Special Issue : Law and the Liberal State 9781784412388, 9781784412395

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SPECIAL ISSUE: LAW AND THE LIBERAL STATE

STUDIES IN LAW, POLITICS AND SOCIETY Series Editor: Austin Sarat Recent Volumes: Volumes 1 2:

Edited by Rita J. Simon

Volume 3:

Edited by Steven Spitzer

Volumes 4 9:

Edited by Steven Spitzer and Andrew S. Scull

Volumes 10 16:

Edited by Susan S. Sibey and Austin Sarat

Volumes 17 33:

Edited by Austin Sarat and Patricia Ewick

Volumes 34 64:

Edited by Austin Sarat

STUDIES IN LAW, POLITICS AND SOCIETY VOLUME 65

SPECIAL ISSUE: LAW AND THE LIBERAL STATE EDITED BY

AUSTIN SARAT Department of Law, Jurisprudence & Social Thought and Political Science, Amherst College, USA

United Kingdom North America India Malaysia China

Japan

Emerald Group Publishing Limited Howard House, Wagon Lane, Bingley BD16 1WA, UK First edition 2014 Copyright r 2014 Emerald Group Publishing Limited Reprints and permission service Contact: [email protected] No part of this book may be reproduced, stored in a retrieval system, transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without either the prior written permission of the publisher or a licence permitting restricted copying issued in the UK by The Copyright Licensing Agency and in the USA by The Copyright Clearance Center. Any opinions expressed in the chapters are those of the authors. Whilst Emerald makes every effort to ensure the quality and accuracy of its content, Emerald makes no representation implied or otherwise, as to the chapters’ suitability and application and disclaims any warranties, express or implied, to their use. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-78441-239-5 ISSN: 1059-4337 (Series)

ISOQAR certified Management System, awarded to Emerald for adherence to Environmental standard ISO 14001:2004. Certificate Number 1985 ISO 14001

CONTENTS LIST OF CONTRIBUTORS

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EDITORIAL BOARD

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TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE: DEFENDING JOHN RAWLS’S PRAGMATISM John P. Anderson

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THE NEOLIBERAL STATE’S JANUS FACES OF LAW Adelaide H. Villmoare and Peter G. Stillman

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JURY NULLIFICATION: AN ILLIBERAL DEFENSE OF LIBERTY Timothy A. Delaune

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GAYS IN THE MILITARY: TOWARD A CRITICAL CIVIL RIGHTS ACCOUNT Susan Burgess

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HEALTH CARE AND THE DISEMBODIED POLITICS OF AMERICAN LIBERALISM Daniel Skinner

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NOMOS AND NATIVE AMERICAN NARRATIVES: THE DUALITY OF LAW IN THE LIBERAL STATE Beau Breslin and Katherine Cavanaugh

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LIST OF CONTRIBUTORS John P. Anderson

Mississippi College School of Law, Jackson, MS, USA

Beau Breslin

Dean of Faculty, Skidmore College, Saratoga Springs, NY, USA

Susan Burgess

Political Science, Ohio University, Athens, OH, USA

Katherine Cavanaugh

Skidmore College, Saratoga Springs, NY, USA

Timothy A. Delaune

Political Science, SUNY Cortland, Cortland, NY, USA

Daniel Skinner

Department of Social Medicine, Heritage College of Osteopathic Medicine, Ohio University, Dublin, OH, USA

Peter G. Stillman

Political Science, Vassar College, Poughkeepsie, NY, USA

Adelaide H. Villmoare

Political Science, Vassar College, Poughkeepsie, NY, USA

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EDITORIAL BOARD David Engel Law State University of New York at Buffalo, USA

Gad Barzilai Political Science University of Washington, USA and Tel Aviv University, Israel

Anthony Farley Law Albany Law School, USA

Paul Berman Law George Washington University, USA

David Garland Law New York University, USA

Roger Cotterrell Legal Theory Queen Mary College, University of London, UK

Jonathan Goldberg-Hiller Political Science University of Hawaii, USA

Jennifer Culbert Political Science Johns Hopkins University, USA

Laura Gomez Law University of California, Los Angeles, USA

Eve Darian-Smith Global Studies University of California, Santa Barbara, USA

Piyel Haldar Law Birkbeck College University of London, UK

David Delaney Law, Jurisprudence, and Social Thought Amherst College, USA

Thomas Hilbink Open Society Institute, USA Desmond Manderson Law McGill University, Canada

Florence Dore English University of North Carolina, USA ix

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Jennifer Mnookin Law U.C.L.A., USA Laura Beth Nielsen Research Fellow American Bar Foundation, USA Paul Passavant Political Science Hobart and William Smith College, USA Susan Schmeiser Law University of Connecticut, USA

EDITORIAL BOARD

Jonathan Simon Jurisprudence and Social Policy University of California, Berkeley, USA Marianna Valverde Criminology University of Toronto, Canada Alison Young Criminology University of Melbourne, Australia

TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE: DEFENDING JOHN RAWLS’S PRAGMATISM John P. Anderson ABSTRACT Post-Enlightenment liberalism faces a paradox: The liberal principle of legitimacy demands states justify their constitutional order in terms citizens can accept, but there is no uncontroversial comprehensive conception of justice on which to form the requisite consensus. Rawls resolves the paradox by embracing a pragmatism that abandons the concept of truth in the political forum to secure consensus and legitimacy. Philosophers have challenged the idea of justice without truth as incoherent, and social critics have attacked it as naı¨ve. This chapter defends Rawls’s pragmatism against such critics and argues that the future of liberal constitutionalism may depend on its success. Keywords: Political liberalism; public reason; constitutionalism; pragmatism; pluralism; neutrality

Special Issue: Law and the Liberal State Studies in Law, Politics and Society, Volume 65, 1 29 Copyright r 2014 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-433720140000065001

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INTRODUCTION: ADDRESSING LIBERAL CONSTITUTIONALISM’S POST-ENLIGHTENMENT PARADOX It is a cornerstone of liberalism that the state’s exercise of coercive power is only legitimate where it conforms to a constitutional order that can be justified to citizens in terms they can accept. This requirement of reciprocity is sometimes referred to as the liberal principle of legitimacy. Compliance with this principle is crucial for liberals because of the harm that results from ignoring it. For when the state justifies its use of coercive power in terms of a controversial moral, religious, or philosophical doctrine some citizens reasonably reject, those citizens are unjustly alienated, marginalized, and used. Their contributions to the cooperative scheme are taken from them and used in the name of a religion or other worldview they may vehemently deny. Satisfying the liberal principle of legitimacy was not difficult for the Enlightenment liberal, for she could always justify coercion in conformity with a liberal constitutional order as necessary to respect the essential nature of persons as free and equal. For the Enlightenment liberal, this essential nature of persons was considered demonstrable by principles of universal reason or some other source of universal truth. Since Enlightenment liberals were convinced such universal truths could not be rationally rejected, their availability alone was sufficient to satisfy the liberal principle of legitimacy. The post-Enlightenment liberal, however, is confronted with a pluralistic, post-secular political culture that regards any appeal to “universal truth” or the “essential nature of persons” in explaining or justifying the exercise of political power as suspect at best. The result is a paradox: The liberal principle of legitimacy demands that the state justify at least its basic constitutional order in terms all citizens can accept, but there is simply no uncontroversial comprehensive conception of human nature, morality, religion, or justice on which to form the requisite consensus. This paradox seems to leave the liberal state with two alternatives: (1) the state may bite the bullet by stubbornly affirming one controversial conception of justice as true in violation of the liberal principle of legitimacy. Or (2) the state may refuse to endorse any single comprehensive doctrine as providing the recognized foundation for the constitutional order and instead allow all the representative moral and religious doctrines to compete openly in the public political forum (in political campaigns, legislative sessions, and the courts). This second alternative (I shall refer to this as the “open competition model”) has been defended by some liberals as the most promising means

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of achieving liberalism’s goal of reciprocity in pluralistic societies (see, e.g., Quinn, 2009), but it has also gained recent popularity among postsecular critics of liberalism (see, e.g., Wolterstorff, 2009). My goals in this chapter are twofold. First, I shall argue that the open competition model is not a viable option for Western constitutional democracies because it leads to political instability, stifles public political discourse, and ultimately itself violates the liberal principle of legitimacy by unjustly marginalizing citizens holding minority worldviews. Once the open competition model is rejected, however, liberalism is left without options that trade on appeals to comprehensive religious or secular doctrines. So if liberalism is to survive on its own terms in the post-Enlightenment era, it can only do so by reimagining itself to cope with a world in which truth claims concerning comprehensive doctrines no longer have a public role in supporting the constitutional order. This leads to the second goal of this chapter. I shall argue John Rawls’s pragmatism, by avoiding the concept of truth altogether in the justification and legitimation of the basic constitutional order, offers the most promising solution to the post-Enlightenment liberal paradox. This argument begins with a summary of Rawls’s method and an explanation of how it can accomplish this crucial goal, but it would not be complete without answering important criticisms. Rawls’s pragmatism has been attacked by liberals and non-liberals alike. Liberal philosophers have rejected Rawls’s method by arguing that any attempt to justify a conception of justice without also claiming it is true will lead to incoherence or vicious circularity. Social critics outside the liberal tradition have challenged Rawls’s attempt to rid the public political discourse of controversial truth claims as sacrificing far too much at the shrine of neutrality. For these critics, privileging the ideal of neutrality in this way just reflects another controversial dogmatism, “secular fundamentalism.” Moreover, they argue that even if neutrality in public political discourse were an ideal worth pursuing, Rawls’s hope to build an overlapping consensus based on nothing more than “freestanding” ideas latent in the public political culture is a fantasy in today’s increasingly more pluralistic democracies. I argue these criticisms (both liberal and non-liberal) ultimately fall flat because they depend on misunderstandings of Rawls that can be brought to light by a careful articulation of Rawls’s often-neglected tripartite structure for justification. Ultimately, however, my aim is not just to show that Rawls’s pragmatism can answer its critics, but to argue that it offers liberalism the best hope of overcoming its post-Enlightenment paradox and continuing to flourish in an increasingly more pluralistic world.

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PROBLEMS FOR THE OPEN COMPETITION MODEL To motivate the defense of Rawls’s pragmatism that follows, I begin by explaining why the principal post-Enlightenment alternative, the open competition model, is not viable. The open competition model recommends a political culture wherein adherents to irreconcilable comprehensive doctrines can openly expound and develop those doctrines in the public political forum as express justifications and sources of authority for the state’s constitutional order. Such openness must include debate among, and justification for action by, political candidates, legislators, judges, and other government officials. For if restrictions were placed on the reasons offered by such public political figures, they would have to be justified by appeal to some shared overarching comprehensive doctrine the nonexistence of which is a basic premise of the open competition model.1 Under the open competition model, members of a society’s representative groups of thought and faith are encouraged to adopt a live-and-let-live attitude, so long as that attitude can be maintained from within their respective comprehensive doctrines.2 Three concerning consequences can be expected from adopting the open competition model in answer to the post-Enlightenment liberal paradox. First, we can never expect the social consensus that is reached as a result of this competition among irreconcilable comprehensive doctrines to amount to more than what Rawls described as a modus vivendi. A modus vivendi represents an equilibrium point at which parties find that though their fundamental commitments and aims are different, observing rules reached by compromise is, at this time, in their best interest. Because social consensus as a modus vivendi is built by appeal to the separate interests of the parties, and not a shared moral object, it is subject to instability and unlikely to endure. This is due to the problem of assurance.3 The problem of assurance arises at the individual level where a person’s reasons for contributing her fair share to a cooperative scheme are outweighed by concerns that others will not contribute. It is easy for the state to fix this problem at the individual level by imposing a system of penalties for noncompliance, but the problem is more difficult to resolve where it arises at the level of ethnic, moral, cultural, or religious groups. As Thomas Pogge explains, at the group level, “the relevant suspicion is not that others may be shirking their responsibilities under the scheme, but that major groups may be seeking through their legitimate political and economic power to shift the terms of the institutional scheme itself in their favor” (Pogge, 1989, pp. 101 102). This fear results in a Hobbesian escalation of antagonism and instability in

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the political arena. Parties can be expected to make preemptive strikes on one another through legitimate political means. A modus vivendi may be expected to continue to balance these interests and soften the impact of shifts in power among the competing groups up to a point. But where power is balanced by nothing more than a modus vivendi, there is no guarantee the strongest groups will not compound their advantages and eventually force others to accept the exercise of coercive power on their terms, leaving the weaker groups with no alternatives but to endure, fight, or flee. One might argue that the fact that over time the modus vivendi will likely come to reflect the strongest comprehensive doctrine represented in a society is not particularly alarming where that society is liberal because the substantive demands of the resulting constitutional order should nevertheless remain liberal. For example, even if officially justified by appeal to Christ’s Sermon on the Mount, a liberal constitutional order will still reflect a healthy toleration for other religions and a continued respect for persons as free and equal. But even so, damage is done. One of the characteristics of a pluralistic society is that citizens’ identities and self-respect are crucially dependent upon the comprehensive doctrines to which they subscribe. As noted above, when the constitutional order of a pluralistic state is expressly justified (by judicial precedent, legislative history, or presidential articulation) in, say, Christian terms that Muslims, Buddhists, and atheists cannot accept, the latter are insulted, demeaned, and alienated. They become outsiders to the political community, relegated to a second-class status. This is the second problem with the open competition model, and it is precisely the problem the liberal principle of legitimacy guards against. Finally, there is the concern that the open competition model may have a limiting effect on public political discourse. The open competition model encourages appeals to the truth of controversial foundational principles in public political discourse. The problem is that such appeals often have the effect of halting discourse altogether. For example, Stephen Carter (1993) laments that One good way to end a conversation or to start an argument is to tell a group of well-educated professionals that you hold a political position (preferably a controversial one, such as being against abortion or pornography) because it is required by God’s will.

Richard Rorty responds to Carter that such a statement “is far more likely to end a conversation than to start an argument” (Rorty, 1999, p. 170). For Rorty, an appeal to God’s will in this context is no different from defending a pro-life position by saying, “I would never have an abortion,”

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or defending a pro-pornography position by saying, “Reading Pornography is about the only pleasure I get out of life these days.” According to Rorty, “the ensuing silence masks the group’s inclination to say, ‘so what? We weren’t discussing your private life; we were discussing public policy’” (Rorty, 1999, pp. 170 171). To the extent one finds such a response unsatisfactory, Rorty asks what more can be said. Certainly the atheist could respond to Carter’s believer, “‘Gee’ I’m impressed. You must have a really deep, sincere faith,” but Rorty wonders, “What happens then? What can either party do for an encore?” For Rorty, far better to respond: “Okay, but since I don’t think there is such a thing as the will of God, and since I doubt that we’ll get anywhere arguing theism vs. atheism, let’s see if we have some shared premises on the basis of which to continue our argument on abortion” (Rorty, 1999, p. 171). In a later piece, Rorty emphasizes that this argument goes for the appeal to the truth of all foundational principles in public political discourse, both secular and religious. He recommends “citizens of a democracy should try to keep the conversation going without citing unarguable first principles, either philosophical or religious” (Rorty, 2003, p. 149). In sum, political discourse can only be productive in problem-solving, innovation, and dispute resolution where the conversation is lively and ongoing. In licensing appeals to the truth of controversial first principles, the open competition model risks cutting conversation short and undermining these important ends by leaving participants to speak at cross purposes or not at all. Thus, it turns out the open competition model cannot offer a better solution to the post-Enlightenment liberal paradox than the state’s stubbornly affirming the truth of a single controversial moral or religious doctrine as the public basis for its constitutional order. Rawls offers a third way out, but it requires that liberalism embrace a pragmatism that renounces the concept of truth altogether in the public political forum. In short, for Rawls, if liberalism is to move beyond its post-Enlightenment paradox, it must trade truth for legitimacy.

RAWLS’S METHOD: JUSTIFICATION AND LEGITIMACY WITHOUT TRUTH Rawls explains the above-described challenge facing post-Enlightenment liberal democracies as stemming from the fact of reasonable pluralism. According to Rawls, persons are reasonable to the extent they desire for

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its own sake “a social world in which they, as free and equal, can cooperate with others on terms all can accept” (Rawls, 1993, p. 50). Thus, as reasonable, persons will recognize the liberal principle of legitimacy.4 Yet Rawls also observes that, due to the burdens of judgment,5 persons can remain reasonable while rationally disagreeing over the philosophical meanings of the concepts of freedom and equality from the standpoints of their different comprehensive moral doctrines. Hence, “as a practical political matter no general moral conception can provide a publicly recognized basis for a conception of justice in a modern democratic state” (Rawls, 2001a, p. 390). The result is the post-Enlightenment liberal paradox outlined above. Rawls’s novel response to this paradox is to apply the principle of toleration implicit in the notion of the reasonable to political philosophy itself. For Rawls, the key to resolving the liberal paradox is to limit the scope of political justification by recasting the primary aim of political philosophy as practical and not metaphysical or epistemological. So understood, political philosophy will not seek the construction of a comprehensive but rather a “political” conception of justice, one that “draw[s] solely upon basic intuitive ideas that are embedded in the political institutions of a constitutional democratic regime and the public traditions of their interpretation” (Rawls, 2001a, p. 390). By constructing a conception of justice solely from shared ideas latent in the public political culture, Rawls argues political philosophy can avoid enlisting terms like “universal truth” and “the essential identity of persons” altogether. These terms can be replaced with comprehensivedoctrine-neutral terms like “reasonableness” and a “political conception of persons.” And consequently the contemporary paradox of legitimacy raised by the fact of reasonable pluralism can be avoided. For Rawls, the “hope is that, by this method of avoidance, as we might call it, existing differences between contending political views can at least be moderated, even if not entirely removed, so that social cooperation on the basis of mutual respect can be maintained” (Rawls, 2001a, p. 395). Thus, Rawls’s method does not deny all the competing reasonable comprehensive moral, religious, or philosophical theories’ claims to universal truth; it simply denies that answering the question, of which if any of these theories is the true theory, is essential to articulating and maintaining a just constitutional order. In short, the method “does not criticize … religious, philosophical, or metaphysical accounts of the truth of moral judgments and of their validity. Reasonableness is its standard of correctness, and given its political aims, it need not go beyond that” (Rawls, 1993, p. 127, emphasis added). But how can a conception of justice that is to provide the publicly recognized basis

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for the constitutional order of a liberal democracy be constructed without the concept of truth? The claim that fundamental moral ideas may be “freestanding” is central to Rawls’s method of avoidance. For an idea to be freestanding in a political society it must have comprehensive-doctrine-neutral origins and sources of familiarity. For example, citizens may identify certain fundamental moral ideas with the historical traditions of their political culture in general (e.g., consistent themes in scholarship, literature and film, and the qualities of a people’s political heroes and villains), or more specifically with its constitution and traditions of constitutional interpretation,6 its historical documents (e.g., in America, the Declaration of Independence, Jefferson’s “Bill for Establishing Religious Freedom,” and the Federalist Papers), and its widely known political writings (e.g., Lincoln’s Second Inaugural Address and King’s “Letter from Birmingham Jail”). The idea is this: There are certain first-order moral propositions (e.g., “slavery is unjust”) adherents to all reasonable comprehensive moral, religious, and philosophical doctrines must avow insofar as they are reasonable, even though they will give different foundational reasons for doing so. If enough of these first-order moral claims are found freestanding in a given public political culture, then it may be possible to construct a “political” conception of justice from these ideas alone that has a comprehensive-doctrine-neutral pedigree, and that can therefore provide for the basic constitutional structure of a wellordered society without privileging one comprehensive doctrine and marginalizing others. The problems that arise from the fact of reasonable pluralism emerge only at the foundational level; for it is only at this level that one runs up against the claims that distinguish one reasonable comprehensive doctrine from another. So, if a political conception of justice could be justified to the satisfaction of every reasonable member of a society at the level of freestanding first-order ideas alone, then questions regarding controversial foundational claims need never arise at the level of public justification (at least not when discussing constitutional essentials), and perhaps a basis could be provided for public political justification that can comply with the liberal principle of legitimacy. Under these circumstances, the paradox presented by the fact of reasonable pluralism would be solved. The justification of a political conception of justice progresses through three phases: pro tanto justification, full individual justification, and public justification. Where all three levels of justification are satisfied, the result is a reasonable overlapping consensus on a political conception of justice. And where an overlapping consensus is achieved around a

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political conception of justice, there is legitimacy and stability for the right reasons. The pro tanto phase of the justificatory process focuses exclusively on the construction of a political conception of justice and is, in that sense, purely descriptive. That is, one looks to nothing more than the basic intuitive ideas embedded in the public political culture. One then constructs a conception of justice that generates principles that match up with those freestanding ideas. To the extent that the political conception of justice so constructed is complete (i.e., to the extent that the “the political values specified by it can be suitably ordered, or balanced, so that those values alone give a reasonable answer by public reason to all, or nearly all, questions concerning constitutional essentials and basic justice,” Rawls, 1995, pp. 142 143), it is justified pro tanto. Pro tanto justification “tries to put no obstacles in the path of all reasonable doctrines endorsing a political conception by eliminating from this conception any idea which goes beyond the political and which not all reasonable doctrines could reasonably be expected to endorse” (Rawls, 1995, p. 145). But because the process of pro tanto justification is itself descriptive (taking the public political culture as it finds it) and therefore presupposes no values, such justification of a political conception of justice guarantees neither its normativity nor its legitimacy. A political conception is justified pro tanto “without looking to, or trying to fit, or even knowing what are, the existing comprehensive doctrines” of the persons over whom it proposes to apply (Rawls, 1995, p. 145). As such, it is freestanding in a very literal sense; it is nothing more than a descriptive model of a conception of justice that fits the target society. It has yet to be applied to individual citizens’ self and social conceptions so as to be revealed as genuinely normative for them. The successful construction of a political conception of justice at the pro tanto stage offers nothing more than the “hope the reasonable comprehensive doctrines affirmed by reasonable citizens in society can support it, and that in fact it will have the capacity to shape [these] doctrines toward itself” (Rawls, 1995, p. 145).7 My account of the pro tanto phase of justification as “descriptive” is important to the defense of Rawls’s method of avoidance that will follow, so I should pause to explain. By descriptive, I mean that pro tanto justification is limited to the exercise of finding a conception of justice that is optimally consistent with the manifest characteristics of the target public political culture. Consequently, pro tanto justification starts with no normative presuppositions and makes no independent judgment as to the moral quality of that public political culture. This is what allows Rawls to

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say that a political conception of justice that is justified pro tanto does not present itself as true. Though Rawls never explicitly refers to the pro tanto phase of justification as descriptive, there is an abundance of textual support for this reading. First, one must wonder what else Rawls could mean when he describes pro tanto justification as generating a “freestanding” conception of justice without “looking to, or trying to fit, or even knowing what are, the existing comprehensive doctrines” (Rawls, 1995, p. 145). If pro tanto justification is not intended by Rawls to be descriptive, but rather as itself independently normative, then what would be the source of that normative weight? Rawls explicitly precludes the target citizens’ comprehensive doctrines as candidates (at least at the pro tanto phase8) because that would undermine the conception’s neutrality. You and I who are constructing the political conception at the pro tanto phase cannot draw on our own comprehensive doctrines to supply normativity (even if we were not also target citizens), for this too would corrupt the freestanding nature of the political conception.9 And of course pro tanto justification itself cannot commend a political conception as objectively normative for citizens, for, once again, this would deprive the conception of its freestanding status and render it a comprehensive rather than a political conception. Second, Rawls states that pro tanto justification orders and balances political values “so that those values alone give a reasonable answer by public reason to all, or nearly all, questions concerning constitutional essentials and basic justice” (Rawls, 1995, p. 142, emphasis added). This may leave the reader with the impression that Rawls understands reasonableness to provide an external normative constraint on the construction of a political conception of justice at this first stage of justification, but this is clearly not what he intends. For Rawls goes on to explain that when we set up the liberal political conception of justice as fairness, the ideas of the reasonable and of citizens viewed as free and equal “are always described and expressed by the conceptions and principles within the political conception itself” (Rawls, 1995, p. 150). In other words, these ideas are only relied upon in their freestanding form, as they are manifest in the target public political culture. In addition, we see that Rawls cannot contemplate liberal ideals as fixed external constraints on political conceptions of justice because he repeatedly refers to non-liberal political conceptions. According to Rawls, “many political conceptions are non-liberal, including those of aristocracy and corporate oligarchy, and of autocracy and dictatorship” (Rawls, 2001c, p. 585). For Rawls, that the idea of persons as free and equal “belongs to a particular political conception is clear from the contrast

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with a different political conception in which the members of society are not viewed as self-authenticating sources of valid claims” (Rawls, 2001d, p. 23). Indeed Rawls even contemplates the possibility of “a political conception of justice that allows slavery” and he uses this possibility to illustrate the point that “conceiving of citizens as free persons … goes with a particular political conception of justice” (Rawls, 2001d, p. 24). In short, the political ideas of the reasonable and of persons as free and equal constrain us in our construction of a political conception of justice for our liberal society at the pro tanto phase, but only in the way a historical anthropologist might be constrained to account for slavery if she were to attempt the construction and pro tanto justification of a political conception of justice for the antebellum South. Such ideas are inescapable descriptive facts of the target society’s shared history and public political culture evident to any observer. As such no political conception would fit or be complete unless it accounted for those ideas. Finally, there is no need for Rawls to suppose anything more than a descriptive analysis of the target society at the pro tanto phase of justification for a political conception of justice. For, as we shall see, on Rawls’s theory, the citizens themselves provide the requisite moral element of normativity when they either affirm or reject a proposed political conception in reflective equilibrium. After pro tanto justification, the next phase of the justificatory process for a political conception of justice focuses on an individual citizen as a member of civil society. In what Rawls refers to as “full, individual” justification, the descriptive pro tanto model is offered up to a citizen who accepts it and “fills out its justification by embedding it in some way to the citizen’s comprehensive doctrine as either true or reasonable, depending on what that doctrine allows” (Rawls, 1995, p. 143). For the justification of the political conception to be “filled out” in this way, the individual citizen must be prepared to accept it in wide reflective equilibrium. According to Rawls, wide reflective equilibrium, in the case of an individual citizen, is reached when that citizen has carefully considered alternative conceptions of justice and the force of various arguments for them. More specifically, the citizen has considered the leading conceptions of political justice found in our philosophical tradition (including views critical of the concept of justice itself) and has weighed the force of the different philosophical and other reasons for them. We suppose this citizen’s general convictions, first principles, and particular judgments are at last in line. (Rawls, 1995, p. 141, note 16)

It is here, through the process of reaching wide reflective equilibrium, that individuals are forced to reconcile the claims of political justice with

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the nonpolitical values comprised by their comprehensive conceptions. According to Rawls, the freestanding political conception itself “gives no guidance in such questions, since it does not say how nonpolitical values are to be counted. This guidance belongs to citizens’ comprehensive doctrines” (Rawls, 1995, p. 143). Finally, public justification occurs where full individual justification of a political conception of justice is achieved with respect to all (or most) reasonable members of a political society. This means “all the reasonable members of political society carry out a justification of the shared political conception by embedding it in their several reasonable comprehensive views” (Rawls, 1995, p. 143). Where such social convergence upon a political conception occurs, what Rawls refers to as an “overlapping consensus of reasonable comprehensive doctrines” is achieved. With this consensus, citizens take one another into account, recognizing that, though many will have conflicting comprehensive moral doctrines, all endorse the same political conception. And, according to Rawls, “this mutual accounting shapes the moral quality of the public culture of political society” (Rawls, 1995, pp. 143 144). Rawls emphasizes, however, that “the express contents of these doctrines have no normative role in public justification; citizens do not look into the content of others’ doctrines, and so remain within the bounds of the political. Rather, they take into account and give some weight to only the fact the existence of the reasonable overlapping consensus itself” (Rawls, 1995, p. 144). Concomitant with the idea of an overlapping consensus of reasonable comprehensive moral, religious, and philosophical doctrines upon a political conception of justice, and the moral quality of mutual accounting which the public recognition of this consensus engenders, is the idea of stability for the right reasons. If the case can be made that pro tanto, full individual, and public justification is possible for a given reasonable political conception of justice, then the conditions placed upon the exercise of coercive political power by the liberal principle of legitimacy may be met by that conception. As Rawls puts it, the argument, if successful, would show that we “can reasonably affirm and appeal to a political conception of justice as citizens’ shared basis of reasons, all the while supposing that others, no less reasonable than we, may also affirm and recognize that same basis. Despite the fact of reasonable pluralism, the conditions for democratic legitimacy are fulfilled” (Rawls, 1995, p. 146). So ultimately, for Rawls, what justifies a political conception of justice “is not its being true to an order antecedent to and given to us, but its congruence with our deeper understanding of ourselves and our aspirations,

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and our realization that, given our history and the traditions embedded in our public life, it is the most reasonable doctrine for us” (Rawls, 2001b, pp. 306 307). The aim of political philosophy becomes the construction of a conception of justice “we can live with.”

THE LIBERAL PHILOSOPHICAL CRITIQUE: INCOHERENCE OF JUSTICE WITHOUT TRUTH I cannot answer every philosophical criticism of Rawls’s pragmatism here. Instead I focus on Joseph Raz’s challenge (1990) as representative. Though there have been many other challenges to Rawls’s attempt to avoid truth claims in justifying a conception of justice,10 I choose Raz’s for my focus because it was among the first and, due to its seminal status, it has served as a starting point for others that have followed. In addition, it offers a particularly focused, clear, and well-developed argument. Raz explains that Rawls is perfectly willing to accept the possibility that comprehensive theories of justice are the bearers of truth values and that at least one is true. Rawls’s method of avoidance simply maintains that the truth or falsity of a political conception of justice is irrelevant to the question of its acceptability. As Raz puts it, Rawls is “willing to contemplate the possibility that there are some who know what the true theory of justice is, and that it is incompatible with his. Rawls is, in effect, arguing that such persons should nevertheless support his theory rather than the incompatible true theory, for his theory is the theory for us” (Raz, 1990, p. 15, note 34). Raz finds this approach unworkable. For, according to Raz, “if fulfilling the practical role assigned it by Rawls vindicates the theory of justice, then it shows it to be true (assuming ad arguendum, as Rawls does, that it can be true or false)” (Raz, 1990, p. 16). For Raz, it is not so much that Rawls’s claim is not morally justified as that it is incoherent: “for in claiming that this is the theory of justice for us for such-and-such reasons, one is claiming that those reasons show (or make) this the true theory of justice (if truth applies to theories of justice)” (Raz, 1990, p. 15, note 34). Thus, Raz argues that there “can be no justice without truth,” and the method of avoidance must be rejected (Raz, 1990, p. 15, note 34).11 Another way of putting Raz’s argument against Rawls’s method of avoidance is that there is nothing but incoherence lying between a theory of social stability on the one hand (which is not a theory of justice at all), and a comprehensive theory of justice on the other (which would require

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renouncing the method of avoidance). But, according to Raz, Rawls’s idea of a political conception of justice must fall between these two stools. To understand Rawls as preaching a mere theory of social stability would, as Raz puts it, be to “regard the politics Rawls advocates as an unprincipled search for consensus at all costs” (Raz, 1990, p. 12). But Raz identifies two crucial constraints on Rawls’s theory (one external and one internal) that preclude such an interpretation. First, Rawls limits his theory’s aim to that of reaching “a consensus that includes all the opposing philosophical and religious doctrines likely to persist and to gain adherents in a more or less just constitutional democratic state” (Rawls, 2001a, p. 390, emphasis added). Hence, according to Raz, Rawls places an external constraint on his theory by arguing that consensus ought only to be the goal for those societies that are already just or reasonable. The second way in which Rawls’s theory is precluded from being understood as a theory of “consensus at any price” comes to light in the ways in which its goal of an overlapping consensus is distinguished from a mere modus vivendi. As Raz puts it, a modus vivendi “reflects no principles other than the fact that it is an acceptable compromise,” whereas Rawls presents his theory as “genuinely a theory of justice” (Raz, 1990, p. 13). As such it expresses “conceptions of person and society, and concepts of right and fairness, as well as principles of justice with their complement of the virtues …” (Rawls, 2001a, p. 410, emphasis added). Consequently, it is not merely among individuals that the conception seeks to gain consensus, but, more specifically, among the myriad comprehensive moral religious and philosophical doctrines to which they subscribe. Thus, the goal for Rawls is not merely consensus, but rather a moral consensus. Thus, Raz concedes that Rawls’s theory is not intended as a mere theory of social stability because the above-stated external and internal constraints are intended to allow it to aspire to something more. But, according to Raz, these two constraints that allow Rawls’s political conception of justice to aspire to something more than a mere theory of social stability are also the features that drive it either into the fray of competing comprehensive doctrines (and therefore force it to renounce the method of avoidance) or alternatively into incoherence. Concerning the external constraint of respect for the reasonable, Raz argues that Rawls’s theory can only be understood as meaningful or motivated if we recognize it as a valuable goal “of sufficient importance to make [it] and [it] alone the [foundation] of a theory of justice for our societies” (Raz, 1990, p. 14). In other words, implicit in the recognition of this external constraint on the content of political conceptions of justice must be the claim that in order for a theory of justice to be true, it must be

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reasonable. Thus, given the nature of the reasonable as an external constraint on the theory, a political conception of justice must either claim that it is true to the extent that it is the most reasonable theory for us, or be rendered incoherent. Raz sees the internal constraint of achieving an overlapping consensus among comprehensive moral and religious doctrines as problematic as well. As we have seen, achieving such consensus among these different comprehensive doctrines demands that the political conception of justice itself remain freestanding or autonomous from those doctrines. For Raz, a theory of justice is weakly autonomous if it is part of a pluralistic comprehensive conception of the good that is, a theory which “recognizes the existence of irreducibly many intrinsic goods, virtues, and values” (Raz, 1990, p. 22). A weakly autonomous political theory recognizes some independent goods (e.g., distributive justice) as essentially political. By contrast, a strongly autonomous political theory “is a theory whose validity or truth does not depend on nonpolitical considerations” (Raz, 1990, p. 22). Raz explains that Rawls’s political conception of justice is clearly intended to be strongly autonomous. It must remain a “self-standing political theory, which is not to be justified by its relations to a wider moral doctrine” (Raz, 1990, p. 3). This is because identification with any one comprehensive doctrine would preclude consensus among its rivals. According to Raz, however, there are two reasons why autonomy from comprehensive moral theory is not possible for Rawls’s political conception of justice. First, Raz explains that political justification is at least in part holistic. The justification of both moral and political values depends “in part on the way they can be integrated into a comprehensive view of human well-being” (Raz, 1990, p. 23). Second, the practical implications of any value depend on the ways in which they may conflict with other values. So since “a strongly autonomous political theory [like the one commended by Rawls] prevents us from considering its political values in the comprehensive context of a complete moral theory, it cannot yield practical conclusions. It can neither assure us that conflicts do not arise nor adjudicate when they do arise” (Raz, 1990, p. 23). Thus, given the holistic nature of practical reasoning, the autonomy from comprehensive moral theories that is presupposed by Rawls’s method of avoidance is simply not possible. Consequently, according to Raz, Rawls is forced to either articulate his political conception of justice as part of a broader comprehensive doctrine (and therefore renounce the method of avoidance) or leave it impotent to justify and adjudicate the competing claims of citizens, the primary purpose of a theory of justice.

