A Note To A Friend On Individual Enlargement And Individual Flourishing

 R:

I suppose some people need to develop high order talents in order to flourish, not raise a family and earn a decent living.   Thus a talented pianist whose hands make it impossible to play well is unable to flourish, and suffers because of that.  But humanistic learning if often touted as necessary to proper flourishing and that I don't believe.  Maybe it's just that humanistic hype that I don't like.  It gives many people a false sense of their size.  

Me:

Which celebrity is the most middling thinker?

Bette Midler.

Anyway, let me, another middler or less in thought, try to do a bit of middling, if that, thinking.

Let’s distinguish between enlargement—or choose your own expanding-in-space metaphor— and flourishing. A person can be enlarged but be short of flourishing. It means—merging a few online definitions and marrying connotation to denotation—being beneficently successful in fulfilling inner gifts. 

So, on that, I quarrel with any notion of self destructive sacrifice to achieve success as a form of flourishing. Flourishing doesn’t entail those sacrifices though it certainly can depend on sacrifice and certain life choices. Whoever sacrifices destructively with much success but says that “It wasn’t worth it,” hasn’t flourished. In fact, the test for sacrifice, which isn’t in any thick sense a necessary condition of flourishing, is the question after success of, “Was it worth it?”

To have experienced, engaged and been compelled by say art—or other things too, but art is a unique category in this, almost a template for it—is expanding of one. But one can be a miserable jerk, feel moved and enlightened by say Measure For Measure and then then still be a miserable jerk but better in his misery for the experience. It’s a paradox but a miserable jerk can be enlarged. 

I more see humanistic learning in this category of personal expansiveness as distinct from flourishing. I reject the proposition that such learning is essential to flourishing. 

Another paradox occurs to me but only tentatively: one may flourish without enlargement. Flourishing is highly individualized and subjective. Bricklayers, plumbers, poets and uncountable others can all flourish in respect of their gifts which need not entail the widening of intellectual or affective consciousness. But enlargement, the expansion of one—again not morally or rendering anyone superior to anyone else—I think can be seen in people objectively. 

I start as X and through what I engage with, experience and am compelled by, I become, as compared to whom I was, X+. And I may or may not have flourished in that.

A Layman’s Note To A Friend On Substantive Due Process, Dobbs And Courts v. Majorities

 I’m not overly familiar with the movement from penumbral emanations to placing for abortion squarely the constitutional basis on liberty as it sits there in the 14th Amendment. I know that Douglas J. in Griswold (I think for the first time) spoke of them. I understand by the time of Roe, courts, and the court in Roe, bypassed penumbral emanations and posited directly a constitutional right of privacy as a necessary legal idea embedded in the tradition of the common law, hence in the Constitution and in American history and traditions. The seeds of the recognition of this right go back to Harvard Law Review essay co-written by Brandeis and Samuel Warren in 1890. https://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html

It’s been called by some legal academics the most seminal law review article ever written.

I’m not sure when liberty became so front and centre in the abortion arguments but it was always hovering over them, there to be used. It was employed for example in the first third of the 20th century to vindicate the sanctity of contract as in the in/famous Lochner case—striking down a regulation specifying the maximum hours bakers could work. The reasoning broadly was that freedom of contract was a fundamental right under liberty in the 14th Amendment, a notion of economic liberty.

So liberty as a constitutionally protected web of unspecified rights is relatively venerable in US constitutional law. It inheres in the idea of substantive due process, which the reasoning in Lochner exemplifies. One scholar has put it that procedural due process asks whether due procedures were followed when taking away life, liberty or property. Substantive due process asks whether there is a good enough reason, a good enough substantive purpose, for the state to deprive a person of these most basics things. 

