Essentially Contested America

For whatever reasons, liberals have failed to remedy or even achieve a consensus about the importance of remedying the devastating effects of poverty, famine, genocide and the insidious ravages of environmental degradation. A curious phenomenon appears to be occurring. Progressive evangelicals seem to be picking up the slack as more and more Christians see these problems as just as fundamental as the problems, in their view, of family values, abortion, stem-cell research, and same-sex marriage.

Recently, CNN aired a story about Evangelical ministers emphasizing the importance of training our eyes and ammunition on poverty and environmental degradation. David Huo has written a book expressing his disappointment, to say the least, over President Bush’s failure to make good on his promise to implement his “compassionate conservativism” to alleviate poverty. Other evangelicals have demonstrated their profound concern for the genocide in Darfur. At present this unity is one of purpose, not yet one of effort. But that might change when the moral imperative to remedy these catastrophes resonates throughout diverse political, social, and religious communities.

It’s too soon, of course, to speculate on whether this unity will be achieved or, if it is achieved, whether or not it will be effective.¬† But we live in an age of devastating tragedies, monumental demoralization, and insidious despair. If Christian evangelicals and secular liberals join forces to eradicate these problems, others should not only applaud, but perhaps they will also join in this newly minted unity and radically redirect our penchant for war toward a concerted effort, following the revolutionary spirit of our nation’s independence, literally, to begin the world anew.

David Kuo’s picture is from BeliefNet. The picture of Dafar combatants is from Wikpedia.

Essentially contested concepts and the burdens of judgments encourage us to engage in conversation with other citizens, both those with whom we agree and those with whom we disagree. Conversation with the former is important in order to determine the scope and parameters of our agreement. Conversation with the latter is even more important since it is through political dialogue that we hope to convince others or be convinced by others about the most productive ways to realize the community’s good. This process is probably best characterized as deliberative and pragmatic. In future posts, ECA will discuss deliberation and pragmatism in greater detail.
For now, let’s point out that the notions of conversation, deliberation, dialogue, and their cognates have been comprehensively examined in legal and political theory. These forms of human discourse have a considerable following in scholarly quarters, but they also have opponents. To oversimplify, the root idea is that in a society where no one, officially, has a corner on the truth, violence or negotiation are the only possibilities. Talking to other citizens in an attempt to work through the various obstacles to consensus–even if only provisional consensus–is the only way to avoid slipping into violence. There are at least two approaches to, or two kinds of theories of, conversation. The first counsels us to talk to one another with no strings or constraints attached. The hope here is that talking through our political differences–a fundamentally important process of human interaction–will soften obdurate contention. By listening to the arguments of others in a variety of contexts–and identifying, experiencing, and appreciating their commitment to alternative values, even the hardest, coldest hearts may realize that some principled compromise should be sought. The second approach attempts to provide a theory of the most productive kinds of conversation. Both are necessary for consensus in an essentially contested America. The first approach includes analyses of persuasion, commitment, and empathy, as well as analyses of other moral emotions. The second is more theoretical seeking to delineate procedures of pragmatic conversation and deliberation in a contested society. Also, the second approach addresses the critical question of whether constraints should be placed on conversation in the public square. Where does one begin to learn about these approaches? Opponents sometimes make better references than proponents. Hence, for those interested in learning more about this movement in legal theory consider, as a good introduction, the sources cited in footnote 30 in Defending Judicial Supremacy: A Reply, an article appearing in Constitutional Commentary by Frederick Schauer and Larry Alexander, two critics of the movement.

The National Broadcasting Company has rejected an ad for the Dixie Chicks’ documentary “Shut Up and Sing” on the ground that it “disparages the President.” Constitutionally speaking, as a private corporation, NBC has every right to pick and choose what it airs. However, there is a broader sense of constitutionalism captured in the idea of an essentially contested background theory that tells us that in a constitutional democracy even private corporations should reflect our cherished constitutional values. Freedom of speech is one of those values. In rejecting the ad, what message is NBC sending to kids and adolescents? The message is this: (1) Freedom of speech is not honored in NBC land, and (2) it is wrong to criticize the President. Imagine your child’s plaintiff cry “Mommy, Johnny called the President a jerk. Call the police!”

With the demise of the Alien and Sedition Act, if not before, Americans have had the right (and perhaps the duty) to criticize, even to disparage, the president. We do not, and should not, have the right to threaten or harm the President or urge others to do so. That is absolutely certain. But without strident criticism, even obnoxious disparagement, the moral timber of a free society dissipates. The letter of the law is only one element, albeit a fundamentally important element, in the moral backbone of in a constitutional democracy. No doubt, to violate the letter of the law, governmental action is required. However, the non-governmental sector provides sustenance to the letter of the law. Without it, constitutional democracy founders. Non-governmental actors are a rough indication of just how seriously the society as a whole takes its constitutional values. Further, the actions of non-governmental actors, especially major media corporations, send messages to the nation’s people, especially its children on the importance of free speech.

NBC is telling our children that it has the right to censor what it airs. NBC certainly must makes commercial decisions about what it airs. This means NBC will reject many ads for a multitude of constitutionally innocuous reasons. But, if the only reason to reject an ad, is because of its political content, then NBC violates the spirit, if not the letter, of the First Amendment. Don’t be surprised if the lesson is learned well and the next generation of kids thinks it’s alright for the government to censor speech. I can hear it now: “If NBC can do it, why can’t the government?” It would be remarkably dangerous if this question was taken seriously.