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RATIONAL SPACE FOR JUSTICE WITHOUT TRUTH We return now to Rawls’s three phases of justification for a political conception of justice as outlined above and consider whether Rawls must accept these dilemmas as proposed by Raz. I begin with Raz’s claim that Rawls relies on the reasonable as an external constraint on his theory. Recall that for Rawls the initial construction and justification of a political conception of justice begins at the pro tanto phase. Here the target society is observed from the third-person standpoint. Cultural paradigms of justice and injustice are collected side-by-side with observations of the political institutions of the current regime and the public traditions of their interpretation. General organizing ideas are teased out and constructed from these observations. In a liberal society, we can expect that the reasonable will be one such idea. These general organizing ideas are then used to construct a model for choice to which practical rationality may be applied to generate principles of justice we hope individuals in that society will accept on an ad hominem basis in the later individual and public phases of justification. But at least initially (still at the pro tanto phase of justification) the exercise is purely descriptive. The test for adequacy is nothing more than that of fit and completeness. So understood, there is nothing to pro tanto justification that betrays an external normative constraint of respect for the reasonable. It is true that Rawls only applies the method to Western liberal democracies, where a commitment to the reasonable will be manifest in the public political traditions, but there is no formal constraint to the method itself that would make it inapplicable to non-liberal (and non-reasonable) settings. Indeed, as noted above, Rawls clearly contemplates possible nonliberal political conceptions of justice, making it clear that pro tanto justification of such conceptions is possible. So Raz misunderstands Rawls when he argues that while it would appear that the “goal of [Rawls’s brand of] political philosophy is purely practical while it is not concerned to establish any evaluative truths it accepts some such truths as the presuppositions which make its theory intelligible” (Raz, 1990, p. 9). It is not Rawls’s method that presupposes a respect for the reasonable, but rather the public political culture of the Western liberal democracies upon which Rawls happens to focus it. In other words, for a political conception of justice to fit such a society at the pro tanto phase, it must be constructed to reflect a commitment to the reasonable not the other way around. Moreover, we can now see the mistake in Raz’s argument that “in claiming that this is the theory of justice for us for such-and-such reasons, [Rawls] is claiming that those reasons

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show (or make) this the true theory of justice (if truth applies to theories of justice)” (Raz, 1990, p. 15, note 34). For when a descriptive political conception that is justified pro tanto is offered to citizens at the ad hominem individual and public phases of justification, that conception does not present itself as true or as the theory of justice for them. It is offered as freestanding, with no more than the hope (given the pervasiveness in the public political culture of the political ideas that shaped the conception) that citizens will draw this conclusion (e.g., that it is true, reasonable, or the right theory for us) for themselves from within their own comprehensive doctrines, without the need for the political conception to go that far itself. Raz simply confuses the separate justificatory roles played by the pro tanto and later ad hominem phases of justification. Given its freestanding nature, a political conception of justice has no resources to recommend itself as true at the pro tanto phase of justification. At the later ad hominem phases of justification, the political conception may be endorsed as true or reasonable or as the right theory for us, but each citizen must bring this endorsement to the theory herself, on an individual basis, from within her own comprehensive moral, religious or philosophical conception. For Rawls, “the political conception gives no guidance in such questions” (Rawls, 1995, p. 143). This is the key to Rawls’s method of avoidance.12 In sum, Raz is mistaken to interpret Rawls’s respect for the reasonable as an external constraint on his theory. It is not a presupposition or necessary condition of the theory’s successful application. It is rather a feature the method finds already present in the target society, at least where that society is liberal. Once present, the reasonable helps to determine the outcome of pro tanto justification, but it does so only as a matter of fit and completeness, not as a matter of conforming to some external moral order. Otherwise the conception would not be freestanding. Once presented at the ad hominem phases of justification, citizens themselves may endorse the political conception as true because it is reasonable, but this is due to their own inescapable commitment to the reasonable from within their myriad comprehensive doctrines. Rawls’s method, however, betrays no such commitments itself and can offer no guidance on this question. But what of Raz’s claim that Rawls’s idea of an overlapping consensus on an autonomous political conception of justice is incoherent due to the holistic nature of practical reasoning? As we saw above, Raz defines a strongly autonomous theory of justice as one “whose validity or truth does not depend on nonpolitical considerations” (Raz, 1990, p. 22). This is, of course, trivially true of Rawls’s freestanding political conception of justice insofar as it is offered as neither true nor valid. It is simply a descriptive

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construction the principles of which may or may not be accepted as normative from the standpoint of individual citizens and their comprehensive doctrines. The truth, validity, or reasonableness of a political conception only comes into play from the standpoint of individual citizens once it is justified pro tanto and offered up to the target citizens at the ad hominem stages of individual and public justification. But at these latter stages citizens are of course free to fill in the justification for the conception however they like from the standpoints of their comprehensive doctrines: They may regard it as true, valid, or reasonable based on comprehensive moral reasons. If they do regard it as true or reasonable at this stage, however, the very same comprehensive moral reasons that drive them to this conclusion will weigh in favor of its command that public justification for it be maintained solely through public reason (i.e., in terms of a freestanding political conception of justice). Recall the two objections that Raz considered to be decisive against the strong autonomy of Rawls’s political conception of justice. First, the justification of moral and political values depends on the ways in which they can be integrated into a comprehensive conception of human well-being. And, second, insofar as the practical implications of any value depend on the ways in which they may conflict with other values, “a strongly autonomous political theory prevents us from considering its political values in the comprehensive context of a complete moral theory, it cannot yield practical conclusions” (Raz, 1990, p. 23). But we can see, again, how regarding these concerns as genuine criticisms of Rawls must rely on a misinterpretation of the latter’s method of justification. With regard to the first objection, Rawls is perfectly willing to admit that justification of moral and political values may appeal crucially to a comprehensive conception of human wellbeing, and citizens are free to fill in the justification of a political conception of justice with just such a comprehensive view indeed Rawls fully expects them to do so. What citizens cannot do is appeal to this comprehensive doctrine in public political discourse (unless they are also prepared to offer a justification in terms of the shared political conception in due course13), and Rawls expects their comprehensive views, to the extent they are reasonable, to impose this constraint on their own. Raz’s second criticism misses the mark for the same reason. The political conception of justice, as Rawls understands it, does not prevent persons from considering political values in the comprehensive context of a complete moral theory; indeed he encourages people to do so. Rawls simply expects, once again, that, insofar as the complete moral theory against which the person is weighing the values is reasonable, it will itself impose the restraint that the

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nonpolitical values not outweigh their political counterparts all or most of the time. Raz’s response here is that that insofar as Rawls means that general compliance with the principles of justice is necessary to achieve the goal of fair social cooperation, it does not follow that absolute compliance is necessary; hence particular conflicts will have to be evaluated on a caseby-case basis. But, again, this is a consequence with which Rawls is entirely comfortable. In his example of the Quaker, Rawls explains why he expects political values to outweigh nonpolitical values in most cases while at the same time leaving room for reasonable civil disobedience and conscientious refusal: Quakers, being pacifists, refuse to engage in war, yet they also support a constitutional regime and accept the legitimacy of majority or other plurality rule. While they refuse to serve in a war that a democratic people may reasonably decide to wage, they will still affirm democratic institutions and the basic values they represent. They do not think that the possibility of a peoples’ voting to go to war is sufficient reason for opposing democratic government … . This illustrates how political values can be overriding in upholding the constitutional system itself, even if particular reasonable statutes and decisions may be rejected, and as necessary protested by civil disobedience or conscientious refusal. (Rawls, 1995, pp. 148 149)

Thus, it would seem that the problem Raz envisions for the hope of an overlapping consensus as an internal constraint on Rawls’s theory (serving to distinguish it from a mere theory of social stability) stems from a failure to recognize the way in which a political conception of justice which is justified pro tanto is autonomous: it is only autonomous from comprehensive moral and religious doctrines in the sense that it does not recommend itself as true or valid on its own, but rather offers itself up to believers of comprehensive theories to take that final step themselves. Where these believers are committed to reasonable comprehensive doctrines, this reasonableness informs how they will weigh any apparent conflicts between their comprehensive doctrines and the political conception of justice. They must weigh the importance of the aspects of their comprehensive doctrines not reflected in (or in conflict with) the political conception against the important goals (including respect for the liberal principle of legitimacy) advanced by adherence to the political conception. So understood, again, there is no obvious inconsistency or incoherence. But isn’t there still a lingering concern here? As Raz puts it, Rawls is “willing to contemplate the possibility that there are some who know what the true theory of justice is, and that it is incompatible with his. He is, in effect, arguing that such persons should nevertheless support his theory rather than the incompatible true theory, for his is the theory for

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us” (Raz, 1990, p. 15, note 34, emphasis added). How can this be? It may appear damning to a theory of justice that it require those who know an alternative theory to be true to nevertheless suppress this knowledge in public political discourse simply because it cannot be expressed in terms others can accept. To begin, it should come as no surprise that there might be contexts in which ensuring a fair process for achieving an important social goal may require the exclusion of some truths actually known by the participants. Rawls offers the exclusionary rules of evidence enforced by the courts as an example. “Not only is hearsay evidence excluded but also evidence gained by improper searches and seizures, or by the abuse of defendants upon arrest and failing to inform them of their rights” (Rawls, 1993, p. 218). Such exclusions are typically enforced even where the judge is certain the excluded evidence is relevant and reliable, all to ensure the right to a fair trial. Rawls explains that, like the citizen who limits public political discourse on constitutional essentials to the contents of a political conception of justice (rather than her comprehensive doctrine), such exclusionary rules “recognize a duty not to decide in view of the whole truth so as to honor a right or duty, or to advance an ideal good, or both” (Rawls, 1993, p. 219). Sticking with the judicial theme, and perhaps more to the point, consider what we already ask and expect of our judges in reaching and justifying their decisions, particularly when they are deciding on issues of constitutional import. Though it is inevitable that judges will draw on aspects of their individual comprehensive worldviews in reaching their decisions, we expect that they will check the influence of those beliefs where they are inconsistent with legal precedent and established public policy. We demand this even if the judge’s conscience would ceteris paribus dictate a different result. And in all cases we insist that judges refrain from expressly justifying their rulings on their own broader moral or religious beliefs, demanding instead that they express their decisions in terms of shared public reasons.14 Moreover, it is not just that we expect judges to constrain their express justifications and decisions in this way, but we expect that they will recognize that it is right and just that they do so. We expect judges to recognize that in some cases justice and fairness may require that society be denied the full benefit of the truth as they see it. In sum, Raz seems to be expressing the concern that Rawls’s method of avoidance demands the impossible of a citizen by requiring that she affirm a political conception of justice even if it is not compatible15 with a broader comprehensive doctrine she knows to be true. But, as the examples above show, we already place a similar constraint on our judicial proceedings and

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our judges in order to advance larger goals of justice and fairness. What is so bizarre about the idea that justice (more specifically, the liberal principle of legitimacy) may require this same restraint on all citizens, at least where weighty concerns regarding constitutional essentials are at issue in a society marked by the burdens of judgment and reasonable pluralism? It may sometimes be difficult for us as citizens to limit our public justifications to those that can be articulated in terms of a political conception of justice. But it is no more than we demand of our judges, and it is certainly not an impossible or incoherent demand. Thus, ultimately, it would appear that Rawls has sufficient resources available to escape the corner in which critics such as Raz attempt to place his theory. Though Rawls’s method may appear counterintuitive at first blush, any reservations resulting from the unorthodoxy of the approach are more than outweighed by the payoff: a coherent solution to the postEnlightenment liberal paradox.

RESPONDING TO THE NON-LIBERAL CRITIQUE: EITHER DOGMATIC OR NAI¨VE Rawls’s pragmatism has also been challenged from outside the liberal philosophical tradition. With the weakening of liberalism’s claim to universality and the reemergence of religion as a powerful force in modern politics, religious leaders, jurists, and social critics who embrace a narrative of post-secularity have challenged the ideal of liberal neutrality as itself just another dogmatism that deserves no privileged status. Moreover, such critics argue, even if neutrality in public political discourse were an ideal worth pursuing, Rawls’s idea of public reason, which presupposes sufficient convergence on ideas and meanings in the public political culture to support a freestanding political conception of justice, should be dismissed as fantasy in today’s increasingly more pluralistic democracies. Paul Campos describes Rawls’s method of avoidance as “secular fundamentalism” (Campos, 1996, p. 200). For Campos, the secular fundamentalist “asserts that the supreme political value is to produce a political system that accepts liberal principles of political morality as embodiments of the supreme political value” (Campos, 1996, p. 200). The exclusion of comprehensive doctrines from the public political forum is justified because the ideal of reciprocity (embodied in the liberal principle of legitimacy) is crucial to liberal political morality. According to Campos, this variety of

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liberalism is properly understood as fundamentalist in the sense that it “denies the possible legitimacy of deep political conflict in what it considers a just social order” (Campos, 1996, p. 200). Its demand that discourse in the public political forum be limited to “the authoritative (and authoritarian) voice of public reason” leaves Rawls’s liberalism resembling “the very dogmatic systems it once rebelled against” (Campos, 1996, p. 200). In sum, despite its lip-service to neutrality and toleration, Rawls’s political liberalism “has within it the potential to become every bit as monistic, compulsory, and intolerant of any significant deviation from social verities as the traditional modes of belief it derided and displaced” (Campos, 1996, p. 200). Campos’s critique of Rawls is misplaced, and explaining why allows us to once again highlight the crucial difference between Rawls’s pragmatism and the foundationalism of the Enlightenment liberal. While it is true that Enlightenment liberalism must boldly (perhaps even dogmatically) “assert” the “liberal principles of political morality as embodiments of the supreme political value,” Rawls pragmatism avoids making any such assertion. Instead, for Rawls the commitment to reasonableness and the liberal principle of legitimacy is first identified at the descriptive, pro tanto phase of justification. As such, it is a freestanding commitment that (for better or worse) is already reflected in the public political culture of Western democracies; it enjoys a default status in the public forum that would be apparent to any third-party observer of the culture. This is a descriptive fact about Western democracies; it is not a dogma. Nevertheless, the default status enjoyed by such freestanding ideas qualifies them as noncontroversial starting points for political discourse concerning the constitutional essentials of a state. Of course such freestanding ideas only become normative for citizens once they are accepted in reflective equilibrium at the ad hominem phases of justification. Campos and other critics may genuinely reject the liberal principle of legitimacy at the ad hominem phase, but, given the pervasiveness of the commitment to neutrality in Western public political culture (and its close link to other widely shared political values), their fellow citizens who acknowledge this principle may reasonably place the burden on them to explain their challenge to that default position. In offering this explanation, Campos and others should be prepared to explain why the harms the liberal principle of legitimacy guards against (e.g., the alienation and marginalization of citizens) are outweighed by the strains of the commitment. Or, alternatively, they should be prepared to show the principle must be rejected for some other reason, perhaps because it is unworkable as a practical matter.

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Nicholas Wolterstorff rejects Rawls’s strategy of building an overlapping consensus on a political conception of justice as hopelessly naı¨ ve. According to Wolterstorff, no matter what principles of justice are generated by Rawls’s three phases of justification, “the reasonable thing for [one] to expect is not that all reasonable people who use their common human reason will agree with [the] results but that not all reasonable people will agree” (Wolterstorff, 2009, p. 174). In fact, Wolterstorff argues, there is “no more hope that all those among us who are reasonable and rational will arrive, in the way Rawls recommends, at consensus on principles of justice, than that we will all, in the foreseeable future, agree on some comprehensive philosophical or religious doctrine” (Wolterstorff, 2009, p. 174). This is not, however, a fair criticism of Rawls. For Rawls’s method does not depend for its success on all citizens of a liberal society agreeing on one political conception of justice (though this may be the ideal), only that they agree on a family of reasonable political conceptions (Rawls, 1995, p. 147, 2001c, p. 574). There are certainly enough freestanding moral ideas available in the public political cultures of Western liberal democracies to support a family of political conceptions of justice that are mutually recognized as reasonable, even if no one member of this family is universally recognized in all its details. So long as discourse in the public political forum is limited to positions that are ultimately supported by at least one member of this family of reasonable political conceptions of justice (as opposed to comprehensive moral or religious doctrines), the discourse continues without drawing on conversation-stopping first principles. Moreover, because the political conceptions do not trade on the truth of any one comprehensive moral or religious doctrine, where one wins out in the democratic process (as inevitably one must), there is not the same risk of humiliation or alienation for proponents of the losing conceptions. In short, Rawls’s method succeeds where others fail precisely because it makes ending up on the losing end of a dispute over constitutional essentials more palatable. For where citizens and officials make the effort to justify their votes in terms of freestanding ideas latent in the public political culture, even discourse that ends in a standoff is pervaded with mutual respect. Wolterstorff also objects to Rawls’s requirement that discourse in the public political forum be limited to public reason as hopelessly and unfairly restrictive. As Wolterstorff puts it, “my own views on the rights of the poor have been formed by reflecting on the scriptures which I accept as canonical. I am now told that if I want to present and debate those views in the political arena,… I must base them on the consensus populi, rationally analyzed” (Wolterstorff, 2009, p. 174). The problem with this requirement

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is that, according to Wolterstorff, most of his fellow citizens do not recognize the poor as having the rights he thinks they have. Indeed he argues that should “someone extract principles of justice from the consensus populi which entail that the poor do have such rights,… I would, on the basis of that entailment, conclude that her analysis was a mis-analysis” (Wolterstorff, 2009, p. 174). Wolterstorff concludes that he cannot appeal to freestanding ideas latent within the public political culture when the very challenge before him is to try to change that culture. First, as we have seen, it is incorrect to characterize Rawls’s political conception of justice as distilled from popular consensus. Recall that for Rawls a political conception of justice is justified pro tanto without even knowing what moral or religious views are actually held by citizens of the relevant society. Moreover, Rawls clearly intends the ad hominem phases of justification in which citizens strive toward reflective equilibrium with respect to a reasonable political conception of justice to be conducive of reform. Citizens are expected to identify new commitments to their fellow citizens they did not recognize before. And as I have argued elsewhere, ad hominem appeals on the basis of shared ideas latent within the public political culture can be a powerful and effective tool for change (Anderson, 2003, pp. 593 595). By contrast, as we have seen, direct appeal to controversial conversation-stopping foundational sources such as scripture may stifle dialogue and undermine reform. Second, though Wolterstorff may have arrived at the conclusion that the poor have rights by reflecting on scripture, I am suspicious of the claim that he would be powerless to defend this position to others in the public political forum without appeal to that foundational source. As John Dewey explained, the “condition of revelation is that it reveal” (Dewey, 1971, p. 4). Had “Jesus Christ made an absolute, detailed and explicit statement upon all the facts of life, that statement would not have had meaning it would not have been revelation until men began to realize in their own action the truth declared until they themselves began to live it” (Dewey, 1971, p. 6). In other words, imperatives drawn from scripture cannot be understood as revealed unless and until they are found in practice to be right and good independent of any reference to scripture. Once it is admitted that his commitment to the rights of the poor can be supported by reasons other than direct reference to God’s Will, then it must also be admitted that the public political culture of a Western liberal democracy will offer ample comprehensive-doctrine-neutral resources to defend this position as part of one of a family of reasonable political conceptions of justice.16

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Third, we must remember that Rawls’s demand that participants in the public political forum refrain from appeal to the truth of comprehensive doctrines is limited to discourse concerning constitutional essentials, and even with respect to constitutional essentials, the restriction is subject to a proviso: Appeals to comprehensive moral, philosophical, or religious doctrines may be made, provided that “in due course” they are accompanied by “properly public reasons” (Rawls, 2001c, p. 584). Finally, whatever one thinks of my responses to Campos and Wolterstorff above, it appears their proposed alternative response to the problem of justification and legitimation in modern pluralistic societies would be the open competition model. I have already suggested (supra, §2) this approach raises serious, and I think insurmountable, problems of its own.

CONCLUSION Thomas Jefferson wrote, “it does me no injury for my neighbor to say that there are twenty Gods or no God” (Jefferson, 1984, p. 285). Richard Rorty pointed out that many Enlightenment intellectuals would have gone further and argued that to the extent such religious beliefs are inessential to political cohesion, they should simply be dismissed as “mumbo jumbo” and replaced by an explicitly secular political faith (such as was attempted by Marxist states in the twentieth century). Rorty explains why Jefferson refused to go this far: He thought it enough to privatize religion for individual perfection. Citizens of a Jeffersonian democracy can be as religious or irreligious as they please so long as they are not “fanatical.” That is, they must abandon or modify opinions … if these opinions entail public actions that cannot be justified to most of their fellow citizens. (Rorty, 1991, p. 175)

In this respect, Rawls, in offering his recommendations for liberal constitutional democracies, would follow Jefferson. Rawls’s story about justice for a well-ordered society relies on freestanding ideas because he is convinced that political justification and legitimation requires no more. We could go so far as to justify our basic constitutional order by either forcing one controversial comprehensive view on others, or by opening the political forum to all competing comprehensive doctrines. But Rawls, following Jefferson, asks why we would want to do so (thereby fomenting discord, alienating

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those with minority worldviews, and stifling political discourse) when our shared reason does not require it of us? Rawls’s pragmatism consists in his insistence that truth (secular or religious), if not irrelevant, is at least unnecessary to justice. I have argued embracing this pragmatism offers liberalism its best hope for solving the post-Enlightenment paradox and enduring in the twenty-first century and beyond.

NOTES 1. Of course we must admit the possibility that unrestricted discourse could independently reach the conclusion that discourse should be restricted. If that were the case, however, the restriction itself would only be the result of a political compromise and (for reasons stated below) would be unlikely to endure. 2. For example, comprehensive doctrines will usually have provisions for treating nonbelievers. Some doctrines demand toleration; others do not. 3. The following discussion of the problem of assurance follows Thomas Pogge (Pogge, 1989; see also Anderson, 2003, pp. 581 583). 4. Rawls defines the liberal principle of legitimacy as follows: the “exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational” (Rawls, 1993, p. 217). 5. For Rawls the burdens of judgment are the source of rational disagreement between reasonable persons. He lists several such burdens (Rawls, 1993, pp. 56 67): (a) The evidence for a claim may be conflicting and complex and therefore difficult to assess. (b) Even where there is agreement over what considerations are relevant; there may be disagreement over the proper weight of competing claims. (c) To some extent all concepts are vague and subject to hard cases which admit of more than one reasonable interpretation. (d) We must assess evidence based on our own experiences and those experiences will inevitably differ from person to person. And (e) a situation may involve competing moral claims that are different in kind, making an overall assessment difficult. 6. Rawls offers some examples of comprehensive-doctrine-neutral values found in the US Constitution: “a more perfect union, justice, domestic tranquility, the common defense, the general welfare, and the blessings of liberty for ourselves and our posterity.” Rawls explains that under these express political values, there are others: “under justice we also have equal basic liberties, equality of opportunity, ideals concerning the distribution of income taxation, and much else” (Rawls, 2001c, p. 584). 7. Samuel Scheffler (1994, p. 12) offers a helpful account of what Rawls appears to have in mind when he talks of a political conception of justice shaping comprehensive doctrines toward itself. 8. As we shall see, at the later phases of justification the hope is that the political conception that is justified pro tanto will be endorsed by individual citizens from

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within their comprehensive doctrines. But here the individual citizens supply their own reasons for endorsing the political conception as normative for them. This is entirely consistent with the claim that pro tanto justification does not itself endorse a political conception as normative or true. 9. Rawls often refers to three points of view in the construction of justice as fairness: “the point of view of the parties in the original position, the point of view of citizens in a well-ordered society; and the point of view of you and me who are setting up justice as fairness as a political conception …” (Rawls, 2001d, p. 45, note 8). 10. For other important criticisms of Rawls’s pragmatism, see, for example, Baier (1989), Hampton (1989), Habermas (1995, p. 110), Estlund (1998), Kraus (1999), and Cohen (2009). Though I cannot engage each of these different challenges directly in this space, I believe the arguments offered here can be tailored to address many of them (see, e.g., note 12 infra). 11. In fairness to Raz, I must point out that this criticism of Rawls’s method of avoidance was prior in time to, and therefore did not have the benefit of, a number of Rawls’s later works, including Political Liberalism. Rawls developed and clarified a number of the ideas Raz criticizes in these later works. 12. Jodi Kraus makes a similar argument against Rawls’s theory and it fails for the same reasons. Kraus claims that Rawls’s theory must claim its own truth because it “cannot concede even the possibility of the truth of a comprehensive view that insists on applying its own substantive moral principles wholesale in the political domain of a society irrespective of the fundamental ideas in that society’s public political culture” (Kraus, 1999, p. 58). This claim makes sense as a claim about some individual citizens in Western liberal democracies, but it makes no sense as a claim about Rawls’s political liberalism. As Kraus himself points out, Rawls’s “political constructivism … is designed not to ground political justification in a modest metaphysics, but to obviate the need to ground political justification in any metaphysics at all” (Kraus, 1999, p. 53). Political liberalism, which is just the application of Rawls’s political constructivism to Western liberal societies, “merely takes certain of our fundamental values as given and generates from them a conception of justice maximally consistent with those values” (Kraus, 1999, p. 54). Consequently, political liberalism is freestanding and does not recommend itself as true or valid on its own; instead it offers itself up to believers of comprehensive theories so that they may take that final step themselves or not. The only challenge political liberalism makes to proponents of foundationalist conceptions of justice is for them to explain why the method of avoidance is not enough either because it fails to provide a complete conception of justice or because it is ultimately incoherent. So while it may be true that individual citizens of Western liberal societies (as reasonable) may reject as false any comprehensive views that do not comply with the liberal principle of legitimacy, it is simply a category mistake to make this claim of political liberalism itself. 13. According to Rawls, the demands of public reason on players in the public political forum are subject to a proviso: Appeals to comprehensive moral, philosophical, or religious doctrines may be made, provided that “in due course” they are accompanied by “properly public reasons to support the principles and policies [the] comprehensive doctrine is said to support” (Rawls, 2001c, pp. 574 575).

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14. Indeed Rawls refers to the supreme court of a liberal constitutional democracy as the “institutional exemplar” of a political conception of justice and its public reason. For Rawls, the public reason of a freestanding political conception of justice “is the sole reason the court exercises” (Rawls, 1993, p. 235). Rawls explains that while citizens and legislators “may properly vote their more comprehensive views when constitutional essentials and basic justice are not at stake,” supreme court justices should “have no other reason and no other values than the political. Beyond that they are to go by what they think the constitutional cases, practices, and traditions, and constitutionally significant historical texts require” (Rawls, 1993, pp. 235 236). 15. Raz does not articulate the way in which this purported “true” comprehensive doctrine is incompatible with the political conception. Here I presume that it is not incompatible because unreasonable. And insofar as it is reasonable, we may also presume that it recognizes the burdens of judgment and the liberal principle of legitimacy. 16. Indeed, Rorty’s book, Achieving Our Country: Leftist Thought in TwentiethCentury America (1998) offers just such a defense of egalitarian policies based principally on freestanding ideas from American history and public political culture.

REFERENCES Anderson, J. (2003). Patriotic liberalism. Law and Philosophy, 22, 577 595. Baier, K. (1989). Justice and the aim of political philosophy. Ethics, 99, 771 790. Campos, P. (1996). Secular fundamentalism. In P. Campos, P. Schlag, & S. Smith (Eds.), Against the law (pp. 191 202). Durham, NC: Duke University Press Books. Carter, S. (1993). The culture of disbelief: How American law and politics trivialize religious devotion. New York, NY: Basic Books. Cohen, J. (2009). Truth and public reason. Philosophy & Public Affairs, 37, 3 42. Dewey, J. (1971). Christianity and democracy. In J. Boydston (Ed.), Early works, volume 4: 1882 1898 (pp. 3 10). Carbondale, IL: Southern Illinois University Press. Estlund, D. (1998). The insularity of the reasonable: Why political liberalism must admit the truth. Ethics, 108, 252 275. Habermas, J. (1995). Reconciliation through the public use of reason on John Rawls’s political liberalism. The Journal of Philosophy, 92, 109 131. Hampton, J. (1989). Should political philosophy be done without metaphysics? Ethics, 99, 791 814. Jefferson, T. (1984). Notes on the state of Virginia. In T. Jefferson (Ed.), Writings (pp. 123 325). New York, NY: The Library of America. Kraus, J. (1999). Political liberalism and truth. Legal Theory, 5, 43 73. Pogge, T. (1989). Realizing Rawls. Ithaca, NY: Cornell University Press. Quinn, P. (2009). Political liberalisms and their exclusions of the religious. In P. J. Weithman (Ed.), Religion and contemporary liberalism. South Bend, IN: Notre Dame. Rawls, J. (1993). Political liberalism. New York, NY: Columbia University Press. Rawls, J. (1995). Political liberalism: Reply to Habermas. The Journal of Philosophy, 92, 131 180.

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Rawls, J. (2001a). Justice as fairness: Political not metaphysical. In S. Freeman (Ed.), Collected papers (pp. 388 414). Cambridge, MA: Harvard. Rawls, J. (2001b). Kantian constructivism in moral theory. In S. Freeman (Ed.), Collected papers (pp. 303 358). Cambridge, MA: Harvard. Rawls, J. (2001c). The idea of public reason revisited. In S. Freeman (Ed.), Collected papers (pp. 573 615). Cambridge, MA: Harvard. Rawls, J. (2001d). In E. Kelly (Ed.), Justice as fairness: A restatement. Cambridge, MA: Harvard University Press. Raz, J. (1990). Facing diversity: The case of epistemic abstinence. Philosophy & Public Affairs, 19, 3 46. Rorty, R. (1991). The priority of democracy to philosophy. In Objectivity, relativism, and truth (pp. 175 196). Cambridge, England: Cambridge. Rorty, R. (1998). Achieving our country: Leftist thought in twentieth-century America. Cambridge, MA: Harvard University Press. Rorty, R. (1999). Religion as conversation stopper. In Philosophy and social hope (pp. 168 174). London: Penguin. Rorty, R. (2003). Religion in the public square. Journal of Religious Ethics, 31, 141 149. Scheffler, S. (1994). The appeal of political liberalism. Ethics, 105, 4 22. Wolterstorff, N. (2009). Why we should reject what liberalism tells us about speaking and acting for religious reasons. In P. J. Weithman (Ed.), Religion and contemporary liberalism. South Bend, IN: Notre Dame.

THE NEOLIBERAL STATE’S JANUS FACES OF LAW Adelaide H. Villmoare and Peter G. Stillman ABSTRACT Neoliberalism has profoundly influenced the relationship between law and the state. Market rhetoric and ideology have fostered Janus faces of law, a double vision of law where both sides of the face adhere to one another through neoliberalism. One face relies on market values and individual liberty, seemingly favoring the reduction of state authority, actually to enhance law’s power. The other Janus face, also drawing on values of market efficiency and individual responsibility, expands criminal justice and its role in the state. Together the Janus faces of law diminish democratic values and practices of law in favor of economic growth, efficient governance, and punishment. Keywords: Neoliberalism; law; democracy; market; power; justice

INTRODUCTION Over the years the law and society community has embraced multiple understandings of law from those closely attached to the state, to concepts where law as rights challenges the state and its policies, to constitutive

Special Issue: Law and the Liberal State Studies in Law, Politics and Society, Volume 65, 31 55 Copyright r 2014 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-433720140000065000

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meanings of law in everyday life. In this volume we are asked to reconsider law within the context of the liberal state. We, therefore, focus on the state and law’s institutionalization within the state.1 From among the many ways to analyze law and the state, we select one, powerful contemporary approach mainstream neoliberalism that contains, like the carvings of Janus over the doors of Roman buildings, a double vision.2 We contend that this lens opens onto an understanding of law’s role within the state that both supports market values and undergirds a strengthening of state power such that democratic norms are pushed to the side of considerations of the role law should play in the state. In one Janus face, of freedom and economizing, mainstream neoliberal rhetoric turns to the language and practices of markets and efficiency rather than the language and practices of democratic rights or equality of opportunity. Law loses many of its welfare and regulatory responsibilities (Wacquant, 2009), and government functions are outsourced to private companies (Freeman & Minow, 2009). As one observer notes, government is striving to become “leaner, more flexible and efficient” (Donahue, 2009, p. 41) at the same time that state law works more vigorously on behalf of the market and private property. Law diminishes as a source of contestation over the economic role of the state, the state’s obligations to its citizens, and rights of groups and individuals vis-a`-vis the state and one another. Seen increasingly by neoliberals as an appendage of market relations and growth and a vehicle for individual liberty, law nonetheless secures and even extends state power in the name of defending and expanding the market and private property.3 In the second Janus face neoliberalism also transforms law; restricting democratizing qualities of law, it deepens the state’s police and surveillance powers (Simon, 2007). Law colonizes and criminalizes ever wider realms of day to day life. Under neoliberalism law is more a means by which to assert state power than a constraint upon it. Increasingly in the name of security against violence, crime, or terrorism, law intrudes into people’s privacy and freedom.4 In this second Janus face, neoliberal discourse intensifies the reach and impact of criminal law. These changes represent a narrowing of the responsibilities of government to those entwined with the market and a dilution of the progressive possibilities of law in courts and legislatures. The narrowing does not, however, mean that the state’s power is reduced. While neoliberalism sets itself a task of assuring individual freedom and choice through reducing the state’s welfare and regulatory obligations, law enhances state power. Law carves out fewer democratic roles to play as it increasingly serves the

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market and the state’s connections with the market and controls those on the margins of or outside the market. In exercising control for the sake of the market, law has undermined possibilities for democratic practices.5

NEOLIBERALISM Neoliberalism has been characterized and defined in many ways in recent scholarship. We do not wish to get involved in the fine points of definitional debate, and we do not assume that neoliberalism is monolithic or unchanging.6 But we do present a characterization of neoliberalism drawn from neoliberal rhetoric and recent scholarship, one that speaks to its political as well as economic characteristics and, to a degree, its long and continued vitality in political debate (Birch & Tickell, 2010; Comaroff, 2011; Harvey, 2005; Jones, 2012; Konings, 2010; Steger & Roy, 2010; Thorsen, 2010; Wacquant, 2010).7 Especially beginning with Ronald Reagan and Margaret Thatcher, neoliberalism as a political economic theory stressed that markets should be free from excessive governmental regulation. Reagan (1980) wished to “get the government off our backs” so that entrepreneurs could use their property to invest and produce as they see fit, not limited by intrusive governmental bureaucrats. The free market a system of private property rights, individual free choice and responsibility, co-operation through contracts, and free trade allows individuals to be free and the wealth of the nation to increase (Birch & Tickell, 2010). State action is to be lessened in areas of regulation and social welfare (Wacquant, 2009). Law’s purposes are to be restricted, as much as possible, to stating, upholding, and enforcing the rights of individuals and businesses to use their private property and to act freely in the market, buying, selling, and contracting as long as they do not physically coerce others. Law protects against state interference in the behavior of free and responsible agents who respect the rights of others. So for the state or a democratic majority to insist on environmental regulations, for instance, is illegitimate because such laws limit the choices (the freedom) of the property holder. Similarly with any redistributions of income: in depriving individuals of their income (by taxing them) to give that money to the poor, the government is limiting their freedom. For neoliberals, market actors are all rational, self-interested, rights-bearing beings, who pursue their own good in their own ways, acting in concert with others only when they agree by

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free contract. Those who do less well in market outcomes should accept that they made wrong decisions; those who are less well-off at the end of the day should recognize that they are where they are because of the choices for which they themselves are responsible. That the state and its laws should be devoted to anyone’s social health or a “common” welfare in a market society is, for neoliberals, a misconception. Law enforces those rights essential to the smooth working of the market; the goal of the law should not be to try to aid the less well-off or the politically marginalized, assure a minimal safety net or assist people in time of emergency, unemployment, or sickness, or otherwise intervene in the market and its results (Cantor, 2011).8 Neoliberalism here asserts that, in Thatcher’s (1987) words, “there is no such thing as society,”9 since it favors individual rights and choices over collective well-being and community goals, the private individual over the public good, and the primacy of the laws of capitalism over democratic decisions. Law works on behalf of the market, and it may expand its obligations to further values and interests of private property. Government further supports private property by contracting with private businesses to carry out many functions. The growth of new forms of property, like intellectual property, and laws needed to protect and enforce new property rights extends the role of the state in the market, albeit not through regulation or social support programs.10 This is neoliberalism’s first Janus face: withdrawing from regulation and welfare, the law works as much as possible for the enforcement of property rights, the maintenance and growth of the market, and the assurance of individual choice. And law has significant responsibilities in securing and institutionally expanding these values and state power dedicated to these values. Connected to the Reaganite complaints about too much government and too much regulation and the impetus for law to assure property rights is the other Janus face: neoliberalism broadens and intensifies criminal law. Law reaches into all areas of society as the primary arbiter in disputes and the determining criterion when liberty is infringed, and law does so using the same principles as in the market: individuals are free to pursue their own good in their own ways when they act as rational, self-interested, rights-bearing individuals; but if someone physically coerces someone else, infringes on another’s rights, especially in the market, or breaks a law, the overtly coercive power of law comes into play. When individuals in society act irresponsibly by coercing each other or breaking the laws established for public security, they should be punished by the law. The law and its enforcement the repressive functions of the state are extended, to cover more areas of life, and intensified, to make

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more certain that the laws are obeyed. It applies market principles throughout society, policing the family, the school, and other associations and criminalizing behavior in those associations so that, just as the law and its enforcement assure freedom and wealth in the market, the law and its enforcement assure freedom and smooth institutional functioning in institutions beyond the economic marketplace. Because criminals of all sorts pose a threat to our lives and our rights in the market and in the rest of society, laws must be enforced with more vigor, zero-tolerance, greater punishments, and less judicial discretion in sentencing. Through criminal law the state has an expanded role to play in society (Simon, 2007; Wacquant, 2009). In this extension of the state, the law purportedly enhances individual liberty for those obeying criminal law, as it does in the economic realm. But the criminalization of all sorts of behavior means that there are more laws to break, and so the law ensnares more people. Social disputes that could end in compromise when mediated by social workers or police now sometimes require that one party or the other be arrested. The increasing attention to crime results in penalties of greater severity. The wars on drugs and street crime, campaigns against domestic violence, and anti-immigration measures intensify inequalities along racial, ethnic, and gender lines, and children become adults in the face of criminal prosecution. The laws of the security state also aim at limiting public assembly and repressing public expression. Law’s role in widely protecting liberties of all citizens (and noncitizens) against state power has meaning in so far as the market is protected from government regulations, but its role in protecting people from the policing powers of the state is greatly reduced in the face of demands of law and order. The market, not law, is the source of liberty, and the law acts to police and confine those not at liberty in the market. The priority of the market has two further major effects on the state and law. First, the state is subjected to market rationality. The state in general and its laws in specific are to be examined primarily by economic criteria such as efficiency.11 Can a governmental undertaking be done by private corporations rather than the state? If so, that dimension of government should be privatized, that is, by private firms acting in a market, which is the realm of economic freedom and efficiency, rather than the state, which is seen as the realm of authoritative dictates and time consuming rules or democratic practices. If it must be done by the state, the proposed policies should be subjected to cost-benefit analysis (CBA): if the benefits do not outweigh the costs, then the policy should not be undertaken or retained. Does the action extend individual choice? Should schools or prisons, for

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instance, be privatized in order to save costs or improve service or choice? Rights of students to racially integrated education or of inmates to due process fade as efficiency and individual choice become a dominant criterion of policy (Frankenberg, Siegel-Hawley, & Wang, 2010; Powell, 1989; The Civil Rights Project, 2009). Although it may appear that such privatization limits the scope of government and the authority of law, another perspective would suggest that the ongoing contestation between government and private providers means that government is constantly negotiating its power and scope vis-a`-vis these privatized groups through law (Clark & Harrington, 2010). The second effect is that the state and law, obliged as they are with maintaining the freedoms of the market, are also charged by neoliberals with helping the market increase wealth. The government should pursue policies of wealth creation with private parties, assisting them in their pursuit of wealth. One of the paths to this end is government’s contracting its business to private companies. Even the most basic functions of governance, including many security duties, cross over from public to private (Donahue, 2009; Joh, 2004; Singer, 2007; Sklansky, 2006). And in helping the market create new wealth and new forms of business, law loses its distinctly public character and many of its formal obligations to democratic rights (Konczal, 2012). Minow (2009) has pointed out “Courts have construed FOIA [Freedom of Information Act] to exempt private contractor records compiled for law enforcement purposes from disclosure”; indeed courts have assisted private military contractors in evading governmental oversight (p. 121). What Alfred C. Aman, Jr. calls a “democratic deficit” results (2009, p. 262). Law’s relation to the neoliberal state is one of subservience to market values like efficiency and choice and to the security and order necessary to assure those values. Law may restrict state actions, although it generally does so in service to the market and in a manner that actually furthers state power. Criminal law, for instance, acts expansively on behalf of victims of crimes. Because the state and its laws are deemed to be little more than either an extension of the market and individual economic freedom or a means of protecting victims, they no longer serve democratic aspirations. Comaroff (2011) sees “neoliberal tendencies” in: the growing hegemony of legal orders, founded on constitutions of distinctly neoliberal design, that favor individual rights over collective well-being; that limit the responsibility of government to protect or provision its citizens; that tend to criminalize race, poverty, and counterpolitics, in part by outlawing the salience of social cause or consequence; that subject what were once everyday democratic processes to the finality of

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judicial action, thereby juridifying politics to the exclusion of other forms of social action; that displace the “hot” sovereignty of the people into the “cold” sovereignty of the law; and that treat all citizens as rational, self-interested, rights-bearing actors and the world as a community of contract. (p. 145)

Economic rationality, private property, individual choice and responsibility, and security are taken for granted as law’s guiding principles in a neoliberal state.

