consequences--to flesh out his idea. At its heart, Michael's civic friendship means taking seriously the long-term interests of one's fellow citizens--whether or not one agrees with, or can even barely tolerate, those citizens or their respective interests--simply as a matter of justice. The operation of the American democratic system, as he sees it, depends upon our use of persuasion, and our willingness to endure persuasion's frequent failures, as we debate and disagree about how to govern ourselves. To give up on persuasion means, for Michael, to deny the justice encoded in the democratic principles at the heart of our system (principles which, as he regularly acknowledges, emerged and continue to emerge only through much struggle, argument, and time), and instead simply accept that those you disagree with are your enemies, worthy only of being punched (at best).

Beginning with Aristotle's philia politike (which Michael defines as mutual self-interest elevated by goodwill, the desiring of the "well-being of [one's] fellow citizens for its own sake"--p. 36), and building upon Alexis de Tocqueville's many observations about the mores and habits he saw exhibited by the Americans he observed during his visit to the United States in the early 1830s (like the fact our commitment to voting and elections "seeps into almost every aspect of our lives"--p. 22), Michael expands upon the idea of civic friendship through evolutionary psychology, literary analysis, game theory, and more. His case for the possibility of persuasion, and the necessity of acting as though it is possible even in the most extreme and divisive moments, is a strong one. (His detailed study of the argumentative strategies employed, and responded to, by Lincoln and Stephen Douglas in their 1858 debates is one of several highlights throughout this short book.) In addition, the book's language is often both beautiful and wise; Michael is no poet, but sometimes he expresses his civic friendship ideal in ways that are not only informative, but deeply appealing as well:

We exercise civic friendship, or fail to exercise it, when we decide what kind of society we want to be. We vote on this question every day--occasionally in a formal election but more often through the purchases we make, the people and institutions we choose to associate with, and the things that we give our attention to. No law can force us, and no syllogism can persuade us, to care about other people; only friendship can do that. When animated by a genuine concerns for the well-being of others, we will find ways to make our society more just. When animated by civic enmity or the desire to injure or defeat some group of people, we will find ways to make our society less just (pp 38-39).

This is the sort of language that ought to give everyone who has ever unfriended, snarked at, or triumphantly shouted down those they assume to be hopelessly wrong--the Mormon-bashers, the Trump-supporters, the pro-choicers, the Confederate flag-flyers, the PETA-funders--a serious pause. Less noticeably, but perhaps more importantly, it is language that ought to also give everyone who has occasionally felt themselves weirdly connecting with others against the assumed grain of American discourse--the Democratic Socialist of America activist who enjoys spending time with conservative farmers, the libertarian Google coder whose best friend is a life-long Marine, the conservative Christian who adores her membership in the local Quentin Tarantino fan club--some real encouragement: maybe they're doing something right! By so doing, it provide both groups, and everyone in between, a larger sense of how their--how all of our--choices fit, or don't fit, with America's democratic ethos, and thereby provides much needed encouragement (and warnings as well). Solely on an ethical level, Michael's book is both vital and valuable; as a Memorial Day read, I can't possibly recommend it more highly.

That said--can I also recommend it on a political level? That is, do I think his diagnosis of American democracy, as a matter of political theory and political practice, is correct? Only partly. Hence, once I put on my own academic hat, I can only recommend the book with a couple of large caveats. I'll lay those out now, but they aren't going to affect the five stars I'm giving this book, so if feel free to skip the next several paragraphs and go to the end if that was your only reason for reading this far.

The first of my caveats is ideological in character; the second is structural, though they overlap in important ways. Let's begin with the ideological: Michael, as all of the above should make apparent, is not just a liberal Democrat, but a bone-deep philosophical liberal, someone who is entirely convinced that liberal principles of rationality, individuality, and pragmatism provide the only accounts of human freedom and flourishing worth defending. This means, of course, that there some major elisions in the book--not necessarily ones which Michael couldn't address and respond to, but ones that, as he made decisions about what to include and what to exclude in this 155-page book (with 30 pages of appendices), I suspect simply never seemed important to him.