SCOTUS case law post Roe is littered with decisions based on the “liberty argument.” I’ve already listed examples of the kinds of decisions that argument has yielded. Another example is a case where SCOTUS talked about parents’ fundamental liberty interest with regard to their kids thus yielding all manner of subsidiary constitutionally protected rights in the care and manner of upbringing their children, including for one example home schooling. So home schooling one’s kids is in the U.S. a constitutionally protected right of which there is no mention in the Constitution. (As also noted by the unpleasant Sotomayor in oral argument in Dobbs, SCOTUS as a final striker down of duly passed laws is also nowhere stated in the Constitution.)

So what coalesced post Roe, as I’ve noted, is one strand of the liberty argument, which is nicely put by Post in the last bit I sent you:

“Surely most people would agree that we enjoy the "liberty" in this country of making vital, intensely personal, life-altering decisions - when and with whom to start a family, where to live, what religion to adhere to (or not), who to have sex with (or not), whether to send one's children to public or parochial school, and the like - without interference from the state.’

One of my repeated arguments btw  is that there’s no real difference between penumbral emanations and the application of general principles to specific situations. The former is to my mind but a fancy way of talking about the latter. As Douglas put it in Griswold, paraphrase, “Without the  subsidiary rights that flow from explicitly stated rights, the latter would be stark and barren.” So, I argue, the idea of liberty would be severely stripped down if it didn’t necessarily house the idea of privacy, which itself would be similarly unclothed without the idea of bodily autonomy. All of it, the whole span of rights housing under liberty, only going up to a point.

So what our issue boils down to, since you’re in tune with the  liberty argument as it applies to abortion, is whether the courts or majorities should pronounce on this issue. My insistent argument is that in the US specifically and for me philosophically in the matter of fundamental rights and liberties, we need to be protected from majority decisions, which include whimsical, capricious and prejudicial ones. If it takes a court to ensure minorities equal access to the law, to protect them from racial discrimination, why would we relegate what people can do with their bodies in the way of their most intimate, personal private decisions to majorities? For surely bodily autonomy up to a point is as fundamental as things get.

Finally, you understand as well as I if not better, that the U.S. is a republic and its republicanism qualifies its democracy.  I’d have thought you thought that that is a welcome check on majority hence state power. In this sense your insistence on abortion being left to majority will seems to cut against your general philosophical outlook.

A Note On Why Sotomayor Was So Bad During Dobbs v.Jackson… Oral Argument

My note to S.

I omitted to mention the most important reason why Sotomayor’s manner in oral argument in Dobbs was profoundly out of bounds. 

Court in principle is the calm, deliberative place where the inclination to rage and violence in disputes finds its non violent, rational resolution even as there are ultimate winners and losers. 

Social order needs this place. 

Therefore, judicial temperament is one which is suited to such a place, calm, deliberative, disinterested, studious, civil, polite, respectful, open minded and persuadable, dedicated to reason and so on. 

Sotomayor’s intemperate assertiveness, bullying, interrupting, indifferent imperiousness and actually appearing at least to me to insult Mississippi’s lawyer in the Dobbs argument starkly betray the requirement for judicial temperament. 

In that, she shortened the distance between the court and the fractious outside world. 

Given About To Be Argued Dobbs v. Jackson, A Longish Note On Abortion

 I continue to follow what’s happening with, and think about, the issue of abortion, both as an issue in itself and as a legal issue in the U.S. 

Tomorrow, Wednesday, December 1, 2021 is a big day in these respects. 

The case of Dobbs v. Jackson Women’s Health Organization gets argued  in SCOTUS tomorrow. It involves a Mississippi law that, broadly speaking, bans abortions after 15 weeks of pregnancy, which is to say, just shy of 4 months. The challengers say the law is unconstitutional and cite the precedent of the notorious Roe v. Wade and SCOTUS cases following it, namely Planned Parenthood v. Casey. 

The defence of the rightness of its law by Mississippi, and collaterally by various “friend of the court” briefs, includes an all out assault on Roe v. Wade. Needless to say, this case and the issue of abortion have been pivotal in the U.S. culture war and have done as much as anything to divide left and right. 

So tomorrow marks a huge step along the way to the continuation of the right to an abortion in U.S. law, which then has massive political and cultural ramifications. 