FIRST JANUS FACE: ECONOMICS, THE MARKET, AND INDIVIDUALISM From the beginnings of liberalism, most liberals asserted a dual purpose for law: to be both a part of and a counter to state and economic power. So, for instance, in the United States in the 1960s and 1970s, many criticized law as too much serving the interests of the state and the market and yet saw law as an agent for equality and for regulating the capitalist market. The growth of liberal public interest law firms attests to the faith at that time of some that courts and laws were a forum for doing democratic politics.12 Neoliberal rhetoric, however, suggests that law is to be subordinate to the market or the free enterprise system. The law is to express and codify the practices of the market, where independent rational individuals, including businesses, look out for themselves, utilize their private property as they see fit, and engage in free exchange, generating economic efficiency and, by an invisible hand, economic growth or wealth maximization. Any governmental or social infringement on production or on free trade is almost by definition inefficient, reducing the overall welfare (i.e., wealth) of the society as well as illegitimately circumscribing individual freedom of choice; when individuals freely pursue their own interests, socially desirable (i.e., maximal) economic growth results. Neoliberal economic theory assumes and asserts that individuals are rational and self-seeking, responsible for themselves, their own actions, and the outcomes of those actions. In particular, external circumstances provide no excuse for an individual’s unwise choices, and claims to social welfare are illegitimate because rational, independent individuals are responsible for themselves and are not to be parasites on society. Valuing the market and its resultant market freedoms and economic growth, many neoliberals wish to make the law, as much as possible, the legible statement of the rights necessary for an individual choice and economic growth in a free enterprise system.13

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A predominant neoliberal polemic in everyday politics is the removal of government regulations as much as possible; minimizing state regulatory policies releases freedoms and productive capabilities from state-imposed limitations. Government regulations prevent individuals from doing what they wish with their property, and by interjecting the opinions of political operatives on the economic system such regulations interrupt the smooth functioning and economic growth of the system as a whole. Removing regulations can move society toward the holy grail of some economists, the spontaneous order of a deregulated market (Barry, 1982). Governmental regulation is almost always superfluous or destructive because the rigor of market competition means that the economic order is self-regulating. Because individuals and businesses are real and society only an abstraction, government has no role in telling economic actors to work for social justice or in redistributing their legally earned incomes to others in the name of society or social justice. Individuals choosing freely in the market generate consequences for themselves, those consequences are the fair results of legal market interactions, and so no one can complain about the results, and government should not use taxpayers’ money to bail out those who made unwise choices. Some earlier thinkers on which neoliberalism draws, such as Friedrich Hayek, opposed governmental planning and regulation of the economy because it infringed on individual liberties and in practice would be difficult or impossible to reverse. For Hayek (1944), government planning seemed a “slippery slope,” a “road to serfdom” that, once the single step that begins the journey is taken, provides no place to stop and turn back, because any problem can be seen as a failure of the market needing the intervention of government to resolve. To these fears of a generation whose writings formed a theoretical basis for contemporary neoliberalism the next generation added an emphasis on costs and benefits. As Richard Posner, one of the leading theorists and proselytizers for deregulation, wrote, there is “no reason to believe that the effects of regulation, if they could be quantified, would be found to exceed its direct and indirect costs”; indeed, Posner himself looks forward to the “eventual elimination of regulation” (quoted in Campbell, 2010, p. 313). Many contemporary neoliberal think-tanks follow Posner in concentrating on quantification and costs, even if they are more cautious about completely eliminating regulation. For instance, the Heritage Foundation believes that the government should “avoid costly environmental regulatory mandates that will achieve little environmental gain,” implicitly accepting the need for some regulation (Butler & Holmes, 2007, p. 1).

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One striking aspect of the arguments of both Posner and the Heritage foundation is that they phrase their anti-regulation arguments in terms of economic analysis that is appropriate for the market. They both think about regulations in terms of CBA. As the Heritage Foundation states: “The full cost of current and proposed regulations and mandates, including the economic and security impact, should be evaluated and compared with the likely environmental gain” (Butler & Holmes, 2007, p. 2). Governmental regulations and laws are to be examined using the tools of economic analysis; and regulations especially are to be examined using CBA. This emphasis on CBA has existed in federal agencies for more than 20 years and is one of the early successes for those who advocate using economic ideas as guides and criteria for public policy. As Posner (2002) has said about laws and regulations (and referring specifically to intellectual property), “Striking the right balance … requires a comparison of these benefits and costs and really, it seems to me, nothing more” (p. 12). CBA is indicative of a neoliberal model of the economy; it involves assigning economic values to human lives, human morbidity, and everything that falls within the purview of the regulation. When economic values cannot be determined any other way, they can be calculated by summing every individual’s private “willingness to pay” for the proposed policy. In CBA, citizens are treated like economic consumers in a wealth-maximizing system. Everything is given a price. That one’s “willingness to pay” might depend upon one’s income is irrelevant to the calculations. The economic values are summed to a single answer, which for Posner and others determine whether the regulation is adopted or not, regardless of whom the regulation benefits and whom it disadvantages. In general, and as with market behavior, people are individual consumers, making or expressing their own consumption choices, which are then aggregated. As consumers, they are different from citizens (Sunstein, 2002); citizens might prefer to discuss a policy before stating opinions, and they might favor a policy counter to a cost-benefit outcome, one based on what is good for the polity, a right that should trump a cost-benefit decision, or a regulation which benefits the less well-off, even if that regulation did not pass cost-benefit muster. CBA is but one specific example of the ideas of the “law and economics” school: the use of economic and market concepts as criteria for law, where the law is to conform to the dictates of economic analysis and practices of the market. The “law and economics” school, whose most famous (and surely most prolific) proponent is Posner (1973), has had much influence since the 1970s. For Bruce Ackerman the economic approach to law is “the most important development in legal scholarship in the twentieth century”

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(Cooter & Ulen, 2000, p. 2). Despite the usual label of “law and economics,” the school is really engaged in an economic analysis of law, or bringing the methods and insights of economics to bear on the law (Goodhart, 1997). As Posner (2006) writes of himself and his generation of law and economics theorists, they extended economic analysis into a variety of eventually into almost all fields of law, “with a special emphasis on how law might be ‘a system for promoting the efficient allocation of resources’” (p. 406). Economic analysis “treats laws, like prices, as incentives for behavior”; it sums the resulting behavior of individuals to determine aggregate welfare, and it employs the economic emphasis on efficiency (the predominance of benefits over costs) as a guide to policy decisions (Cooter & Rubinfeld, 1989, p. 1068). So the economic approach to law looks at the effects of different legal rules, determines the resulting behaviors of individuals, sums the costs and benefits to discover the resulting efficiency and wealth-production of the different rules, and chooses the rules that produce the greatest economic benefits. Individuals are assumed to be relatively rational in that they act in their own self-interests; their resulting benefits can be quantified, compared, and aggregated so that the socially desirable result can be obtained and all this can be done with the tools of the economist. The concern is not with the fairness or justice of rules, but with their results, and (usually) with their results on economic growth, not, for instance, on the social wellbeing of citizens. The concern is not with the rights of individuals per se but with economic growth and wealth. The concern is not with a democratic notion that legal institutions reflect the deliberations over time of all citizens but with the aggregation of the welfare of individuals, where individual values or preferences are assumed as static and as quantifiable as part of the overall summing of costs and benefits. The economic analysis of law uses the tools of economics the tools of analyzing the neoliberal market as the means by which to analyze, evaluate, and reform the laws of the state. One area where these values have affected law and where law has, as a consequence, taken on market characteristics is that of intellectual property. As David L. Lange and J. Jefferson Powell (2009) explain, “intellectual property has little in the way of history … . In its general usage, the term itself is less than half a century old in this country” (p. 61). Certainly legal tools of what is now known as intellectual property, like copyright, patent, and trademark have longer histories, but the idea of intellectual property develops much more recently. Lange and Powell further write that “Economists … have advanced arguments that justify the doctrines in

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intellectual property in terms that reflect and augment the Framers’ underlying assumptions that is as incentives to productivity and efficient management” (p. 63). Intellectual property enhances law’s articulation of the importance of the market and furthers the state’s support of market values. Copyright law speaks to creative expression as a form of private property. The flip side of this form of private property is the public domain. Once a work is no longer under copyright protection, it passes into the public domain where it ceases to be an owner’s private property. Copyright assures commercial protection of the property, and the public domain opens to anyone’s use what was once private property. But, as Lessig (2004) explains, in the United States there has been substantial legislative movement over the years from short terms of copyright (originally fourteen years) to longer ones. Since the Sonny Bono Copyright Term Extension Act of 1998 the term is ninety-five years (p. 134). Copyright also includes the right holder’s control over “derivative works” (p. 136). Despite current technological capacity to copy and sample easily, both the law and the practical expense of claiming “fair use” (in principle beyond the copyright owner’s control) restrict the public domain and the creative capacity to contribute to a common good.14 Changes in copyright law have expanded a property-based right and transformed law that was, arguably, created largely for public progress into a phenomenon almost exclusively of the market protected by the state (Lessig, 2004, p. 131).15 In this case expansion of law is in consonance with neoliberal views of using government in support of private property and economic incentives.16 The neoliberal expansion of market concepts and practices into law plays a role in traditional rights as well, like free speech. In the 1960s, legislatures and courts opened the scope of free speech to include a broader range of actions by individuals: for example, burning a flag counted as symbolic speech. But neoliberal legislatures and courts have moved in a different direction. Buckley v. Valeo (1976) elaborated the scope of protected free speech to include the donation of money to those who will express the donor’s opinions and interests. With Citizens United v. Federal Election Commission (2010) money as protected free speech was extended: as long as the money goes not to the candidate or a political party but is spent by the individual or given to PACs and SuperPACs, one can speak in unlimited amounts of dollars, and corporations and unions, as well as individuals, can engage in protected political speech by monetary donations. If the Supreme Court’s ruling stands, neoliberal speech will grow, and money will course more fully through electoral politics. Just as individuals can use their money to buy goods in the market, they can use their money to try to

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persuade (and maybe to buy services) in the political market. Through law, practices of democracy, affected by a wide-ranging court decision, more closely resemble the market. Neoliberal expansions of markets into law mean, however, that some rights seen as important in the US Constitution do not gain expanded definition and protection because they are not rights that reflect a neoliberal market rationality. The right of assembly, for instance, though enshrined in the Bill of Rights, has lost much of its meaning in the contemporary United States. In many cities, those who wish to assemble and march must petition for a permit well in advance, which can be denied; they may be allowed to assemble only at certain times or places, and they may be arrested or “dispersed for actual and anticipated obstructions of traffic, including pedestrian traffic” (El-Haj, 2009, p. 587) or for breaking the rules governing parks, as Occupy Wall Street learned (Moynihan, 2012). To remove restrictions on free speech is to enhance the rights of individuals as individuals (or as legal individuals, i.e., as corporations); the right of assembly refers to a group or collective, it “protects collective action political and social,” and it is “to protect an avenue of democratic politics” (El-Haj, 2009, p. 589, p. 588). Monetary donations as protected free speech do not disrupt traffic on city streets or sidewalks, do not inconvenience those who might not wish to see the assembly or who might wish to use Zuccotti Park, and raise no questions of order and security; the exercise of the right of assembly can upset the smooth functioning of the economic system, prevent ordinary pedestrians from walking home, and incur costs for policing. The right of assembly is inconsistent with market rationality, and so not surprisingly it is hedged by restrictions in a neoliberal era. Rights that fit market rationality flourish and expand under neoliberalism; rights that do not, wither, hemmed about with restrictions.17 Brown (2010) encapsulates this Janus face of law within the neoliberal state: … neoliberalism as a political rationality has launched a frontal assault on the fundaments of liberal democracy, displacing its basic principles of constitutionalism, legal equality, political and civil liberty, political autonomy and universal inclusion with market criteria of cost/benefit ratios, efficiency, profitability, and efficacy. It is through a neoliberal rationality that rights, information access, and other constitutional protections as well as governmental openness, accountability and proceduralism are easily circumvented or set aside, and above all that the state is forthrightly reconfigured from an embodiment of popular rule to a business management operation.

Law serves the market and market values in the state. The market is taken as a set of impersonal and unchangeable rules, and hence politically neutral

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and not subject to democratic negotiation. Often that means transformed rights or diminished rights, rights in tune with the values of the market and individualism that succeeds in the market. It also means law expanded to assure a smooth market, free from disorder and crime.

SECOND JANUS FACE: CRIMINAL JUSTICE AND THE CARCERAL STATE Neoliberalism speaks to a particular view of the role of the state, one firmly aligned with security, where the criminal justice system and values associated with controlling criminality against property and people and disruption to everyday market activities are a primary embodiment of law within the state. From this perspective there is little need to justify expansion of the criminal justice powers or the ways in which that power is exercised. Authority of state power is articulated through attention to crime, policing, and prisons (Simon, 2007). Largely absent from this law and order discourse is a traditional liberal concern for law as requiring the state to limit and constrain its powers or for extending equality and democratic practices.18 As Brown (2009) observes, “accountability in authority and legitimacy is presented as without need of democratic check” (p. 11). Criminal law in the neoliberal state has diminished democratic values of transparency and equality,19 as it has become increasingly an instrument for private purposes and economic gain through government contracts. In the United States calls for law and order have long been a staple of politics, especially racial politics (Alexander, 2010, p. 40). There is nothing new in suggesting that “criminals” need to be dealt with firmly or that politicians at all levels of government using fear of crime and promises of law and order as rallying cries (Potter, 1998; Scheingold, 1984, 1991). Democrats came on board the law and order bandwagon after the Civil Rights movement when they found Republicans using the issue to wedge white working class voters away from their party. Bill Clinton was determined never to be outflanked on crime issues; in his 1994 State of the Union address, for example, he advocated “three strikes” policies (Alexander, 2010, p. 55). Post-civil rights law and order rhetoric has contributed to neoliberalism’s heightening the role of the criminal justice system in governance. Through neoliberalism criminal law has come to the center of the stage in governance in the United States. Wacquant (2010) observes that state officials have elevated “criminal safety … to the frontline of government

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priorities” (p. 207). These political dynamics, resulting in what Simon (2007) calls “governing through crime,” include long-term political struggles over state power, race, class, immigration, welfare, and changes in political culture (Garland, 2001; Gottschalk, 2006). Wacquant (2010) believes that the reduction of social welfare and the growth, indeed dominance, of criminal justice is “an exercise in state crafting” (p. 210). The centrality of criminal justice to the nation’s governance, in the United States even at the federal level, means that criminal law and the politics surrounding it have a much broader reach and more prominent status than historically they have had. With the war on drugs, the intensified policing of undocumented (and documented) immigrants in a post 9/11 United States, and the criminalization of more behaviors, criminal law and a carceral state are definitively at the core of neoliberal governance.20 One idea that has fed this shift in the place of criminal law in the state is that of victimhood. Interestingly, although values of individual responsibility are prominent in neoliberalism, the status of victim has also been politically and legally enhanced. Victims are those subject to other individuals’ irresponsibility. Simon (2007) sees the victim as an embodiment of the citizen in the contemporary United States; indeed, he argues that this construct informs “lawmaking rationalities” (p. 79). People situate themselves as victims not only of crimes but also of government overreach (p. 109) and expect the state to respond to their victimization through leaving them alone, supporting them more fully in the market, or criminalizing and punishing behavior. A competition of sorts about whose victimization should be politically credited occurs in political discourse and legislation that criminalizes behaviors not previously in the purview of criminal law or that intensifies existing criminal penalties with longer prison sentences.21 The language of victimization and criminalization has been in play in the movement addressing violence against women, for example. Feminists’ work on battered women and rape has included several approaches, originally intended not only to make women safer but to enhance women’s agency and political voice (Bevacqua, 2000). One approach ineluctably involved expansion of criminal justice in calls for criminalizing violence against women in the home and for making the criminal justice system take seriously battering and rape. Another, outside of criminal law, looked to support battered women, by creating safe houses and providing social services for battered women and their children. And a third approach sought to empower women to claim civil rights violations when they are subject to domestic violence, as in the original Violence against Women Act of 1994. There have been different feminist responses to battering, only some of

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which underscore women as victims of crimes. Women as rights-bearing agents capable of action have been very much a part of the feminist movement against battering and rape (Schneider, 2002). The impetus of this movement has been to empower women and further their opportunities to participate in life free from the terrors of gendered violence; many activists and scholars encouraged a democratic impulse to extend equality, agency, and full recognition of citizenship for women in the home and beyond. But the feminist movement against gendered violence arose as neoliberalism gained a foothold in national politics (Bumiller, 2008, pp. 5 11). The war against crime affected the movement, and the more depoliticized domestic violence language disassociated the work from feminist politics (Schneider, 2002, p. 229). Within a neoliberal state the democratic impulses of the battered women’s movement collapsed into criminal justice, welfare, and family policies that have wound up extending state control over women.22 And, as Suk (2009) argues “Home is where the crime is … . The home is becoming a space in which criminal law’s goal is coercively to reorder and control intimate relationships” (pp. 8 10). In addressing this victimization, criminal law moves more firmly into the home.23 Widespread attention to victimization and victims’ rights began in the United States in part in reaction to the recognition of rights of criminal defendants in the 1960s. A broad-based political appeal to victims’ rights across the United States developed through the expansion of the role of victims in the criminal justice process and the establishment of victim compensation programs (Levine, 2010). One culmination of this trend is the Crime Victims’ Rights Act passed by the Congress in 2004. The act includes the right for crime victims to be “reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding” (Wood, 2008). Victims may assert their own rights in court, independently of actions of prosecutors, and federal district court judges are now obliged to assure the respect of these new rights. States have also formulated policies along these lines in, as Cassell and Joffee (2011) say, “the growing recognition that crime victims have an important role to play in criminal proceedings” (p. 183). The augmented place of the victim in the criminal justice process strengthens the idea that crimes are to be considered primarily as actions against individuals rather than infractions of state law. A neoliberal emphasis on individual will and responsibility combined with the new legal status of victims help constitute criminal courts as places for personal revenge (Connolly, 1999, p. 195). Criminal courts are sites not only for prosecution of crimes against the state but increasingly for personal grieving, rage,

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and revenge (Sarat, 2001, p. 35). Individuals hold other individuals accountable for crimes, as personal retribution legitimately enters the courtroom, and democratically rendered justice fades into the background.24 While criminal courts may more directly serve individuals’ private emotional interests, developments in punishment parallel this turn to responding directly to private, often market, interests. Privatization of prisons can be seen as part of a larger nexus of “governing by network” of “interlocked public-private partnerships” (Freeman, 2006; Freeman & Minow, 2009; Goldsmith & Eggers, 2004). Private economic interests’ benefiting from prison has a long history in the United States, as the convict leasing system of southern US states demonstrates. But the spread of financial incentives and the birth of private corrections companies have more thoroughly oriented penal policies toward a market framework. This framework makes locking people up economically advantageous, and sentencing based largely on retribution reinforces this mentality. The Corrections Corporation of America was founded when Tennessee was pressured by a federal court order to address problems of severe prison overcrowding, and the cofounder of the company proposed to pay the state to manage its system (Hallett, 2006, p. 57). Privatization varies across states, although economic incentives widely drive corrections policies. Under fiscal pressures states charge the convicted fees beyond traditional fines (Bannon, Nagrecha, & Diller, 2010). In Texas, for example, the government collects more from probationers than it pays for the program; there is, therefore, no incentive to lessen people’s time on probation (Hicks & Norton, 2006). In Louisiana for profit prison companies and local sheriffs lobby the state to keep the cash flowing their way. The sheriffs have built prisons and skim money off from the funds they receive from the state for corrections to fund their policing operations (Chang, 2012). Funding sources for state prisons often come through a murky back door of financing that benefits not only those immediately invested in corrections but the bankers and lawyers needed to maneuver through the complexities of such financing. States incur large debts in ways that are far from transparent or subject to democratic process or discussion (Pranis, 2007). The combination of promarket forces, the elevated status of the victim, wars on crime and drugs, and the expansion of behavior deemed criminal all conjoined into the perfect storm of the carceral state that sustains a new “Jim Crow” regime (Alexander, 2010).25 The burdens of corrections policies fall so disproportionately on African American and Latinos that Alexander’s argument about “the new Jim Crow” has a powerful resonance (Sentencing Project). Carceral powers have ever more deeply racialized law.

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Racialization, as Gomez (2012) explains, “refers to the social process by which a racial group comes to exist and to understand its position in the racial hierarchy as superior or inferior, and by which others in society come to understand that racial hierarchy as natural” (p. 236). Certainly some challenge the racial weight of the criminal justice system, but the perpetuation of tough sentencing and corrections policies affirm racial hierarchies as “natural.” The neoliberal statecraft that Wacquant sees tied to the criminal justice system not only does not address such hierarchies, it fails to ask how they could have such a central place in a democratic state. Neoliberals do not question the racial consequences of wars on drugs and crime. They hold individuals responsible for their actions through criminal sanctions. The emphasis on individual actions allows them to naturalize the racial dimensions of these wars and to sidestep issues of race, class, and gender. The wars on crime and drugs are deemed racially neutral responses to victimhood and the requirements of law and order. Just as the move to addressing domestic violence undermined feminist roots and intentions of the battered women’s movement, the wars on crime and drugs have depoliticized what has become central to neoliberal governance: criminal justice. That which is depoliticized is not subject to democratic political debate. For neoliberals criminal justice policies are simply rational or a matter of neutral common sense. Everyone wants law and order; and, if some people are more subject to criminal law than others, it is because they have been more irresponsible than others. And because such policies are not matters for democratic negotiation, the main questions become those of how best to accomplish law and order with the most efficiency and cost effectiveness. Assuring the most arrests, convictions, and penalties for the best price becomes a dominating calculus. Market values and private businesses are rather smoothly integrated into the criminal justice policy making. This marketization of the system further removes it from democratic discourse. A criminal justice system, as the center of neoliberal governance, has become a matter more of costs and benefits than of rights and democracy. The second Janus face and the first bear deep resemblances to one another.26

CONCLUSION In the neoliberal state, law as an embodiment of market rationality has two faces. One face involves the changing and frequently the lessening of

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regulation by evaluating them in terms of market concepts, subjecting law to CBA and using the lens of economic analysis as a standard for law’s successes. Law becomes an expression of market rationality and through that rationality expands its protections of the market and the state’s engagement with the market. The other face involves strengthening and deepening criminal law so that it can assure and maintain security and order; it promotes the citizen as victim, holds individuals accountable for their illegal actions, extends criminalization, and enriches market actors through privatization of criminal justice. For both faces, however, a common purpose is to enhance private property, assure individuals’ freedom to choose and be free from crime and victimization, and secure orderly wealth generation. Market ideas infuse the language of both faces of law and the values associated with law. Freedom is freedom of individuals to operate in the market without fear of victimization by government or others in society. Private property has long been associated with liberty in liberalism, but with neoliberalism the legal ability to spend money becomes integral to the right of free speech. If one loses one’s freedom through criminal conviction, one has only one’s poor choices to blame. In the name of efficiency, rights of prison inmates are diminished. Law continues as a forum through which conflicts about rights and freedom proceed, but the neoliberal ideological framework for law and freedom constrains the discussion. The public realm is attenuated, scope for democratic decisions gives way to the rules of the market and the needs of the carceral state, and many rights and procedures are subjected to economic analyses. Law is placed much more firmly in service to the market, to choices made in the market, and to punishing those who break the laws (without which the market could not exist). CBA becomes an important standard for how law is to operate within the state. As Posner has cultivated an economistic approach to law, so too have those making criminal justice policy. Given the dramatic growth of incarceration states turned to private companies to produce incarceration services with more economic efficiency, and that turn created the new business of privatized prisons. There are profits to be made in criminal justice policy that help sustain the carceral state. Neoliberals have marketized law and its role within the state. Not only is law itself thought of in market terms, but law is meant to serve the market more overtly and more devotedly than in the past. When law becomes a matter of constraining the state’s role in the economy and when law itself becomes more economically efficient, it becomes depoliticized. It is less an arena of democratic rights struggles and more one of management of selfevidently rational policies and decisions. Neoliberalism depoliticizes law

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and naturalizes inequalities. The “‘hot’ sovereignty of the people” Comaroff alludes to has no place in neoliberal law. Law and its market values affirm an end of politics (Boggs, 2001). Law’s purpose is to support the rights and freedoms important to the market and control and punish those who violate rules of individual responsibility. This purpose sustains and deepens state power while containing conflicts over it and democratic practices.

NOTES 1. We believe that contemporary understandings of the law/state relationship find expression in everyday constitutions of law. One manifestation of the state/law relationship is a more thorough embrace of criminal justice without much concern for the ways in which this move extends state power. Brown (2009), for instance, argues that the culture of punishment “extends throughout our social foundations … and punishment is increasingly prolific in everyday practice, well beyond formal institutions” (pp. 4 12). 2. Several scholars utilize pairings to characterize qualities of neoliberal governance. O’Malley (1993) analyzes the soft (consumer) and hard (criminal) sides of neoliberalism; Passavant (2005) refers to the doubles of consumerism and crime; Wacquant (2010) to the two sides of the same coin, workfare and prisonfare. We proceed in this vein because we see neoliberalism not as a unitary approach to but as a double vision of the law/state relation. 3. Peck and Tickell (2002) write about an “an ascendant moment of ‘roll-out neoliberalism’” which involves “the attainment of a more aggressive/proactive forms of contemporary neoliberalization” (p. 37). 4. Under liberalism law has obviously also served to further state power, but under neoliberalism law is more a facilitator of private business, including the security business. 5. We recognize that there are varieties of political ideas informing law’s role within the state, and we are not arguing that neoliberalism is the only discourse, although we believe it to be a highly influential one. Also there are resistances to neoliberal politics and law, and law is not a single phenomenon, although we are speaking to one construction of law in this chapter. 6. Critiques of neoliberalism have changed over the years. For example, one shift is that neoliberalism has more currently been seen as strengthening rather than weakening state power (see, for instance, Peck & Tickell’s discussion of “Mutations of Neoliberalism,” 2002). 7. Some argue that the post 2008 world economic crisis has weakened neoliberalism’s ideological dominance, and there are reasons to wonder what the future holds for its politics. Even in 2002 Bob Jessop observed: “It remains uncertain … whether the current crisis will be treated as one in or of neoliberalism” (p. 171). We are not suggesting that there is a permanence to neoliberalism or that it may not be experiencing significant challenges, although it has been a powerfully significant player in law’s relation to the state for decades, and on that role we focus.

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8. For Cantor (2011), the government should assure “that the rules are the same for everybody.” But the market can provide: “I believe that the most successful among us are positioned to use their talents to help grow our economy and give everyone a hand up the ladder and the dignity of a job.” 9. For Thatcher (1987) and Cantor (2011), families and small communities exist. But the rights of private individuals should not be limited for example, they should not be taxed to pay for education or welfare of other Britons or Americans; and communities should, in Cantor’s words, look to “the leaders of companies” who “are also the social entrepreneurs who support the charter schools, the opportunities scholarships, the private job training programs, the community centers …” 10. These new property rights are different from what Reich (1962) had in mind when he wrote: “It is time to see that the ‘privilege’ or ‘gratuity’ concept, as applied to wealth dispensed by government, is not much different from the absolute right of ownership that private capital once invoked to justify arbitrary power over employees and the public” (p. 787). He saw this new property as rooted not only in values of individualism but also values of contributing to a larger political community: “Only by making such benefits into rights can the welfare state achieve its goal of providing a secure minimum basis for individual well-being and dignity in a society where each man cannot be wholly the master of his own destiny” (p. 786). 11. Garland (2001) analyzes, for example, the “‘economic’ style of reasoning” in criminal justice policy: “Today, the practitioners of crime control and criminal justice are required to talk the economic language of ‘cost-benefit’, ‘best value’ and ‘fiscal responsibility’” (p. 188). 12. There has certainly been substantial scholarly criticism of this faith in the literature on the politics of rights since that time (Rosenberg, 2008; Scheingold, 2004). And Ann Southworth’s study of conservative public interest law firms and their multipronged approaches to law suggests that conservatives willingly use law and courts for their political purposes (2008). 13. Conflicts among neoliberals can arise in specific situations. The case of Kelo v. New London, for instance, ostensibly presented a case of private property rights versus public use. While the question of whether someone’s house could be taken in the public interest of economic development was not unusual, the form of economic development in this instance was not a public road or school, but a mix of largely private businesses and some public spaces. The court’s decision could be seen as being in consonance with neoliberalism since the state was acting on behalf of the market and economic growth of the market. The case illustrates fault lines within neoliberalism since private property interests were at stake for each party to the case. 14. We are not arguing that copyright and other laws can never foster creativity; they can. And, in a capitalist economy, it is difficult to argue that artists should not control their art. Still, we may be at a moment when copyright challenges creativity and leaves the public domain useless. 15. The changes affecting creative content as private property result from a series of forces, not just law. Digital technology, for example, has affected views about such content and the ability and financial incentive to control one’s creations.

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16. Some believe that civil penalties are insufficient to secure such intellectual property rights and that criminal law needs to step up to accomplish that task (Coenen, Greenberg, & Reisinger, 2011) thereby increasing state power and reach. 17. Mitchell (2003) discusses ways in which “laws destroy whatever freedom homeless people have” (p. 172). In part because the homeless are outside the market and do not own private property and public space is ever more restricted, they have less liberty. 18. Neoliberalism is not the sole discourse in the United States. There are considerations of democracy in the United States today, as the Occupy Wall Street movement demonstrates and as many scholars show. Sklansky (2008), for example, has analyzed efforts to democratize public police forces in the United States. 19. The criminal justice system has usually served privileged groups more than others. The system of convict leasing in the 19th century is illustrative of the ways in which predominantly African American convicts worked under slavery-like conditions to the economic benefit of those leasing them. At that moment there was little to no pretense of adherence to equality under law. 20. Ehrenreich (1997) observes: “While government does less and less for us, it does more and more to us. The right points to the appalling firebombing at Waco; we should be just as noisily indignant about the ongoing police war against lowincome Americans of color, not to mention teenagers, immigrants and other designated misfits. If there is any handy measure of a government’s repressiveness, it is the proportion of its citizenry who are incarcerated, and at least by this measure the United States leads the world. Furthermore, prison conditions in this country are steadily worsening: Children are incarcerated with adults; efforts at rehabilitation are being discarded as overly indulgent amenities; arbitrary brutality and systematic deprivation are common. We don’t, in other words, have a soft, cuddly government of the kind that could be derided as a ‘nanny state.’ We have a huge and heavily armed cop” (pp. 13 14). 21. One understanding of anti-affirmative action could be that it is driven in part by people who feel they are victimized by policies that fail to appreciate their victimization. They see themselves as more disadvantaged than African Americans and women. Anti-affirmative action politics, like the California Civil Rights Initiative of 1996, asserts this sense of victimization. The anger fueling Tea Party devotees might also be fed by feelings of victimization by government, by racial and ethnic minorities (see Bunch, 2010). 22. State control is exercised not only through criminal justice but through control of reproduction through denial of funds to pay for abortion, by developing new requirements for those who wish to obtain abortions, and through simply denial of rights (Silliman & Bhattacharjee, 2002; Silverstein, 2007). Further, the varieties of approaches recognizing different experiences among battered women that feminists struggled to include in their politics and legal actions experience a kind of political erasure as women as victims of criminal violence gains political prominence. 23. Bumiller (2008, chapter 4) demonstrates that the neoliberal state extends its control of women not only through criminal law but also through family law and social services.

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24. In principle inclusion of victims’ voices at different stages of criminal cases could reflect restorative justice. But combined with other forces pushing for limiting the role of the state and for the agenda of a war on crime, restorative values are at best secondary to these shifts in criminal justice. 25. There is less legal recourse for inmates today. The Prison Litigation Reform Act of 1996 built hurdles for inmates, particularly the indigent, seeking to claim rights in federal courts. As incarceration has grown, inmates have found it increasingly difficult to assert their rights (Boston, 2004). 26. Recently states have been revisiting sentencing and corrections policies to reduce levels of incarceration, and private prison companies business is being challenged by these events. Whether these actions portend a significant change in policies and ideology is an open question.

ACKNOWLEDGMENT We thank Carlos Leos and Alicia Ferrara for their research assistance.

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Hallett, M. A. (2006). Private prisons in America. Urbana, IL: University of Illinois Press. Harvey, D. (2005). A brief history of neoliberalism. New York, NY: Oxford University Press. Hayek, F. (1944). The road to serfdom. Chicago, IL: University of Chicago Press. Hicks, N., & Norton, I. (2006). Probation may be a problem in Texas’ criminal justice system. The Daily Texan, November 14. Jessop, B. (2002). Liberalism, neoliberalism, and urban governance: A state-theoretical perspective. In N. Brenner & N. Theodore (Eds.), Spaces of neoliberalism (pp. 105 125). Oxford: Blackwell. Joh, E. E. (2004). The paradox of private policing. The Journal of Criminal Law and Criminology, 95(1), 49 132. Jones, D. (2012). Masters of the universe: Hayek, Friedman, and the birth of neoliberal politics. Princeton, NJ: Princeton University Press. Kelo v. New London. (2005). 545 US 469. Konczal, M. (2012). How privatizing government shovels cash to parasitic corporations and undermines democracy. Salon, February 6. Retrieved from http://www.alternet.org/ news/154023/how_privatizing_government_shovels_cash_to_parasitic_corporations_and_ undermines_democracy/ Konings, M. (2010). Neoliberalism and the American state. Critical Sociology, 36(5), 741 765. Lange, D. L., & Powell, H. J. (2009). No law. Intellectual property in the image of an absolute first amendment. Stanford: Stanford Law Books. Lessig, L. (2004). Free culture. New York, NY: Penguin Press. Levine, D. (2010). Public wrongs and private rights: Limiting the victim’s role in a system of public prosecution. Northwestern University Law Review, 104, 335 361. Minow, M. (2009). Outsourcing power: Privatizing military efforts and the risks to accountability, professionalism, and democracy. In J. Freeman & M. Minow (Eds.), Government by contract (pp. 110 127). Cambridge: Harvard University Press. Mitchell, D. (2003). The right to the city. New York, NY: The Guilford Press. Moynihan, C. (2012). Scores arrested as the police clear Zuccotti park. New York Times, March 17. Retrieved from http://cityroom.blogs.nytimes.com/2012/03/17/arrests-madeas-protesters-mark-occupy-wall-streets-six-month-anniversary/ O’Malley, P. (1993). Containing our excitement: Commodity culture and the crisis of discipline. Studies in Law, Politics and Society, 13, 159 186. Passavant, P. A. (2005). The strong neo-liberal state: Crime, consumption, governance. Theory & Event, 8(3). Retrieved from http://muse.jhu.edu/journals/theory_and_event/ v008/8.3passavant.html Peck, J., & Tickell, A. (2002). Neoliberalizing space. In N. Brenner & N. Theodore (Eds.), Spaces of neoliberalism (pp. 33 57). Oxford: Blackwell. Posner, R. (1973). Economics and law. Boston, MA: Little Brown. Posner, R. (2002). The law and economics of intellectual property. Daedalus, 131(2), 5 12. Posner, R. (2006). A review of Steven Shavell’s “Foundations of economic analysis of law”. Journal of Economic Literature, 44(2), 405 411. Potter, C. B. (1998). War on crime. New Brunswick, NJ: Rutgers University Press. Powell, L. F. Jr. (1989). Powell committee report. Ad hoc committee of federal habeas corpus in capital cases committee report No. 135. Cong Rec. 24694. Pranis, K. (2007). Doing borrowed time: The high cost of backdoor prison finance. In T. Herivel & P. Wright (Eds.), Prison profiteers (pp. 36 51). New York, NY: The Free Press.