For example, consider Michael's rather cavalier treatment of the inevitable "what about Nazis?" question (pp. 70-72). It's not that his eminently pragmatic responses (such as: the odds of anyone meeting an actual Nazi is vanishingly small; asking if one has to show civic friendship to a Nazi is probably just a self-interested effort of giving oneself an exemption from the obligations of American citizenship; proudly rejecting the intolerant only plays to one's own peer group and never advances actual discourse; etc.) are wrong--they aren't. But Michael can't, in my judgment, build a moral case for particular sorts of democratic actions on the basis of a civil religion without articulating the place of, and the relationship others should have to, those who rejects the basic precepts of a particular community's civil faith. And Michael does build such a case: his liberal principles are, on my reading, deeply parasitic upon republican and civil religious assumption.

Michael only mentions "civil religion" a couple of times--once to define it, following Lincoln's Second Inaugural Address, as "wishing others well" instead of "wishing them ill," and once to insist, despite today's partisan divisions, that we still "hold enough beliefs in common to build a political process based on persuasion" (pp. 40, 147). It's my belief, though, and the belief of many others, that to take seriously an Aristotelian framework for understanding civic action--which Michael absolutely does--makes it impossible to avoid the human impulse to "understand the actions of individuals (including oneself) as embedded in some sort of collective, morally (and often religiously) substantive--that is, 'truthful'--cultural order." In other words, I do not see how it is possible to believe that the communal and cultural awarenesses which allow for concepts like "well-being" or "justice" to even make sense can avoid carrying with them (and even, despite the bogeyman this presents philosophical liberals with everyone, occasionally "establishing") some kind of clear communitarian or cultural or ideological marker. (Consider: how can one express what doing "well" is, as opposed to doing "ill," or what a "just" relationship is, versus an "unjust" relationship, absent some kind of substantive body of social or moral ideas being concomitant with or at least broadly accepted among those doing the expressing?) This is, in my view, Republicanism 101; Michael at one point mentions the classic Roman phrase "res publica," and how it relates to Aristotle's preferred mixed regime (the "politeia"), but he doesn't mention that the literal meaning of res publica, and thus the root meaning of republicanism, is "the public thing"--thus making it incumbent upon anyone who wants to make use of these ideas to define just which "public" is being referred to. The earliest English translations of these republican notions is what gave us "commonweal" and "commonwealth"--which, of course, cannot help but take as their beginning some specific "commons," some specific people or place or public, and what norms or habits or preferences are central to their own "weal," their own wellness. Which means, in the end, that one cannot avoid dealing with the problem of those whose habits or norms or preferences lead towards positions which the community understands as the opposite of well-being.

Admittedly, there are other ways to understand this particular ideological matter, and it's one Michael and I have argued about before. But look: saying that Michael can't get to where he wants to get by way of civic friendship without dealing with the genuine theoretical problem of those whose beliefs are actually not "friendly" to the American community, does not mean that he needs to abandon his liberal convictions. Many liberal thinkers--John Rawls most famously--have labored (some with more success than others) over how one can sensibly defend the ideal of a liberal community of real fairness and decency that would be, nonetheless, freely chosen by all the different people who are part of it. No, I'm not expecting Michael to write his own version of A Theory of Justice; I'm just saying that if he wants to convincingly call to civic friendship those who, say, by their own philosophical and moral lights, genuinely understand baby-murdering abortionists and women-enslaving Republicans to be beyond the pale of any possible persuasion, then he needs to articulate a strong and substantive enough definition of the American community so as to ground that friendship which such people can supposedly share. Of course, one could abandon such substance, in favor of (as Rawls ultimately did) some kind of proceduralism: an "overlapping consensus" of self-interested electoral protections, perhaps. In other words: I hate you, but I won't shoot you in the face, and instead I'll just try to win elections, because I don't want to be shot in the face either. That isn't necessarily a bad ethic! But it's not an ethic that cares at all about "America's Civic Tradition," as Michael's subtitle does, either.