For the right, the moment is as close to ideal as it could be, with 6 conservative or conservative leaning justices—Thomas, Roberts, Gorsuch, Kavanaugh, Alito and Coney Barrett—and three liberal ones—Kagan, Breyer and Sotomayor.

For anyone interested, you can listen to the oral argument here: https://www.supremecourt.gov/oral_arguments/live.aspx

My own view has disparate parts. I never thought Roe v. Wade was wrongly decided, despite a loud chorus of condemnation of its reasoning from many prominent legal academics across the political divide. In a nutshell, my view was and remains that liberty entails privacy and privacy entails bodily autonomy. The limiting principle to my view in the case of abortion is the life of the aborning child. 

The current dividing line for legal recognition of that life given the stream of pregnancy is fetal viability, when the fetus can survive outside the mother’s womb. Under present U.S. law fetal viability occurs at around 24 weeks, just a shade under 6 months. So the Mississippi law is quite radical at making 15 weeks the limit on the right to an abortion. 

Case law subsequent to Roe v. Wade has bolstered its underpinning. I outlined that here: http://tinyurl.com/2p8nzajz  

I did so by a thought test under which I substituted a tonsillectomy or a appendectomy for an abortion. 

Despite my legal view, I have come personally to think that that 6 months is too long and that 12-16 weeks is a more humane limit given the state of the fetus then. 

My personal view notwithstanding, below is an oped by Charles Fried. He accessibly cites the central underlying point of bodily autonomy as the key unlocking the door to a constitutional right to an abortion. 

———————-

From Today’s NYT By Charles Fried

——————-

….Mr. Fried, a law professor at Harvard, served as solicitor general under President Ronald Reagan.

In 1989 I argued before the U.S. Supreme Court in Webster v. Reproductive Health Services, a case challenging a Missouri statute that forbade the use of any state funds or facilities for the conducting of abortions. 

On behalf of the United States I argued that Roe should be overruled, except in extreme cases such as when the life or health of the pregnant woman was at risk. I made these points in good conscience, drawing on a mix of history, precedent and what I saw as the interests of the rule of law.

I was a law clerk to Justice John Marshall Harlan II in 1961 when he dissented in Poe v. Ullman, a case involving the liberty of married couples to use contraceptives without interference or inquiry by the government, and provided what I then considered — and still do — the foundation of the law of privacy and personal dignity.

Abortion implicates not only those liberties of the pregnant woman but also, in the opinion of some, the life of another person, the fetus. Although personally agnostic on that issue, I did not see how the Constitution provides a principled basis for answering the question. 

That Roe was a poorly reasoned extrapolation from the contraceptive cases was a position taken by many constitutional scholars, including John Hart Ely, Paul Freund and Archibald Cox. As Justice Ruth Bader Ginsburg correctly predicted in a later talk at New York University, it was a leap that would shadow the law for decades to come. Perhaps better to have left it to legislation and the development of public opinion.

In 2005, testifying in favor of the confirmation of John Roberts as chief justice, I said that I thought he was too good a lawyer — a conservative in the manner of Edmund Burke and John Harlan, not a reactionary — to vote to overrule Roe. Senators Arlen Specter and Dianne Feinstein reminded me that I had argued the opposite about Roe 16 years before in the Webster case. 

My answer then, as now, is that the law had changed since 1989. In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, a joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy and David Souter reaffirmed the central holding of Roe and put it on a firmer constitutional basis: the dignity and autonomy of the pregnant woman and the equal rights of women more generally.

Since that time, Casey had been cited and used as a basis of constitutional reasoning in many decisions in many areas of the law, including gay rights and the parental rights of a surviving parent. The decision has not only taken root; it has flourished and ramified.

To overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary.

When I argued Webster and made the case that overturning Roe would not undermine the broader foundation of privacy, I learned a lesson in the use of metaphor. 