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Reagan, R. (1980). A vision for American. Election Eve Address, November 3. Retrieved from http://www.reagan.utexas.edu/archives/reference/11.3.80.html Reich, C. A. (1962). The new property. The Yale Law Journal, 73(5), 733 787. Rosenberg, G. N. (2008). The hollow hope. Chicago, IL: University of Chicago Press. Sarat, A. (2001). When the state kills. Princeton, NJ: Princeton University Press. Scheingold, S. A. (1984). The politics of law and order. New York, NY: Longman. Scheingold, S. A. (1991). The politics of street crime. Philadelphia, PA: Temple University Press. Scheingold, S. A. (2004). The politics of rights. Ann Arbor, MI: University of Michigan Press. Schneider, E. M. (2002). Battered women and feminist lawmaking. New Haven, CT: Yale University Press. Silliman, J. & Bhattacharjee, A. (Eds.). (2002). Policing the national body. Cambridge: South End Press. Silverstein, H. (2007). Girls on the stand. New York, NY: New York University Press. Simon, J. (2007). Governing through crime. New York, NY: Oxford University Press. Singer, P. W. (2007). Corporate warriors. Ithaca, NY: Cornell University Press. Sklansky, D. A. (2006). Private police and democracy. The American Criminal Law Review, 43(1), 89 105. Sklansky, D. A. (2008). Democracy and the police. Stanford: Stanford University Press. Southworth, A. (2008). Lawyers of the right. Chicago, IL: University of Chicago Press. Steger, M. B., & Roy, R. K. (2010). Neoliberalism: A very short introduction. Oxford: Oxford University Press. Suk, J. (2009). At home in the law. New Haven, CT: Yale University Press. Sunstein, C. (2002). Republic.com. Princeton, NJ: Princeton University Press. Thatcher, M. (1987). Interview for Women’s Own, September 23. Retrieved from http://www. margaretthatcher.org/speeches/displaydocument.asp?docid=106689 The Civil Rights Project. (2009). Retrieved from http://civilrightsproject.ucla.edu/research/ k-12-education/integration-and-diversity/choice-without-equity-2009-report The Sentencing Project. (2014). Retrieved from http://www.sentencingproject.org/template/ page.cfm?id=122 Thorsen, D. (2010). The neoliberal challenge: What is neoliberalism. Contemporary Readings in Law and Social Justice, 2(2), 188 214. Wacquant, L. (2009). Punishing the poor. Durham, NC: Duke University Press. Wacquant, L. (2010). Crafting the neoliberal state: Workfare, prisonfare, and social insecurity. Sociological Forum, 25(2), 197 220. Wood, J. (2008). The crime victims’ rights act of 2004 and the federal courts. Federal Judicial Center. Retrieved from http://www.uscourts.gov/uscourts/RulesAndPolicies/ rules/cvra0806.pdf

JURY NULLIFICATION: AN ILLIBERAL DEFENSE OF LIBERTY Timothy A. Delaune ABSTRACT This chapter examines jury nullification, through which American juries refuse to convict criminal defendants in the face of overwhelming evidence of guilt to express disapproval of specific criminal laws or of their application to particular defendants, through the political theory of Carl Schmitt. It distinguishes liberal components of American jurisprudence, especially the rule of law, from democratic sovereignty, and shows how the two are in deep tension with one another. In light of this tension it argues that jury nullification amounts to democratic sovereignty applied counter to the liberal state in a way that paradoxically upholds individual liberty. Keywords: Jury nullification; sovereignty; Carl Schmitt; US Constitution; criminal law; political enemies

INTRODUCTION In 1735, John Peter Zenger, a colonial New York City printer and publisher of the New York Weekly, was tried for seditious libel against the colonial governor of New York, William Cosby. Zenger had published

Special Issue: Law and the Liberal State Studies in Law, Politics and Society, Volume 65, 57 81 Copyright r 2014 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-433720140000065002

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several articles critical of the governor, and under English colonial law of the day was imprisoned for nearly nine months before trial in what became a colonial cause ce´le`bre. With no First Amendment freedom-of-the-press protections then in place, Zenger stood to be convicted provided the prosecution could prove to a jury of his fellow colonists merely that he had actually published the material in question. The judge instructed the jury that the texts published in the Weekly were legally libelous, so that only the question of Zenger’s responsibility for their publication was factually at issue. But Zenger’s seasoned and brilliant lawyer, Andrew Hamilton (no relation to Federalist author Alexander), appealed forcefully to the jury, admitting that his client had published the offending texts, but urging its members to ignore the trial judge’s conclusion that the texts constituted seditious libel and to return a not-guilty verdict in spite of the judge’s (asserted legally binding) advice. The jury retired briefly, and within minutes followed Hamilton’s exhortations to find Zenger not guilty. The case, widely reported throughout the American colonies, formed part of the basis for the First Amendment’s freedoms of speech and press, and the Sixth Amendment’s guarantee of a jury trial to federal criminal defendants (Abramson, 2000; Conrad, 1998).1 Over two and a half centuries later in early 2011, 78-year-old retired Pennsylvania State University chemistry professor Julian Heicklen was arrested less than a mile from the site of Zenger’s trial for standing at the entrance of the federal courthouse in lower Manhattan and informing passers-by of jurors’ power to ignore judges’ instructions on the law in order to find criminal defendants not guilty that is, of their power to “nullify.” Prosecutors charged Heicklen with jury tampering on the theory that this knowledge might unduly pollute the minds of potential jurors, and his case was set for trial before a judge (the prosecution having chosen not to seek a sufficiently high penalty to trigger a jury trial) (Weiser, 2011). Judge Kimba Wood dismissed the charges against Heicklen in April 2012 on the ground that the First Amendment’s free speech protections forbade prosecuting him, at least for informing persons generally rather than actual or potential jurors specifically of jury nullification (Weiser, 2012). While Heicklen’s case was ultimately dismissed because his advocacy of nullification amounted to constitutionally protected speech, that he was charged with criminal acts at all is typical of a pattern of increasing judicial and prosecutorial opposition to jury nullification (Abramson, 2000; Conrad, 1998), one that I argue here is indicative of rule-of-law liberalism’s

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ascendancy over democratic sovereignty. Once central to what was understood to be the American jury’s political power, nullification has been subjected to obloquy and relegated to obscurity, largely as the result of judges’ and prosecutors’ actions. While the Bill of Rights protections that ensure the continuing possibility of jury nullification the First Amendment’s guarantee of the right to free speech, the Fifth Amendment’s prohibition against defendants being retried for the same crime once acquitted, and the Sixth Amendment’s guarantee of a trial by jury in criminal cases have arguably been strengthened since the Founding (consistent with the thesis that liberalism, including its guarantees of individual rights, has been strengthened since the Founding), the jury’s power to refuse to convict defendants for violating laws that run contrary to its members’ consciences has fallen from favor. The power to nullify, if exercised at all, must be exercised ever more in secret. In this chapter, I examine jury nullification through a theoretical lens inspired by Carl Schmitt, viewing it as an exercise of democratic power that runs counter to liberal political traditions. In so doing, I reveal deep tensions, as well as points of connection, between democracy and liberalism, and mine these for insights into the operation of power in the context of American criminal justice. Ironically, in light of the close connection of individual rights with both the Zenger case and with liberalism, I show that the rise of liberalism understood as the rule of law has contributed significantly to undermining jury nullification practices understood as moments of democratic sovereignty in the criminal law context, and that nullification in practice could well serve to protect Americans’ liberties against encroaching criminal law, albeit through antiliberal means. I make this case by first explaining and providing historical background on jury nullification and outlining Carl Schmitt’s theories of democracy and liberalism, and briefly reviewing how the tension between democracy and liberalism in Schmittian terms is visible in contemporary literature on jury nullification and other forms of sovereign power. I then engage in a rhetorical analysis through a Schmittian lens of an opinion justifying dismissal of a would-be nullifying juror in the 2008 case United States v. Luisi. Using Luisi, I show how nullification pits popular sovereignty against judicial (and prosecutorial) power, and how the rhetoric of rule-of-law liberalism is typically mobilized to denigrate any nullifying tendencies on jurors’ part. In so doing, I also briefly address the Founders’ views on nullification and judicial power, before concluding with some thoughts on future avenues of research.

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JURY NULLIFICATION EXPLAINED Thomas Andrew Green defines jury nullification as the jury’s discretionary acquittal of a defendant the jury knows to be guilty as charged. Subsisting under this general definition of nullification are two varieties: one in which the jury acquits because it views the act committed as properly lawful in spite of the law as written, and the other in which the jury acquits because it believes the legally mandated punishment for the act is too severe. In nullification’s weakest form, the jury only intends to send a message about the case at hand, whereas in stronger versions, its message is intended more generally to express displeasure with the prohibitory law or the prescribed punishment (Green, 1985). Indeed, were serial juries to refuse to convict defendants of the same crimes, one would expect prosecutions to decline, and perhaps the relevant law to be repealed. Something much like that appears to have occurred, for instance, in the context of the American experiment with prohibition of alcoholic beverages. Of course in practice there is no way to know with complete certainty from a jury’s general verdict of “not guilty” in a particular case precisely which message it intends, although circumstances a particularly sympathetic (or obnoxious) defendant, or a particularly onerous (or benign) law, may lead observers to valid analytic suspicions in either direction. This capability of the jury to acquit not on the basis of the facts, but because of its disapproval of the law (either in general or as applied to the specific case before it) arises from the interaction of procedural rules and constitutional protections in the context of US criminal law. Juries are capable of nullifying applicable criminal law in particular cases because law, at least in most situations, protects the secrecy of their deliberations, and because once an acquittal verdict issues there is no legally permissible way of revisiting, examining, or overriding such a verdict. If a jury convicts contrary to legal strictures, the improperly convicted defendant may appeal its verdict, first to the trial judge who may rule that the jury’s verdict is manifestly contrary to law and set it aside, and subsequently to higher courts, which may rule that the judge’s failure to overturn a manifestly unjust conviction violates applicable law. If, however, a jury acquits, the prosecution may not appeal such a verdict at all. This is true in all state and local jurisdictions as well as in federal court due to the Fifth Amendment’s prohibition against placing a person twice in jeopardy of life or limb for an alleged criminal offense. Once the jury acquits, no further prosecution can be brought against the same defendant in the same jurisdiction for the same crime. Hence acquittal verdicts are unreviewable, and absent the possibility

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of review or detailed inquiry into the nature of deliberations, no juror can properly be punished for voting for acquittal even if contrary to the factual evidence and legal instructions (Abramson, 2000; Conrad, 1998). It is thus the case that [e]ven critics of jury nullification concede that criminal juries have the raw power to pardon lawbreaking because there is no device for reversing a jury that insists on acquitting a defendant against the law. (Abramson, 2000, p. 64, emphasis added)

Nonetheless, these critics argue strenuously that nullification threatens the impartiality of the criminal justice system (Abramson, 2000). And for this reason, when these critics are themselves empowered to resist nullification (as judges or prosecutors, for instance), they do so by seeking to cabin exercise of the power to nullify, and by insisting that though a functional power of the jury, nullification is by no means a right (whether of the jurors or of the defendant). Jeffrey Abramson himself argues that dismissal of potential jurors who “acknowledge a belief in nullification” (presumably meaning a commitment to engage in it in the case at hand, or at least a belief that nullification is a juror’s right and not merely her power) is perhaps reasonable, while it would not be reasonable to purge potential jurors who are merely aware of their functional power to nullify (2000, p. xx). In its most aggressive doctrinal form, however, advocacy of jury nullification amounts to a claim that jurors not only have the power to acquit in the teeth of the law and the facts presented at trial, but that as well jurors have the right to refuse to enforce the law against defendants [ ] they believe … should be acquitted. (Abramson, 2000, p. 57, emphasis added)

The distinction between nullification as a power and nullification as a right is legal, not functional. The allegedly unlawful act by a jury of acquitting in the face of overwhelming evidence of guilt is unpunishable, unreviewable, and absolute (Conrad, 1998). In such an instance, in nullification advocate Clay Conrad’s view, “there is no real difference between a legal power and a legal right” (1998, p. 302). Historically in its birthplace in England jury nullification served to reduce tensions in the criminal justice system that might have made it function less smoothly. So, for instance, it prevented many criminals from being executed for relatively minor crimes, and thus as well dampened the potential for the legitimacy of the crown and its laws to be called into greater question. It also gave members of the local community some control over how their fellow citizens would be dealt with when in violation of the law of the state (Green, 1985). Typical cases of jury nullification in England

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prior to the nineteenth century unsurprisingly included petty theft by persons in need, killings in the heat of sudden anger by otherwise wellregarded citizens, and other offenses for which the prescribed sentence of death seemed a poor fit for the particulars of the crime (Green, 1985). Nullification’s glory days in England came with the 1670 trial of William Penn for preaching Quaker theology in the streets of London counter to Anglican doctrine and in violation of parliamentary law banning seditious gatherings. Penn was acquitted by a jury of 12, 4 of whom refused throughout deliberations to return a guilty verdict, despite the mayor of London, acting as presiding judge, withholding food from all the jurors and keeping them imprisoned during their deliberations. Following Penn’s acquittal, the court fined the four holdouts and imprisoned one, Edward Bushel, for refusing to pay. Bushel brought a writ of habeas corpus, and in a landmark case was freed on grounds that jurors had the right to resolve issues of fact and law according to their own conscience and understanding (Green, 1985).2 Importantly, then, modern nullification has its roots not only in jurors’ merciful attitudes toward excessive punishment for minor crimes, but also in political struggle by the people against perceived tyrannical acts of their sovereign. Shortly after Bushel’s case, it became a popular avenue for lawyers seeking acquittals of clients accused of seditious libel. Other less obviously political matters, such as prosecutions for poaching, also became sites of nullification’s use, at least in part because the populace saw such prosecutions as having political origins (Green, 1985). Like many so-called strict liability crimes in contemporary American jurisprudence, seditious libel was especially problematic for many English jurors because the state was not required to prove that the defendant intended to commit the crime charged. Rather, the judge determined as a matter of law whether the text published was libelous, and the jury’s only formal role was to determine whether the defendant had published the text. Nonetheless, many juries, having heard the defendant admit that he did so publish, and having been told by the judge that the publication was libelous, still acquitted (Green, 1985). In postrevolutionary America, jurors’ ability to decide not to punish an accused and obviously guilty criminal allowed the electorate to participate in the operations of the only branch from which it was otherwise formally excluded the judicial branch (Barnett, 2004). Conveying his observations of early nineteenth century American law and politics, Alexis de Tocqueville noted that while the people elected legislatures and executives, they expressed their capacity to rule in the judicial context only through the

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jury (2003/1835). Tocqueville also recounted an incident of jury nullification from 1812 Baltimore, in which a mob killed a journalist who wrote articles opposing the war between the United States and Great Britain at the time, and a jury acquitted those prosecuted for the murder. He cites this vignette as a basis for his claim that in America “the law lacks any force where the majority does not support it” (2003/1835, p. 295).3 Tocqueville thus saw the American jury as both a judicial and a political institution, but primarily as the latter. Because of its role in giving the ruled an opportunity to check their rulers, the jury is, for Tocqueville, “the real master of society,” and is an institution through which the American people can exercise meaningful control over their government (2003/1835, p. 318). He explicitly depicts the jury as a political institution in the context of its ability to acquit defendants without accountability to any other authority, and thus as an example of popular sovereignty (2003/1835). Contemporary nullification scholar and advocate Clay Conrad agrees: Jury nullification, the act of a criminal trial jury in deciding not to enforce a law where they believe it would be unjust or misguided to do so, allows average citizens, through deliberations, to limit the scope of the criminal sanction. (Conrad, 1998, p. xix)

Many judges, however, have not been so sanguine about nullification’s uses. Because in its strongest form jury nullification ignores judges’ instructions on the law, judges have historically resisted it and sought to curb its use as well as to punish jurors who engage in it. Indeed, jury nullification operates in resistance to the judge’s role in ensuring consistency and fairness not to say strict equality at least vis-a`-vis other defendants accused of the same crimes in similar circumstances, and in carrying out the intent of the legislature in enacting criminal prohibitions (Green, 1985). A generation ago, many sitting judges, though unwilling to instruct jurors about the power of nullification lest they encourage its use, nevertheless voiced grudging respect for uninstructed juries that took it upon themselves to nullify. But that respect is gone …. (Abramson, 2000, p. xix)

In particular since the founding of the Fully Informed Jury Association (FIJA) in 1989, prosecutors and judges have engaged in a legal backlash against independent minded jurors, which has nonetheless largely been unsuccessful, with attempted prosecutions of wayward jurors ending in acquittal or dismissal (Conrad, 1998). Why such action should be seen as necessary may be puzzling on the surface. After all, as Conrad argues, nullification is an exercise of lenity, not anarchy: it only operates to acquit in particular cases, not to undo the law in general (1998). I turn now to

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a discussion of the ways in which the inherent tensions between democracy and liberalism in the context of the American polity bear on the jury nullification debate, and help explain the ferocity of the antinullification backlash.

LIBERALISM AND DEMOCRACY Conceptually, both liberalism and democracy admit of disparate definitions. In this section, I will review some of these, concluding with those deployed by legal and political theorist Carl Schmitt. I show that both his concepts of liberalism and democracy cohere with mainstream contemporary political thought, and address in the subsequent section how his formulations help us understand the role jury nullification plays in American criminal law, as well as the ways in which nullification highlights the tensions between these two American political commitments. Liberalism and democracy hold varying valences for different theorists. It is possible, for instance, to characterize liberalism as simply enshrining the primacy of the individual within a political community, and democracy as seeking to ensure the equality of individuals. On this read, the two would come into conflict when the commitment to equality conflicts with the full expression of individual rights (Dumm, 1987). But democracy as equality is at best a candidate for an emerging tradition in the US context: only in the 1960s did even the idea that individuals’ votes should carry equal weight, at least in the context of legislative elections, gain traction in American law. This equality of electoral power, together with the promise of equal protection of the laws in general provided by the Fourteenth Amendment, are about all one could hope to find in terms of widespread consensus about equality in the context of American democracy. Another approach to understanding liberalism as distinct from democracy is summed up by David Dyzenhaus. On his view, liberalism is a doctrine first advanced by Thomas Hobbes that “puts the individual at the center of political thought” (Dyzenhaus, 1997, p. 9). Liberalism further requires that any exercise of state power be legitimized by procedure, through properly enacted statutory law (Dyzenhaus, 1997). In this sense it is liberalism, not democracy, that more closely coheres with equality: because the individual is at the center of politics, no law may properly impinge upon individual rights without the imprimatur of proper procedures for its creation and presumably enforcement, and no such law may be enacted that violates any supralegal (e.g., constitutional or natural)

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protections of individual rights. For liberals, rights constrain state power in order to safeguard individuals’ actions in the course of their pursuing the good life as they see fit (Sarat, 2005). Democracy, on the other hand, is something both more open-ended and less individualistic. For instance, [a] democrat places trust in the potential of democratic deliberation to revise past decisions in the light of experience and not, with political liberals, in trying to freeze the content of a list of rights. (Dyzenhaus, 1997, p. 255)

From this juxtaposition, we can begin already to see how liberalism and democracy are in tension. They are antagonistic in that democracy gives expression to popular demands, even those that may impinge upon certain individual rights, and moreover is always already political, while liberalism aims to depoliticize questions of right, usually by relocating them in the realm of law (Hirst, 1999). Likewise, in the context of American criminal justice, the liberal order seeks to guarantee every defendant an equal chance at acquittal under the law, and thus runs up against democracy’s insistence that each criminal trial is a political moment, upon which the sovereignty of the people should be brought to bear. Further complicating matters is a historical shift in the meaning of liberalism in the American context. What had been a fundamentally Lockean understanding of liberalism as centered in equality of rights to be free from restrictive laws, or the individual’s right to pursue what interests he will so long as this does not operate to restrict the rights of others, became after the Civil War and with the ratification of the Fourteenth Amendment, an equality as well of individuals’ rights to receive equal treatment and in some circumstances even equal benefit from their government, at least with respect to similarly situated individuals. Randy Barnett thus notes that the Civil War transformed the concept of liberalism in America from the political philosophy based on individual rights of life, liberty, property, free trade, anti-imperialism, and limited constitutional government [to] aggressive, but enlightened, use of government power to improve the material conditions of mankind to nurture “true” freedom, both domestically and internationally. (Barnett, 2004, p. 205)4

Jury nullification coheres with the Lockean vision of American liberalism in that it validates a kind of liberty to engage in action that would otherwise be deemed criminal (albeit post hoc and only in individual cases), but not with the post Civil War form of liberalism, in part because it does not treat all similarly situated defendants equally: some are acquitted despite clear evidence of guilt, while others similarly situated are

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convicted.5 It is not coincidental that the concept of equal protection of the laws, which has been stretched by some avowed liberals to require that the federal government assure “true” freedom in Barnett’s characterization, arose after the Civil War. Tocqueville had already noted the potential for political authority to overwhelm democratic popular sovereignty in 1835, describing the phenomenon in terms of a coincidence of governmental and administrative centralization that tends to isolate individuals and submerge them in the mass community (2003/1835). The federal government’s military victory against rebelling states effectively limited the options for states and localities to resist such centralization, for better or worse. The resulting conflicts between, on the one hand democratic sovereignty and Lockean liberalism, and on the other between Lockean liberalism and post Civil War liberalism as Barnett defines it, become somewhat clearer if read through Carl Schmitt’s theorizing. I turn now to his ideas. Schmitt is perhaps best known for his claim that sovereignty amounts to the power to decide upon the existence of, and appropriate action in case of, exceptional (or emergency) circumstances (Schmitt, 1985b/1934). While he demonstrated a marked preference for such decisional sovereignty’s exercise by a single executive political actor, Schmitt understood sovereignty to apply as well to the voting populace in true democracies, albeit more centrally in the context of political foundings (Schmitt, 2008a/1928). Thus while liberal self-critics tend to focus on the problems that arise from equating liberalism to bourgeois possessive individualism, or from its reduction to mere procedure without consistent substantive goals, Schmitt’s primary critique of liberalism in the context of liberal democracies challenged its commitment to the rule of law in favor of an authoritarian version of democratic rule (Bielefeldt, 1998). For Schmitt, liberalism seeks to subsume politics within its own normative framework, but because decisional power must always be exercised, and because legal texts are not self-implementing and cannot themselves decide what to do in unforeseen circumstances, liberalism ultimately fails to triumph over politics and so fails to render decisional sovereignty unnecessary (Dyzenhaus, 1997). Schmitt thus saw democracy, defined as sovereign power held by “the people” (however constituted) as antithetical in many respects to liberalism. Despite that Schmitt clearly did not prefer popular sovereignty, he nonetheless acknowledged its ascendancy in the West, and its likely dominance in the twentieth century and beyond (2008a/1928). For Schmitt, democracy required the sovereign unity and identity of a homogeneous people, in contrast to the unitary rule of a king, for example. Such a sovereign people would not necessarily ensure their mutual liberty, nor the liberty of any

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others over whom they exercised sovereignty. Liberalism, on the other hand, amounted to a confluence of separation of powers with discussion and public debate (both ensured by constitutional provisions the allegedly sovereign constitutional law guaranteeing individual rights and liberties) that legitimized lawmaking by, for example, parliament (Schwab, 1989). In his 1928 work Constitutional Theory, Schmitt distinguishes between a constitution’s political core and its liberal components, and views them as inconsistent (Schmitt, 2008a/1928). Indeed, [a]s Schmitt admits, the whole endeavor of a liberal constitution aims at marking off a sanctuary for individual freedom and disavowing the political disposition of the state. Sovereignty [popular or otherwise], an essentially political notion, therefore, ought not be given any recognition in a liberal constitution. (Cristi, 1998, p. 183)

While Schmitt understood that modern democracy had at first allied itself with liberalism and freedom, he noted that it soon proved capable of being mobilized by any number of political tendencies (Schmitt, 1985a/ 1923). The American version of democracy, like many other democratic experiments (including the Weimar Republic, which Schmitt saw as fatally flawed even before its demise), was one that continued the marriage of democracy and liberal freedoms. Such democracies are characterized by liberal constitutions, that is, those protecting individual freedoms through law, such that the sphere of the private is carved out, protected from the state, and given over to free society (Schmitt, 2008b/1938). The US Constitution’s First, Fifth, and Sixth Amendment protections, central to jury nullification’s operation, are apt examples of liberty-protective constitutional provisions in Schmitt’s terms. Schmitt was suspicious of the liberal constitution’s protections of individual liberty in part because of liberty’s tendency to devolve into chaos (Preuss, 1999), a concern that coheres with nullification opponents’ fear of potentially anarchic jury decisions. But more specifically, Schmitt critiqued liberalism for serving as a subterfuge covering over the central problem of tolerance of others’ liberty: because liberalism cannot effectively engage with those who resist its insistence upon tolerance and the consequent bounding of political decision making within liberal (deliberative, procedural) terms, liberalism cannot effectively resist the state’s capture by interest groups, cannot transcend conflicts among ideologies, provides little basis for community beyond economic hedonism, and does not adequately address or solve the problem of law’s legitimacy. Liberalism as consistency through rule of law simply cannot decide hard cases. Schmitt did not, however, see liberalism as doomed in and of itself, but rather as doomed to

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vacillate between making distinct truth claims (e.g., regarding the need for tolerance of differing points of view) and disclaiming truth altogether between being political and antipolitical (Dyzenhaus, 1997). Schmitt’s understanding of democracy as popular decisional sovereignty and of liberalism as protection of individual rights under the rule of law, allows examination of jury nullification as a strange and crucial moment of liberal democracy, in which the jury simultaneously usurps the rule of law, and does so in order better to preserve the very liberties the rule of law in general seeks to protect. In the next section, I apply Schmitt’s theory to jury nullification in practice, and in rhetorical analysis to a recent judicial opinion decrying nullification, to show the mechanics of this tension in operation, as well as how jury nullification points up shortcomings in Schmitt’s own bifurcation and antithesis of democracy and liberalism.

JURY NULLIFICATION AND THE LIBERAL DEMOCRATIC TENSION It is important to acknowledge at the outset that much of my application of Schmitt’s theory here operates at the penumbra of his conceptual scheme. As noted above, Schmitt’s conception of sovereignty as decisionism focuses on exceptional decisions made by the (executive or popular) sovereign in extreme (and presumably rare) cases of dire existential threat to the state. Recent scholarship, however, has begun to extend his analysis to more quotidian cases of emergency politics (Feldman, 2010). So, for instance, Schmitt’s understanding of sovereign decision has been used to analyze the granting of executive clemency or pardon in the US criminal context (Sarat, 2005). It may seem strange to think of opportunities to pardon criminals or commute their sentences as instances of decisions on emergencies, but unless applied to every criminal they are definitionally exceptional decisions to some degree.6 Yet as exercises of what one might call microsovereignty, they certainly amount to decisions that are made at the outer edges of law, and indeed, contrary to law. For this reason, critics of commutations and pardons by governors object that such actions are antidemocratic: they are in Schmittian terms an exercise of decisional power by sovereign actors who are not themselves “the people” (Sarat, 2005). Yet although unchecked, these microsovereign exercises are carried out in the American democratic system by democratically elected actors; one might thus more accurately think of them as antiliberal, in that they do

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not treat alike similarly situated convicts they spare some lives or shorten some sentences, but not others. In this sense, pardons and clemency violate the premise of a (liberal) government of laws not of men, just as jury nullification does. Mercy, whether exercised by governors or by juries, is simultaneously lawless and yet authorized by law, in a way that confounds liberal legalism (Sarat, 2005). Just as dramatic symbols of sovereignty, such as engaging in or refusing to engage in capital punishment, may be most significant and worthy of analysis as sovereign action in contexts where sovereignty is most fragile (because most explicitly outside the law) (Sarat, 2005), so too is jury nullification an important and dramatic symbol of popular sovereignty it too can be used counter to law to spare criminal defendants from the force of conviction or punishment, including capital punishment. Just as we can view the power of executive clemency used to spare the lives of convicted criminals subjected to the death penalty as a sovereign power (Sarat, 2005), so too can we see jury nullification as sovereign power, both in terms of natural language, and in particular following Schmitt’s use of the term. This particular example of microsovereignty, exercised democratically but illiberally, is especially notable because of the historical and contemporary relationship between American criminology and liberalism. As Jonathan Simon observes, criminology’s development as a technique of controlling criminal behavior through a union of state power and professional expertise beginning in the late 1800s marked a departure from core liberal ideas by the American polity (Simon, 2007). Nonetheless it is still accurate to consider contemporary America’s techniques of governing through crime and fear of crime as consistent with liberalism “because for the most part [they] operate[ ] upon, rather than simply against, the freedom of its subjects” (Simon, 2007, p. 15). One way to square this seeming contradiction is to consider it in light of the slippage in the meaning of liberalism from the Founding to the post-Civil War era discussed above. Another is to consider nullification from the point of view of law’s most zealous guardians in the American political system, judges. As noted above, judges have become increasingly hostile to nullification over the course of US history, and especially in contemporary practice. The few important opinions that address the jury’s power (and disclaim its right) to render not-guilty verdicts contrary to evidence, whether to express disapproval of the law as applied or otherwise, routinely praise the jury in general as well as certain historical uses of nullification in particular the Zenger case is an oft-cited favorite while erecting substantial barriers to

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the contemporary jury’s independence (Abramson, 2000; Conrad, 1998).7 Further, a startling number of judicial opinions on nullification seem to assume that it can be used equally well to convict as to acquit defendants contrary to evidence, which as discussed above is manifestly inaccurate under US criminal law (Abramson, 2000; Conrad, 1998).8 This one-way attribute of nullification presents a challenge to Schmitt’s insistence that democratic sovereignty and rule-of-law liberalism must exist in tension. Admittedly, of course, the American people could change the Constitution to allow juries to convict contrary to law, and without the possibility of further appeal. For now, however, the law serves to cabin jurors’ sovereign discretion, permitting it only where it will serve to acquit, not convict, criminal defendants. Are judicial fears of the dangers of jury nullification warranted, and how does Schmitt bear on them? Nullification has infamously been employed to acquit (or functionally set free through hung juries) racists in the US South accused of, and on solid evidence (including confessions) certain to have committed, horrible crimes against African Americans such as Emmett Till and Medgar Evers, and civil rights workers of whatever race (Abramson, 2000).9 The prospect of similarly unconscionable acquittals motivated by racial animus is often raised by nullification opponents. Yet in these historical instances, nullification went hand-in-hand with shoddy or lax prosecution by racially motivated district attorneys, and less-than-impartial legal rulings by racially motivated judges. Indeed, jurors in these cases might well have acquitted or hung not to express disfavor with laws against murder, or even a personally held belief that the lives of African American or civil rights advocate victims were of lesser worth (although some jurors undoubtedly harbored such views), but rather because they took cues as to their expected verdict from racist sheriffs, prosecutors, and judges, as witness greater success in obtaining convictions in similar circumstances in more carefully controlled federal court settings using equally randomly selected local jurors (Conrad, 1998). In short, jury nullification does not deserve exclusive blame for these instances. Moreover, jury nullification can be and has been used to condemn forms of race discrimination, as was the case when it served to undermine prosecutions under the Fugitive Slave Act (Conrad, 1998). And notwithstanding particular infamous cases of racially motivated acquittals, what little evidence we have regarding nullification in general suggests that judicial fears of its use for malign purposes are overblown. In both Indiana and Maryland state constitutional provisions enshrine the right of juries to nullify, and state court judges routinely advertise this right to jurors in their

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instructions, without apparent significant detriment to the rule of law in those jurisdictions (Abramson, 2000).10 Schmitt, himself an anti-Semite, would almost certainly not have been much troubled with racially motivated acquittals. For him, these would amount to instances of popular sovereignty in the service of preserving the homogeneous nature of the democratic polity. Without endorsing such a view or its consequences, it is nonetheless possible to see this as a problem inherent in democratic sovereignty one that liberalism as rule-of-law can ameliorate but not completely solve. So long as a people sees itself as defined by race, religion, language, etc., it will almost certainly exercise its sovereignty through decisions that seek to preserve these definitional markers. What we can usefully learn from Schmitt here is not that democracy should operate in this way but rather that it may. In this respect, liberalism and not democratic sovereignty better serves the cause of liberty, at least so long as the composition of “the people” is bitterly contested. Judicial resistance to jury nullification is not, however, confined to contexts involving racial or other social divisions. Judge William Young’s opinion on nullification in the 2008 case United States v. Luisi goes well beyond these tropes in seeking to cast nullification as outside the bounds of law, and provides a good example of the rhetoric nullification opponents muster a rhetoric that simultaneously confirms Schmitt’s insights about the tensions between rule-of-law liberalism and democratic popular sovereignty and implicitly demonstrates that sovereignty must be exercised somewhere in the criminal law context, even if it is disclaimed. At issue in Luisi was the steadfast refusal of one unnamed juror in the trial of Robert Luisi for cocaine distribution even to consider voting for conviction. This juror argued to his fellow jurors that, an amendment to the Constitution having been necessary to prohibit sale and possession of alcoholic beverages, absent a similar amendment authorizing prohibition of narcotics Congress had no such power, and Luisi could not be constitutionally prosecuted or convicted. This argument, while invalid according to prevailing present legal authority, is not obviously unreasonable or illogical. Nevertheless, it caused substantial consternation among the juror’s colleagues, who reported his intransigence to Judge Young. After consulting with all the jurors, admonishing the recalcitrant would-be nullifier that he must follow the law as explained to him by the court, and giving him time to think matters over, Judge Young ultimately dismissed him mid-deliberation and replaced him with an alternate juror. While this move was clearly within the judge’s authority under the then-applicable version of Federal Rule of Criminal Procedure 23(b), Judge Young took the extraordinary

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and legally unnecessary step of supporting it with a lengthy opinion largely devoted to attacking nullification. In it, he both dismissed the Zenger case as an aberration (rather than citing it as a rare positive case of nullification) and compared nullifiers to “Kangaroo court[s],” which are ordinarily understood to be stacked against defendants (without, however, specifically claiming that nullification can result in convictions contrary to evidence). But in addition to going even beyond the usual, albeit confused, rhetoric of antinullification judges noted above, Young delivered a scathing indictment of the obstinate juror and of nullification generally: Over the course of thirty years on the bench, this is the first time that the Court has encountered a juror who has attempted to arrogate to himself the power that our Constitution places in the elected branches of government. Thankfully, the citizens who occupy jury boxes across the country do not share such views. Nullification has no basis in law, but if citizens felt free to nullify, it would undermine not only the rule of law, but also the values at the core of our democracy. Moreover, nullification would fan the flames of anti-jury sentiment and contribute to the demise of the jury trial along with the independent judiciary. … If it were taken seriously by mainstream Americans, jury nullification would threaten to unravel the fabric of our democracy. The impropriety of nullification emanates from the notion that ours is “a government of laws and not of men.”… This means simply that no citizen is above the law, and none is free to make his own law. As Thomas Paine stated in Common Sense, “For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.” It is a testament to the liberties afforded our citizens that Juror No. 2 is free to express his beliefs about the meaning of the Constitution. He is not, however, free to implement his views at his pleasure. Those who would change the law must work through democratic channels. Juror No. 2 and others who feel Congress does not have the authority to ban possession of narcotics may attempt to win the hearts and minds of the American people. Should the people tire of drug laws, they may elect representatives who will repeal them; they may elect a president who will not enforce them; they may amend the Constitution to abolish them. They may work to change the law, but they are not free to disregard it. The notion that nullification will change the law is drivel. Those who would characterize it as a noble form of civil disobedience are deeply delusional …. (United States v. Luisi, 2008, pp. 120 121, citations omitted)

Young’s Luisi opinion is noteworthy for several reasons. First, in its refusal to give any credence to nullification whatever, it highlights the power relations inherent in the judiciary’s increasing resistance to jurors’ independence. While Young directly adverts to the danger nullification poses to the rule of law, he also characterizes the wayward juror as

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“arrogat[ing] to himself [ ] power” (United States v. Luisi, 2008, p. 120). Moreover, in portions of the opinion not reproduced here, Young engages in a lengthy encomium to the jury’s alleged role in creating and safeguarding judges’ political independence, and elegy to the decline of trials generally in favor of pretrial settlements. In Young’s view, because fewer juries (and fewer judges) actually decide cases, the judiciary has lost sway and ceased to be a fully coequal political branch. Young is bemoaning a decline in judges’ power resulting from a trend away from jury decisions consistent with judges’ instructions, while at the same time hectoring a juror for exercising the power to decide the law for himself. In Schmittian terms, Young has this much right: the real issue is not whether the law will rule, but who will rule by applying the law. Who applies (or refuses to apply) the law is sovereign. For Young, this sovereignty is rightly judges’ province, not jurors’. Yet the notion that judicial sovereignty trumps jury sovereignty is notably antidemocratic, in that juries lie closer on the representative spectrum than judges to the citizenry as a whole. Luisi is striking as well for its selective depiction of the historical record on jury nullification in the service of delegitimizing it, one that illustrates a central Schmittian critique of rule-of-law liberalism.11 Judge Young claims, for instance, that it was settled law in Massachusetts as of 1810 that judges’ instructions to juries on the law were mandatory, and that jurors in that state thus no longer possessed the right to nullify. Yet both a proposed Massachusetts state constitution and a state law passed in the 1850s specifically granted jurors the right to decide both fact and law, the latter having been undone by a poorly reasoned opinion of the Supreme Judicial Court in 1855. Only with that case, Commonwealth v. Anthes, was the debate in Massachusetts over jury nullification as a right put to rest (Abramson, 2000). Further, Luisi cites approvingly both John Adams by reference to his contribution concerning the rule of law to the original Massachusetts Constitution, and John Marshall in Marbury v. Madison (1803), as famously advocating government of laws, not men. As I will discuss below, this quotation may in fact have no proper application to jurors or their powers. Regardless, both Adams and Marshall were in fact advocates of jury nullification as a right of the jury Marshall even so instructed jurors in cases over which he presided (Abramson, 2000)! Moreover, as Schmitt often pointed out, laws are not self-executing, but require decisions by sovereign actors. Indeed, this was a primary theme of his critique of ruleof-law liberals of his day, such as Hans Kelsen, who argued that law once instituted could in fact govern with minimal political action or decision on the part of those empowered to govern or judge. In this regard, Luisi

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adopts the very rule-of-law discourse that Schmitt derides as a liberal fantasy (Schmitt, 1985b/1934, 2008a/1928). Young’s citation to Chief Justice Marshall’s use in Marbury v. Madison (1803) of the trope that America’s is a government of laws not of men itself deserves careful consideration in context. Marshall deployed it in a case that famously allowed the Supreme Court to acquire a power not specified in the Constitution against Congress the power to decide (and thus in Schmitt’s terms a sovereign power) whether congressional law was consistent with the Constitution. This power of judicial review, arguably consistent with the Founders’ intent but not expressed in the United States’ founding legal text is thus like jury nullification not a “right.” There is, then, considerable irony in Judge Young’s use of Marshall’s rule-of-law commentary, originating as it did from a case in which judges gained an unenumerated political power, to deny to jurors a similar power one that like judicial review many Founders assumed would be operative under the Constitution. Moreover, Marshall in the same case declared that “[i]t is emphatically the province and duty of the Judicial Department to say what the law is” (Marbury v. Madison, 1803, p. 177). With this Schmitt wholeheartedly agreed: if human actors declare what the law is, then we have sovereign decisions made by men the law is evidently not self-interpreting (Schmitt, 2008a/1928). Indeed, Schmitt cited Chief Justice Marshall’s seemingly conflicting claim that the government of America is one of laws and not of men as an example of a concept of law that dangerously obscures the need for a sovereign to decide “what constitutes an exception” (Schmitt, 1985a/ 1923, pp. 42 43). One might conclude from the superficial juxtaposition in Marbury of the claims both that law is sovereign and that judges say what law is that Marshall was muddled on the matter. But a more nuanced and charitable reading sheds light on both jury nullification’s role in America’s early years and on Marshall’s support for it. Arguably, judges when judging do not govern, but decide (in a sovereign sense in Schmitt’s terms) about the meaning and effect of the law. Similarly, then, jurors engaging in popular sovereignty with respect to criminal defendants do not so much govern as decide how to give meaning and effect to the law in particular cases. Because as noted above both Marshall and Adams were supporters of jury nullification, they could not have meant by the government-of-laws trope, which both employed, to imply that jurors could not nullify. With respect to both Adams’s and Marshall’s statements, it is reasonable to conclude that they meant “government” to refer to the identifiable, elected or

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appointed governing authorities, not to the ad hoc jury’s participation in criminal trials (and in Marshall’s case, not to judicial review). The prosecutor and perhaps the judge are the “government” in that context; the jury, on the other hand, protects defendants from government overreach, and thus is not necessarily subjected to, or intended to be subjected to the rule of law. Indeed, its role in Adams’s conception as well as that of many of the Founders was to serve as a democratic check on the rule of law (Abramson, 2000; Conrad, 1998). Nonetheless, Luisi’s logic follows that of the century old Supreme Court cases making clear that jury nullification is not a right of defendants or jurors under the US Constitution, and while a de facto power of jurors, is one that they should be strongly discouraged from exercising. The leading US Supreme Court opinion denying any right of criminal juries to judge the law, Sparf and Hansen v. United States (1895), specifically raised the specter that nullification undermined the rule of law in favor of the sovereign decision of 12 unelected and unaccountable men (Abramson, 2000). There are other minor oddities in Young’s Luisi opinion. His insistence that jury nullification is not civil disobedience conflicts with Abramson’s claim that “[p]hilosophically, jury nullification is a close cousin to the theory of civil disobedience” (Abramson, 2000, p. 61). Indeed, it is civil disobedience most precisely and clearly when the law (as Young argues) prohibits it. Young’s glowing reference to Justice Samuel Chase as a key opponent of nullification (United States v. Luisi, 2008) is also striking given that Article I of the impeachment charges against him arose from his having denied jurors the right to judge the law as well as the facts that is, the right to nullify (Conrad, 1998). Ultimately, however, Luisi serves to highlight the degree to which rule-of-law is less a substantively valid than a rhetorical argument. It obfuscates judges’ exercise of the exclusive power to interpret the law behind a fac¸ade of law as something neutrally and equally applied through minimal human intervention or choice. Judge Young is, on a Schmittian analysis, commendably honest in his display of jealousy over jurors’ erosion of judicial decisional power, but at the same time inattentive to the Schmittian critique that the liberal notion of a government of laws as one in which men need not exercise power in saying what the laws are is a sham. Advocates of nullification likewise mirror elements of Schmitt’s theories in their rhetoric, as witness Clay Conrad’s advice to defense attorneys. As a practice tip, Conrad urges defense counsel seeking a nullification verdict to inform venire members that as far as the defendant is concerned they are more powerful than Congress, the Supreme Court and the President all put

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together, in that they possess the sovereign power to acquit for any or no reason. (Conrad, 1998, p. 277). He further encourages defense counsel to object to the prosecution’s self-description as “the state,” or especially “the people,” and to remind jurors that they are the true representatives of the people in criminal cases.