Michael's subtitle brings me to my structural, and more simple, complaint: restoring civic friendship, as vital and valuable as I agree it is, cannot, in my judgment, restore America's civic tradition, because the basic operations of our democratic and electoral systems are no longer responsive to republican civic action, or at least not nearly as much as they once were. There are a hundred ways to examine this degeneration of America's constitutional order, even if one restricts oneself solely to basic republican principles. There is the way the enormous gap between the wealthy and the poor in the United States undermines any sense of a common good; the way the legal recognition of money as equivalent to speech corrupts the trust voters are supposed to have in their elected representatives; the way globalization disrupts the patterns of life by which citizens might feel any real ownership over their communities; etc. Michael does note at the beginning of the book that he feels no obligation to address any comprehensive proposals for reform, simply because, until "people in the country trust each other and are willing to set aside differences and work for the common good," none of them will happen. His decision--and it's a perfectly reasonable one--is to focus on "things that we actually control," specifically "the way we talk to other people" (pp. 9-10). To the extent that not being enemies is a chicken-and-egg problem--something he acknowledges at the very end of the book, in a thoughtful section on the "risk of embrace"; basically the "who starts treating their enemies as friends first?" question (pp. 154-155)--then simply asserting the need to begin with persuasion is entirely defensible. Except for the fact that even Michael himself can't ignore the structural obstacles to persuasion in America today entirely.

Twice in the book--once while invoking President Johnson's insistence upon getting Republican support as the Democrats pushed the 1964 Civil Rights Act through the Senate, and once when talking about combating the way partisan polarization benefits small groups of extremists (pp. 73-74, 81)--he makes an important admission: "Our primary election system makes this dynamic especially difficult." Michael does imply that the problem here is voters that "rarely reward" politicians who compromise, but his own language makes it clear he knows that, when it comes to career-minded politicians who wish to maintain their party's nomination, it is not the "voters" in general but rather "well-funded primary challenges" that are the problem. Without a complete transformation in how parties operate, how candidates are recruited, and how elections are paid for--the sort of transformations which Michael said was beyond the scope of his book--you can't get away from the problem that primary contests pose for the ideal of elected politicians acting as agents of, and responders to, real democratic persuasion. Which means that, in this matter at least, the "way we talk to other people" has to be less about democratic debate and more about building coalitions of the like-minded sufficient to challenge major funding sources, with the aim of occasionally, in one election or another, actually disrupting their entrenched control over the process. At the present corrupt moment, unfortunately, truly concerned voters I think often need to act more along the line of Alinsky's rules, rather than Austin's.

Note what I said there: "often," not "always." The ideal of civic friendship is not simply a fine ideal; it is an ethically meaningful one. Michael is, as I said at the beginning, a genuine believer in the aspirational possibilities and principles he sees as embodied in America's constitutional democracy--his commitment to the practice of liberal democracy is nothing less than patriotic, in every sense of the word. Yes, I think his liberal equanimity gets in the way of his dealing with serious theoretical problems that his aspirations cannot honestly avoid addressing in the United States of America, circa 2019; and moreover, I think his sole focus on our personal rhetoric and political choices and relationships cannot, in the face of actual anti-republican obstacles out there, actually do what he hopes it will do. But so what? Maybe American democracy is in terminal decline, or maybe there will be some revolution to restore it or make it into something different--maybe some of those reading this will even be part of that revolution, whatever it may be. But whether this country, whom so many have sacrificed so much for over its 230 years of existence, declines or improves or just muddles along, the ethical and civic rightness of Michael's call to practice democratic friendship and trust will endure. Michael is anything but a moralizer, but at the book's end he returns to the call I quoted above, and it remains a powerful one: "[W]e vote every day for the kind of country we want to live in. We vote by how we choose to participate--or not participate--in the civic life of our democracy. Every time we have a political conversation, we are casting a vote for the kind of political conversations we want to have" (p. 155).

From what I've seen over more than a quarter-century, Michael's whole life, academic and otherwise, has been guided by his deep liberality and rationality--his conviction that any two people, or any two tribes or religions or genders or anything else, assuming even just the most minimal of civic connection, nonetheless can and should be friends. Not just mutual sharers of procedural tolerance, but people who share, in the midst of their endless and perhaps necessary disagreements, a desire for the well-being of one another. This liberal Christianity is how he approaches the contentious world around him, and around us all. It's a rather beautiful ideal--even, perhaps, as Smith suggested, a revolutionary one, though Michael's notion of civic friendship doesn't really have a place for those who see a need to revolt against that which sometimes makes friendship harder than it should be. That's a flaw, perhaps. But this Memorial Day, I salute Michael's patriotic defense of civic friendliness, American-style, and of the choice to talk and listen to one's fellow citizens with openness, seriousness, and respect. Buy three copies, and given them away to the first MAGA hat-wearer and first BLM protestor--and then, most crucially, the first snooty "pox-on-both-your-houses!" self-righteous supposed independent--you meet. None of them may need the book, or like it--but you never know.