Seeking to invoke my mentor John Harlan, I said I was not urging the unraveling of the whole fabric of substantive due process and unenumerated rights, but only to pull this one thread. To which my opponent replied that in his experience every time he pulled a thread on his sweater, the sleeve fell off…

A Brief Stab At The Correctness Of Roe V. Wade aka The Constitutional Right To An Abortion

 I’ll take a brief stab at this. I’ll confine myself to one’s appendix or tonsils. I can’t see the denial of substantive due process given the lines of reasoning starting with Brandeis’ dissent in Olmsted, adopted in Katz, continued in Griswold, thereafter in Roe and in Casey and further in effusively in Lawrence v Texas. 

These cases’ dicta converge generally on a capacious right of privacy as a necessary constituent of personal liberty and an anchor of liberty rights in the 5th and 14th Amendments. As Kennedy says in Lawrence, citing Douglas in Griswold:

“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 

As Douglas said in Griswold, and I think, it must be right, 

…. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. Without those peripheral rights, the specific rights would be less secure…

Given a capacious right of privacy as a necessary constituent of personal liberty, I can’t see how decision to have tonsils or one’s appendix removed isn’t but an instance of such a privacy right, how it doesn’t fit within the rationale evinced by the dicta that all go to establish the right. 

My surmise, substitute removing tonsils for abortion, and it would be hard for me to see any controversy in the assertion of it as a incident of one’s constitutionally protected privacy right.

Comments On Rittenhouse Case

 Ronald L. Sullivan on Rittenhouse case

https://quillette.com/2021/11/23/the-rittenhouse-trial-a-legal-scholar-responds/

My Comment As Written To A Friend:

“Where I fell out with Sullivan is in his rather blithe, and in my view unearned, following assumption:

————

…The Rittenhouse trial did not take place in a vacuum. Indeed, the event that brought Rittenhouse to Kenosha was a Black Lives Matter march, protesting the shooting of Jacob Blake, a young African American male. Many read this verdict as an indictment on race relations in the country. They contend that this is yet another example of white people manifesting their privileged status in America—so privileged that they can kill with impunity. They punctuate this argument with claim that if Rittenhouse were black, he would have been convicted.

On this last claim, I wholeheartedly agree. If Rittenhouse had been black, he most assuredly would have been convicted…

——————-

I don’t see how this trial and its verdict indict race relations in America. Jacob Blake was a criminal thug, the shooting of whom was cleared by an investigation into it, the cop who shot him placed back on active duty.

I see no white privilege involved anywhere here. There may have been an intended BLM protest in Kenosha in the wake of shooting Blake, but what eventuated were nights of criminal mayhem, arson and assault, most of which, if not all, carried out by white criminals of the type Rittenhouse shot in self defence. 

Nowhere in all that attended these events leading up to the trial itself and its resolution is there a lesson, let alone a sub text, that privileged whites “can kill with impunity.”

There is no warrant for assuming that a black Rittenhouse would have been convicted. That is errant speculation and it befouls Sullivan’s subsequent arguments proceeding from this assumption.  I find the assertion of this assumption a jarring distraction, especially given the cool, lucid, fair minded preceding legal analysis of the actual criminal law issues….”

My Friend L.C.‘s Comment:

I didn't get through most of the legal analysis, Itzik -- just too long for me, I'm afraid -- but he lost me early on, on his moral analysis. 

This much I agree with: that we look for more than merely "procedural justifications" for a particular law -- we also say it should "comport with our intuitive sense of moral blameworthiness". But that requires that we have a rational, not merely politically tribal, sense of what constitutes moral blameworthiness, and Sullivan, like so many under the spell of the Woke, doesn't. We can see that early on, when he presents the contrasting views of R's blameworthiness. On the blame side he cites irrelevancies like the crossing of a state line (which apparently he lives on the border of), distorts his motives (he wasn't there as a counter-protestor as far as I know, but rather as a defender of life and property), and omits (deliberately, I'd say) facts such as that relatives and friends lived in the area (only 20 minutes away). You might say he's just presenting the views of the blamers, whether or not they're right, but then you look at what he suppresses in his (un)"balanced" presentation of the other side, and you can see that he's stacking the deck: no mention at all of the fact that large numbers of the so-called "protestors" were in fact rioters, arsonists, looters, and exactly people "looking for trouble" . Without acknowledging that obvious, in-your-face point, then, sure, R looks like just a swaggering, gun-toting kid at best, and his whole side of the case falls into the merely procedural "he had a right" argument. That's like arguing that anyone trying to help others "has a right" to do so, but it entirely misses the point at issue in assessing moral blame or praise. 