CONCLUSION I have shown that Schmitt’s understandings of sovereignty and law can provide insights into the political function of jury nullification and its interaction with liberalism as rule of law. Nullification provides an unusual example of democratic sovereignty operating within, and even being secured by, the liberal order as Carl Schmitt understands both concepts, at least within the geographically and temporally delimited confines of the American criminal jury.12 At the same time, the jury’s action in nullifying is illiberal, in that it does not accord with a given or fixed legal order (it ignores the law in favor of lenity and substitutes juror discretion in individual cases for the uniform implementation of legislative will), and in that it does not guarantee, and indeed undermines, equal treatment of similarly situated defendants. Yet it is also liberty preserving, in that the reviewability of convictions for inconsistency with law is not paralleled by any reviewability of acquittals. Arising from the right to trial by jury coupled with the prohibition on double jeopardy both constitutionally protected rights the criminal jury can only exercise its sovereignty on the side of liberty. Schmitt’s theories allow us to see jury nullification as illiberal, libertypreserving democratic sovereignty buttressed by, and thus dependent upon, liberal rights. On this read, for example, it is no surprise that jury nullification frequently blossoms in response to prosecutions for such crimes as seditious libel, violation of the Fugitive Slave Act, and refusals to comply with prohibition (of alcohol historically and of narcotics today), which involve enforcement of laws with which large swaths of the citizenry are functionally at war; in such instances, nullification frequently leads to repeal of the law thus disfavored (Conrad, 1998). At the same time, some of the cleaner lines of Schmitt’s theory are challenged by nullification, in that it serves to undermine rule-of-law liberalism in favor of individual liberty, but only as a result of a set of interrelated constitutional rights and criminal procedural rights in complex interaction.

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Schmitt does not appear to have contemplated sovereignty’s effects in small-scale situations; he was concerned with the sovereign actions of whole populations (or of authoritarian leaders) over decades, not juries over days. But the formations of power he saw in state sovereignty during emergencies may well have parallels in the context of acquittals in exceptional circumstances. If Schmitt is right that liberal democracies vacillate between emphasizing popular sovereignty and emphasizing the rule of law and protection of bourgeois rights, then perhaps the former is now near its nadir and the latter its zenith. Sustained research on the frequency of nullification in various classes of cases qualitatively complex though it would be to undertake would help understand trends with respect to nullification in general and the situations in which it is most frequently employed. Further considered application of Schmitt’s ideas to other instances of sovereign decision within states would illuminate whether and to what degree Schmitt’s theories can be extended to cover exercises of microsovereignty in liberal and illiberal contexts. Finally there might be further homologies between Schmitt’s thought and the operation of jury nullification in the criminal law context. In particular, application Schmitt’s claim that the friend enemy distinction is the crucial defining element of the political (2007/1932) might be useful in understanding both how the criminal justice system functions politically in a given liberal polity, and the political significance of a jury’s refusal to brand particular defendants criminals. To the extent that criminal law in liberal democracies functions to generate enemies, episodes of jury nullification may be among the most pivotal moments of citizens’ selfdefinition, and in conjunction, of the political commitments of their states. Research in these areas among others may further advance our understanding of the political functions and significance of jury nullification in the context of the liberal American state.

NOTES 1. Congress actually adopted the Bill of Rights in the same Manhattan building in which the Zenger trial had been held, now the site of New York’s Federal Hall National Memorial. 2. A contemporary case, the 1990 trial of Washington, DC, Mayor Marion Barry for narcotics violations, makes for an interesting comparison to Bushel’s case. After Barry’s acquittal on all but one count, the presiding judge singled out four jurors in public comments for having in his view broken the law by lying to get on the jury and subsequently preventing guilty verdicts by refusing to consent to

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them, and further argued that juries are neither minidemocracies nor minilegislatures, and that for them to operate as such amounts to anarchy. Yet the state of the law, in particular the prohibition on double jeopardy, means that juries can in fact exercise this kind of microsovereignty now, while before Bushel’s case it was yet to be established that they could do so in seventeenth century England (Abramson, 2000). 3. While the outcome here is clearly suboptimal murderers motivated by political views are set free Tocqueville’s comment is nonetheless trenchant: laws out of step with the popular will are not likely to succeed, with or without nullification. Nullification is simply one means for defeating such laws’ operation (and arguably one of the least destructive). As I discuss below, jury nullification has also been used in racially motivated ways to acquit among others defendants who have committed racially motivated crimes, including lynchings and other forms of murder. Though nullification cannot be used to convict defendants in the face of overwhelming contrary evidence, the fact that it can be used to acquit defendants in like circumstances means that jurors may choose to acquit those with whom they closely identify, where they would not do so with respect to defendants who are demonstrably “other.” This possibility is often central to jury nullification opponents’ arguments. 4. Barnett neither equates the Equal Protection Clause of the Fourteenth Amendment with this post-Civil War liberal aim to promote human rights and welfare from ever-higher echelons of government, nor disparages equal protection generally. Arguably, the change he notes in the meaning of liberalism is less related to the Civil War amendments than to the victory of the US government over rebellious states in a context in which the latter’s right to continue to practice human slavery was centrally at issue. Jeffrey Abramson, however, specifically links the post-Civil War turn against nullification to equal protection, seeing that in the new, antinullification jurisprudence of the late nineteenth century too much popular participation in the judiciary was a decided threat to freedom. Liberty was a matter of receiving equal protection from the law, not necessarily a matter of making the law oneself. (2000, p. 90)

5. Nullification also arguably treats victims of crimes unequally, in that similarly situated victims might see those who harmed them convicted or acquitted not according to the evidence and the law, but according to varying juries’ exercise of power over defendants in conflicting ways. Setting aside the difficult question of commensurability of crimes and their effects on victims, this inequality, while undoubtedly real to victims, is not one comprehended by American constitutional law. Criminal cases are brought not on victims’ behalf, but on behalf of the state and its citizens as a whole. As such, the Equal Protection Clause presents no impediment to jury nullification with respect to equal protection of crime victims. 6. Schmitt uses Ausnahmezustand to denote the situations in which sovereign decisionism is necessary. Unlike the clearly emergency-referent Ernstfall, Ausnahmezustand is ambiguous between, and variously translated as, “emergency” and “state of exception.”

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7. For example, defense attorneys typically are not permitted to advertise to juries their capability to ignore a judge’s legal instructions; known would-be nullifiers can be removed from juries and replaced; and neither jurors nor defendants have a legal right to nullification (even though the former functionally can be punished for nullifying, if at all, only with great difficulty). 8. It is true, of course, that some juries might well convict contrary to evidence, and that whether through defense attorney incompetence or judicial bias or misinterpretation, such convictions might survive requests for judicial acquittals notwithstanding jury convictions, or appeals of refusals thereof. This risk is presumably rather low in the scheme of things, but could be further ameliorated by judges who are themselves the ones to raise it as an objection to nullification. 9. Infamous cases of apparently racially motivated acquittals abound, and affect members of all races. I mobilize the civil rights acquittals because in historical perspective there is substantial consensus that they were instances of malign nullification. Obviously the acquittals of the Los Angeles policemen who beat Rodney King, of Washington Mayor Marion Barry, and of OJ Simpson are candidates for more contemporary examples. 10. There is, however, apparently no longer a requirement that jurors be informed of this right in either state, due to judicial interpretations weakening those constitutional provisions (Conrad, 1998). 11. I do not mean to imply here that Judge Young intentionally distorted the record on nullification. But because he clearly had the legal authority under Federal Rule of Criminal Procedure 23(b) to remove a juror for cause who demonstrated an unshakeable predisposition to acquit Luisi of any drug crimes whatever despite not having revealed as much under voir dire, his extensive treatment of jury nullification in Luisi is dicta so much legal gravy. As such, the rhetorical points Young deploys need not have been accurate in order for him to remove Juror No. 2. Young’s Luisi opinion is written in a polemic mode, and so his arguments and their strengths or weaknesses are relevant to analyzing how Young’s comments reflect and contribute to the debate over the exercise of judges’ and jurors’ powers, and how they intersect with Schmitt’s theories. 12. Schmitt might consider the rights that make the jury possible democratically constitutive, as at least some of the founders did in the sense that they saw the jury as injecting an element of popular sovereignty into the judicial process, rather than being bourgeois liberal rights provisions. To this extent, the force of my argument that nullification can be construed as democratic sovereignty made possible by constitutionally mandated liberal rights would be diminished.

ACKNOWLEDGMENT I thank Austin Sarat for inviting me to participate in this special issue of Studies, and an anonymous reviewer for helpful and insightful comments.

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Sparf and Hansen v. United States. (1895). 156 US 51. Tocqueville, A. de. (2003). In G. E. Bevan (Trans.), Democracy in America and two essays on America. London: Penguin. (Original works published 1835, 1840). United States v. Luisi. (2008). 568 F. Supp. 2d 106 (D. Mass.). Weiser, B. (2011, February 26). At the border of free speech and jury tampering. The New York Times, p. A17. Weiser, B. (2012, April 20). Jury statute not violated by protester, judge rules. The New York Times, p. A18.

GAYS IN THE MILITARY: TOWARD A CRITICAL CIVIL RIGHTS ACCOUNT Susan Burgess ABSTRACT How did gays in the military go from being characterized as dangerous perverts threatening to the state, to victims being persecuted by the state, to potential heroes fighting on behalf of the state? What implications does this shift have for understanding the means by which the liberal state uses law to include the previously excluded? Offering a critical account of the inclusion of gays in the military, I argue that while the lifting of the ban can be seen as an important step in a classic civil rights narrative in which the liberal state gradually accommodates the excluded, pop culture allows us also to see state and minority group interest convergence as well as divergence, revealing the costs of inclusion. Keywords: Gay and lesbian politics; gays in the military; civil rights; liberalism; popular culture; critical theory

Special Issue: Law and the Liberal State Studies in Law, Politics and Society, Volume 65, 83 106 Copyright r 2014 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-433720140000065003

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INTRODUCTION An historic policy shift occurred in 2010 when Congress voted to lift the long-standing ban on gays and lesbians serving openly in the military. The ban was officially lifted on September 20, 2011, when President Obama formally certified that the military is prepared to allow LGBT members to serve openly. For years, scholars had focused on the powerful forces of resistance to change in this area as evidenced by the work of political scientists such as Mucciaroni (2008) and Lehring (2003), historians such as Johnson (2004) and Berube (1990), and legal theorists such as Halley (1999) and Stychin (1995). On these accounts, the long-standing practice of characterizing gays as morally degenerate and threatening to the state augured against full inclusion. Key military leaders opposed lifting the ban, often on moral grounds, fostering a context ripe for institutional resistance in Congress that was frequently based on moral condemnation. Even when change had taken place, as in the case of the “Don’t Ask, Don’t Tell” policy, it was characterized as compromised and partial at best. The forces of institutional and ideological resistance to lifting the ban on gays in the military have been well documented. What is less clear is how they were overcome. How did gays go from being characterized as dangerous perverts threatening to the state, to victims being persecuted by the state, to potential heroes fighting on behalf of the state? It is tempting to frame the story into a civil rights narrative that focuses solely on the liberal state’s slow but steady inclusion of an initially excluded group into full citizenship. Patterned on the successes of the Black civil rights movement, such narratives typically acknowledge that the liberal state has sometimes fallen short of its aspiration to provide equal rights and privileges to all, while anticipating that excluded groups will receive equal protection under the law in due course. In these narratives, traditionally despised groups that are denied the full rights and privileges guaranteed to other citizens organize to create powerful grass-roots movements that turn public opinion in favor of full inclusion. A long transitional period of struggle ensues which includes moments of triumph as well as loss, victories as well as violence, leading the hearts and minds of the American people to change enough to allow for previously unthinkable compromises to be forged institutionally and ideologically. Full inclusion is eventually formalized in the law, offering a seemingly happy ending to a story with very troubled beginnings.

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In many ways, lifting the ban on gays in the military follows the form of a classic civil rights narrative. In the Cold War period gays and lesbians were despised and seen as threats to the state as McCarthyite purges from government service included not only alleged communists but also purported homosexuals. Beginning in the 1960s these traditional norms began to be challenged at a grass-roots level. As LGBT groups started to assert that “gay is good” and to press for equality, gays began to be cast not simply as threats to the state, but also as victims of the exclusionary power of the state. After a long period of struggle which included institutional “compromises” such as the “Don’t Ask, Don’t Tell” policy, as well as the murder and mutilation of several gays by fellow servicemen, President Obama lifted the ban in 2011, establishing formal inclusion in the military, while noting the heroic service that gays have long provided to the country. This is a fine story that offers redemption for both the state and its citizens by highlighting the ability of the political institutions to embrace American ideals of toleration and inclusion in order to triumph in the long run over historical prejudice and exclusion. However, several scholars of the African-American drive for full equality have suggested that standard civil rights narratives, as well as their accompanying stories of institutional and ideological change, are not so much wrong as much as they are incomplete. In this context, Derrick Bell, a founder of the critical race theory, argues that recognition of black civil rights is dependent on the convergence of white majority and black minority interests, suggesting a foundation for equality that is tenuous at best, and often subject to serious conditions and significant costs (1987, 1992). Similarly, historian Mary Dudziak has argued that racial desegregation was a product of the state’s desire to offer a more inclusive and ideal democratic image of the United States while competing with the Soviet Union during the Cold War (2000). This work offers a more complicated or critical civil rights story that includes conflicting state and group interests, often overlooked costs of inclusion, and at least a measure of persistent inequality, all of which challenge the redemptive ending of the classic civil rights narrative. Bell’s work suggests that a turn to popular culture may allow us to address some of the limitations of the standard civil rights narrative (1987, 1992). In part, that is because popular culture frequently offers narratives that both reflect as well as challenge dominant interests. As noted cultural studies scholar John Fiske has argued: “Popular culture is the culture of the subordinated and disempowered and thus always bears within it signs

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of power relations, traces of the forces of domination and subordination that are central to our social system and therefore to our social experiences. Equally it shows signs of evading these forces: popular culture contradicts itself” (1989, p. 4). Public opinion rightly plays a key role in civil rights narratives, as change in popular understanding is said to be a primary driver of institutional change in such accounts. Yet, in the case of gays in the military mainstream social science methods alone, such as public opinion data analysis, cannot fully account for the lifting of the ban, let alone provide the more complicated and critical story of the inclusion of gays in the military suggested by the work of Bell and Dudziak. Indeed, polls suggest that the ban should have been lifted much earlier than it was. A majority of those polled approved of gays serving openly as early as 1977 when 51% of the public was in favor of allowing gays to serve (Mucciaroni, 2008, p. 175). Some national polls suggest that this support wavered during the “Don’t Ask, Don’t Tell” debates in 1993, sinking to a low of 37% in a Newsweek poll, while other such as the esteemed Gallup poll remained above 50%, and the National Election Survey registered 60% support during this time. In any case, by 2003 support had risen as high as 80% (Mucciaroni, 2008, p. 176). Scholars such as Mucciaroni have attributed this disjunction between public opinion and policy change to institutional and structural factors such as the judiciary’s traditional deference to the military and the absence of policy innovation at the state level due to the federal focus of the military. While such factors surely help us to understand the delay, they do not tell us much about why policy eventually did change, despite powerful institutional and structural resistance. Popular culture offers a broader conception of public understanding that can be helpful in this regard, supplementing the mainstream account by turning to culture. While cultural studies typically do not offer causal hypotheses that trump those made by mainstream institutional scholars, they often provide a broader conception of law, politics, and society that can illuminate the dynamics between dominant and subordinate interests and the role that they play in producing broader ideological shifts. As Michael Shapiro notes, film is particularly interesting, as it offers “a way of reading events that is more critical than mere perception” due to a new kind of representation that prompts the viewer to “think about the time and value of the present” (1999, p. 23). This reflection on time creates a kind of critical thinking that can render the past from the point of view of the present, offering a conceptualization of time that can clarify broad conceptual shifts, as the example below suggests.

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CRITICAL FILM INTERPRETATION IN JULIE AND JULIA This project began as I was finishing a book-length work on New York Times coverage of gay, lesbian, bisexual, and transgender issues (Burgess, 2011). During that time I saw a film entitled Julie and Julia, starring Meryl Streep, Stanley Tucci, and Amy Adams which offered an interesting revisionist twist on the Cold War purges of homosexuals from public service which reversed the hero/villain binary that prevailed at that time. Released in the summer of 2009, this popular film was based on a book by the same name which follows its author Julie Powell (Amy Adams), a bored petty bureaucrat working in Manhattan for the newly established Department of Homeland Security, answering phone calls from distraught family members of 9/11 victims, while living in a run-down flat with her husband in Queens. Tired of the constraints of both her public and private lives, she undertakes a year-long project that revolved around cooking every one of the 524 recipes in Julia Child’s classic work, Mastering the Art of French Cooking. Powell’s project begins modestly, as a simple replication of Child’s work, but over time blossoms into a popular blog, a full-length book, as well as a major motion picture that creatively explores the resonances between her and Julia Child’s commitment to their burgeoning careers and marriages. Toward the end of the movie, Julia Child and her husband Paul Child, an exhibits officer for the United States Information Service,1 begin to worry that he may lose his cherished five-year posting in Paris due to rising McCarthyism in the United States. When Julia asks why, Paul says, “Senator McCarthy doesn’t like people like us.” When Julia wonders what they have done, Paul responds, “We haven’t done anything, that’s not the point. The point is we were in China and that’s practically sufficient.” Shortly thereafter, Paul is sent to two comparatively uninspired postings: Marseilles in the south of France and then to Germany, to a suburb of Bonn called Plittersdorf-on-the-Rhine. Subsequently, Paul learns that he has been called back to Washington. In a letter to her best friend Avis, Julia describes in a voiceover what she calls their “own version of Kafka,” as we see three agents of the federal government investigating Paul in a small, poorly lit room. As Julia describes it, he is “grilled in a windowless room with a foot high stack of papers ominously sitting on the table,” while being asked about “friends, books, our years in China, our patriotism. They even asked him if he was a homosexual.”2 We then see an agent asking Paul, “Are you a homosexual Mr. Child?” Paul

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smirks while answering, “No, I’m not.” As one of the agents responds, “This is not a joke, Mr. Child,” Paul replies, “I’m well aware of that.” In the following scene we see the couple back together again in their bedroom in Europe. As Julia describes it, “Paul came home exonerated, but thoroughly bruised.” He describes the ordeal as “a nightmare,” that has made him think that his entire career, perhaps his whole life, has been a waste. They subsequently learn that he is being sent to Oslo for his last (out)posting before retirement. These scenes offer a revised story of the McCarthy period during which many federal workers, especially those in the State Department, were purged from the government on the basis of accusations of being Communist and/or homosexual. Paul’s smirking response to the accusation of homosexuality and Julia’s pronouncement that he was exonerated suggests that the purgers are in the wrong, and that the accused are being victimized, with clear material and psychological consequences. Contrary to the political tone of the 1950s, this 2009 film represents the purgers as the villains, and the accused as innocent, perhaps even heroic. Paul’s private admission of hurt certainly indicates victimization, while his smirking public resistance suggests a kind of heroism. As portrayed by Stanley Tucci, Paul Child is certainly not a specimen of robust masculinity. This heroic figure is much smaller than Julia, as well as somewhat effeminate in both his cultural interests and personal affect. Although their relationship is represented as demonstrably heterosexual, it is unusual for the time in that it is portrayed as a partnership of equals, with Julia’s career actually eclipsing Paul’s as her cookbook takes off in the period following the investigation, much to their mutual delight. In her posthumously published 2006 biography My Life in France, Julia Child also notes that the investigation of Paul came out of the USIA’s Office of Security, run by a prote´ge´ of J. Edgar Hoover’s named McLeod. She adds that not only did Paul laugh when they asked if he was a homosexual, but that, “when they asked him to ‘drop his pants,’ he refused on principle. He had nothing to hide, and said so. The investigators eventually gave up on him.” Calling “the whole episode shockingly weird, amateurish, and unfair,” she reports that Paul felt he “had proved himself a monument of innocence.” These recollections and their filmic representations offer an interesting account of the McCarthy period that includes a somewhat unusual inclusion of sexuality as the basis for the purges. As David K. Johnson has noted, “historians of the McCarthy era have given stunningly little attention to the Lavender Scare,” the purge of gays and lesbians from public service,

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concentrating almost exclusively on allegations of communist affiliation (2004, p. 2). This is also true not only of academic books, but also of trade books that address the issue, even those that clearly have a gay sensibility, such as David Kamp’s narrative which notes only that Paul was “smeared as a suspected Communist during the McCarthy era.” However, Kamp also describes Julia as sometimes offering “indiscreet, eye-rolling references to the ‘fairies’ of the food world.” He notes that while such talk was not appreciated by popular chefs who were homosexual (such as James Beard and New York Times columnist Craig Claiborne), it did not lead Child’s contemporaries to mistake “an ultraliberal” like her for a bigot (2006, p. 108). Perhaps that is due to the fact that it was accepted practice in the 1950s to unselfconsciously refer to gay people as fairies, perverts, and security risks, even in the national paper of record, The New York Times (Burgess, 2011). Julie and Julia’s revisionist history of heroes and villains, the accused and the accusers, suggests that an important but complicated shift in public understanding has taken place since the 1950s purges of gays (and those alleged to be gay) from public service, a shift that I would argue has many components that are critical to understanding the full inclusion of gays in the military, both descriptively and critically. New understandings of issues that seem to have little or nothing to do with gays such as public morality, masculinity, military authority, and the conduct of war developed slowly over time, replacing more traditional understandings, paving the way for greater public acceptance of gays in the military. In this piece, I focus on the first of those factors, the shift from moral law to privacy, and its effect on public commitment to the state. To this end, I offer fresh interpretations of three popular films that represent shifting public understanding on this issue: Casablanca, An Officer and a Gentleman, and Brothers. Using popular films to detail each of the shift between the traditional exclusionary period and the contemporary inclusive period, as well as the transitional period in between, working toward the construction of a critical account of gays in the military that challenges the story of the linear progress suggested by the standard civil rights account.

UNDERSTANDING SHIFTS IN STATE INTERESTS AND GROUP ACCOMMODATION THROUGH FILM In this section I explore the shift from the primacy of moral law to personal privacy that is entailed in three widely viewed mainstream films about war

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and military service: Casablanca (1942), An Officer and a Gentleman (1982), and Brothers (2009). These films suggest a fundamental reordering of expectations regarding moral law in relation to state commitments, one component of a multifaceted shift in public understanding that led to the lifting of the ban on gays in the military. As represented in Casablanca, a traditional form of public morality prevailed during the World War II period, calling for the sacrifice of individual desire in the name of higher communal values and clearly delineated lines between good and evil. In Casablanca, all three major characters repress their personal desire in order to fight the clear moral evil represented by the Nazis. In a general context of self-sacrifice in which heterosexuals are regularly expected to repress sexual desire for the greater good, it seems only reasonable for the state to expect homosexuals to do so as well, by concealing their sexuality. This ethic of self-sacrifice began to be questioned in the post-Vietnam War era, as the heroic nature of servicemen began to be challenged, as suggested by the film An Officer and Gentleman. In this transitional period, the ethic of self-sacrifice began to be understood as having provided a convenient excuse for some servicemen to dodge their public and private responsibilities. In An Officer and a Gentleman this past is reread through the lens of Zack Mayo, the central character who as a boy was severely neglected by his serviceman father. Despite his father’s failure to fulfill the model of honorable service in the field and at home, this transitional film revolves around the son’s apparently successful struggle to become both an officer and a gentleman, allowing him to live up to traditional ethical standards. However, rather than sacrificing his personal desire in the name of higher public values, as in Casablanca, Mayo’s private commitment to his girlfriend allows him to strengthen his dedication to his public responsibilities as an officer, and vice versa. This represents an important shift from the opposition of private desire and public good seen in Casablanca’s traditional model. However, gay soldiers seem unable to live up to the heroic standards which Mayo fulfills. Because their personal desires appear to make them incapable of becoming gentlemen through heterosexual commitment in the manner of Zack Mayo, homosexuals also appear to be unable to become officers in this narrative. Neither officers nor gentlemen, they remain trapped within the traditional frame. Brothers completes the transition from the primacy of public morality to privacy as the clear moral compass of an apparently heroic Marine and devoted family man is destroyed by his service in Afghanistan. In this film, the serviceman’s brother, a “common criminal,” comes to be seen as more

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heroic than him, and privacy is used to stave off public disciplining of this serviceman when he comes home shattered and violent. His emotional volatility and rage-fueled violence are a legacy of his father, a troubled Vietnam War veteran who is “coping” with the ill effects of his service largely by means of alcohol. Ethical standards to which officers and gentlemen once aspired seem rather illusory in the fog of war. In addition to undermining a seemingly clear basis for solving difficult ethical problems that arise in the course of armed conflict, the demise of traditional ethical standards also undermines the moral basis for excluding gays from the military, paving the way for the ban to be lifted. This development is often celebrated as a civil rights victory and a move toward greater recognition of equal rights for gays and lesbians. And to some degree it surely is. However, that is not the whole story. Inclusion comes at a clear cost, as straight and gay soldiers alike will now be subject to possibly permanent trauma and moral confusion that is revealed in Brothers.

TRADITIONAL MORAL LAW: CASABLANCA Made in 1942, Casablanca is one of the most beloved films of all time. It won three Academy Awards, including Best Picture and Best Actor and is widely recognized as iconic, appearing at or near the top of many “best of” lists, including best romantic films. While Casablanca certainly acknowledges the draw of love, the power of the moral law is the real force of the film. While positive law is regularly broken in both petty and significant ways, devotion to the higher law of freedom compels resistance to the evil political and military force represented by the Nazis, leading each of the central characters to deny their individual romantic desires for the greater good. While Rick Blaine (Humphrey Bogart) and Ilsa Lund (Ingrid Bergman) are not morally virtuous in the sense of being chaste, they are able to put honor and public values before their individual desires, conforming with the highest dictates of the moral law. The story unfolds in Rick’s Cafe´ Americain, a successful nightclub and casino located in Casablanca, which is patronized by a diverse group with widely ranging political values. Set shortly before the Japanese attack on Pearl Harbor in December 1941, Rick apparently will serve anyone to make money, including corrupt locals officials, Germans loyal to Nazism, Vichy French, ex-patriate Americans, and desperate refugees trying to leave the area, all of whom are interested in two letters of transit that emerge which would facilitate easy access out of the region.

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Not a traditional Hollywood hero, Rick represents himself as a cynical individualist, a rule breaker who is willing to work the system to get ahead. Although he appears to resist the moral law’s model of sacrifice insisting, “I stick my neck out for nobody,” his actions repeatedly appear to challenge this assertion, suggesting that he may well have done exactly that in matters great and small on more than one occasion. Thus we learn that he ran guns to Ethiopia following the Italian invasion there and fought with the Republicans against the Fascists in the Spanish Civil War. While he insists that his interest in these matters was purely self-interested and monetary, the audience is left wondering about his true motivations. In addition, although he appears to be emotionally unattached to his current girlfriend, he makes special arrangements for her to be taken home safely when trouble emerges at the Cafe´. Actions like these lead Louis Renault, a local corrupt opportunist and police captain, to comment “If I were a woman, and I were not around, I would fall in love with Rick.” Consistent with Vito Russo’s argument in The Celluloid Closet, this statement paints a morally compromised character (Renault), with the suggestion of homosexuality, a common practice in many Hollywood movies of this era.3 Renault’s moral failings are later confirmed when it becomes clear that he regularly exploits the vulnerability of women with visa problems by compelling them to have sex with him in exchange for help leaving the country. Renault’s clear corruption serves to cast further doubt on Rick’s earlier assertion that he operates solely on the basis of financial self-interest. When he learns that Renault has blackmailed a Bulgarian woman and then refused to facilitate her passage, Rick arranges for her fiance´e to win at his roulette table, an action clearly contrary to his financial self-interest which affords the couple the ability to book safe passage back to their homeland. As the story continues to unfold, an old flame from Rick’s past enters the Cafe´, Ilsa Lund, a Norwegian woman with whom Rick earlier had a torrid affair, only to be left by her suddenly, just as they were about to leave France together in advance of the Nazi occupation. She compels Sam, the cafe´’s pianist, to play As Time Goes By, Rick and Ilsa’s song. Eliciting both tears and anger from Rick, the famous words of this song foreshadow both the power of desire as well as its apparent triviality in the face of the larger context of higher values: You must remember this A kiss is just a kiss, A sigh is just a sigh. The fundamental things apply As time goes by.

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Ilsa needs the letters of permission now in Rick’s possession so that she and her husband Victor Laszlo (Paul Henreid), a concentration camp escapee and fighter in the Czech resistance, can continue his important work in America. Emphasizing his leadership in fighting the forces of evil, Laszlo leads the crowd in Rick’s Cafe´ in a rousing rendition of Le Marseillaise, drowning out a group of Nazis who are singing a patriotic German song rooted in conflicts with the French. It soon becomes clear that Ilsa has given up her true love, Rick, to support the higher cause of her husband, Victor Laszlo. She still loves Rick, although he is at first somewhat skeptical regarding her true feelings, knowing that she and Laszlo are desperate for the letters of transit. Again asserting self-interest as a motivation, Rick insists, “I am the only cause I’m interested in.” Pulling a gun on Rick and demanding the letters lest her honorable husband be killed, Ilsa explains that she initially mistook her admiration of her husband for love. As she and Rick fall into a passionate embrace, Ilsa explains that she had to leave Rick years earlier in Paris when she found out that Laszlo had not in fact perished in the concentration camps as she had earlier thought. The common good, in the form of the battle against Nazism, compelled her to sacrifice true love for honor, though she worries that she will not be able to continue to do so, given the enormity of her desire for Rick. Although she believes that she will stay with Rick and that he will facilitate Victor’s departure for America, Ilsa continues to underscore the moral dilemma, asserting, “I don’t know what’s right any longer,” insisting that Rick “must think for both of us, for all of us.” As he responds, “All right, I will,” Ilsa again highlights the conflict between public morality and individual desire stating, “I wish I didn’t love you so much.” As Rick reveals his intention to use the letters to take Ilsa with him, Capt. Renault reminds him that he was never all that interested in women. Revealing the depth of his love for her, Rick responds, “She’s not just any woman.” After Rick gains Ilsa’s assurance that she will trust him no matter what happens, Capt. Renault arrives at the airport, arresting Victor for murder, commenting “love, it seems has triumphed over virtue.” However, this is not yet the end of the story. Rick intervenes, forcing Renault at gunpoint to allow Victor onto the getaway plane, along with Ilsa. When she objects, Rick reminds her that she asked him to “do the thinking for all of us,” urging her to act rationally by denying her individual desire for the greater good, just as he has done. There is apparently no escape from this higher law, as he reminds her that doing otherwise would cause her regret “maybe not today, maybe not tomorrow, but soon and for the rest of her life.” She belongs to Victor, and Victor belongs to the world.

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In the end, all of the central characters deny their personal desires for the greater good. Rick notes this collective self-sacrifice, stating: “I’m no good at being noble, but it doesn’t take a genius to see the problems of three little people don’t mean a hill of beans in this crazy world.” In the end, everyone must give up love for virtue and the greater good of combating evil, as represented by the Nazis. This is underscored when Capt. Renault allows Rick to remain free, even after he shoots Maj. Strasser, a Nazi who has been hunting Laszlo down throughout the film. Casablanca is a story of enormous sacrifice of powerful heterosexual desires. The pursuit of love, even the epic love of Rick and Ilsa, pales in comparison with the need to combat the tremendous evil represented by the Nazis. Public morality requires self-sacrifice. Expecting gay and lesbian service members to deny or sublimate their sexual identities in this context is only consistent with the sacrifices being made by their heterosexual peers. At this point in time, well before the Stonewall Rebellion and the massive coming out that followed, most homosexuals are very well practiced at remaining invisible and closeting their deviant sexuality within mainstream society. In addition, mainstream society and the state are equally well practiced at maintaining that invisibility when it converges with its interests. In the documentary Before Stonewall, lesbian servicewoman Sgt. Johnnie Phelps recounts a story of Gen. Dwight D. Eisenhower ordering her to conduct a purge of lesbians serving in her WAC unit during World War II. She agrees to do it, but tells him that the first name on the list of those to be discharged would have to be hers. Overhearing the discussion, another WAC within earshot of the conversation declares that Sgt. Phelps’s name might be the second name on the list, but that the first name would have to be her own, leading Sgt. Phelps to explain to Eisenhower that a purge would decimate their unit, given the large number of lesbians serving in that capacity. According to Sgt. Phelps, Eisenhower immediately decided to abandon the purge. During this period, maintaining the fac¸ade of invisibility served the interests of these lesbians as well as the state.

TRANSITIONAL MORALITY: AN OFFICER AND A GENTLEMAN One of the most popular films of 1982, An Officer and a Gentleman partially challenges the dominance of traditional morality and the sacrifice of individual desire that was evident in Casablanca. Whereas in Casablanca devotion

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to country and the higher law regularly trump personal needs and love interests, in An Officer and a Gentleman the hero has to attain love to become worthy of the title of officer and gentleman. This journey is a complicated one, as Officer reveals that the Greatest Generation’s claim to honor is troubled at best. However, rather than foregoing the quest for love and honor in light of this failure, the hero slowly comes to expand his narrow understanding of self-interest and embrace true love, which in turn allows him to live up to his public obligations to the military, thus fulfilling the aspirations of the film’s title, allowing him to become both an officer and a gentleman. As in Casablanca, the main character of this story is not the standard Hollywood hero. Zack Mayo (Richard Gere) is a naval aviation officer candidate who enters training willing to break the rules and work the system to further his self-interest. After Zack’s mother committed suicide when he was still a child, he was sent to live with his long-absent father, a naval serviceman stationed in Southeast Asia. A callous, judgmental man who drinks to excess and consorts with prostitutes in the presence of his son (as both a child and an adult), he makes it quite clear that he has neither interest in nor aptitude for being a father. Zack’s behavior in officer candidate school suggests that the callousness of his father led Zack to become a detached, self-interested loner. While the other officer candidates in his training class are supporting each other as they struggle through rigorous training exercises conducted by Sgt. Foley (Louis Gossett, Jr.), Zack regularly takes advantage of his classmates’ vulnerability by selling them pre-shined shoes and belt buckles (which he procures on the cheap from an enlisted man) which his peers then use to meet Sgt. Foley’s stringent inspection requirements. The film revolves around Zack’s conflict with Sgt. Foley who is training him professionally, and his townie girlfriend Paula (Debra Winger) who is training him personally. As Zack sees it initially, Foley and Paula threaten to stand in the way of his goal of being a naval aviation officer, as they both challenge his belief that he’s alone in the world and only in it for himself. Zack’s relationship with Sgt. Foley is filled with conflict, as Foley questions whether Zack is too self-interested and too much of a loner to make a good officer. When Foley discovers that Zack has been exploiting other candidates’ need for inspection quality shoes and belt buckles in order to make a quick buck, he tries to get Zack to drop out on request (DOR). Zack refuses, but during a weekend of endless one-on-one work and verbal abuse with Foley he does break down under pressure and concede that

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he has nothing else in his life but the officer’s candidate program, a crucial admission of vulnerability and need. Zack’s relationship with Paula is equally fraught. He originally picks her up at a naval-sponsored dance that he attends with his friend and fellow officer candidate Sid (David Keith), who himself picks up a townie girlfriend Lynette (Lisa Blount), for weekend fun and sex without commitment. However, as Zack slowly opens up to Paula over the course of the several weeks of the training session, she comes to understand the lingering loneliness and hurt he feels as a result of his mother’s suicide. As he continues to foreground his independence, insisting that “you’re all alone in the world,” she perceives a more complex self underneath his tough fac¸ade, responding, “I bet most people buy that line when you feed it to them, huh?” As his personal relationship with Paula deepens, Zack also slowly begins to bond with the other officer candidates as well. In contrast from his earlier behavior, when he has a chance to break the camp’s obstacle course record, he instead offers moral support to the lone woman officer candidate as she struggles to scale the climbing wall in order to avoid disqualification. At the same time, Paula begins to fall in love with Zack, even as she continues to insist to him that she’s in it solely for fun. Meanwhile, her mother warns her against trying to trap him into marriage by becoming pregnant, something her mother had tried and failed to do in her youth with another officer candidate who abandoned her in her time of need, another example of how honor did not always prevail in the military in earlier times. Meanwhile, Lynette has been dropping hints that she is pregnant, hoping she can entrap Sid into doing the honorable thing by marrying her. These story lines all come to a head when Sid has a severe anxiety attack in an altitude simulator and nearly drowns. In the wake of this incident he quits officer’s training school, prioritizing, rather than sacrificing his personal desires. Realizing that he has been pursuing service in the Navy out of obligation to his family and in the memory of his brother who died in Vietnam, he abandons the Navy. While the shadow of Vietnam looms large, it ultimately does not compel Sid to sacrifice his individual interests. However, his apparent freedom from this legacy does not ultimately lead him to fulfill his personal desires. While Sid has kept a long-standing girlfriend at home despite his relationship with Lynette during his officer’s training program (again, putting the lie to the traditional fiction that officers are gentlemen), he nevertheless succumbs to Lynette’s hints that she is pregnant and asks her to marry and return with him to Oklahoma. She rejects him because he has DOR’ed and left the officer’s training program,

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ceasing to be a desirable candidate for marriage in her eyes. Zack and Paula judge Lynette severely for this ruse, and for rejecting Sid, suggesting that a moral code has been breached. Zack calls her “a cunt,” and Paula underscores that she would never do what Lynette has done. Subsequently, Zack and Paula find that Sid has hung himself in the hotel room where he and Lynette used to have their weekend liaisons. Reliving his mother’s suicide, Zack berates Sid for not saying goodbye to him, and retreats back into his lonely self-asking, “why can’t I ever learn,” (presumably, not to care about others). Even though Paula tries to assure him that he’s not responsible for either his mother’s or Sid’s death, he detaches himself from her saying, “I don’t want anyone to love me …. I don’t need you, anybody. I don’t need the Navy.” Returning to the base, Zack also tries to detach from the Navy by DOR’ing, but Sgt. Foley won’t allow it. Zack angrily undertakes an epic martial arts battle with Foley, who ultimately wins and tells Zack that he can quit if he wants to. In the end, Zack does not quit, recognizing Foley’s positive influence on him, and Paula’s as well. The movie ends with Zack carrying Paula out over the threshold of the factory that she works in, with the strains of “Love Lift Us Up Where We Belong,” rising in the background, underscoring the redeeming effect of love. Zack has successfully become both an officer and a gentleman, overcoming his father’s shortcomings through the soft love of a good woman and the tough love of a good sergeant.4 Thus Officer offers a transitional representation of the relationship between public morality and privacy, the higher law of honor and personal desire. The film breaks with the traditional frame by allowing its romantic leads to fulfill their personal desires, but it suggests that doing so facilitates honorable military service. Rather than being sublimated as in Casablanca, private desire promotes traditional heroism in the form of fulfillment of official duty. This film suggests that the public and private model of the officer and a gentleman may still be fulfilled, just not in the way we once thought they would, via self-sacrifice. Instead, indulging in private desire becomes the key to developing an honorable and heroic serviceman. Perhaps this somewhat more flexible understanding of the relationship between public morality and personal desire is permissible in this context because An Officer and a Gentleman is not set in the context of war, let alone World War II, during which the lines between good and evil seemed so very clear. At this time gay soldiers are unable to live up to the standards which Zack has fulfilled privately and publically. Homosexual desire appears not

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to possess the redemptive qualities of heterosexual desire. Despite the fact that increasing numbers of LGBT people were coming out in general society at this time, great antipathy toward gays remains as evidenced by the Supreme Court’s resistance to decriminalizing state sodomy laws in the 1986 case of Bowers v. Hardwick. Instead of including gay sex in the constitutional right to privacy, the Court falls back on traditional moral law and ancient prohibitions against sodomy. Thus the personal desires of homosexuals make them incapable of becoming gentlemen. As a consequence, gay soldiers are unable to follow Zack’s lead and become officers in this narrative, as Sgt. Foley’s repeated characterization of sub-standard trainees as faggots and pansies makes clear. Neither gentlemen nor officers, they appear to remain trapped within the traditional frame, subject to moral condemnation and exclusion. And yet, both the state and LGBT people are each undergoing transitions of their own. As the conflict in the Persian Gulf heat up in the early 1990s the state is increasingly in need of greater numbers of servicemen and women. At the same time, LGBT people are continuing to come out into mainstream society in increasingly larger numbers, including some in military, challenging American cherished notions of toleration, inclusion, and equality for all. In late 1993, these interests converge in the transitional or “compromise” policy known as “Don’t Ask, Don’t Tell,” which in theory allows gays and lesbians to serve without investigation, as long as they are willing to continue to closet their sexual identities.