Monday, May 06, 2019

Bringing Wendell Berry (and Business) to Sterling

[Cross-posted to Front Porch Republic]

A week ago I was able to organize a small group of friends to attend a fine, relatively intimate event at Sterling College, a small Christian liberal arts college in Kansas (much like my own). The event, titled "Virtues of Place: Wendell Berry and Rural Kansas" was really two events, but I just want to talk about the first, a panel discussion with Front Porch Republic's website guru Jeff Bilbro and his friend and colleague Jack Baker--who have together written a fine book on education and Berry's thought--along with Aubrey Streit Krug, the Director of Ecosphere Studies at The Land Institute in Salina, KS. Many ideas came up in that discussion; let me focus on one of them.

The panel was a guided discussion about what it means to pursue "placeness"--that is, to develop a truly sustainable attachment to and affection for the social, economic, and culture characteristics of where one lives, works, and builds one's family or community--in small rural towns, where the extractive farming economy of the past half-century has led to consolidation and de-population in equal measure. While the panelists had thoughtful things to say about the sorts of narratives we need to share to prioritize the value of finding worth in one's own situation, rather than always seeking another, they never could entirely extract themselves from the economic. After all, it is one thing to hold to Wendell Berry's call to be a "sticker," to learn to inhabit and love one's own place, as he laid it out in his 2012 Jefferson Lecture, when one's place is sufficiently connected or culturally rich  or filled with employment opportunities, so as be able to withstand the effects which distant corporate or governmental centralization might have on one's livelihood. But what about Sterling? A population of a little over 2000, a median income below both the American and the Kansas average, a poor farming town, with the only non-agricultural employer of any size (besides Sterling College itself) being Jacam Chemical, a chemical manufacturer which started in Sterling in 1982 but relocated its headquarters to the comparative metropolis of Wichita (metro area population: 645,000), more than an hour away, decades ago? What can Berry's ideas teach to such a community about sustainability?

Jeff was pretty frank in his comments, when pushed to the point. As important as reframing our understanding of place may be--especially for young people and college students!--it is admittedly simply difficult to think about the virtues of place in Sterling, or thousands of other small rural communities spread across the country, when the very real financial constraints which the people who want to live in such places confront on a daily basis are not being addressed. (The fact that the heartfelt efforts of numerous rural Republicans and Democrats across the state to once again attempt to get the Republican leadership in Topeka to allow a vote of Medicaid expansion, which medical workers and a hospital administrators in Kansas are nearly unanimous in praying for as the best option for keeping health care available in isolated, rural communities like Sterling, went down once more to defeat the same week as this symposium, probably should have received some comment, but it didn't.) Jeff emphasized that he didn't think at all that material variables were the only or even the most important ones when it comes to being able to build attachments to a place--but they probably are, at the very least, necessary ones.

In thinking about that necessary work, I couldn't help but think about a former student of mine who came up to Sterling with us: Nick Pohlenz, a man who has studied theology and philosophy and how to brew beer, and now makes his living running a sawmill. I had him come to speak to one of my classes once about his experiences, and on the drive from Wichita to Sterling, he talked about what his own work--specifically, strengthening his small mill's ability to productively reach into those regional niches where the sort of wood they can most profitably cut and process (black walnut in particular) is available in batches which they can buy, transport, and handle--can provide to a small town like Sterling. Black walnut, and regional trees like Osage orange trees and the like, are primarily found in river bottoms or other low-lying areas--areas which many farmers, seeking to level their land so as to take advantage of the economies of scale which industrial agriculture presumes, will often plow under, burn out, or just cut and leave in massive brush piles. Major milling operations, looking to sell lumber to China or other distant locales, will be quick to spot large stands of such timber, and major farming operations will similarly be quick to calculate into their offers to buy up neighboring farms such possible profits. But what about small or mid-sized farms, particularly those owned by families or individuals that would really rather hold on to their parents' or grandparents' or great-grandparents' farm, even if they have to work other jobs in the area (or commute all the way to nearest city of any size) to supplement their income sufficient to pay the bills? To paraphrase, as close as I can remember, Nick's comment as we drove into Sterling:

"Over the past couple of years, this has become a crucial win-win for us: to come into these small rural farming [or, I would add, post-farming] communities, and get to the local landowners, and offer to buy and clear out a small stand of timber on their property. If we're just talking about a typical isolated patch in a bottom area, we'd only be looking at a few thousand dollars. A big farming operation wouldn't bother listening to us; to them, $3000 is an insurance payment on their combine. They'll just plow it under. But how often do you think some of these local landowners have seen a couple of thousand dollars? Not often enough! They'll take it, and we'll take the wood, which will be more than enough to us to mill or woodwork enough product to satisfy our local clientele for some time. Bringing our business to these small towns is essential to our whole operation."

To think both practically as well as politically about what Nick's experience with Elderslie Woodworks suggests, I think we can see several factors at work. America's small farming towns and the food producers that try to keep them functioning, to ever escape total domination (and thus, probably, eventually, total automation), need small-scale enterprises that can productively bring wealth into their places. The businesses must be small-scaled for a very practical reason: those businesses which are scaled to take advantage of the global flows of capital which exist today simply won't be able to profitably approach locaql operators who prefer to resist large-scale transformations--like, say, refusing to simply sell or consolidate their whole 40 acre or 400 acre plot. (Interestingly, one critical voice at the panel discussion was a local farmer who proudly defended her ability to be able to run a successful 4000-acre soybean operation, without, to her mind, any of the "placelessness" which the panel was addressing. It's fair to hear her challenges, of course--but it's also worth asking her, and thousands of other farmers who have accepted the gospel of "get big or get out" for decades, why she felt it so important to insist that we have "progressed" beyond the supposedly dangerous dream of a financially viable farm operating on a mere 50-acre plot.)

There is also a political reality here as well--defending mid-sized regional cities, ones large enough to develop enough specialized wealth so as to make local artisan work actually profitable, but also not so large as to crowd out the ability of small businesses to fit within their operating expenses outreach to and work within the small communities that exist within the regional cities orbit. True, certain sorts of small businesses have been able to maintain ties with small rural towns and the resources they offer even in the midst of huge urban agglomerations--but not many, and even fewer that actually make use of what those small rural towns can offer from out of their natural resources. And that, of course, takes us back to the whole theme of the symposium. For as the second event of the day, an evening presentation by Jeff and Jack about their argument for rethinking the university along the lines of "place-ness," made very clear: however specialized or abstract any of our work or our thinking may become, there is simply no superior alternative for building up the virtue of affection for a way and a place of life than involving oneself in the ground one walks upon: farming it, planting gardens in it, recognizing its needs and enjoying its health.

It is an interesting reality that in a market economy that has moved beyond mere subsistence, it may well be that continuing to make possible the rural small town depends upon those small towns being in a relationship with a wealth generating urban center. But then, perhaps it has always been that way? Perhaps the idea that the rural farmland wasn't a relational (and thus somewhat restricting) necessity to local urban space, but rather was purely a natural (and thus extractable) resource that any urban place--the bigger the better!--anywhere in the world could make use was just an aberrant thought, one which global capitalism and cheap oil made us believe? Well, however one construes it, keeping in mind that rebuilding a sense of place will probably also mean rebuilding a sense of mutual obligation between different types of places is an important lesson, I think. I am grateful for Sterling College and my friends for helping me to see it this week.