So that gives away his game, I think, and it's in his conclusion that the moral rot is really exposed. That's where he bemoans the "unintended consequence" of relevant gun rights being "a Wild Wild West mentality where citizens feel emboldened to engage in private law enforcement" -- effacing the reality that it was the withdrawal of any effective official law protection that had created a real Wild West situation -- not "mentality" -- in the first place, where citizens feel forced, not to engage in private law enforcement, but simple to protect themselves. It's that deliberate erasure that is disgusting, and certainly not the celebration at the acquittal of someone  morally as well as legally blameless. But with some editing, his concluding paragraph stands up -- forget honoring these particular dead, and change the focus of the last two sentences: "Our society cannot and will not survive a polity that permits armed children rioters, looters, arsonists, and thugs to walk the streets and kill [or threaten to kill] with impunity. Our moral sensibilities push in a different direction, and we must take action to ensure that our moral sensibilities are adequately reflected in our positive law."

A Note On Yehuda Amichai’s Poem The Resurrection Of The Dead

The Resurrection of the Dead

Yehuda Amichai (2004)

translated from Hebrew by Leon Wieseltier

We are buried with everything we did,

with our tears and our laughs.

We have made storerooms of history out of it all,

galleries of the past, and treasure houses,

buildings and walls and endless stairs of iron and marble

in the cellars of time.

We will not take anything with us.

Even plundering kings, they all left something here.

Lovers and conquerors, happy and sad,

they all left something here, a sign, a house,

like a man who seeks to return to a beloved place

and purposely forgets a book, a basket, a pair of glasses,

so that he will have an excuse to come back to the beloved place.

In the same way we leave things here.

In the same way the dead leave us.

Online 

“Some Jews believe that in the Messianic Age, the temple will be rebuilt in Jerusalem, the Jewish people ingathered from the 

corners of the earth and bodies of the dead will be brought back to life and reunited with their souls.”

Me:

The initial idea in the poem is that when we die we take nothing with us and leave much of ourselves behind. We’ve in fact institutionalized the latter. 

That leaving much of ourselves behind is analogized to someone who purposefully leaves items behind at some beloved place just to have an excuse to return to to and gather what he left. 

But how can that analogy work?

The last lines resolve the question. When under the resurrection doctrine the dead come back to reunite soul and body, it means the dead leave the signs and indications of themselves behind—their bodies, consistent with the initial idea of the poem. 

And they come back to the place they have always loved, even if never physically there, Israel, by way of ingathering. 

Therefore, the second last line, fuses:

 (1) our temporal leaving things behind only to be able to come back to a beloved place to retrieve them; and 

 (2) our leaving much of ourselves behind when we die. 

By the last line, the dead leave us, the living, left behind so that their souls can come back to reunite with their bodies and ingather in their beloved place.

The State Of Nature and The State Contrasted In Alan Bloom’s Closing Of The American Mind

 Original quote From Allan Bloom’s Closing Of The American Mind

….Anarchism ... arises as soon as politics and laws are understood to be repressions, perhaps necessary, but nonetheless repressions of our inclinations rather than perfections of them or modes of satisfying them….

———————————-

My Original Question:

Why does anarchism arise from this?

Asking not arguing.

How is law to be understood as perfecting our inclinations or as a mode of satisfying them, when law stops us doing what we’re inclined to do?

I don’t get that.