PRIVACY AND MORALITY: BROTHERS Released in the United States in 2009, Brothers is a remake of a 2004 Danish film focused on the consequences of the war in Afghanistan. Brothers reverses several of the major components of mainstream war movies. Whereas servicemen still aspire to heroism and honorable behavior in their public and private lives in An Officer and a Gentleman (admittedly in a somewhat different form than in Casablanca,) the very existence of these virtues comes to be questioned in Brothers. While war is hell/antiwar themed films stem back at least as far as All Quiet on the Western Front (1930), the idea of heroism in these earlier films is not completely confounded the way that it is in Brothers, either because a lesser character is the subject of such confusion, the immorality of the war is clear, and/or the hero dies. By contrast, Brothers upends the traditional idea of military

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heroism, rendering impossible a happy, redemptive ending for the state (as in Casablanca) or for individuals (as in An Officer and a Gentleman). Brothers begins in traditional fashion suggesting that the line between right and wrong, hero and villain is quite clear. As a Marine captain preparing for his fourth tour of duty and a devoted family man with two daughters who is married to his high school sweetheart Grace (Natalie Portman), Sam Cahill (Tobey Maguire) appears to be a squeaky clean hero in both his private and public life. Contrary to Casablanca and An Officer and a Gentleman, this hero is not a rule breaker in any obvious way. His brother, Tommy (Jake Gyllenhaal), on the other hand, appears to be nothing but a rule breaker. A volatile single guy with substance abuse issues, he has just been released from prison after serving time for armed robbery. Although Sam is supportive of his brother Tommy, Grace doesn’t like him, fearing that he will be a bad influence on her girls if he spends too much time in their seemingly picture-perfect home. Tommy and Sam’s father (Sam Shepard), a Vietnam vet, is angry and a drinker. He has a long history of abusing his kids and creating problems for their long-suffering mother (Mare Winningham), once again challenging the notion that servicemen of previous eras are heroic and honorable on and off the battlefield. Traditional heroism and honor are soon challenged even more directly, as the behavior of rule followers come to be questioned, and actions of the rule breakers suggest redemption. When Sam is redeployed to Afghanistan, word soon follows that he has been killed in a helicopter crash. Seeking to help his sister-in-law and redeem himself in her eyes, Tommy arranges for his contractor friends to remodel her kitchen, suggesting that the pictureperfect house is not so perfect after all. Unbeknownst to them, Sam is not dead, but rather he and one of his men, Pvt. Joe Willis (Patrick Flueger), are being held and tortured in the mountains of Afghanistan. Meanwhile, Tommy has become increasingly close with Grace and her girls, regularly participating in family activities. While drinking and smoking marijuana together late one night, Tommy and Grace loosen up and share a kiss as she confesses that she isn’t the good girl that she has always appeared to be. They immediately pull away and become much more cautious in their subsequent interactions, continuing to spend time together as Tommy maintains his relationship with Grace’s girls. Meanwhile, Sam’s captors in Afghanistan succeed in breaking him through torture, forcing him to denounce his mission on video. Once broken, and under threat of not being able to see his family ever again, Sam’s captors force him to choose between his own life and that of Pvt. Willis. Unwilling to give up the hope of returning home to his family, Sam chooses .

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to beat Willis to death with a lead pipe, thus creating a terrible secret that he shares with no one upon his subsequent rescue and return home. As a consequence of this trauma, he becomes emotionally volatile, alternating between extreme withdrawal and explosive fits of rage. Convinced that Tommy and Grace slept together while he was away at war, the building tension comes to a head when Sam destroys the new kitchen with a fireplace poker that resembles the pipe with which he killed Pvt. Willis. Pulling the gun that he has been carrying around with him since his return home, Sam threatens to kill Grace and then Tommy. This scene completely destroys the moral clarity with which the movie began. Here, Tommy appears to be the good guy, as he protects Grace and the girls from Sam’s rage and attempts to get him to drop the gun. Sam’s behavior reveals the disappearance of traditional heroism. As the police arrive, the conflict moves outside the house and into the front yard. When the police try to talk him down by recognizing Sam as a war hero, he replies by waving the gun around and shouting, “I’m not a hero! Do you know what I’ve done?” Tommy’s response to Sam highlights the private nature of the conflict, as he tries to get the police to back off by saying, “this is a family matter,” while also calling out to Sam, “you’re my brother, you’re my family.” Sam affirms this, dropping the gun, saying “I’m drowning Tommy.” When next we see Sam, he is being treated for mental trauma at a VA hospital, held in a locked unit, much the way Tommy was living behind bars at the beginning of the movie, a complete reversal that challenges all that we had taken for granted about Sam and Tommy, heroes and villains, honorable and dishonorable behavior. After Grace threatens to leave Sam if he doesn’t tell her what happened when he was being held prisoner, he finally breaks down and confesses to killing Pvt. Willis. But even this act of contrition does not right the moral universe and restore traditional heroism. There appears to be no clear public right and wrong in the post 9/11 world of torture and terrorism. At best, there is the security of the private world of family to fall back on, but by the end of the movie, even this is called into question. In the meantime, Tommy has apologized to the victim of his armed robbery. Those who were once clear heroes are now broken, left without a moral compass in a world of terrible choices. Those who were once morally suspect now appear honorable. Personal desire, be it heterosexual or homosexual, is hardly the point in this context. Brothers suggests that war may be antithetical to both public and private morality, as it appears to undermine both familial and societal ties. By the end of the film, it is unclear whether Sam, Grace, and their family will stay

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together, or whether Sam will make it at all, as he wonders in a voiceover toward the end of the movie, “I don’t know who said only the dead see the end of war. I’ve seen the end of war. The question is, can I live again?” As the film concludes, we hear the Irish rock band U2 singing Winter in the background, emphasizing the confusing nature of this new universe that lacks a moral compass and leaves individuals to struggle with their families and selves in a confusing private world, seemingly devoid of honorable behavior: “Now I’m 25/I’m trying to stay alive/In a corner of the world/ with no clear enemies to fight.” The erosion of belief in traditional morality that is displayed in Brothers is an important step in paving the way for the lifting of the ban on gays in the military, for it undercuts the public ethical foundation that undergirds the notion that gays are by definition perverse, while offering the private sphere as an alternative ground from which to make sense of a world without a clear, shared standard of right and wrong. Like Officer, Brothers suggests that such a world may never have existed, at least not in a pure form, casting additional doubt on the romantic notion that military serviceman were ever the officers and gentlemen they were made out to be in days gone by, before as well as after the Vietnam War. The fog of war replaces the public moral law with privacy, undermining the grounds for both continued service as well as exclusion. In 2003, the US Supreme Court found that the right to privacy invalidated state sodomy laws, declaring that traditional moral law could not trump individual sexual autonomy within the home. To date, Lawrence is the most important gay rights case that the Court has decided. In overturning Bowers it decriminalized same-sex sexual behavior and undermined the central moral argument for continuing to exclude gays from military, contributing in no small part to the eventual lifting of the ban in 2011. The importance of lifting the ban for the LGBT civil rights movement cannot be overemphasized, as inclusion in military service and marriage recognition have long been thought to be two central pillars of full citizenship in the United States and were key milestones in the Black civil rights movement (Karst, 1991). A convergence of state and LGBT interests led to the lifting of the ban. Prior to the lifting of the ban prominent military leaders such as former Chair of the Joint Chiefs of Staff Gen. John Shalikashvili and sitting Chair Adm. Mike Mullen supported inclusion, underscoring the state’s need for greater manpower, due to the escalation of the wars in Iraq and Afghanistan. In the same period much had been made of the fact that many gay and lesbian soldiers who had been discharged possessed a fluency

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in Arabic that the state desperately needed to forward its missions in the Middle East. However, the inclusion that followed the lifting of the ban comes at a considerable, often overlooked cost, as the demise of traditional moral standards undermined straight as well as gay soldiers’ ability to negotiate the complex parameters of war, both during and after hostilities, to say nothing of undercutting the country’s ethical basis for waging war.

CONCLUSION While the lifting of the ban is undoubtedly a compelling civil rights story, it is also a story of interest convergence which pop culture can help us to better understand. In order for gays to be allowed to serve openly in the armed forces several significant shifts in public understanding needed to take place. The American public needed to approve of lifting the ban, but that alone did not prompt a change in policy, due in part to institutional and structural features that obstructed change. Mucciaroni (2008), Johnson (2004), Lehring (2003), Halley (1999), and others have suggested various forces were at work, creating powerful resistance to change in this area. As these scholars have shown, key military leaders opposed lifting the ban, often on moral grounds, fostering a context ripe for institutional resistance in Congress that was often based on moral condemnation of a caricatured gay lifestyle. Long-standing historical patterns that characterized gays as moral degenerates threatening to the state and family augured against a change in policy. Furthermore, judicial restraint and federal dominance in this area precluded common paths of challenge trod by other civil rights movements. The homosexual identity that developed over the course of the 20th century, often with the military’s complicity, allowed for a modicum of tolerance in the context of continued official exclusion, in part on the grounds of compromise with secular and religious moral forces, as the interests of the state sometimes converged with the interests of the LGBT movement, leading to policy changes that occasionally satisfied the goals of both, at least partially. Traditionally, during World War II, a fac¸ade of invisibility provided much needed manpower to the state during wartime. Gays and lesbians were still vilified, but they were also allowed to serve at the discretion of their superiors, if they remained closeted. During the transitional period, this stance was formalized in the “Don’t Ask, Don’t Tell,” policy in the mid-1990s. Widely understood to be a compromise between the LGBT movement’s drive for greater inclusion, and congressional and military

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leadership’s interest in continuing the traditional characterization of gays as morally degenerate, this policy furthered the state’s interest in fostering more robust enlistment. In the contemporary period, the common moral basis for castigating gays eroded to the point where it was largely replaced with the new standard of privacy, furthering the LGBT movement’s interest in lifting the ban, as well as the state’s interest in increased manpower to fight the ongoing wars in the Middle East. Pop culture can help us to better understand how these changes became possible. A gradual shift in popular understanding that displaced secular public morality and highlighted privacy was an important development that made acceptance of gays in the military more likely. The shift from repressing private desire in the name of traditional secular values of good and evil as seen in Casablanca, transitioning to a focus on individual desire as a means of reinforcing traditional values of honor and service to country and family as seen in An Officer and a Gentleman, to the complete unraveling of a clear public morality and heroism in favor of a retreat into moral confusion and privacy as seen in Brothers, reflects a slow but gradual reformulation of the relationship between public morality and military service. That shift had important ramifications for the gays in the military debate, as the shift away from public to private judgment significantly undercut the force of the moral argument against gay inclusion. However, inclusion also has a cost, as military service can lead soldiers to experience the often untold brutality of war. Although the negative consequences of military culture and war are evident in films like Brothers, earlier works such as The Red Badge of Courage, All Quiet on the Western Front, and Regeneration suggest that they were likely present all along, even for Casablanca’s World War II generation. The Best Years of Our Lives, released in 1947 offers a surprisingly candid look at the reentry difficulties of three soldiers returning home after World War II, many of which are now associated with PTSD. These include relationship and intimacy difficulties, substance abuse, angry outbursts, disturbed sleep, and trouble integrating violent memories, compounded by disability as a result of war injury, lack of employment, shaky confidence, inconsistent levels of understanding from family members, as well as indifference and sometimes downright hostility from total strangers. Each of the three main characters struggle mightily to regain their places at home for the better part of this nearly three-hour film. When Homer Parrish returns home with mechanical lower arms, he finds it difficult to reconnect honestly and intimately with his fiance´. As he battles resurfacing memories from the war by night, by day Fred Derry realizes that the

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woman he married shortly before leaving for Europe is not his ideal mate. Al Stephenson’s chronic drinking threatens to upend his family and professional life. Yet after nearly three hours of struggle, by the end of the movie all of these veterans have successfully reintegrated themselves into civilian society as their heroism is redefined in a manner more appropriate for the home front. Homer overcomes his intense fear of rejection when fiance´ fails to flinch at his vulnerability when he asks her to help him remove his mechanical arms before bed. After accidentally stumbling into a field of decommissioned bombers, Fred successfully, almost instantly, confronts his repressed memories in the light of day, clearing the way for him to start a new life which includes a new job and a new girl. And Al reestablishes himself as a successful bank officer, husband, and father, apparently overcoming earlier rampant substance abuse. Looking beneath the fac¸ade of the once happy warrior Brothers also reveals the extreme disorientation of the returning soldier and his inability to reintegrate himself into mainstream society in searing detail, leaving little doubt as to the costs of inclusion. But unlike The Best Years of Our Lives, Brothers offers no happy ending, no quick redemption, no transformation of military heroism into civilian heroism. At least 60% of veterans from the wars in Afghanistan and Iraq have received mental health treatment, and 6% have been diagnosed with posttraumatic stress disorder. Many are homeless, as suggested by the 2006 documentary, When I Came Home which features a homeless veteran of the Iraq war as he struggles to locate public support for his reentry into civilian society, joining the ranks of over 500 homeless Iraq vets at that time. Released shortly before Brothers, The Hurt Locker also suggests that successful reintegration of military veterans is impossible, as the adrenaline of war is a drug to which soldiers become addicted renders the roles associated with mainstream society, such as being a good husband and raising a family, impossibly mundane. The film begins with a quotation taken from Chris Hedges’ War is a Force That Gives Us Meaning: “The rush of battle is a potent and often lethal addiction, for war is a drug,” and ends with the main character returning to Iraq for yet another tour of duty to dissemble IEDs. The main character in Brothers is in his fourth tour of duty when he is taken prisoner in Afghanistan. The Iraq war vet in When I Came Home seriously considers reenlisting when he can’t get the support he needs from his local VA. Less well-known films about the wars in Iraq and Afghanistan such as Home of the Brave (2006) and Stop-Loss (2008) also suggest that returning to war is the serviceman’s only viable option. No heroes, no happy endings. Only more war.

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How the liberal state will address the consequences of war, for both gay and straight soldiers alike, short of offering reenlistment, remains to be seen. Court processes are being reorganized to acknowledge the role of posttraumatic stress disorder in leading returning soldiers to act violently as they fail to reintegrate themselves into mainstream society.5 Sebastian Junger, director of Restrepo, the 2010 documentary about the war in Afghanistan, has called for a monument to the civilians who died during the wars in Afghanistan and Iraq, as a way of acknowledging the horrors of armed conflict.6 The Obama Administration has increased mental health staffing in the VA by 39% since 2009.7 Yet, demand continues to far outstrip the number of mental health professionals available. In April 2012, the New York Times reported that the VA has a backlog of over 900,000 disability claims waiting to be processed. While it may be unclear how the state will address these matters, pop culture has rendered the costs of inclusion in war clearer than ever: the state seems to have constructed soldiers who seem unable to live well with or without war.

NOTES 1. In his fascinating book about the rise of food culture in the United States entitled The United States of Arugula, David Kamp describes Paul Child’s post, saying “essentially he was to serve as a benign propagandist for the Marshall Plan.” 2. Meryl Streep’s Julia Child enunciates here on the word ho-mo-sexual, emphasizing long o vowels, apparently underscoring the foreignness of the word at this time. 3. This is perhaps reinforced later in the movie when Rick offers up Casablanca’s famous closing line as he and Renault walk off together into the fog, with the suggestion that they will join the Free French contingent, “I think this could be the beginning of a beautiful friendship.” 4. As is often the case in films with films focused on military training, the sergeant in charge regularly berates those being trained in a variety of ways, including questioning the sexuality and masculinity of the male trainees, calling them pussies, pansies, faggots, queers, and so forth. Perhaps this toughness is compensatory for the love that drill sergeants almost inevitably seem to reveal for their favorite, if difficult, charges. 5. See Erica Goode, “Coming Together to Fight for a Troubled Veteran.” New York Times, July 17, 2011. 6. Sebastian Junger, “Why Would Anyone Miss War?” New York Times, July 16, 2011. 7. James Dad, “Veterans Department to Increase Mental Health Staffing.” New York Times, April 19, 2012.

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REFERENCES Barker, P. (1991). Regeneration. New York, NY: Penguin. Bell, D. (1987). And we are not saved: The elusive quest for racial justice. New York, NY: Basic Books. Bell, D. (1992). Faces at the bottom of the well: The permanence of racism. New York, NY: Basic Books. Berube, A. (1990). Coming out under fire: The history of gay men and women in World War II. New York, NY: Penguin Books. Burgess, S. (2011). The New York Times on gay and lesbian issues. Washington, DC: CQ Press. Child, J. (2006). My life in France. New York, NY: Knopf. Dudziak, M. (2000). Cold War, civil rights: Race and the image of American democracy. Princeton, NJ: Princeton University Press. Fiske, J. (1989). Understanding popular culture. New York, NY: Routledge. Halley, J. (1999). Don’t: A reader’s guide to the military’s anti-gay policy. Durham, NC: Duke University Press. Johnson, D. K. (2004). The lavender scare. Chicago, IL: University of Chicago Press. Junger, S. (2011). Why would anyone miss war? New York Times, July 16. Kamp, D. (2006). The United States of Arugula: The sun dried, cold-pressed, dark-roasted, extra virgin story of the American food revolution. New York, NY: Random House. Karst, K. (1991). Belonging to America: Equal citizenship and the constitution. New Haven, CT: Yale University Press. Lehring, G. (2004). Officially gay: The political construction of sexuality by the US military. Philadelphia, PA: Temple University Press. Michael Shapiro. (1999). Cinematic political thought: Narrating race, nation and gender. New York: NYU Press. Mucciaroni, G. (2008). Same sex, different politics: Success and failure in the struggles over gay rights. Chicago, IL: University of Chicago Press. Remarque, E. M. (1929). All quiet on the western front. New York: Little Brown. Russo, V. (1981). The celluloid closet: Homosexuality in the movies. New York, NY: Harper and Row. Stychin, C. (1995). Law’s desire: Sexuality and the limits of justice. New York, NY: Routledge.

FILMS Before Stonewall (1984) Brothers (2009) Casablanca (1942) The Celluloid Closet (1995) Home of the Brave (2006) The Hurt Locker (2008) Julie and Julia (2009) An Officer and a Gentleman (1982) Stop-Loss (2008) When I Came Home (2006)

HEALTH CARE AND THE DISEMBODIED POLITICS OF AMERICAN LIBERALISM Daniel Skinner ABSTRACT This chapter problematizes the body politics of American liberalism, as viewed through the lens of health policy. The author suggests that American efforts to pursue basic health goals are undercut by the particular way in which American liberals and their state conceptualize bodies. To understand the theoretical basis of this body politics, the chapter examines policy preoccupations such as the institution of informed consent, malpractice reform, and efforts to establish a Patients’ Bill of Rights. Finally, considering the ideological contexts that have given rise to the Patient Protection and Affordable Care Act, the author gestures toward the establishment of a stronger liberal and possibly post-liberal health care system that takes the embodiment of its subjects seriously. Keywords: Liberalism; embodiment; health care; patient; rights

Special Issue: Law and the Liberal State Studies in Law, Politics and Society, Volume 65, 107 136 Copyright r 2014 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-433720140000065004

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INTRODUCTION When Robert Cover opened his classic text, Violence and the Word, with the startling assertion that, “Legal interpretation takes place in a field of pain and death” (Cover, 1986, p. 1601), he made clear that how liberal societies write law directly impacts people’s bodies. Cover’s observation points to the violence in which legal systems often traffic as they attempt to account for and address diversely embodied lives. He reminds us that discursive contests take place in fields of embodiment, using and constituting what Judith Butler (1993) calls “bodies that matter” along the way. Cover is just one of a long train of scholars who have criticized liberalism’s difficulty in accounting for the body and its tendency to limit its analysis to the juridical and formal (Butler, 1993; Foucault, 1980). Despite this tradition of critics, however, few seem to have noticed the extent to which the development of an efficacious and universal American health care system requires reconciling the limitations of American liberalism with the body politics of public health, which require reinserting an analysis of bodies into health care analysis in a way that pushes against many of our most entrenched classically liberal institutions. As I show, this requires approaching bodies in a qualitatively particular way, which suggests that American attempts to pursue basic health goals are undercut by the ways in which American liberals hence the American liberal state conceptualize bodies. I consider both the limitations of the American approach as well as possibilities at the far end of the liberal spectrum that might yield a more deeply embodied liberalism. To illustrate these tensions, I consider how the Affordable Care and Patient Protection Act (ACA) either changes or further entrenches the disembodiment of American health care politics. I pitch my analysis of American health care at the level of rhetoric, where liberal commitments remain strong. At the same time, following theorists such as Butler, I maintain that questions of embodiment in health care are always discursive insofar as discourse organizes the material world. This inquiry is motivated by a twofold problematic. On one hand, at least since Locke, a promise of protecting “life” lies at the center of the liberal state’s core justification, where, “Civil interest” is located in “life, liberty, health, and indolency of body; and the possession of outward things” (Locke, 2010, p. 12). Insofar as the state has obligations toward these ends, it would seem that health care if not a guarantee of healthful outcomes would be well within its scope of interests.1 On the other hand, the challenges of establishing an effective health care system that accords with what we know, in the 21st century, about the promotion of healthy

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populations, reveals the disembodiment of the classical liberal promise, no doubt issuing from a fear that state intervention always militates against individual liberty. The problem is that this position constitutes a fear of being caught up in biopolitical regimes without grasping that as Foucault (1980) shows they are always already caught up in them. Unable to see past regimes of abstract individualism, the prioritization of individual access to health care eclipses the broader and more critical concerns that motivate public health research. In what follows, I maintain that American body politics issues from an ideological stunting in which the United States has failed to develop a fully modern liberal state, remaining mired instead in classically liberal ideological structures. Good health care, as many contemporary social democracies make clear, does not require Marxism, only a willingness to mitigate the negative effects of markets that threatened people’s embodied lives. Classical liberalism’s thin notion of liberty usually centers on “life” and thereby prioritizes a thin vision of security over a more robust understanding of health. This concern is at odds with the post-liberal promotion of what Butler (2004) calls “livable lives,” which acknowledges the vulnerability of bodies and the importance of considering quality of life in addition to mere survival. This focus requires active state participation in engaging social conditions that classical liberalism generally disallows, foreclosing possibilities of the state facilitation of key health goals such as low infant and maternal mortality rates and expanded life expectancy.2 American liberalism is characterized by a tendency to default to processes and formal protections of negative liberty health insurance coverage delivered in accordance with the ethical strictures of informed consent, for example that cannot adequately address environmental and nutritional concerns, not to mention inequality more generally (Ayanian, Kohler, Abe, & Epstein, 1993; Baker, Sudano, Albert, Borawski, & Dor, 2002). As Halewood (1996, p. 1335) notes, “Embodiment is always secondary or tertiary to legal liberalism’s principal rationale autonomy, quality, and liberty.” In organizing a critique of the role of the state in American health care around the question of disembodiment, I draw upon a unique discursive culture that speaks of insurance and health care without foregrounding bodily vulnerability and risk. The result, I maintain, is a discourse about discourse what Marx called “ideological claptrap” that rarely connects to the very bodies to which those discourses purportedly refer, but rather, because it inadequately conceptualizes bodies, has a detrimental impact on health outcomes. Accordingly, the question I pose is this: what does American health care look like if we begin our analysis from the point of

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embodiment, vulnerability, and risk, rather than the liberal discourses that obscure them?

TWO KINDS OF LIBERALISM Liberalism, of course, is far from a homogenous tradition, and to a large extent my argument moves on a liberal continuum rather than functioning as a rejection of the tradition writ large. Scholars often map this continuum in a way that begins with a “classical” position that is then updated over time as “modern” liberalism. In their classical form, liberal rights are understood as “formal guarantees, not … material benefits of some sort” whereas modern liberal states seek to negotiate “compromises between equality and liberty” (Brennan, 1991, p. 6/10). Furthermore, The modern liberal … wants the state to remain as impartial as possible toward the choices that go into the pursuit of a good life. But … is also committed to treating each member of society with equal concern and respect. He realizes that talents and opportunities are spread unevenly within society and that as a result great substantive inequalities can occur in the liberal state. While the liberal is willing to use a market economy to distribute goods, and indeed believes that the market itself can bring about the best compromise between equality and negative freedom, he is willing to modify market approaches substantially if they lead to significant inequalities. (Brennan, 1991, p. 21)

Modern liberalism requires that markets be tempered to protect both individual choice and equal opportunity. At the same time, efforts to remove medical care from markets so as to accomplish this latter goal, which often stems from the unequal distribution of bodily vulnerability a prerequisite for a more embodied liberal framework is denounced as socialism in the United States because it gestures toward a substantive indeed, embodied rather than formal protection. This is true, moreover, even if “it is not socialism itself that is feared but some ridiculous distortion of the concept …” (Mooney, 2012, p. 60). The classical-modern distinction is central to understanding American health care politics. Europe was forced after World War II to meet the challenges of new conditions, especially bodily vulnerabilities, which it did by drawing on a rich 19th century “positive rights” tradition marked by British theorists such as Green, Hobhouse, and Hobson. The critical move, as Green notes, is that, “We do not mean merely freedom from restraint or compulsion” but “… a power which each man exercises through the help or security given him by his fellow-men” (Green, 1888, p. 371).

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The problem with this move, according to classical liberals, is that it licenses the state to determine what constitutes a quality, healthy life, thereby removing health care from the realm of so-called negative liberty. The United States, of course, experienced a blip of this modern turn during the New Deal, but the fruits of that moment have since the 1970s been eroded by an adherence to classically liberal principles that are ill-fit to meet 21st century social challenges. The difference between the classical and modern approaches, in my view, is a willingness to admit, frankly, the insufficiency of formalistic approaches in addressing the challenges that contemporary societies face. Where the American state is largely barred ideologically from ensuring equitable health services, modern liberal states are capable of providing redress when rationing fails to provide equal regard for all people. Within the context of American political culture, then, these dynamics explain the concern about the ACA since, in the United States, beholden to classical liberal commitments, such a role is disallowed in the name of negative liberty. Even when attempts are made to work within the boundaries of individual negative liberties, where the state functions to facilitate strategies for individuals to access and maintain health care services, such strategies are rejected.3 For the most part, Americans reject broad-based discussion about how to equitably ration care, preferring to leave such determinations to “invisible hands.” American health policy is therefore hindered by a rhetorical slippage that affords almost no role to the state without that role raising red flags, even if that role were to expand the vaunted “choice” that liberalism touts. Lost in this mix are the bodies in need of care, bodies whose degree and quality of mattering politically depends upon the ideological orbits in which they are placed. As contrast, a stronger rights-based position would of course hold that people have a right not to a health care, but to health, which amounts to a substantive promise rather than a promise of a process. This view stretches the ideological boundaries of classical liberalism, however, as when the constitution of the World Health Organization holds the modern view that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being …” (2012). Similarly, Article 25 of the Universal Declaration of Human Rights (UN General Assembly, 1948), to which the United States is a signatory, declares that, (1) Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of

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The UDHR eschews market solutions by emphasizing a substantive equality that is a modern liberal hallmark. Accordingly, the sole UDHR provision regarding health grasps the relationship between material and economic foundations and health outcomes, edging toward the “social determinants” models (see Hofrichter, 2003) that drive much of the contemporary public health scholarship. Motherhood, for example, is treated not as a problem for markets, but cause for “special care and assistance,” which smacks not of abstract universality but attention to context and particularity. This seems appropriate since, as Deleuze (1996) noted by way of a critique of rights, “We find ourselves” not in abstractions, but “in situations.” By insisting that “standards of living” and not merely opportunity be embraced, the UDHR creates a tension between the American classical redux and modern liberal commitments. The conservative columnist and television pundit, Ann Coulter, illustrates how such ideological positioning can make basic health care goals politically unobtainable. According to Coulter, liberals claim that, “Insurance companies are denying legitimate claims because they are ‘villains’.” Coulter (2009) reasons as follows: Obama denounced the insurance companies … saying: “A man lost his health coverage in the middle of chemotherapy because the insurance company discovered that he had gallstones, which he hadn’t known about when he applied for his policy. Because his treatment was delayed, he died.” […] Assuming this is true which would distinguish it from every other story told by Democrats pushing national health care in a free market, such an insurance company couldn’t stay in business. Other insurance companies would scream from the rooftops about their competitor’s shoddy business practices, and customers would leave in droves … If only customers had a choice! But we don’t because of government regulation of health insurance … Speaking of which, maybe if Mr. Gallstone’s insurance company weren’t required by law to cover early childhood development programs and sex-change operations, it wouldn’t be forced to cut corners in the few areas not regulated by the government, such as cancer treatments for patients with gallstones.

There is no space for addressing modern liberal concerns in Coulter’s critique. While this is hardly surprising, Coulter makes clear why the focus on abstract choice precludes considerations of broader social relations that shape health, including labor relations and exploitation, environmental disaster, food systems, and disease. All attempts to carve out a role for

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state regulation of the material effects of health care reforms are resisted by narratives of individual liberty, patients’ and physicians’ choice, and outcomes-based assessment of the ability for markets to deliver maximally efficient and sustainable care. This cuts more important debates off at their knees. As Harvey (2005) notes, liberals have been want to acknowledge that commitments to individual rights and social justice are often at odds. Even when social justice is considered, liberal rights serve as a hedge even a bar against reforms that could impact broader health outcomes.4 To this extent, American health care finds itself in a bind, with its constitutive terms contested by the different commitments to which the liberal state is bound. This highlights a twofold tension: on the one hand, liberals recognize at least rhetorically the importance of attending to citizens’ basic health needs, even if they construe these needs, and the very definition of health itself narrowly (“sickness insurance” rather than “health care”); on the other hand, as it gestures toward health such attention conjures a body politics that some liberals see as encroaching on individual liberty, where the body that is the object of policies of prevention or medical intervention is walled off from the state.5 Only a significant divide between rhetorical promise and embodied engagement can allow this divide to persist. This latter point owes to American liberalism’s historical difficulty in handling positive social rights, which foreclose the important move from a “right to health care” to a “right to health,” which would require a fundamental change in the way the body is conceptualized under the liberal state. Specifically, that is, it would have to be conceptualized not as an atomistic phenomenon but as a unit of analysis embedded in and constituted through a broader social field. Here, the classical liberal formulation of a “freedom to choose” within minimally regulated markets is pitted against the modern liberal state’s insistence not only that all citizens be covered, but that their bodies be made an object of analysis that sees them as integrated into a social whole. To this extent, I take issue with Casper and Moore (2009, p. 62) critique of demographics, which they argue “drive rationalized policy devoid of empathy and care” and fails to take account of “the bodies of individual babies who have perished or individual women and their families suffering a devastating loss.” To the contrary, if somewhat counter-intuitively, an embodied approach toward contemporary health requires precisely a policy that operates in abstraction. Consider, for example, contemporary controversies over mammography, as significant debate over the correct intervals for mammograms have led some groups especially breast cancer advocacy groups, suspicious that clinical guidelines are being altered to reduce health care

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costs to challenge calls for fewer routine mammograms. As one report put it, “The question seemed simple enough: Should women in their 40s be advised to get routine mammograms in the hopes of catching breast cancers while they are still small and, presumably, easier to treat? But the more an expert panel of doctors, nurses and preventive health specialists studied the data, the harder it was to come up with an answer.” Specifically, “Without screening, 3.5 out of every 1,000 women ages 40 to 49 will die of breast cancer in the next 10 years,” while “regular mammography can reduce that number to 3.” But the report did not acknowledge that embedded in this decrease are the effects of radiating a population. Changes in mammography guidelines especially those advocated by government-sponsored groups such as the US Preventive Services Task Force are in fact motivated by attempts to reduce the routine radiation exposure to entire populations of women, given that such exposure both creates cancer itself and leads to unnecessary surgeries such as mastectomies. The problem is that while such demographically driven, population-based health analysis aims to reduce incidences of cancer, this might result in any one particular woman developing undiagnosed cancer and even dying from that missed diagnosis. But it does this in the interest of reducing overall incidences, which all available studies suggest will succeed. So what to do? Whereas classical liberals see the right to refuse to be protected by the state as a question of individual liberty, the modern liberal, gesturing toward embodiment, sees such refusal as a weakening of the social whole that leaves individuals vulnerable and even mocks the very notion of individual liberty. These ideological tensions arise because health, as a phenomenon, is unavoidably embodied. As Krieger (2005, p. 351) explains, “Embodiment is, by definition, a multilevel phenomenon, as it necessarily entails the interplay between bodies, components of bodies, and the world(s) in which the bodies live.” Liberal states concerned exclusively with individual health care are undertaking a misguided attempt to secure a good relevant to subjects in virtue of their embodiment, but within a disembodied conceptual framework. To this extent, even those who defend Managed Care Organization (MCO) practices such as service utilization reviews and cost-cutting strategies can envision a minimal role for the state while opening the prickly question of ultimate responsibility for outcomes. These critics have a fundamental aversion to the calculation of contemporary health systems wherein the “highest priority is to focus … not on preventing all injuries but rather those injuries for which the cost of prevention does not exceed cost” (Sloan & Chepke, 2008, p. 314). Accordingly, systems that promote “best practices” and “best care” are

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placed under the shadow of “moral hazard” and fiscal unsustainability. Health care objectives are seen not as goals hitched to a modern liberal commitment to promoting citizens’ health, but ideals that require a fundamental rethinking and possibly the rejection of market solutions. As Mechanic (2001, p. 48) explains, Governmental protections can provide a framework that allows patients to trust their health care providers. Such a framework can be largely informational and procedural and need not dictate the content of treatment processes or decisions … In a broader sense, the government has overall responsibility for the health care system for preventive medicine and public health initiatives, for ensuring that everyone receives minimally decent care and for promoting an effective educational, research, and ethical structure to support the provision of care.

The problem, then, is not only that this “overall responsibility” would require positive rights, but that the state that classical liberals advocate makes no promise regarding such responsibility. Freedom of this sort is not only formal rather than substantive, but takes as its object a brand of market fetishism in which health becomes a matter of secondary importance, if not unobtainable altogether. In other words, while the state may facilitate a kind of freedom, it applies all too often only procedurally to the bodies that it promises to protect and care for. More problematically, this approach conceptualizes that body so as to virtually erase it from American liberalism’s constitutive core, as health care becomes a product on a market, not a means for protecting the bodily integrity of the citizenry. Stronger still, it is precisely the goal of counterbalancing the negative impact that markets have on bodies that carves out an increasingly expanded role for the modern liberal state. It is not a decline in capitalism’s grip on such matters but precisely its expansion and tightening that authorizes and requires the proactive modern liberal state. In the following section I turn to examples that articulate this dynamic at work.