Sunday, May 05, 2019

Arguing About Abortion (but Actually Mostly Other Things) in Kansas

[I was asked to provide some commentary on the recent abortion decision by the Kansas Supreme Court which received so much national attention. My column appeared in the Wichita Eagle on Saturday (read it here, complete with an incorrect file photo of the current Kansas Supreme Court justices), which surprised me, as I expected it to run today. Anyway, as usual, I actually have more to say, so here we go, one day late:]

A little over a week ago, the Kansas Supreme Court handed down its decision in Hodes & Nauser v. Schmidt, the case which obliged them to rule on whether or not Kansas’s state constitution included the right for a woman to have an abortion. It includes three different opinions–one by a five-person majority, one concurrence by Justice Dan Biles, and one dissent by Justice Caleb Stegall–spread over 199 pages, all of which I read last weekend, because I'm that kind of nerd. Judging by my scribbled notes all over those pages, I would say the opinions are filled with careful, challenging, and sometimes frustrating legal argument. Whatever else you may think of the results, I can assure you that the decision here was anything but simple.

Yet last Friday, my own west Wichita representative in the Kansas House, Dan Hawkins (hi Dan!), denounced the Court’s ruling in highly simplistic terms, calling it an act of “dictators” bent on “dehumanization” in a Wichita Eagle column. His argument was impassioned, and not, I think, entirely wrong--but fairly tendentious all the same. Since Kansas Supreme Court justices never comment on their own opinions, I figured I may as well attempt an explanatory retort.

But first, inveterate academic that I am, I can't help but include an unfortunately-lengthy caveat on the whole matter of the judiciary's role in American democracy--which, by the way, is actually pretty central to the dissent's whole argument--just in case anyone is confused about where I'm coming from. I long have been, and I remain, despite much rethinking and fine-tuning of my opinions over the years, still basically suspicious of judicial review (as many blog posts of mine over years have made clear). I recognize that counter-majoritarian tools are indispensable in a democratic system which takes the idea of basic rights even minimally seriously; the question is, if the governing system one is part of also takes genuine participatory (and thus invariably majoritarian) democracy even minimally seriously--which generally I think it should--what those counter-majoritarian tools should consist of. I am unpersuaded that the civic costs of judicial review, as it has come to be exercised, are always worth its benefits. That is not to say that, absent a complete reworking of the bases upon which engaging in democratic activity under out constitutional system, we should simply get rid of it; my point is simply to reiterate its (I think irreparably) problematic character, not to deny its inextricable connection to the only kind of political functioning currently available in the United States. One should always keep in mind that judicial review didn't have to be institutionalized in the overwrought, often desperate way it has been; the U.S. Constitution, on my reading, certainly doesn't warrant it, and American history provides numerous instances where one could imagine the relationship between the courts and the legislator-electing public developing along different lines. Consider, for example, Abraham Lincoln's response to the precedents supposedly laid down by the Supreme Court's infamous decision in Dred Scott v. Sandford:

Judicial decisions are of greater or lesser authority as precedents, according to their circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession. If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent. But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.

I have no idea how any of the above could have been institutionalized (requiring controversial cases, or those that split 5-4 or otherwise along recognized party lines, to be re-argued before a different set of justices, perhaps? but that would necessitate much more frequent turn-over in the federal judicial system, perhaps through imposing term limits on Supreme Court and lower court judges?). But just because I can't think of how to make it work, doesn't mean there isn't any possible way to institutionalize it. But in any case, that's where I stand--and hence, as I'll explain, I have a certain among of sympathy for the dissent. But also, please note: this case was not, strictly speaking, a full act of judicial review. Rather, this was a case of the Kansas Supreme Court being obliged to provide an answer to a question which would then be relevant to any judicial determination of the constitutionality of a law. And that, at last, leads me back to the decision itself, and Hawkins's reaction to it.

The first paragraph of the 5-justice majority's opinion defines the goal of their argument: "Section 1 of the Kansas Constitution's Bill of rights provides: 'All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.' We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do those substantive rights include a woman's right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, 'Yes'" (pg. 7).

The Kansas Supreme Court's decision is obviously a win for those who defend abortion rights, and a loss for those who oppose the extension of those rights (with both groups constituting roughly half of Kansas's population). But does that mean the decision by the majority has opened the door for “unrestricted late-term abortion up to the point of birth” in Kansas as Hawkins wrote? No, it does not--or at least, it only means it in the same sense that my having the freedom to grade my own students' exams opens the door to my deciding to arbitrarily flunk everyone who is less that 5 ft. in height. The simple fact is that any hypothetical changes to abortion laws in Kansas are a question for the future, and are by no means predicted by this decision. This is because the focus of this case wasn’t abortion policy at all, but rather the constitutional terms under which abortion policies are to be made--and as such, provides no ready-made path for anyone who wants to make specific policy changes.