——————————

Fuller Text Provided:

….The first reaction to the self’s maladaptation to society, its recalcitrance to the rationality of preservation and property, is the attempt to recover the self’s pristine state, to live according to its first inclinations, to “get in touch with one’s feelings,” to live naturally, simply, without society’s artificially generated desires, dependencies, hypocrisies. This side of Rousseau’s thought that arouses nostalgia for nature came to the United States early on, in the life and writings of Thoreau. Recently, joined to many other movements, it came to full flower and found a wide public. Anarchism in one form or another is an expression of this longing, which arises as soon as politics and law are seen to be repressions, perhaps necessary, but nonetheless repressions of our inclinations rather than perfections of them or modes of satisfying them. For the first time in the history of political philosophy, no natural impulse is thought to lead to civil society, or to find satisfaction within it. Yet those who first drew the distinction between nature and society (which obviously means society is of human making, not in any way natural), thought that the preference would immediately be and without hesitation for society. As a matter of fact, the distinction was made in order to emphasize how desirable society is, how fragile man’s existence naturally is, and thus to extinguish those passions based on imagining that protection comes from nature or God, that rebel against civil society. Man, if he is sensible, separates himself from nature and becomes its master and conqueror. This was and still is the predominating belief of liberal democracies, with their peace, gentleness, prosperity, productivity and applied science, particularly medical science….

——————————-

My Further Questions And Comments

Something here is just a touch unclear to me, apart from not seeing how here my second question is answered. I do see now how Rousseau’s idealization of the natural man, which rejects political authority and laws, can be seen as anarchic.

I don’t see in this page the answer to my second question, only the assertion that raises it.

Bloom says, I think, Rousseau’s romanticism marks the first rejection in political philosophy of the idea that our natural impulses lead to civil society and our fulfillment within it. 

Those who counter posed the state of nature and the state, meaning the latter is man made not natural, had thought our immediate preference would always be the state and our satisfaction within it. 

The distinction is meant to exemplify our precariousness in nature 

and to drive out those “passions” that have us “rebelling” against our life in the state, which is to say, civil society. 

Sensible men put their stock in the state, detach themselves from nature and master it, “conquer it,” the predominant belief in liberal democracies, with their litany of benignities. 

So two things:

1: My second question still stands: in civil society don’t we repress, suppress our natural drives to conform to its laws and conventions, rather than satisfying them within it?

2: My slight unclarity, is Bloom gently twitting liberal democratic benignity or unreservedly praising it? He seems detached from his description of it, as if mildly mocking it. But maybe I’m mistakenly reading that into it. 

And:

I imagine/remember an answer to my “second question:” our drives are fulfilled and satisfied to the highest order by civilizing them, on the idea of the erotic perfecting itself in our highest actions, say sex ennobled in marriage or our  highest action, doing philosophy.

—————

Interpreting The Parable Of The Prodigal Son In The Midst Of Mooting Merit v Diversity

 

Here is my interpretation of the parable of the prodigal son inspired by my answering a friend who sees the parable as informing the issue of merit against diversity, the latter accomplished by racial hands up.

The exchange was provoked by these words from Heather Mac Donald:

“Racial preferences have been almost impossible to dislodge because their human costs are usually hidden. College admissions officers don’t inform rejected student applicants that they were turned down to make room for diversity admits. An HR office does not tell job seekers or the company’s own employees that they were not hired or promoted because they would add nothing to the company’s diversity metrics. The rejected applicants may suspect that they didn’t get a desired position because of a racial preference, but they can rarely be 100 percent sure.

The offstage nature of these tradeoffs allows preference proponents to deny that diversity decisions entail a zero-sum calculus. In 2019, a U.S. district court judge upheld Harvard’s racial-admissions preferences after a lengthy trial. In her opinion, Judge Allison Burroughs insisted that race is only a positive factor, and never a negative factor, in Harvard’s admissions process. Such a claim is specious. 

The only reason that institutions implement racial preferences in the first place is that there are not enough qualified applicants among non-Asian minorities to achieve a racially proportionate student body or workforce under a meritocratic selection system. Hiring a diversity candidate under a preference regime almost always means not hiring a more qualified non-diverse candidate. The former’s gain is inevitably the latter’s loss.”