POLICY PREOCCUPATIONS OF AMERICAN HEALTH CARE POLITICS Informed Consent Understanding the development of the American liberal state in relation to health care requires understanding the role played by the most powerful professional organization in American health care: the American Medical

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Association (AMA). To a great degree, as Mooney (2012, p. 62) argues, the fate of American health care owes to the fact that the AMA rather than political institutions such as the state wields so much power. Brennan (1991, p. 41) identifies two basic postures assumed by the AMA, beginning in the 1930s with its rejection of federal proposals for instituting price controls, and public health services, centralizing and coordinating health services, and overseeing the education of professional education. Later, however, in the 1980s, the AMA capitulated, and “acknowledged that medicine, like any other industry, could not continue to operate outside the imperatives of the liberal state and market economy” (p. 60). Informed consent and the legal protections that come with the subjection of health care to state oversight changed the nature of medical practice. This capitulation came with a tacit agreement to balance interests so doctors could be “conscious of costs” while ensuring that patient care remained “first consideration.” In a nod to classical liberalism, “Patients’ choices [were] to be primary …” (p. 66). In truth, however, the story is more complicated, as physicians and patients are subject to various considerations pulling in contradictory directions. Doctors, for example, are expected to consider the costs of care. The flipside of this imperative especially under neoliberal cost-cutting trends is the open secret that physicians are often less than forthright with MCOs in their recordkeeping, even misrepresenting conditions to meet their Hippocratic obligations. The fact that MCOs are largely shielded from suit for the decisions made by contracting physicians places physicians in a position where they must assume responsibility for liberal structures that are beyond their control. In an attempt to respect patients’ rights while also facilitating good care, early cases affirmed “the powerful defense of medical ethics and doctor’s therapeutic privilege” to such an extent that Brennan claims that, “Paternalism was alive and well” (p. 106). Under more recent developments, however, “When a patient determines that medical paternalism has led to therapy he would not have chosen, the plaintiff-patient must act as a liberal citizen acts, and assert his rights, which protect his negative freedom” (p. 109). The story is thus scripted as one of liberal hedges on physician “paternalism.” Notably, “By separating ethical and technical expertise,” Canterbury v. Spence, handed down in 1972 by the District of Columbia Circuit Court of Appeals “teased out the role of medical ethics in informed consent suits …, ” rejecting “reliance on physicians’ ethical expertise and on their habits of disclosure that were steeped in notions of paternalism, which are antithetical to the liberal state” (Brennan, 1991, p. 109). Courts have

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made strides in reducing the force of professional autonomy and with it the power of professional associations with uncertain impact on medical care. As experts such as Wennberg (2010) have shown informed consent often reduces to patients choosing what they believe their physicians want rather than the picture of autonomy the classical liberal view promises. For this reason Wennberg advocates “informed patient choice,” which requires a broader set of social considerations and consultations designed in part to diffuse the power that physicians maintain over their patients’ thinking under informed consent. According to Wennberg, those systems that have developed such an approach have found that quite to the contrary of informed consent patients make decisions about their treatments from a far more conservative perspective that draws upon a more deeply embodied and contextualized set of considerations. The result is a maximization of care as well as a reduction in costly treatments that have little value for health. Within the context of the liberal state, it is interesting that concerns about paternalism and beneficent medicine do not cut along the lines that liberalism’s critics commonly pursue. Lacking from these arguments, in particular, is the body, from the Foucauldian concern with liberal disciplinary power (Foucault, 1979) or the postcolonial critique of Western liberalism’s tendency to refuse to afford the bodies of colonial subjects basic liberal protections, using their bodies as uninformed, vulnerable test subjects (Arnold, 1993). Moreover, the very same critics who criticize liberal arguments in support of women’s right to “bodily integrity” (Cornell, 1995) in making reproductive decisions (see West, 1999) lean on a thin notion of informed consent when addressing broader medical questions. Instead, these concerns revolve around “defensive medicine” and “fee-for-service” systems that concern costs rather than medical concerns. Meanwhile, the relationship between physicians’ professional ethics and the liberal arguments that govern American medical ethics create tensions within multiple moralities. While Brennan holds that the “patient comes first” model “justifies an institutional framework that isolates doctor and patient from state oversight” (p. 52), others assert that liberal formulations such as informed consent degrade doctor patient relationships by supplanting traditional medical ethics. According to Siegler (1979, p. 154), the “imposition of rights language may supplant the traditional model of medicine, a covenant model premised on promise keeping, indebtedness to society, justice and fidelity, and replace it with a narrowly contractual model based on libertarian principles of self-determination.” But, as many scholars have noted (e.g., Pateman, 1988), the abstract promise that

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underpins liberal contract theory, from Kant to Rawls,6 assumes a universality that belies the quite different embodiments especially gendered and racialized embodiments that characterize actual signatories’ positions. Informed consent, in other words, may be premised on a false picture of the embodied experience of health, privileging a misguided picture of liberty and autonomy. To be clear, my aim is not exactly to argue against informed consent. Health scholars advance ex nihilo policy solutions at great peril. I do, however, want to criticize the tradition of informed consent insofar as it is pitched as part of a classically liberal project dependent upon a problematic body politics constructed specifically against the specter of paternalism, much to its detriment. By focusing on a thin notion of choice, informed consent may come to misconceptualize the very bodies that liberal choosers seek to protect, restore, and care for. Fear of paternalism may come to eclipse professional ethics and forms of knowledge that may require transgressing classically liberal notions of freedom in the interest of producing meaningful health outcomes, for populations as well as individuals, for embodied patients rather than abstract, autonomous individuals.

Medical Malpractice Recourse for malpractice is written into both classical and modern liberalism’s most basic fibers. In the United States, of late, it has also arisen as a key target of conservatives critics who mistakenly see it as responsible for health care rising costs. At their best, malpractice suits promise recompense for mistakes that could have been prevented, conjuring a market model wherein individual health care consumers get what they pay for. But malpractice promises more than recompense, and more than justice; it is driven by an ultimate goal of preventing unnecessary injury or death. This suggests that malpractice should rank among the more deeply embodied liberal preoccupations insofar as it should provide incentives for physicians and health institutions to take care and not cut corners in their practice. The institution of meaningful safety protocols in institutions such as hospitals are a key goal to this end. Insofar as liberal states are obliged to protect against abuse or error, the establishment of legal frameworks for malpractice are a critical component of a state’s responsibility, especially when health care is distributed primarily through markets. This begs a series of important questions about American liberalism’s capacity to address health needs. Most critically, can the United States

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handle malpractice in a way that takes contextualized and systemically embedded bodies as its locus, or is malpractice reform as it is known in the United States primarily as a restriction on tort a necessarily disembodied legal pursuit? At stake is the question of whether the state must protect physicians as well as health providers and insurers against legal rulings, or should it take as its primary focus the liveable lives and health of citizens? And does malpractice, by privatizing injury in the bodies of individuals rather than situating them in populations, reinscribe the very bodies that disallow broad-based attention to social determinates and justice models? Seeing the question clearly requires a clarification of assumptions. For example, it is commonly believed that malpractice lawsuits through the tort process are responsible for high insurance premiums when, to the contrary, caps on noneconomic damages tend to fill health care coffers rather than easing the burdens of physicians. More importantly for body politics, evidence suggests that the central goal of malpractice preventing mistakes is largely unrelated to the fear of lawsuit; hence, it is unclear that malpractice has any substantive effect on the actual treatment patients receive. Finally, there is little evidence that awards paid for malpractice are excessive; if anything, tort reform tends to bar legitimate claims from courts (Sloan & Chepke, 2008). At the center of the relationship between the American state and malpractice is the Employment and Retirement Income Security Act (ERISA) of 1974, which among other things shields MCOs from suit for treatment decisions made by the physicians with whom they contract. Given the distance from MCOs that ERISA affords, the bodies that constitute the actual point of service become increasingly cordoned off from modes of justice within liberal rights frameworks. It is here that the relationship between state and private health insurance providers has been shaped in order to facilitate markets rather than fortify the state’s role in hedging against market excesses that undermine embodied health goals. One consequence of these trends is a pervasive suspicion about the motives of key actors patients, doctors, MCOs, the state in health care. Epstein and Sykes (2001, p. 642) note, for example, that, “Given the diversity of medical opinion on the proper course of treatment for particular patients, it may not be difficult for a plaintiff to find an expert willing to opine that some treatment was necessary or nonexperimental.” In their skepticism of the value of revising ERISA to allow for MCO protection for wrongful coverage denials they note that affiliate physicians may “share in the blame.” Specifically, “the denial of coverage might result as much from the

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failure of the physician to provide clear and credible justification for the recommended treatment as from carelessness on the part of the MCO’s decision maker” (p. 646). The result is a suspicion that doctors may make decisions to satisfy patients “defensive medicine” administered for fear of a malpractice lawsuit rather than for medical reasons. At the same time, critics of exposing MCOs to suits for the decisions made by physicians with whom they contract point to an additional problem: “Placing vicarious liability on the MCO might lead MCOs to try to assert more control over physicians without having the requisite information or technology for truly improving care” (Danzon & Sloan, 2001, p. 663). This option strikes at the heart of the liberal trope of preserving “doctor-patient relations” and the ability for doctors and patients to make choices together in a sphere of privacy. In other words, altering ERISA preemptions that shield MCOs from suit are repackaged as a threat to doctor and patient autonomy. As I show below in my discussion of PBRs, the protection of MCOs is, in ERISA and other contemporary debates, reconfigured as the protection of the health care system itself. What is unclear in this configuration, however, is the relationship between that system and health. To maintain the distinction that underpins ERISA namely that coverage determinations that license payment for services are distinct from the provision of health services one must take a disembodied approach toward health care. Danzon and Sloan (2001, p. 668) note rather casually that “… denying payment is less than denying treatment: the patient can still obtain treatment by paying out-of-pocket or seeking charity care or other financing sources.” Here, the material basis of coverage is detached from the embodied consequences of failing to access care. Coverage, in other words, does not necessarily yield care and the limitations of the American liberal state forces a distinction between the right to and payment of care. This excites a key tension in the conceptualization of the state’s role in health care: meaningful provision of health care has a material basis that the state cannot furnish without putting significant pressure on its contradictory but no less constitutive promises.

Patients’ Bills of Rights Broadly construed, Patients Bills of Rights (PBR) afford a series of legal protections and regulatory structures intended to protect the insured as they navigate the world of for-profit health care. While the most famous

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PBR is the failed McCain Edwards Kennedy bill of 2001, that bill was the result of a year-long effort. Former CIGNA Vice President Potter (2009) called its defeat the result of “duplicitous and well-financed P.R. and lobbying campaigns” organized by health industry lobbyists. As with informed consent and malpractice, PBRs illustrate the persistence of thin American liberal commitments that belie the more substantive problems that modern liberalism seeks to address vis-a`-vis health care. The reduction of acceptable state interventions to rights is symptomatic of American liberalism. This focus not only makes for insufficient policy, however. Sage argues that patients’ rights were “arguably a luxury of [1990s] economic prosperity, a tight labor market, relatively stable health care costs, and aggressive premium pricing to gain market share and forestall political intervention.” It is for this reason that he could say in 2003 that “Congress ha[d] all but abandoned efforts to enact a [PBR, placing] managed care on a legislative back burner in order to deal with medical malpractice reform …” (Sage, 2003, p. 598). This suggests that we must take seriously the context of contemporary health care policy, since one might expect patients’ rights to become more of an issue since trends in health costs do not always map onto trends of “economic luxury.” This interpretation holds that meaningful health care must be gauged not only by access to health care, but broader strategies of health. These considerations constrain health care decision-making. In the pre1970s era preceding managed care, doctors were given relatively free reign in making determinations for their patients, and these determinations were largely binding (Bergthold, 1995). The rights bestowed by PBRs constitute a response to concerns arising out of the subjection of health care decisionmaking to profit motives. In other words, they are a consequence of the very system they purport to address, and therefore limited by that system’s constitutive boundaries. The first major attempt to establish a PBR occurred in 1999 with HR 358, a proposed amendment to ERISA. While much of the act which ultimately failed to pass when it reached the full Congress in 2001 was devoted to shoring up patients’ access to doctors (particularly specialists), the most controversial provisions concerned the prohibition of profit motives in care determinations. Sec. 115 mandated that insurers, shall not, with respect to utilization review activities, permit or provide compensation or anything of value to its employees, agents, or contractors that … provides incentives, direct or indirect, for such persons to make inappropriate review decisions, or … is based, directly or indirectly, on the quantity or type of adverse determinations rendered. (US House of Representatives, 1999)

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Profit motives, in other words, undermine clinical judgments, even if those judgments are not in fact altered by financial or other incentives. The point of a PBR in this view is to afford the state a role in ensuring that medical decision-making remains medical in nature. Government oversight of MCO utilization reviews are the means by which PBRs seek to accomplish this goal. The 1999 PBR provides a nice contrast with Pegram v. Herdrich, perhaps the most important Supreme Court decision addressing the legal status of MCOs. Pegram secured the gains made by MCOs by legitimating the use of cost considerations in coverage determinations and physician incentives for underutilizing health resources. Pegram’s most important finding, however, and one that PBRs have sought to hem in, was shielding MCOs for culpability for decisions made by the physicians with whom they contract. The Court held that MCOs did not play a “fiduciary” role in making treatment decisions and was therefore not responsible for them. Pegram’s defenders have gone further to argue that markets promote quality and that the liberal redress of profit motives (rather than profit motives themselves) erodes trust between doctors and patients. While the modern liberal view holds that the state is well suited to facilitating trust by ensuring that medical decisions are made on the basis of medical reasoning (rather than profits), American liberalism downplays the state’s role in protecting citizens on markets. Precisely where advocates of PBRs see a means of protecting patients from market excesses, critics see PBRs as eroding patient doctor relations. Thus, Hall (2002, pp. 509 510) argues that PBRs send the message that physicians and insurers “are not in fact trusted and are not expected to act on the basis of intrinsically trustworthy motivations.” The assumption here is that the need to provide a framework in which patients carry with them a sense of their “rights” on the medical marketplace creates distrust. Critically, from the perspective of embodiment, Ippolito rejects PBRs because of their cost, since rights do cost money; but he also does so without so much as a word on actual care delivered or outcomes. Accordingly, “if federal legislators at least resist the temptation to further interfere in this market, the final outcome of competition among 50 states might very well reestablish efficient outcomes” (p. 63). Ippolito’s problem with PBRs is that in their attempt to expand rights by which the liberal state protects patients in their attempts to secure care, “they greatly contract insureds’ ability to contract with HMOs for cheaper more cost effective care” (p. 64), since PBRs often mandate that MCOs provide a basic floor of services and

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provisions. For Ippolito, contracts empower purchasers. Yet, as Sloan and Chepke (2008, p. 310) note, “Private contracts seem attractive in principal, but the concern is that patients are not well-positioned to be effective negotiating partners in the contracting process.” The argument, therefore, concerns what kind of challenges one believes markets can meet. If state regulation does not impact treatment outcomes or reduce the likelihood of physicians’ mistakes, then we must rethink its appeal. Regardless of such beliefs, however, the principled position concerning which absolute standards are maintained undermines the position that, “The bedrock safeguard of patients’ rights in the end is the market, not the legal system” (Danzon & Sloan, 2001, p. 664). Such are the views of liberal economists who since they work in ideological abstractions cannot account for the impact those abstractions may have on the embodied lives of patients. To a large degree as illustrated by recent attempts to mandate the purchase of health care coverage in Massachusetts in 2006 and, beginning in 2013, at the federal level the role of the liberal state is carved out by a combination of an interest in protecting its citizens as well as the unpredictability inherent in providing health care through markets, where crises are understood as part of a natural cycle rather than something that must be avoided at all costs in the name of protecting people’s health and survival. A strong role for the state through the provision of universal, single-payer health care could serve to mitigate this unpredictability, but the state must also be engaged in the management of the inevitable unpredictability of individual needs. According to Bloche (2002, p. 953), “the contractarians’ insistence on according trump value to people’s ex ante health care choices the decisions they make, often by default, when they buy health insurance is at odds with core human needs that we look to medical care to meet.” A basic reason for health insurance, he emphasizes, is the fact that needs cannot be determined ex ante. This situates customers poorly for participating in classical liberal narratives of choosing to “opt out” or “shop for the best plan for their needs.” That PBRs advance a largely dematerialized rhetoric of choice should not come as a surprise. As Marx argues in On the Jewish Question, the state but also companies under state regulatory apparatuses will gladly afford individuals those largely symbolic gestures that are the hallmark of classical liberalism. As with the Marxist reading of the state, it is precisely where regulation might yield substantial material effects that impact substantive outcomes that we expect state compliance to end. Radical equality,

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after all, even if it be an equality of bodily security, is a class issue. Hence, when The Washington Post reported that UnitedHealthcare would continue to observe a range of ACA’s provisions regardless of the Supreme Court’s decision to uphold or overturn it, it gestured toward the political rather than material significance of doing so: PBRs “are popular with consumers and relatively uncontroversial among insurers. And there had already been signals from industry insiders that some insurers were likely to leave them in place” (Aizenman, 2012). To be sure, these and other provisions could have some effect on health outcomes. But in the larger context, they read as a rhetorical validation of a disembodied liberal ethos, not unlike the failed promises that Marx identified in classical liberal economics. As Aizenman suggests, PBRs possess the dual benefit of being “popular with consumers and relatively uncontroversial among insurers,” evidence of their largely immaterial nature. In an illustration of their disembodied nature, the PBR, … includes several mandates that UnitedHealthcare did not pledge to continue complying with in the event the Supreme Court invalidates the law. These include the elimination of annual limits on insurance payouts … and that statute’s ban on denying coverage to children with preexisting conditions. (Aizenman, 2012)

The difference between those provisions UnitedHealthcare would retain and those they would discard maps nicely onto the distinctions I am drawing, underscoring again the disembodiment of American liberalism. Finally, the ACA affords patients extensive rights to appeal decisions, both internally and externally. Yet, here too, these processes will only impact care outcomes insofar as patients are actually able to navigate them and the medical necessity decision-making stemming from them is not bound to a thin, formalistic conception of the bodies it purports to protect. For example, as Hashimoto (2001, p. 77) notes, “Health policy researchers at Georgetown University analyzed the limited reliance of patients on the right to appeal HMO decisions and found that patients rarely exercise their newly found due process rights to appeal treatment denials.” Hence, for a PBR to substantially impact the care patients receive, populations must be educated about their rights. PBRs thus risk trumpeting rights that do not reach down to impact actual patients’ care while the efficacy of the ACA’s PBR thus lays in the aggressiveness with which the state pursues the end goal of helping patients access care. In other words, the difference between classical and modern liberal states, by way of their pro-activeness or passivity, is determinate in the pursuit of embodied health objectives. PBRs, in other words, are not self-actuating.

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THE PATIENT PROTECTION AND AFFORDABLE CARE ACT Bodenheimer (2005, p. 1430) argues that while, “Prevailing opinion holds that liberalism is on the decline in the United States … The strength and consistency of support for health care as a right demonstrate that, at least in the health care realm, liberal values retain their powerful roots.” I have already discussed the problem of fetishizing health care in the pursuit of health. In light of Bodenheimer’s insight, I add that it is not always the importance of health care that is debated in the United States, but the specific modalities through which care is provided. Recent health care debates suggest that most liberals as well as centrist Republicans acknowledge that the state has some role to play, even if limited. It is precisely the narrative about the role of the state that has driven a wedge between the consensus that Bodenheimer notes and American views of health care. As experience with the Obama health care reforms suggests, however, Americans have largely traded New Deal liberal views that sought to take matters such as poverty, welfare, and other basic social services off the market for a neoliberal belief that markets are not only capable of solving problems, but can guarantee freedom as well (MacGilvray, 2011). This disposition is not evidence of a decline in American liberalism, but a return to classical liberal values that prioritize individual liberty over health. The irony of these recent discussions is that despite President Obama’s wish to not push the debate more toward the “positive rights” models that the United Kingdom and Canada now embrace, which would have made a sphere of justice of American health care rather than just another commodity, his adherence to classically liberal mechanisms were still branded part of a “socialist” “government takeover.” Brennan’s optimism seems to stem, in part, from the fact that he was writing in 1991, when he could still say in earnest that, “We live in a liberal state, and the public morality of the liberal state provides important parameters, guaranteeing justice as fairness and essential liberties” (1991, p. 78). Obama’s experience with both Congressional leaders and the American public suggest otherwise. As Obama learned, American political narratives militate against state oversight of markets, such as mandating against free-riders, controlling price gauging, and prohibiting discrimination. These narratives have made it difficult to discuss the rationing of health services for the poor without caricaturing the kinds of decisions that a liberal society must make in the name of fairness. Bodily vulnerability is parceled out in accordance with the

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classically liberal mythos of markets. Since equal access to markets is assumed, the different locations citizens find themselves in vis-a`-vis health do not arouse concern. The result is the disembodiment of health care insofar as it is reduced to a consumer model. As the right-wing advocacy group FreedomWorks lamented: We want Americans to be able to use the free market to choose the care that suits their individual needs. We believe that government should not gain more control over healthcare. Frivolous lawsuits and bureaucratic waste add to the cost of health insurance.7

This statement traffics in well-worn anti-ACA tropes. The core assumption is that markets work. But to what end? What is it that has resulted in 40 50 million uninsured Americans who now represent the centerpiece of a vulnerable body politic? The “belief” in less “government control” fails to engage the material basis of the health care problem, and is pitched explicitly on the level of ideology rather than health. FreedomWorks cannot account for the ideological paradox inherent in the fact that, despite the purported libertarian distaste for state-run plans, these plans, on average, deliver a more efficient and cost-effective health service, outpacing private programs in almost every category. In fact, as numerous scholars have found, the privatized American system tends to elevate rather than lower health costs, from MRIs to heart surgery (Anderson, Reinhardt, Hussey, & Petrosyan, 2003). More to the point, ACA reforms make clear that the American state possesses no theoretical tools for conceptualizing the very bodies it purports to protect. The result is that physicians are limited to liberal conceptualizations of their patients’ bodies, especially as they code their maladies for payment. This is clear in Brennan’s analysis of informed consent, which he characterizes as a “prohibition … based on the respect that the law accords one’s body, a respect that coincides with the concern for negative freedom …” (p. 99). Paradoxically, the result is a vulnerable, disjointed health population purchased at the price of preserving individual liberty. But here, too, this does not tell us the full story, as many Americans seem to want it both ways. As Mechanic (2001, p. 38) notes, “The public can agree in the abstract about the necessity of containing costs but does not want their own care or the care of their loved ones restricted. The American middle class dislikes medical care rationing at the point of service, never having had to face it.” Predictably, ACA opponents are best understood not as opponents of the liberal state including health care programs such as Medicaid or, presumably, universal health care but as

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making an argument about deservedness (Williamson, Skocpol, & Coggin, 2011). The liberal state, in fact, is perfectly acceptable to most Tea Partiers so long as it provides services to hardworking citizens in genuine need. Implicit in this distinction, of course, is an assumption about deserved bodies, where hardworking, taxpaying Americans are contrasted with freeriders and the lazy. On the whole, Tea Partiers disagree only with the substantive equality focus of the modern liberal project, which departs from the disembodied approach of classical liberalism. The paradox is that it is precisely this disembodiment that allows it to remain compatible with the classical liberal project. The ACA’s political savvy (as well as its key shortcoming) in navigating the poles of liberalism stems from its attempt to mediate between the disembodied promises of health insurance and the failure of American programs to meet Americans’ broader health needs. Ultimately, the ACA instituted a PBR that constituted a concession not only to a thin liberalism, but one that functioned primarily if unsuccessfully to smooth out the rhetorical tensions of liberalism and health care. As a result, the ACA’s PBR is marred by a series of predictable but nonetheless problematic liberal tropes. A document released on the one-year anniversary of the ACA’s passage explained that the ACA, “has begun to give hardworking families the security they deserve and to help better control health care costs.” This it does by protecting “consumers through policies like prohibiting insurers from denying coverage to children with preexisting conditions and making lifetime dollar limits on coverage illegal.”8 Moreover, the bill: … holds insurers accountable through new tools to crack down on unreasonable health insurance premium increases and ensure that at least 80% of premium dollars are spent on quality health care, not administrative costs like profits, CEO salaries and marketing. … makes it easier to afford health insurance for businesses, young adults, uninsured people with pre-existing conditions, and early retirees. And … strengthens Medicare and Medicaid for the millions of Americans who rely on these programs, while implementing reforms that will ensure that we spend taxpayers’ money wisely, improve health care quality, and control health care cost growth.

The PBR’s strengths lay in prying open access to insurance coverage and ensuring that such coverage is not pulled when patients require expensive treatments. What it purchases by accepting the marketization model, however, it loses in its ability to regulate health care precisely where it impacts populations, by engaging broader social determinants of ill health.

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The ACA’s PBR speaks not of patients or people, but “consumers” and “taxpayers,” purporting to protect the latter, but only not the former. Yet, Coulter (2009) persists in pushing the wrong points: To Obama’s claim that, “National health care will give Americans ‘basic consumer protections that will finally hold insurance companies accountable’,” she responds: “You want to protect consumers? Do it the same way we protect consumers of dry cleaning, hamburgers and electricians: Give them the power to tell their insurance companies, ‘I’m taking my business elsewhere’.” Obama’s inability to counter these kind of attacks arises out of the paradoxes of American liberalism that I have detailed. To operate within its acceptable bounds is to sacrifice tools necessary for the facilitation of an embodied health policy. Yet, not only did Obama go out of his way to cater to classically liberal tropes especially the markets that Coulter and other American conservatives hold so dear but this attempt did not neutralize predictable criticisms. To this extent, the passage of the ACA merely intensified and reframed these liberal paradoxes. The bill sought to address significant health care needs, from rising costs to covering the some-odd 40 50 million Americans without health care coverage. Yet, because of its attempt to respect a formal individual liberty, especially on markets, it failed to insure all Americans under a plan that adequately addressed the increasing cost of health care a significant material failing. While the likely benefits of the ACA in extending coverage to millions of Americans is comparatively significant especially protections against discrimination for preexisting conditions the bill’s limitations are instructive because of their evasion of an embodied approach to health care, which is forestalled by American ideological configurations of liberty. While ACA implementation will continue to forge new political terrain in which the state’s role in health care provision and regulation will continue to be questioned, it is also clear that the bill will stimulate rather than settle the political disagreements that would need to resolved for the United States to develop a bodily efficacious health care system. But the constrictive body politics of liberal discourse bars those strategies capable of addressing broader obstacles to health. In the final analysis, therefore, the ACA does not establish even a basic liberal right to health care. It certainly does not meet the threshold required by a social democratic principle of a “right to health,” and because of the heed it pays to classically liberal trends falls short of addressing even the kind of modern liberal principles inscribed in the UDHR.

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AMERICAN LIBERALISM AND THE BODY I have suggested that the politics of health care is uniquely able to disclose contradictions at the center of the contemporary American liberal project. My goal is to show that liberal states that concern themselves with the advancement of health are engaging a project that requires directly addressing the embodied lives of its citizens as they coexist in dynamic social environments and contexts. Classical liberal formulations, however, cast subjects in immaterial terms, as “free individuals” and “choosers” tasked ˇ zek, with choosing between doctors, treatments, and insurance plans. Zi ˇ for example, notes that Clinton’s health care initiative exemplified, the material force of the ideological notion of “free choice.” That is to say, although the large majority of the so-called “ordinary people” were not properly acquainted with the reform program, the medical lobby … succeeded in imposing on the public the fundamental idea that, with universal health-care free choice (in matters concerning medicine) will be somehow threatened against this purely fictional reference to “free choice,” all enumeration of “hard facts” (in Canada, health-care is less expensive and more effective, with no less free choice, etc.) proved ineffective. (Butler, Laclau, & ˇ zek, Zi ˇ 2000, p. 123)

This rhetoric of choice is misleading both in terms of the metaphysics of choice itself and the kind of medical model it presupposes (Mol, 2006). The American liberal state understands bodies to be isolated and analytically distinct units. Marx called these fictional bodies “self-sufficient monads” wherein, “liberty as a right of man is not founded upon the relations between man and man, but rather upon the separation of man from man. It is the right of such separation. The right of the circumscribed individual, withdrawn into himself” (Tucker, 1979, p. 42). That the abstraction “individual” is custom-tailored for a classically liberal approach to health reminds us that bodies are conceptualized out of as well as in relation to the contexts within which they arise (Martin, 1994). In the case of health care, however, this particular subjectivity circumscribes and forestalls health outcomes by restricting state interventions to disembodied individuals rather than bodies politic. The question, moreover, is not only whether bodies are considered, but how they are considered. Hence, a key tension social determinants models share with classical liberalism is that they understand bodies as socially constituted and historically situated. As Solar and Irwin (2006, p. 182) note, social determinants models view subjectivity “theoretically and practically based on the Marxist tradition that considers the subject as historically conditioned and at the same time a maker of history.” Even when the

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state is afforded a role, it tends to be limited to a narrow construction of the kind of bodies liberals see the need to protect. Mol (2006, p. 34) explains that this move produces isolated bodies of choice and control despite the fact that, “Caring is not a matter of control …[but] attending to the balances inside, and the flows between, a fragile body and its intricate surroundings.” This belies the phenomenology of medical experience, however; to take just one case, the urine pads that male prostate cancer patients must wear, as well as the draining of a surgical incision more generally force men to confront their own “leaky bodies” (Shildrick, 1997) in ways that gender studies have long understood women’s experience with medicine. Health problems address vulnerable bodies, not bodies of control. For Mol, “Instead of accepting causal relations for what they are, the logic of care seeks to intervene in the lived reality of bodies,” which further suggests that, “Within the logic of care bodies are not trapped in causal chains … they are embedded in treatment practices” (2006, p. 38). A meaningful critique of the classically liberal body must therefore question that tradition’s heteronormative and masculinist conceits (Hekman, 1992). Mol (2006, p. 32) highlights these differences by distinguishing the Roman soldier from the diabetic: The muscular body of a Greek soldier is sealed off by a skin, but the metabolic body of a person with diabetes absorbs food and fluids from the outside, and expels waste … As a body with diabetes does not silently regulate its own sugar uptake, you have to actively balance the energy in your beans, your bread and your apples with the energy you use up and the amount of insulin you inject. You have to inject insulin.

Considering these questions of embodiment, one of the peculiarities one finds is that public health scholars don’t give health care itself much weight. As Mooney (2010, p. 33) notes, “What we currently have is too much emphasis on health care and not enough on health, particularly at a policy level; a reluctance of health departments to step outside their comfort zone … .” To be sure, health care is an important piece of the health puzzle. But it ranks comparatively low when one considers that, “The real causes of many deaths are social determinants such as illiteracy, fatalism, gender bias, racial bias, unemployment, and poverty,” with poverty being “the single biggest factor contributing to adverse health outcomes …” (Foege, 2010, p. 9). The fetishization of health care also obscures social justice models (Hofrichter, 2003) characterized by their focus on the promotion of health populations rather than the rights of individuals. This is a critical oversight because, as Mol (2006, p. 70) puts it, “Individuals and populations need completely difference types of care.”

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The result is a policy impasse. As the libertarian John Locke Foundations notes, “The new federal health care law will exacerbate many of the problems it was meant to address,” and should have, “Focus[ed] on care, not coverage.” In this view, the Obama reforms fail to provide health outcomes rather than access to coverage through markets. This, of course, is predictable, since as Hirschl (2000, p. 1098) notes, liberal legal protections often fail to generate substantive outcomes as, “… judicial interpretations of constitutional rights appear to possess a very limited capacity to advance progressive notions of social justice in arenas such as employment, health, housing, and education, which require greater state intervention … .” The paradox, then, is that despite the relative importance of health care were a bill advanced that focused “on care, not coverage,” the same libertarian impulses that guide the Locke Foundation would surely reject it on the basis of its constituting an invasion of individual liberty precisely because it was able to impact health beyond “coverage.” Within the legal structure of the American liberal state, moreover, as Pegram held, MCOs can only be held accountable for coverage determinations, not care. Such a focus on care would require a much deeper level of embodiment on the level of policy than libertarians allow. It would require a series of largescale changes, such as the rejection of narrow conceptualizations of “medical necessity” in determining treatment modalities, perhaps exchanging them for more robust concepts such as “quality of life.” Such movements would no doubt expand the scope of what would come to be considered necessary or appropriate care, as well as costs associated with this expansion. Such a change would bring us closer to the modern liberal understanding of health. Most importantly, however, it would take seriously the broad diversity of bodies and positions that strategies for pursuing healthy populations would have to address. It is precisely for this reason that such changes are disallowed by the American liberal model.

CONCLUDING REMARKS In rethinking the American liberal state’s approach to health care informed consent rules, malpractice, PBRs, and the ACA I have sought to underscore the extent to which American politics takes as its focus only marginally important concerns, at least as concerns what I have called an “embodied” approach to health. What the experience with American health care underscores above all is that paradox is central to the liberalism of the

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American state. Yet, while paradoxes are often containable, health care exposes and intensifies them. For all of the rhetoric of “socialism” and “government take-over,” the ACA is a classically liberal bill and this is its modern liberal failing. Given its centuries-long ideological inheritance, we should not be surprised that American health policy remains disembodied. At the same time, we should not be glib about the developments I have discussed, from PBRs to malpractice to the ACA. As Marx noted years ago, “Political emancipation certainly represents a great progress. It is not, indeed, the final form of human emancipation, but it is the final form of human emancipation within the framework of the prevailing social order. It goes without saying that we are speaking here of real, practical emancipation” (Tucker, 1972, p. 35). In this chapter, I do not make any particular policy prescriptions beyond noting that meaningful health care policy will require wrestling with the limitations of liberalism. Its value, I hope, is a more detailed diagnosis of the problem and challenge. While a normative project flows logically from the critique I have advanced, my main goal has been to problematize health care as a question of bodies that sits uneasily with contemporary American liberalism. Hence the paradox that the most embodied of policy concerns health is forced to traffic in ideological abstractions that promise the possibility of bodily existence and even “livable lives,” but is barred from ensuring its attainment. Looking forward, theorists will have to formulate ways to impact the health of populations without transgressing the classically liberal assertion that bodies are inviolable. As recent debates over contraception coverage under the ACA confirm, these debates are most intense, as Foucault (1984) predicted, where they intersect with questions of sexuality. As a result, the classical liberalism to which many Americans remained wed finds itself at odds with two of liberalism’s great critics: feminists who emphasize ways in which bodies especially women’s bodies become the implicit site of health care debates, and conservatives who seek to utilize health policy to defend what they perceive as traditional norms, even as those norms often undercut basic public health policy goals.

NOTES 1. As Fassin and D’Halluin (2005) have shown, political asylum has been systematically eroded as states have lost their mandate to protect political and human rights; refugees, however, still find success in medical claims, which indicates that there is something politically powerful about vulnerable bodies that these states (in

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this case the French modern liberal state) cannot ignore. Even in its minimal form, health even reduced to survival remains part of the contemporary liberal state’s raison d’eˆtre. 2. According to the United Nations Population Division, the United States ranks 34th globally in infant mortality rates. The CIA World Factbook lists the United States at 49th. 3. Brennan (pp. 190 197) points to an exception that flies beneath this radar: organ donation. 4. An obvious objection is federal and state vaccination policy. But even here, a number of arguments and legal protections in the name of negative liberty have disabled the state from being able to protect the entire American population. 5. Consider the controversy created by New York Mayor Michael Bloomberg’s 2012 ban on sugary drinks over 16 ounces, which both liberals and conservatives descried despite the policy’s clear potential to reduce a major cause of diabetes. The Bloomberg policy was widely treated as a transgression of a liberal right to unlimited amounts of soda instead of a major health policy accomplishment. 6. “For Rawls, justice results when persons, as pure wills without bodies or context, choose the rules to govern justice in society from behind the ‘veil of ignorance’” (Halewood, 1996, p. 1340). 7. FreedomWorks, quoted at http://americansocietytoday.blogspot.com/2011/04/ tea-party-primer.html. 8. http://www.healthcare.gov/law/resources/reports/patients-bill-of-rights09232011a. html

ACKNOWLEDGMENTS The author acknowledges helpful feedback on earlier drafts from the following: Patchen Markell, Monica Mueller, Alex Zamalin, attendees of the Ohio State University Political Theory Workshop, especially Marcus Green, Eric Macgilvrey, Michael Neblo, and Sandra Tanenbaum, and the anonymous reviewers at Studies in Law, Politics and Society.

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UN General Assembly. (1948). Universal Declaration of Human Rights, 217 A (III). Retrieved from http://www.refworld.org/docid/3ae6b3712c.html. Accessed on August 5, 2014. Universal Declaration of Human Rights. (1948). US House of Representatives. (1999). The patients’ Bill of Rights Act of 1999 (H.R. 358). Retrieved from https://beta.congress.gov/bill/106th-congress/house-bill/358 Wennberg, J. E. (2010). Tracking medicine: A researcher’s quest to understand health care. Oxford: Oxford University Press. West, R. L.. (1999). Liberalism and abortion. Georgetown Law Journal, 87. Georgetown Public Law Research Paper No. 11-92. Retrieved from http://ssrn.com/abstract=1871949 WHO. (2012). Health and human rights. Retrieved from http://www.who.int/hhr/en Williamson, V., Skocpol, T., & Coggin, J. (2011). The Tea Party and the remaking of Republican conservatism. Perspectives on Politics, 9(1), 25 43.

NOMOS AND NATIVE AMERICAN NARRATIVES: THE DUALITY OF LAW IN THE LIBERAL STATE Beau Breslin and Katherine Cavanaugh ABSTRACT The law in a liberal state is often a violent instrument. So said Robert Cover. Among those communities to which the law has been particular cruel are Native Americans. Indeed, the traditions and practices of Native American tribes have spawned rich and fascinating narratives. Each tribe has created its own “nomos its own normative universe” with a distinct set of rules, expectations, and tenets. Even still, the state and federal governments have historically challenged Native American traditions and culture with various legal and judicial policies. Insofar as the state-imposed law is blunt and imprecise, certain Native American narratives are thus threatened. Over the past decade, several judicial cases have highlighted the clash between the state’s imperial authority and Native American narratives. Our chapter explores these court cases with an eye to the inevitable conflicts that emerge when law exists uneasily in a liberal state. Keywords: Violence; liberal; constitutionalism; law; Robert Cover

Special Issue: Law and the Liberal State Studies in Law, Politics and Society, Volume 65, 137 157 Copyright r 2014 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-433720140000065005

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INTRODUCTION Law is a complex, multidimensional institution in a liberal state. Whether through formal organizations or informal conventions, law takes on different identities depending on what it is called on to do. It is, for example, a protector, an instrument that allows us to live our lives in relative safety and security. Indeed, many suggest that the very purpose of the liberal state’s legal apparatus is to regulate certain conduct so that individuals can follow their own precise paths to happiness and fulfillment. As such, law also acts as a shepherd a guide that watches, tends, and shelters the citizens of the polity. Many of us find comfort in being part of the metaphorical flock, so long as the law cradles and protects us. Unfortunately, though, law is also an executioner. Often created and almost always imposed by the state itself, law is a force that at best disrupts specific ways of life and at worst destroys them. By regulating conduct, law disallows certain behavior that may be central to a group’s shared identity. Consider a recent example. The US military’s prohibition against wearing yarmulkes while on duty is illustrative of the violence law is capable of inflicting. Simcha Goldman, an Orthodox Jew and officer in the United States Air Force, was threatened with a court martial for refusing to remove his yarmulke while on duty. Citing the Free Exercise Clause of the First Amendment, Goldman claimed that the skullcap was a necessary part of his personal identity and that the forced removal presented him with an impossible choice relinquish his career in the armed services or violate his fundamental religious beliefs. The Supreme Court was unsympathetic. Writing for a thin 5-4 majority, Justice Rehnquist insisted that the Constitution should not apply to military rules with the same potency as it applies to laws regulating civilian life. Because of the military’s need for conformity, obedience, commitment, and unity, Rehnquist determined, the Supreme Court’s “review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society” (Goldman v. Weinberger, 1986, p. 507). The important features that comprise one’s identity, Rehnquist concluded, are secondary to the national security interests of the state. The result of this double standard is decidedly antiliberal: certain ideas, actions, and beliefs often the ones imposed by the majority to privilege conformity are favored over others. Goldman’s impossible choice was essentially made for him (Sandel, 1996). An individual’s identity is often at odds with the priorities of the liberal state. The very essence of a liberal polity is such that competition regularly

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emerges between the conduct of individuals (or groups) on the one hand and the demand for stability and security that is essential to the survival of the polity on the other. The liberal state, in short, will inevitably pit the Simcha Goldmans of the world against the needs of the overall community to feel safe and secure. More troubling still, his narrative involves fairly mainstream religious identities. Goldman shares his personal religious beliefs with a whole community of like-minded individuals, and that is powerful. The perspective that law is capable of imposing violence on identity needs to be unpacked just a bit. To be sure, law can do physical violence, but we are more interested in the subtle impact law has on the shared psyche of a community, on the way in which a community looks at itself differently because the law does not permit certain expressions of identity. Insofar as Goldman (and others who share the strength of his beliefs) views himself as an integral part of a particular Jewish community, the legal restrictions on his ability to express that specific identity impose a certain type of violence.1 The violence of the law comes into sharper focus when we isolate only those expressions of identity that are central to an individual’s (or community’s) being, when law compromises Jewishness (as in the case of Goldman), for instance. Or when law seeks to assimilate differences based on race, ethnicity, sexual preference, and so on. It seems important (even if difficult) to draw a line between certain expressions of identity and others. Not every non-preferred outcome is an act of state violence; but assuredly some are. Goldman’s experience may raise eyebrows, but it is not unusual. Law is capable of even greater degrees of violence when aimed at unassimilated or nonconformist communities. No one understood this dynamic better than the late Robert Cover. Indeed, Cover suggests in “Nomos and Narrative” (1982) that law interferes and often destroys the central narrative that communities use to animate and structure their collective existence the veritable glue that holds these communities together. All communities, whether formal like the state or informal like the family, create their own legal narratives. It is those stories that help members determine right from wrong and good from bad. We live our lives in accordance with these community values, traditions, and customs. Cover’s words help to clarify. He begins his famous Foreword with the claim that “we inhabit a nomos a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void” (Cover, 1995, p. 95). Put differently, we create collective narratives that organize and shape our lives. “To inhabit a nomos,” he says, “is to know how to live in it” (Cover, 1995, p. 97).