The original argument behind the whole question brought before the Kansas Supreme Court was over what level of justification the state of Kansas must provide in passing a law which bans a particular type of otherwise legal abortion procedure (in this case, the undeniably gruesome but generally safe and reliable procedure normally used in those rare cases where late-term abortions are medically necessary because the baby is severely deformed or otherwise threatening the health of the mother). Having made their decision, the majority's decision sends the case back to district court, to be argued in light to their constitutional interpretation. They note that the lower court has “a heavy task ahead of it” (pg. 86), in that it will have to consider this Kansas law in the face of scientific advances in fetal viability on the one hand, and the clear right of women to control their bodies on the other.

So what about that right to bodily integrity or autonomy (the majority uses both without much clarity or distinction)? Hawkins is obviously correct in noting that the Kansas Constitution includes “no language of the sort.” Here is where things get interesting to nerds like myself to love to study such things. Abortion rights were established by the U.S. Supreme Court nearly a half-century ago in Roe v. Wade on the basis of the right to “privacy” which it interpreted out of other guarantees in the Bill of Rights--the (in)famous idea that privacy-related rights like that of free association, protecting one's property, insisting on remaining silent, etc., formed a "penumbra" that included within it a general right to privacy. Whatever your opinion about that bit of constitutional interpretation, it must be remembered that the Court modified it in the decisions which followed. Over the decades, various debates over privacy in regards to abortion has led that Court to develop a test which allows state legislatures to pass laws which restrict abortion rights in the name of protecting fetal life, so long as doing so does not pose an “undue burden” on a woman’s freedom of choice. That test, developed primarily by Justice Sandra Day O'Connor in Planned Parenthood v. Casey, remains the binding precedent for abortion policy today.

The majority on the Kansas Supreme Court acknowledges this line of reasoning, allows that the Kansas Constitution incorporates this currently reigning interpretation of privacy rights–and then dismisses it, actually writing that, while they hold this interpretation to be valid, they "need not recognize" it (pg.15). Instead, they argue that the Kansas state constitution provides something even stronger: an inalienable natural guarantee of complete bodily autonomy.

This is a rather audacious thing for a state court to claim, in particular because it introduces a host of questions that the Court provides no guidance for. For example, is “bodily integrity” to be understood as solely referring to the right of women to control their own pregnancies? Or might it also imply that any Kansas law or government office or place of public accommodation which puts restrictions on what people choose to do with their bodies–like, that I must clothe my body with a shirt and shoes if I want to be served, or that a child’s body must be vaccinated before she attends elementary school–should be presumed to be unconstitutional? The majority does gesture towards the sticky problem of mandatory vaccinations, but suggests that the principle of never causing "harm to the individual"--pg. 40--will provide clear guidance, a claim I strongly doubt.

In confess that here I am very sympathetic to the concurrence opinion by Justice Dan Biles, wherein he agrees with the majority that state abortion laws must take into consideration the rights of women, but then argues that elevating rights regarding something as fraught as abortion to such a high level, ignoring the definitions and qualifications which the U.S. Supreme Court has introduced in its decisions about privacy concerns, creates more legal problems than it solves. Biles is particularly good in pointing out that the majority seemed intent on resurrecting Roe-era "strict scrutiny" standards for evaluating abortion policies, but then provided no coherent guidelines for understanding how the right to bodily integrity should be applied to any particular case. After detailing what he considered (I think rightly) an unnecessary bridge too far beyond Casey's privacy-based undue burden standard, he comments "The trial court is going to have to make sense of this nuance, and I wish it luck, because I can't tell the difference" (pg. 96).

Finally there is the dissent. Hawkins condemns the majority for never addressing the elephant in the room: "the rights of the child" and “the loss of life that occurs when an abortion takes place.” But of course, the dissent didn’t address it either–because, again, that wasn’t what was legally at issue. I know Justice Caleb Stegall, and consider him a friend; I know he’s a committed Christian conservative on these matters, and some of his stray comments about the procedure which the state law banned make clear. But in crafting his tour de force dissent of this decision, he remained firmly focused on the case before him.