Me: (his comments apparent in the points I answer)

The older son wasn’t necessarily more “capable” if that’s measured by talent. There is nothing in the parable about which son was more talented. It’s just that one did what he was supposed to and the other was a blatant wastrel. And the parable doesn’t say the older son got nothing or nowhere. It says he got all that his father could give him. Its theme isn’t unequal treatment even though the older son may have thought so. It’s redemption, the generosity of grace and forgiveness and the depth of filial love. In fact, the parable as I read it makes no mention of the elder son’s final reaction to his father’s explanation for the celebration of the prodigal’s return:  

“It was meet that we should make merry, and be glad: for this thy brother was dead, and is alive again; and was lost, and is found.”

The parable’s analogue to what HMD asserts about diversity trumping merit is off kilter and betrays a misunderstanding of the story.

Whether both sides, I assume they’re the racially admitted and the more meritorious rejected, can be convinced about the rightness of diversity trumping merit is beside any point. SCOTUS, as I noted, is likely to settle the issue. 

Sweet La-La Land by Robert W. Campbell, Not Noir But Rather Human Black Hole

   

Some choice bits from the end of Sweet La-La Land 

Hooligan went out and gathered up Canaan and Whistler. The two cops walked Whistler back through the alley to the highway, one on each side. It was like escorting a dead man. There was no feeling of life in him. He just shuffled along, staring at the rain falling in front of him as though that were all there would ever be in the world again. The strange persistence of the rain. 

…

They were huddles together on the broken catwalk on the pitted roof, under an evening sky going sulphur yellow form the pollution that hardly ever left the air, like the last two survivors of a city destroyed by nuclear holocaust.

…

“How about Bitsy? Where’s Bitsy?”

“He’s in jail.”

“Whaaat?”

“He done it.”

“Done what?”

“Done it to Mimi on the roof. Later on they proved he killed Moo and that woman from Magdalene House too,” Roach said.

“That lady what came around with the hot chocolate and the big nigger.” (Latter is JoJo)

…

“How could they all come together in the same place at the same time, so that all the terrible things that could happen happen?” Bosco asked, his hand laying on a copy of Oedipus, After Sophocles. “Sometimes you hear about them finding a body somewhere and you think that’s the picture, but it ain’t the picture. It’s just the trailer.”

….

“Hey,” said Bosco, “the worst corner of hell is home sweet home to some poor soul.”

——————————

Finished the book. Hopeless tragedy is the key phrase. As I said, not noir but rather a human black hole.

Systemic Racism, Glenn Loury And Lara Bazelon

 https://www.youtube.com/watch?v=WD6aoUCQ21w&ab_channel=Bloggingheads.tv

My response to someone:

I thought this was an interesting exchange though at about, if I’m recalling right, the 46’ mark give or take, right up until the very end they veer off issues of systemic racism and problems with the administration and substance of  American criminal justice. They spend the last 1/3 or so on purely personal issues to both of them, especially Loury, who comes across in much of his previous troubled life as a human train wreck such that one cringes, or at least I cringe, listening to it but can’t turn away.

Anyway, Bazelon’s case for the existence of systemic racism is weak and by and large, or at least often, she conflates it with her critique of the criminal justice system writ large, ie affecting all who come into contact with it regardless of race, white, red, yellow, black and brown. She doesn't seem to realize that her analysis is more class based than race based. 

Her characterization of her essential issue with Loury is whether racism is now vestigial, a relic of the bygone past or whether it is, in her exact phrase, “baked into” laws that are now on the books. The line between the two is blurrier and less stark than she thinks. For vestigial racism means long past systemic racism’s effects continue and are an undeniable factor in present disparities. Loury, as well as McWhorter, would be the first to say that’s so. 