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Not surprisingly, legal narratives are constantly evolving. Cover calls the process of creating a shared community narrative of constructing a nomos “jurisgenesis” (Cover, 1995, p. 103) and claims that it is inevitably social. He insists that every community experiences in some way the process of jurisgenesis. And yet even though the process is mostly similar among communities, the capacity or ability of community members to exercise those values, standards, and customs that arise from these narratives to live in the world one creates from these shared narratives is most assuredly different. Some communities (typically those whose membership includes the majority) enjoy the benefits of disproportionate power. In Coverian terms, their story is louder and more dominant than others simply by virtue of the fact that more individuals subscribe to it. This means that the law enacted by the state will more fully reflect the narratives of particular communities. Problems inevitably arise when that cultural and political dominance finds a foothold in the policies enacted and the laws passed. The legal narrative of the dominant, privileged community often silences ones from smaller, less prominent communities. Cover could not hide his concern that the power of the law, and its capacity to do violence to smaller communities, was ubiquitous. Consider the simple example of Francophone Canada. For years, French Canadians were forced to live more or less under the legal rules set by their Englishspeaking neighbors. The way of life of many in Quebec (and elsewhere) was affected by the dominant legacy of British colonialism. Schools throughout Canada were taught in English; the governments conducted their primary business in English; indeed, the traditions and culture that are so much a part of French-Canada had to compete for attention with a culture and legal apparatus that was influenced by British colonialism. It should come as no surprise that the former most often lost those cultural battles. The problem reached such proportions that the possibility of Quebec seceding from the rest of Canada was very real. The point of the Canadian illustration is twofold: (1) not all communal narratives are equally represented in a liberal state and (2) those legal narratives are always in a state of competition; they are always jockeying for greater and greater influence. Cover was thus particularly concerned about the imperial nature of the law within the liberal polity. He described his concern as the “problem of the multiplicity of meaning” (Cover, 1995, p. 109). He claimed that the plethora of opportunities for the creation and interpretation of legal narratives, combined with vastly different loci of authoritative power, result in an “imperial mode of world maintenance” (Cover, 1995, p. 109). Certain

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interpretations of the law inevitably dominate the political and social landscape of a plural society, leading to the entrenchment of the more powerful narratives and the obfuscation of the less powerful. To add insult to injury, Cover continues, state institutions within our communities are often responsible for perpetuating “world maintenance” (Cover, 1995, p. 109). They typically reflect the dominant culture and thus have no incentive to disrupt the status quo. Judges, for example, enjoy a significantly higher degree of interpretive authority in the liberal state and so they have the capacity to do noticeable damage to an insular community’s shared narrative. Judges are in fact agents of violence insofar as they tend to dismiss those legal narratives that are unfamiliar to them. The legal hero for Cover the Dworkinian Hercules, if you will is the judge that transcends her own community narrative and objectively examines the power of alternative stories. Of course the very concept of community defined as “a social, religious, occupational, or other group sharing common characteristics or interests and perceived or perceiving itself as distinct in some respect from the larger society within which exists” assumes both insularity and difference. Communities are surrounded by bigger and smaller communities and, in all but one case, they exist within other communities.2 Moreover, each community is in some way distinct, and those distinctions inevitably lead to clashes. Our community is different than yours and thus the imposition of your law encroaches on our way of being, on our collective way of life. It is here that law’s application is tantamount to a violent act. The story we tell ourselves about our heritage, our customs, our way of being in this world, and the fact that we use this story to guide our common lives, is susceptible to another community’s legal apparatus that tries to impose a different story. Law’s narrative is most often a reflection of the majority’s narrative. Of course, most communities accept the law even when it may make the bonds between members a bit more tenuous. We justify allegiance to the law because of some belief in democracy and representative government. But that does not alter the reality that law is a particularly violent weapon that often takes aim (implicitly or explicitly) at the stories of those who are outside the mainstream majority, particularly those communities, as in the case of Simcha Goldman, that are outside the religious majority. Put differently, Cover argued that law does violence to any group or practice that has the courage to defy it. To make his point, Cover offered the example of the Amish. The insular religious sect a paideic community by Cover’s definition follows a set of rules that is more or less dictated

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by a particular reading of the Bible. The story the Amish tell about themselves is both powerful, in that it acts as its own form of internal social control, and not shared by “the English,” those who reside outside the religious community. And therein lies the problem. Wisconsin v. Yoder (1972) is of course the most illustrative case. On one side are the Amish whose way of life suggests a certain educational trajectory (they believe their children should only be educated through the eighth grade). On the other side is the state of Wisconsin, which insists on compulsory education through the twelfth grade. The state’s mandate does more than just crimp the style of the Amish. It fundamentally interferes with certain core beliefs. The Amish live by a particular set of conforming internal laws while the imperial state expects all who take up residence within its jurisdiction to obey a different set of rules. Exceptions are made all the time, but the clash between narratives between the ways in which we choose to live our lives is fierce. And one can easily predict who will prevail when the state uses its authority against the insular community. Law’s violence is clearly on display in those moments. Among those communities to which the law has been particular cruel are Native Americans. Indeed, the traditions and practices of Native American tribes have spawned rich and fascinating narratives, and thus they provide illustrative examples of the capacity of law to do violence to normative communities. The presence of law in the American liberal state is often at odds with the customs, practices, and ethos of native peoples. We use two cases below to illustrate this broad and abstract tension. Our goal is less to comment on the particulars of a long history of legal abuses against native peoples, but instead to use two recent cases to elucidate the tension that Cover described. Put another way, our aim is to remind the reader of the paradox of law and narrative. On the one hand, we can’t (and don’t) live without both, but on the other hand they invariably create discord. Our chapter thus uses two court cases involving Native American customs and traditions so as to shed light on the inevitable conflicts that emerge when law exists uneasily in a liberal state.

NOMOS AND NATIVE AMERICAN NARRATIVES Each Native American tribe has created its own nomos its own normative universe with a distinct set of rules, expectations, and tenets. The Lakota have very different customs, traditions, and beliefs than the Iroquois, and

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vice versa. The Lakota were a nomadic people; the Iroquois were farmers who moved every decade or more. The Lakota have very distinct rituals around death; the Iroquois allowed individual tribes to replace deceased members with captives from other tribes. According to Powers, Garrett, and Martin, “Lakota traditions can be characterized as a system of spirituality that is fully integrated into a rhythm of life that includes all aspects and patterns of the universe. At the center of this rhythm is Wakan Tanka or Tunkashila, sometimes translated as Grandfather and often as Great Spirit or Great Mystery, but better left untranslated” (2004, p. 5295). Iroquois traditions, on the other hand, centered on the changing of the seasons; spirits were responsible for ushering in the different seasons and festivals were held in celebration of these important moments. The point is that Native American people are not of one piece. Even still, the state and federal governments have historically challenged Native American traditions and culture with little regard for the subtle differences among tribes. The relocation policies imposed in the nineteenth and twentieth centuries are well known, but the conflict between Native American traditions and the rules of the state still exists. Insofar as the state-imposed law is blunt and imprecise, certain Native American narratives are vulnerable. The same holds true for school-aged Native American children. Federal and state law has forced native children to compromise their heritage, language, and dress since the late nineteenth century, often with little or no regard to the differences among native tribes.3 This lack of precision not only sets up a situation in which Native Americans as a collective ethnic group are often marginalized and threatened by the laws of the majority, but even the laws enacted within individual tribes can impact the shared narratives of other tribes. In other words, the predicament that many Native American peoples find themselves in is similar to that of the Amish, French Canadians, Simcha Goldman, and so on: Their legal narrative is threatened by other narratives, in particular by ones emanating from the state. Robert Cover did not consider the plight of Native American tribes in his famous Foreword, but he just as well might have. Like the Amish, Native American tribes have stories to tell. And it is those stories that inform individual identities within the community as well shape the core of their collective experience. Over the past decade, two judicial cases have highlighted the clash between the state’s imperial authority and Native American narratives. Though the outcome in each case is assuredly different, the combined tale reveals much about law’s capacity for violence.

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Case 1: A.A. v. Needville Independent School District Cover claimed the state has a violent tendency to force citizens to abide by its laws, which can result in the loss of identity for those who fall outside of society’s mainstream culture. In the first case, the violence of Needville Independent School District could have forced a young Native American boy to sacrifice a piece of his identity. For the privileged majority, haircuts may be trivial and dress codes straightforward. For some, like A.A. and his parents, the circumstances are different. They must struggle against agents of the state in order to defend their own cultural narrative. The case began when Kenny Arocha and Michelle Betenbaugh, on behalf of their son, sued the Needville Independent School District (a short distance from Houston, TX) because they believed that the elementary school’s regulations regarding grooming and the length of one’s hair violated their Free Exercise, Free Speech, and Due Process rights. Of course, these rights serve as pillars on which national identity rests. Often, the state passes judgment on cultural narratives that fall outside of the conventional tradition. There are times when that act of judgment becomes an act of violence, undermining the freedoms that are most crucial to our national identity. In A.A. it is the school district in particular that commits the act of jurispathic violence. Violence may seem a harsh word to use when the issue appears to revolve around a fairly straightforward dress code, but the central point of this case has implications that extend well beyond a minor school violation. One provision of the Needville dress code reads: “Boys’ hair shall not cover any part of the ear or touch the top of the standard collar in the back” (A.A. v. Needville, 2009, p. 7). The language is clear enough, but its implications are more difficult to discern. For the typical male student enrolled in a Needville Public School, keeping his hair short would never be a contentious issue. For A.A. to cut his braid would mean severing a piece of his identity. Arocha and Betenbaugh made a decision to teach their son, A.A., certain Native American values and beliefs. Specifically, they claimed to be members of the state-recognized Lipan-Apache tribe of Texas, and their way of living in this world is, they say, colored by their Native American roots. One such belief is that his hair exists as a powerful symbol and a reminder of identity and tradition. As a direct result, A.A. takes pride in his braids as an integral piece of his young identity, refusing even to wear a wig for Halloween that would cover them. Arocha’s religious beliefs differ from more familiar denominations such as Christianity or Islam in that his

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beliefs are not grounded in a written text. The Native American traditions that Arocha chooses to uphold follow an oral tradition they are ones that he learned from his older relatives. Arocha emulated the braided hairstyle that his uncle wore until he was forced to cut his hair for school. Arocha then passed that tradition to his son, making that aspect of the Native American narrative an integral part of their family identity. Arocha has taught his son that his braid is “an outward extension of who we are and where we come from, our ancestry and where we’re going in life” (A.A. v. Needville, 2009, p. 4). When Arocha and Betenbaugh enrolled A.A. at Needville Elementary, the School District’s leaders actively infringed upon the piece of Native American tradition that the Plaintiffs sought to preserve. When Betenbaugh emailed the Superintendent’s secretary about the dress code hair policy prior to her son’s enrollment, she received no response. Next, Betenbaugh contacted the elementary school principal, whose response was simply that long hair was not permitted for boys. Betenbaugh then contacted the Superintendent directly in order to explain that her son’s hair was grown out for religious reasons. When A.A.’s parents met with Superintendent Rhodes to discuss the issue, he asked for proof of their belief that hair should not be cut. They told him that according to their beliefs, hair acts as a “yardstick of wisdom” (A.A. v. Needville, 2009, p. 9). There was no book they could point to that would corroborate that statement because their traditions had been passed down orally. The Superintendent was not satisfied so the family submitted a DNA test to prove their son’s heritage, and they compiled previous court decisions and documents that they thought would bolster their own case. On behalf of the school district, Superintendent Rhodes denied their request without further explanation. Arocha and Betenbaugh appealed the school district’s decision. The next step was to meet with the School Board to discuss the matter further. Progress and meaningful discussion of the issue were avoided when the School Board held a public meeting and decided that since the couple did not yet reside in the Needville School District, they would have to repeat the process once they moved and get a final answer at that time. The entire process was drawn out. As the summer before A.A.’s kindergarten year went on, Arocha and Betenbaugh held multiple meetings with the School Board and Superintendent Rhodes. During these meetings, Arocha and Betenbaugh reiterated that their cultural and religious views were sincerely held, and offered examples from their past to make a convincing argument.

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Over the course of the summer meetings, Superintendent Rhodes attempted to reach a compromise with Arocha and Betenbaugh. He suggested that A.A. wear his hair in a bun on the top of his head, thereby altering the traditional style. His parents refused. Next, Superintendent Rhodes and the School Board decided that A.A. could wear his hair in a single braid, but never two, and that he would have to keep the braid tucked into the back of his shirt. They would grant a partial exemption from the dress code but continued to assert power over the traditional braided style in an attempt to change it. In spite of these negotiations, A.A. attended his first day of kindergarten with his hair in two braids. The school made it clear that A.A. would receive an “in-school suspension” (A.A. v. Needville, 2009, p. 17) if his parents did not comply with the exemption policy that they had implemented. A.A. and his family continued to deny the school’s order and the case was brought to Federal District Court. A month later, the District Court entered a Preliminary Injunction, which required that A.A. be allowed to return to his regular class and wear his hair how he pleased until further notice. Just by granting the Preliminary Injunction, Judge Ellison of the District Court demonstrates his recognition of A.A.’s religious custom. One of the requirements for a Preliminary Injunction is that the applicant must face a substantial threat that he will suffer irreparable injury if the injunction is not granted. By acknowledging and honoring the symbolic importance of A.A.’s long hair, the District Court defended a narrative that differs from the dominant one. Similar to the High Court’s decision in Wisconsin v. Yoder, the District Court embraced a Coverain stance and supported the narrative of an insular, paideic community over the state-imposed regulation. After granting the injunction the District Court evaluated the Free Exercise Clause issue. The Free Exercise Clause has been applied to the states through the Fourteenth Amendment, and protects citizens from “all state agents, including school boards” (A.A. v. Needville, 2009, p. 20). The central question that the District Court wrestled with was whether A.A.’s braid constituted a “sincerely held religious belief” (A.A. v. Needville, 2009, p. 22), as only beliefs of a religious nature are protected by the Free Exercise Clause. The District Court acknowledged that even the Supreme Court has had trouble discerning whether or not a belief is religious; there is no specific rubric for a court to follow when making that evaluation. The District Court considered historical context first, and took into account the destructive impact that assimilation policies had on Native American culture. The District Court then discussed the ways in which long hair for

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Native American men can be “rooted in religious belief” (A.A. v. Needville, 2009, p. 23). In Diaz v. Collins, the Fifth Circuit Court of Appeals decided that the Native American hair custom, “while in some parts cultural, has strong religious implications” (Diaz v. Collins, 1997, p. 11). The Supreme Court has purposely avoided defining what “religious” means, and has shied away from dissecting the validity of an individual’s personal religious beliefs. According to the United States Supreme Court, when someone draws a line for religious reasons “it is not for the Court to say it is an unreasonable one.” In Frazee v. Ill. Dept. of Emp. Security, the Supreme Court reversed the lower court’s decision that a worker who refused a position that would require him to work on Sundays would not receive unemployment benefits simply because his belief was not located within a “tenet or dogma of an established religious sect” (Frazee v. Dept. of Emp. Security, 1989, p. 6). The Supreme Court ruled that Frazee’s decision “was based on sincerely held religious beliefs.” The same principle emerged in the Needville case. The District Court found it sufficient that some Native Americans believe that their hair is a religious symbol, and that A.A. and his family clearly share that belief. That same court disregarded the fact that Arocha does not officially belong to a tribe, that he cannot point to a particular religious tenet covering hair length, or that he shaved his own hair. Instead, the District Court took the burden off of Arocha and Betenbaugh to prove their intangible religious beliefs by ruling that there was no evidence that their beliefs were “purely secular” (A.A. v. Needville, 2009, p. 60). In upholding the District Court decision, the Fifth Circuit Court of appeals affirmed the central ruling: “Despite the family’s articulation of religious belief using different words at different times,” Judge Higginbotham wrote for the majority, “we must refuse to dissect religious tenets just because the believer admits that he is ‘struggling’ with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ” (A.A. v. Needville, 2009, p. 27). The District Court also found that the School Board’s exemption policy applied to A.A. alone and thus was not “generally applicable,” nor was it “neutral” because it was created mostly with the intent to “burden A.A’s practice of his religious belief” (A.A. v. Needville, 2009, p. 42). Judge Ellison noted that the exemption policy “proscribes more religious conduct than is necessary to achieve its stated goals,” and that “it is difficult to imagine that allowing one male child to wear long hair … would disturb the school’s sense of order and its efforts to teach its students hygiene”

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(A.A. v. Needville, 2009, p. 41). Since the exemption policy was found to be neither neutral nor generally applicable, the District Court applied the most rigorous scrutiny. Arocha and Betenbaugh also believed that the School Board’s insistence that A.A. cover his braids was a violation of his right to free speech, specifically his freedom of expression. Although fashion choices in general are not constitutionally protected, A.A.’s braids “convey a particularized message of his Native American heritage and religion” (A.A. v. Needville, 2009, p. 52). That message is one that can easily be understood and recognized by others. The District Court found that Betenbaugh and Arocha’s Due Process Rights were violated as well. As parents, they have the right to “inculcate their children with moral standards, religious beliefs, and elements of good citizenship” (A.A. v. Needville, 2009, p. 57). The School Board’s exemption policy could not satisfy the requirement of having more than a “reasonable relation to some purpose within the competency of the state to sustain the validity of the state’s requirement” (A.A. v. Needville, 2009, p. 59). Again, the exemption policy failed the test of the Court’s rigorous scrutiny. Judge Ellison also found that the Plaintiffs would suffer irreparable injury if the School District were to win the case. Judge Ellison determined that if A.A. was to wear his hair in two long braids it would not cause substantial interference to the function of Needville Independent School District. The District Court granted the Plaintiffs a Preliminary Injunction as to the dress code exemption policy, but maintained that Arocha and Betenbaugh will have to reapply for religious exemption every year. Indeed, Judge Ellison was clearly aware of the violence that law can incur, and the destructive inclination of state agents. Although Native Americans are not entirely insular in the same way as, for example, the Amish, they are a culturally insular group in that their narrative does not always align with that of mainstream America. For that reason, members of the Native American community need the help of allies in the legal realm to protect their traditions from the sometimes broad and imprecise regulations of the state. There are many different identities and cultural variations that reside within the term “Native American.” That said, there is a universal Native American history of dislocation and ostracism. Abuse at the hands of Europeans and then Americans resulted in the loss, destruction, and confusion of what were once distinct and widely practiced religious and cultural customs. The moment in which the District Court for the Southern District of Texas decided to apply strict scrutiny to A.A.’s case exemplifies what

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Robert Cover called jurisgenesis. The judge contributed to the Native American narrative by honoring it and maintaining its legacy, despite its history of marginalization and its opposition to the status quo.

Case 2: Dreaming Bear v. Fleming In May of 2010, just two years after A.A. v. Needville was originally decided, another Native American student found his own cultural preferences at odds with those of his school. Aloysius Dreaming Bear was a senior at Oelrichs High School in Oelrichs, South Dakota when he filed suit against the school board and superintendent for violating his First Amendment right to free speech. Dreaming Bear wished to wear his traditional Lakota attire for the duration of his graduation ceremony, but the school insisted that he wear a cap and gown for part of the event. In response, Dreaming Bear sought both a preliminary and permanent injunction so that the school district could not force its cap and gown policy on him or on members of subsequent graduating classes. Similar to the Needville case, Dreaming Bear recognized the inherent challenge in any liberal state. He wanted to express himself and his identity in a way that aligned with the individualistic spirit of the Lakota tribe and the broader American liberal culture, while the state (represented in the School Board) felt compelled to abide by particular regulations in the name of assimilation and conformity. The facts of the case are not unfamiliar. Dreaming Bear grew up on the Pine Ridge Indian Reservation, and is a member of the Oglala Sioux Tribe. In contrast to A.A., he has been immersed in Native American culture for his entire life, tracing his ancestry back to Chief Red Cloud. Dreaming Bear sees himself as a true man of the Lakota tribe, and that piece of his heritage shapes his identity. In the fall of his senior year, Dreaming Bear spoke to his class sponsor about his intention to wear Lakota clothing to his graduation. The sponsor believed that traditional attire would be acceptable because the students typically have a good deal of influence in their ceremony. Following that conversation, however, Dreaming Bear was informed that the school board would require that he wears a cap and gown for part of the graduation. He thus took the complaint to the next level, choosing to speak with the School Board during the spring right before his graduation. Because Dreaming Bear knew that Oelrichs emphasized graduation as an occasion to honor and focus on the graduating seniors, he felt that he

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should be able to represent himself as he wished on the special day. He thus obtained the signatures of 9 out of 10 members of his senior class in support of his request, and prepared a statement to be delivered at the School Board meeting.4 After the meeting, the school board reaffirmed the state’s ruling that Dreaming Bear would in fact have to wear a cap and gown over his traditional clothing. As a compromise, however, the School Board decided to require the cap and gown only in the moment when he actually walked across the stage to receive his diploma. For the rest of the ceremony he could wear his Lakota attire. Not good enough, claimed Dreaming Bear. The puzzling part of this issue is Oelrichs High School had a reputation of being quite accommodating of the Lakota heritage that almost all of its students share. Although the school board required seniors to wear a cap and gown when they received their diploma, the rest of the ceremony welcomed Lakota custom. The graduation typically begins with a feather and plume ceremony in which a traditional medicine man blesses the feathers and plumes while the students are invited to wear their tribal clothing. After that portion of the celebration, the seniors leave and reenter the gym wearing their caps and gowns. When each student is called the receive his or her diploma, he or she can remove the cap and gown immediately after crossing the stage. At this point, the student will be presented with a star quilt before the audience, and can be can be wrapped in a star quilt if he or she wants. The principal of Oelrichs High School, Charles Fredrickson, explained that the caps and gowns were “academic measures of recognition” (Dreaming Bear v. Fleming, 2010, p. 9), as well as a unifying element for the community of graduates. Dreaming Bear rebutted that statement with one of his own, saying that he “saw no difference in the symbolism of wearing a cap and gown or traditional Lakota clothing when receiving his diploma, as both represent academic achievement” (Dreaming Bear v. Fleming, 2010, p. 10). Therein lies the problem that Cover identifies in “Nomos and narrative” (Covers, 1995, p. 95). In Dreaming Bear’s estimation, the majority creates a hierarchy of customs that suppresses the minority’s cultural beliefs or relegates them to the margins. The cap and gown is a symbol of academic achievement for mainstream America, but for certain members of the Lakota tribe there is no better way to celebrate academic achievement than by honoring and representing traditions of the past. Dreaming Bear asked the school board, “How can I be an honorable Lakota warrior by wearing a white man’s gown, and not my tribe’s regalia” (Dreaming Bear v. Fleming, 2010, p. 29)?

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Dreaming Bear insisted that the obligatory cap and gown do not represent academic achievement, but rather the masking of his identity, culture, and heritage. Even though he would only have to wear the cap and gown for approximately 30 minutes that is 30 minutes in which he sacrificed “his tribe’s regalia” for “a white man’s gown” (Dreaming Bear v. Fleming, 2010, p. 29). Indeed, the most pivotal and individualized moment of any high school graduation is when a student walks across the stage to receive the diploma that symbolizes everything that he or she has worked to achieve. Dreaming Bear saw the cap and gown as a threat to that moment of individuality and honor. Professor Elizabeth CookLynn, who teaches English and Native American studies, testified that the school board’s cap and gown policy “sends a message that Lakota dress is an inferior way to signify achievement” (Dreaming Bear v. Fleming, 2010, p. 12). The District Court of South Dakota was asked to adjudicate the matter. Judge Viken had multiple issues to consider. The central question confronting the District Court was whether the cap and gown policy violated the First Amendment: Were Dreaming Bear’s actions expressive conduct that warrants First Amendment protection? And does the cap and gown policy infringe upon Dreaming Bear’s right? Of course, the Supreme Court has determined that conduct must be “sufficiently imbued with elements of communication” in order to warrant First Amendment protection. “The conduct must communicate a particularized message, and there must be great likelihood that the message will be understood by those who view it” (Dreaming Bear v. Fleming, 2010, p. 15). Judge Viken agreed, writing: “the burden is on Mr. Dreaming Bear as the movant to demonstrate his intended conduct falls under the umbrella of protection of the First Amendment” (Dreaming Bear v. Fleming, 2010, p. 16). For Dreaming Bear, that amounted to a substantial burden. Proving clothes as a means of expressive conduct has been difficult in past cases. In Zalewska v. County of Sullivan (2003), the Federal Court of Appeals found that a woman who wished to wear a skirt to work rather than the required pants for cultural reasons did not express a specific or particularized message. A message that expresses a “vague, overarching view of cultural tradition” received “minimal if any First Amendment protection” (Dreaming Bear v. Fleming, 2010, p. 18). It was an uphill battle for the young Lakota student. The District Court cited A.A. v. Needville Independent School District as precedent as well, noting that A.A.’s hair braid disseminated a widely understood and particularized message about his identity. Critical to A.A.’s situation was the fact that the symbolism of his braids was likely to be understood by members of

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the community who would have seen the stock image of the Plains Indian with braided hair. Case law varies on the topic of clothing as protected expression, but the deciding factors are typically whether the clothing conveys a particularized message and whether others viewing the outfit will understand that message. These criteria leave cultural minorities susceptible to the jurispathic tendencies of the state and the court. An outward demonstration of identity and pride, such as Dreaming Bear’s traditional Lakota clothing, must be judged and deemed acceptable by powerful members of the dominant culture. For Dreaming Bear, his message at graduation would have been clear. He wanted to honor his family and his heritage, and the people he most cared about in the audience would have understood that. And yet the State, much to Cover’s dismay, determines the importance of his personal self-expression and maintains the power to override it. Judge Viken was sympathetic to Dreaming Bear’s cultural narrative. He writes: “Within certain contexts, the act of choosing clothing is elevated above the norm to become the type of expressive speech contemplated by the First Amendment. The court finds this one such case” (Dreaming Bear v. Fleming, 2010, p. 28). The District Court thus acknowledged that Dreaming Bear’s desire to wear his Lakota clothing was born out of meaningful cultural values and genuine pride in his ancestry. The recognition of Dreaming Bear’s identity in Judge Viken’s opinion seems to indicate that the Lakota narrative will be upheld at Oelrichs High School. Even though the school board had allowed for other traditional elements of the ceremony, it refused to equate the cap and gown and the Lakota clothing as symbols of academic achievement. Dreaming Bear’s intended message was not merely a fashion statement or an expression of individuality, but rather an attempt to honor his heritage. The District Court found his message “akin to the wearing of braids as an expression of a student’s cultural identity” (Dreaming Bear v. Fleming, 2010, p. 30). As in the case with A.A.’s braids, the court recognized that those viewing the graduation ceremony would certainly understand Dreaming Bear’s message. Even if Dreaming Bear attended a school that was not predominately Lakota, Cover would have argued that to force him to don a cap and gown and suppress his traditional clothing is a violent act. The District Court acted in a jurisgenerative mode, finding that “Mr. Dreaming Bear has met his burden under Johnson and Spence of demonstrating his conduct is the type of expressive speech that falls under the umbrella of the Free Speech of the First Amendment” (Dreaming Bear v. Fleming, 2010, p. 31). The District Court, in other words, adds to the legal narrative of the Lakota

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tribe by allowing Dreaming Bear to process in his traditional outfit. However, that did not conclude the constitutional controversy. The next step of the process, according to the District Court, was to determine whether or not the school board’s cap and gown policy “unconstitutionally infringes on this protected speech” (Dreaming Bear v. Fleming, 2010, p. 31). There is considerable overlap between the arenas of education and jurisprudence. Judge Viken writes of the “need to tread carefully in the realm of school policy” (Dreaming Bear v. Fleming, 2010, p. 32) because schools to some extent should self-govern and have the power to create rules within their own institutions. The principle is such that schools are often empowered to limit certain freedoms in order to create a stable educational environment for all students. Courts and schools collide only when a school’s policy directly conflicts with basic constitutional tenets. The Supreme Court decided in Tinker that students do not lose all of their constitutional rights while attending school. In order for school authorities to infringe upon free speech, they must prove that the expression will “substantially interfere with the work of the school or impinge upon the rights of other students” (Dreaming Bear v. Fleming, 2010, p. 33). The Supreme Court settled on differing levels of scrutiny with which to evaluate student speech. When student speech warrants the strictest level of scrutiny, as seen in Tinker v. Des Moines (1969) the case where students were suspended for wearing black armbands to school in protest of the Vietnam war the speech can only be prohibited if it causes a “substantial material disruption in the school’s operation.” A second level of scrutiny involves “lewd, vulgar, obscene, or plainly offensive speech,” and leaves room for the school to prohibit the speech because it is “wholly inconsistent with the ‘fundamental values’ of public school education” (Dreaming Bear v. Fleming, 2010, p. 35). The case that initially inspired a third category of speech and scrutiny level was Hazelwood School District v. Kuhlmeier (1988), in which former high school students filed suit against school officials who deleted two pages from the school newspaper because they featured articles on teen pregnancy and the impact of divorce on students. The Court decided that the school newspaper was not independent of the school and in fact was a “supervised learning experience for journalism students” (Dreaming Bear v. Fleming, 2010, p. 36). The Supreme Court found that school officials have more control over school publications, productions, and activities than they do over student speech that happens to occur on school grounds: “Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the

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activity is designed to teach … a school must be able to set high standards for the student speech that is disseminated under its auspices” (Dreaming Bear v. Fleming, 2010, p. 38). The District Court of South Dakota found that Dreaming Bear’s speech fell into the Hazelwood category, and thus applied the test that the Supreme Court used for in that case: “Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns” (Dreaming Bear v. Fleming, 2010, p. 39). So long as the school has a valid educational purpose in curtailing student speech at a school-sponsored event, it may do so without infringing upon the First Amendment right of its students. Thus, as long as Oelrichs High School establishes a valid education purpose for curtailing Dreaming Bear’s speech at the school-sponsored graduation, Dreaming Bear’s First Amendment rights are not violated. Oelrichs High School’s graduation, although traditionally a day to honor the senior class, is still a school-sponsored event. As a direct result, Judge Viken deems the student speech that takes place at graduation, “school sponsored speech” (Dreaming Bear v. Fleming, 2010, p. 42). Dreaming Bear’s speech would not have had a forum in which to be disseminated without the school-sponsored graduation event. As a direct result, the District Court evaluated Dreaming Bear’s constitutionally claim with Hazelwood in mind. The court found that the restriction of Dreaming Bear’s expression at graduation was reasonably related to a legitimate educational concern. Rather than focusing on the individual concerns of a graduating senior, the court viewed the graduation event as a celebration of the “school’s achievement as an institution of learning and the teachers’ and administrators’ achievements as educators” adding that, “the messages advanced by the proceedings may become diluted” (Dreaming Bear v. Fleming, 2010, p. 46) if the school board allowed the students complete freedom to express themselves at graduation. Oelrichs High School can lawfully curtail Dreaming Bear’s self-expression at graduation because it was a school event that centered around the particular educational purposes of honoring the seniors, celebrating the unity of the class, and providing an event for friends and family to celebrate the students’ accomplishments in an organized manner. What is curious is that Judge Viken fails to discuss precisely why the message of celebration and overall achievement in the academic realm must also hinder one student’s desire to honor his heritage. And this was Cover’s issue. The idea that wearing traditional Lakota clothing when receiving a

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diploma will somehow take away from the atmosphere of celebration or the seriousness of academic achievement seems unlikely, especially given the familiar nomos and narrative of the Lakota peoples. The Oelrichs High School may have a legitimate interest in “ensuring that the graduation exercises convey, to the student body, teachers, staff, and family members, messages that advance the mission and goals of the school” (Dreaming Bear v. Fleming, 2010, p. 46), but that is not the only interest the school board or the court should be concerned with. Indeed, an individual who exhibits cultural awareness, pride, and strong desire in self-expression should be rewarded and respected. Those traits reflect positively on the school. The fact that Dreaming Bear cared so much about the way he represented himself at his graduation and the way he honored his family demonstrates how important the landmark of high school graduation was for him; that kind of spirit, Cover insisted, should not be dampened just to protect the mainstream tradition of the cap and gown. The court continuously refers to caps and gowns as “universal symbol of academic excellence” (Dreaming Bear v. Fleming, 2010, p. 46), but for Dreaming Bear, a cap and gown do not adequately represent his academic achievement. In fact they hide and suppress the regalia that he believes truly represents the process and influences that enabled him to receive his diploma. In a country comprised of such a variety of nomoi, the term “universal” is rarely an accurate one. To place one symbol of achievement above another, to create and reinforce that kind of cultural hierarchy goes against the idea of a liberal state in which the quest for identity is neither favored not disfavored. The fact that the court finds that Dreaming Bear could not suffer irreparable harm as a result of wearing the cap and gown simply because he would have other opportunities to wear his Lakota clothing at the ceremony probably misses the point. The significant moment that Dreaming Bear envisioned was one in which he received his diploma from a public school while simultaneously representing his own cultural state. In theory, Dreaming Bear’s ideal moment should not have been difficult to actualize. Perhaps the court could not grant the permanent injunction that Dreaming Bear sought. Admittedly to abolish permanently the cap and gown policy would be a significant intervention on the court’s part, but Dreaming Bear’s own argument was denied and dismissed. The question of why the issue even went to court arises. One is right to ask: Why did the school board not see the crucial opportunity to honor the narrative of Dreaming Bear, the Lakota people, and all other insular groups that struggle to save traditions that have been forced out of the contemporary

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culture? State agents must allow exceptions in their blind and broad policies so that we do not conceal or deny the rich traditions of the citizens who reside on the periphery of mainstream society.

CONCLUSION Courts across the country are regularly confronted with what Robert Cover referred to as the “radical dichotomy between the social organization of law as power and the organization of law as meaning” (Cover, 1995, p. 112). On the one hand, law is often exercised as a means of power, as a means with which to curtail behavior and mandate conformity. It can easily be seen as a perhaps as the mechanism for social organization. This characteristic of law is not always bad; we mentioned early in this chapter that individuals and groups often find great comfort in the protective capacity of the law. And yet the exercise of legal authority can also unnerve us. It is a force that disrupts the various worlds our communities generate and maintain. In organizing society, law is also forced to dismantle some communal narratives, to disrupt the very fabric that might hold a community together. Robert Cover was acutely aware of the legal dichotomy that emerges in every liberal state. There is another hand as well. Cover also recognized that law could be a source of tremendous communal unity. It has the ability to rally a group around a particular legal meaning, a particular legal narrative. The jurisgenerative process, that is, allows for individuals and communities to shape a common existence and to live together under roughly shared rules. There is no promise of harmony in that legal narrative (communities can be dysfunctional even when there is shared meaning); but there is the necessary apparatus to make a community work and thrive. Communities are able to construct a social narrative out of the practices, policies, and laws of a place. And that can be powerful. The liberal polity is the type of community that witnesses the inevitable tension between law’s jurispathic identity and its jurisgenerative one. Law’s destructive power is countered by its creative energy. Adding to the equation is the reality that institutions like courts contribute to meaning making, and their power is considerable. If one could create a legal narrative that was completely independent of the state’s apparatus, the plight of A.A. and Dreaming Bear would doubtless be different. The above illustrations both emerging from separate, though similar, stories coming

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out of Native American experiences demonstrate the fundamental dichotomy in front of us. Both individuals faced a difficult dilemma, one that all citizens of a liberal polity can appreciate: succumb to the power of the law or fight for the ability to express one’s personal identity. The young Apache and Lakota boys chose the latter. To them, a liberal polity like the United States is precisely the place to exercise the type of freedom that confronts the pressure to assimilate and conform. In the end, their experiences sharply highlight the often-awkward marriage that exists between law and the liberal state.

NOTES 1. Of course, we’re not making judgments on the legitimacy or justification of the state to impose legal restrictions; we’re just claiming that they often do violence to specific expressions of identity. 2. The one case is always the state, which occupies a unique position. 3. Consider the introduction of the Carlisle Indian Industrial School in 1879. The goal of the school was to eliminate cultural differences and force young Native Americans to assimilate to the dominant white culture. 4. Unaware that he would only be allotted three minutes to speak at the meeting, Dreaming Bear was surprised when he was stopped in the middle of reading his letter and unable to finish his request.

REFERENCES A.A. ex rel. Betenbaugh v. Needville Independent School District. (2009). 701 F. Supp. 2d 863. A.A. ex rel. Betenbaugh v. Needville Independent School District. (2010). 611 F.3d 248. Cover, R. (1982). Foreword: Nomos and narrative. Harvard Law Review, 97, 4. In M. Minow, M. Ryan, & A. Sarat (Eds.). (1995). Narrative, violence, and the law: The essays of Robert Cover. Ann Arbor, MI: University of Michigan Press. Diaz v. Collins. (1997). 114 F.3d 69. Dreaming Bear v. Fleming. (2010). D.S.D. Frazee v. Ill. Dept. of Emp. Security. (1989). 489 US 829. Goldman v. Weinberger. (1986). 475 US 506. Hazelwood School District v. Kuhlmeier. (1988). 484 US 260. Powers, W., Garrett, J., & Martin, K. (2004). Lakota religious traditions. In Encyclopedia of religion (2nd ed.). Detroit, MI: MacMillan Reference. Sandel, M. (1996). Democracy’s discontent. Cambridge: Harvard University Press. Tinker v. Des Moines. (1969). Independent Community School District et al., 393 US 503. Wisconsin v. Yoder. (1972). 406 US 205. Zalewska v. County of Sullivan. (2003). 316 F.3d 314.