Thus he spent little time discussing abortion itself, and instead produced a historical and theoretical argument which presents rights as something citizens already possess, and thus may legislatively extend or limit them as they democratically prefer, rather than as something that reflect, to quote Stegall, “sea-of-fundamental-values” (such as an abortion-supporting right to bodily autonomy) which the courts must protect against invasive majorities (pg. 116). On this point, Hawkins’s column, like Stegall’s dissent, connects with an old and honorable argument--an argument that, as a matter of political theory, is as old as the notions of natural rights and democracy themselves, and as a matter of American political history, goes back to the debates over the Constitution by the Federalists and Anti-Federalists, and has continued in one fashion or another ever since. As someone who teaches these ideas regularly, I’m fascinated the dissent’s contribution to this debate. Personally, I find much of his theory highly persuasive--how could anyone like myself, who is basically suspicious of judicial review, not sympathize with his point? But I find myself questioning much of his history.

Not necessarily the detailed history he gives of the origins of the Kansas Constitution, and the descriptions of it by those who were contributed to its writing. Stegall sees this history as supporting the use of a "commonwealth lens" to assess government powers, thus suggesting that the rights included in the document's beginning were not individualistic natural rights but rather reflected "right of republican self-rule" (pgs. 133, 169). The majority obviously disagrees with him, though they seem to me much too quick to turn early Kansans into a bunch of modern Lockeans, judging every governmental problem they faced through contractarian, property-and-rights-based assumptions (hence the Court's ability to connect liberty with bodily self-ownership relatively quickly). But I'm no expert on Kansas judicial history, so I can't weigh in too much on that argument. I can, however, articulate my problems with Stegall's attempt to put what appears to my mind to necessarily issue in a strong strong states' rights (or at least Jeffersonian) argument into the language of Abraham Lincoln, presenting him as one who believed that rights were best understood as what results when "the people relinquished...a defined and limited measure of their pre-political sovereignty while retaining the rest" (pg. 148).

Of course, Lincoln was far closer to older, more republican understandings of democratic government than our much more complex, much more urbanized, much more diverse, and much more competitive and economically divided country presently allows, Moreover, he obviously (as I noted above) was no friend to the arbitrary judicial discovery of--or, as happened to be the case, withdrawal of--basic rights. The man obviously adored the legacy of Jefferson and took seriously his ideas. Still, I think the majority is obviously correct when they insist, in response to Stegall, that "Lincoln...would not be quite so dismissive...on the existence of equal 'natural rights,'" going on from there to quote Lincoln's famous conviction that the rights mentioned in the preamble to the Declaration of Independence (which are the same ones mentioned in the Kansas Constitution), and its promise of equality, were all meant to be aspirational and "of future use"--and thus not something necessarily subject to the give and take of community self-definition (pgs. 34-35). Lincoln gave us the Gettysburg Address, after all--a speech which reduced all the local democratic articulations of the general welfare and everything else tied up with the historical experience of republican self-government to a single "proposition." Consequently, I find Stegall's history more a distraction than an aide to his theoretical argument.

But at this point, the overall reality of the arguments happening in Hodes & Nauser v. Schmidt should be clear. They are mostly not, in fact, arguments about abortion. Rather, they are arguments about different philosophies of natural rights, about republican political theory, about constitutional interpretation and judicial precedents--about, in short, basic fundamentals regarding governing power. All of those things, given the particular structure of this case, will have significant impacts on abortion policies--but we don't know what those impacts will be, because all the Court has determined is how, in the state of Kansas, what one has to include when one argues about abortion, not how those arguments have to go.

The law is hard, and for better or worse (I think mostly for worse, but there's not much I can do about that), has become the place where we send our hardest disputes. That doesn’t mean we’re obliged to respect the decisions of any particular court, or the way it decides them; I certainly don’t. But rather than reducing the complexity of what courts do to simplistic political arguments, let’s at least credit them for taking seriously the particular questions before them. Then afterwards, once we've all done the reading and the thinking regarding what our judicial umpires have to say, we can let the political chips fall where they may.