The functional difference between the two is that “baked into”  means that present laws and institutions have in them components of the past that were specifically rooted in institutional racist intention and racist practices. Loury, I infer, denies that that is an apt wholesale characterization of present laws and institutions and practices, while he might, but doesn’t in this conversation, allow that outlier examples of what Bazelon particularizes—namely, the PIG law in Louisiana and the practice of non unanimous juries—may exist.

She in virtually the same breath notes, by the way, that both the laws she cites have been repealed and that progressive criminal justice personnel were involved in her client’s exoneration. 

Functionally for Loury, vestigial racism means the psychological, economic, family dynamic and sociological effects of undeniable past systemic racism, largely de jure undone by the 1964 civil rights legislation and the eventual erasing of persisting pockets of it like red lining. 

For Loury, a problem with vestigial racism is it’s immeasurable as far as conduct and dysfunction go and that it informs a kind of victimhood pathology that blames it for all manner of disparate outcomes including without limitation public school performance, top tier university admission, a standard deviation less on test scores, all manner of indicia of success, staggering overrepresentation in crime and jail and massive out of wedlock births punctuated by absentee fathers. 

He says whatever the immeasurable factor comes to, the rest by and large is community and family dysfunction, which is essentially from where improvement must come. 

Bazelon agrees with some of this as she notes when clarifying what common ground they share. But then her case for “baked into” is weak since so much of it proceeds from just the one example of her unjustly convicted client, as though such travesties haven’t happened and don’t happen regularly to whites as well. Which then goes to my point that she mish-mashes a general critique of the criminal justice system, which is class based, with her notion of baked into systemic racism. That many of the lower classes are black is racial correlation and not racial causation 

Interesting to note that when they discuss why her client had a gun, she defends his criminal conduct—he needs it to sling dope or he’ll get shot; he needs to sling dope to overcome his family’s poverty. 

But she doesn’t deal with the point Heather Mac Donald makes in reviewing an ideologically similar book by University of Chicago sociologist Alice Goffman, a point that others have made as well: why isn’t this criminal acting out typical of most impoverished black youth; why is it that among her client’s cohort it’s only a minority of them, not the majority, that act this way?  This disparity in who acts criminally and who doesn’t devastates the argument that systemic racism is more the cause than individual choice among those similarly situated. 

She also weakens her case from the get go to the extent she agrees with Loury. She agrees to the extent that systemic racism is, in her words, “elasticized” and “overextended.” But isn’t that what systemic racism is, a pervasive, wholesale feature of a society? If it’s not that, then how is it systemic? 

She gets particularly overly-ideological in downplaying the recent upticks in violent crime by saying they’re nowhere near what the numbers were in the nineties. Loury rightly takes exception to that saying that that doesn’t rebut a 30-50% increase in murders and other felonies in big U.S. cities nor that in NYC increasing crime is at the top of its citizens concerns nor that likely the next mayor will be the more law and order ex-cop Eric Adams. Bazelon blames it on media hype but for me in that she comes off as slightly blasé, which is to say, reality hasn’t yet mugged her.

This doesn’t go to systemic racism but she is weak on touting the virtual abrogation of the cash bail laws. Her reason is that the poor can’t come up with the money: poverty being criminalized is her point By the way, this is an example of her noted conflation. 

But doesn’t she have this point backwards? 

Even granting the presumption of innocence, when it comes to bail traditionally the strength of the case is a big factor. The likelihood of flight  and recommission are big factors. So is the financial inducement to stick around by risking forfeiture of what’s put up as bail security. So are ties to the community. So is the seriousness of the offence. 

Thus, if but for bail reform, an arrestee is denied bail, poverty isn’t being criminalized. Rather a preceding crime is being dealt with in the consequence of its perpetration. If rich people can make bail and poor people can’t, is that a reason to let violent felons out pending trial, including ones who’ve already committed a further crime? If everything income inequality touches is to be foregone, we’re on our way to dystopia. Some poor will always be with us. 

As Loury notes, it’s sheer irrebuttable common sense that if charged felons including repeat offenders are out every time before trial, they’ll likely offend again. And in fact they do. 

They get off substance when they began speaking about the politics of all this.