Liberals have been condemned, with some justification, for passivity, indolence, perhaps in cowardice, in failing to join in collective action stridently denouncing an immoral, illegal, and ineffectively conducted war in Iraq. Bruce Ackerman and Todd Gitlin fiercely reject this characterization and have responded to this attack with the “Liberal Manifesto.” Here are the first two paragraphs of their statement in the American Prospect:

As right-wing politicians and pundits call us stooges for Osama bin Laden, Tony Judt charges, in a widely discussed and heatedly debated essay in the London Review of Books, that American liberals–without distinction–have acquiesced in President Bush’s catastrophic foreign policy. Both claims are nonsense on stilts.

Clearly this is a moment for liberals to define ourselves. The important truth is that most liberals, including the undersigned, have stayed our course throughout these grim five years. We have consistently and publicly repudiated the ruinous policies of the Bush administration, and our diagnosis, alas, has been vindicated by events. The Bush debacle is a direct consequence of its repudiation of liberal principles. And if the country is to recover, we should begin by restating these principles.

Is it conceivable for liberals to reconstitute themselves into an authentically progressive force in American politics? Liberals need Thomas Paine’s eloquence and perseverance. Paine single-handedly stirred the revolutionary generation, moving the revolutionaries inexorably toward independence. We owe him a great debt, and we have a responsibility to make his, and the ideals of the revolutionary generation, live again. We need a new language of politics and society in order to shift our current stultifying paradigms of intolerance and division towards one instantiating the primary reasons for the idea of America: equality and independence. With independence and equality, everyone is free. Without them only some people are.

America’s political culture is consumed by a malfunctioning self-identity which belies the intoxicating world of possibility the revolutionaries bequeathed us. We no longer believe in significant change. That revolutionary ideal has metamorphosed into cynicism, isolation, greed, and alienation. We are mired in an entrenched understanding which sees our adversaries–both foreign and domestics–not simply as competitors–sometimes irascible competitors–with whom compromise and consensus is both possible and desirable, but rather as enemies over whom we must dominate. No doubt there are dangerous outlaws rampaging throughout the world. But that’s no reason to treat everyone as an outlaw or as an outlaw sympathizer.

We need to revivify our moral and political consciousness. We need, in effect, the capacity to envision beginning the world again. But this time, we need to realize that the benefits of American constitutional democracy require that no one feels satisfied with his or her own equality until everyone is genuinely equal.

For Vice-President Cheney, the answer to the question of whether water-boarding is a legitimate technique for interrogating detainees is a no-brainer. (”Detainee” is a curious choice of descriptions for captured senior al-Qaida suspects. The word suggests something benign as in “I was late for a faculty meeting because I was detained by a student.) The decision to use water-boarding as a technique of interrogating prisoners might be permissible, but it’s scandalous to suggest that such a decision is a no-brainer. The “no-brainer” characterization suggests a cost-benefit calculation where only the benefits count or that one is simply sticking to one’s guns come hell or high water. How curious it is for a representative of a Party that denigrates instrumentalist reasoning in other contexts to so blithely embrace cost-benefit analysis here.
The controversy over water-boarding involves essentially contested values and can perhaps be illuminated by appealing to concepts in ethical theory: Deontological ethics, act-utilitarianism, and rule utilitarianism. Deontological ethics prohibits certain conduct because of some inherent feature of the conduct itself, not its consequences. Act-utilitarianism engages directly in a cost-benefit analysis regarding each individual act. Rule-utilitarianism applies cost-benefit reasoning to rules, not acts. According to deontologists, if water-boarding is wrong it is wrong in itself, costs of eschewing it be damned. According to act-utilitarianism water-boarding may be right in a particular situation if it helps us gain valuable intelligence in the war on terror. Rule-utilitarianism asks us to evaluate a general rule, applicable to a range of acts and circumstances, in order to decide whether water-boarding is permissible. According to the rule-utilitarian, we must take into account a host of factors, such as our general presumption against torture; what consequences ensue if we (and then others) adopt a rule permitting water-boarding; how such a rule affects other principles and rules in our system of ethics, and whether the rule betrays fundamental American constitutional values. From a deontological perspective, water-boarding is clearly wrong because it uses a person as a means to an end–however important our reasons–not as an individual possessing inherent moral value. The deontologist rejects trade-offs or cost-benefit reasoning. Act- and rule-utilitarians embrace cost-benefit reasoning. The former applies it to individual decisions emphasizing our immediate goals, while the latter applies cost-benefit reasoning to rules, the general adoption of which has more benefits than costs.

Since the Vice-President endorses the use of water-boarding, it must be for utilitarians reasons. His argument is that water-boarding is justified because individual acts of water-boarding help us gain vital intelligence. However, act-utilitarianism overlooks the long term effects of individual acts of boarding-boarding. Consequently, rule-utilitarianism is a better bet for justifying the Vice-President’s position on water-boarding. However, according to rule-utilitarianism, the Vice-President’s position is abhorrent. Why? Because no rule-utilitarian would ever characterize the question of permitting water-boarding as a no-brainer. How easily we use cost-benefit analysis shapes our conclusions. The rule-utilitarian insists on more probing and comprehensive argument to establish the permissibility of water-boarding, if indeed, the rule-utilitarian would approve of this practice at all. But consider the following exchange between the Vice-President and a conservative talk show interviewer: The interviewer asked “Would you agree that a dunk in water is a no-brainer if it can save lives?” Vice-President Cheney replied: “It’s a no-brainer for me.” Rule-utilitarianism would never characterize water-boarding as a “no-brainer” or as “a dunk in the water” This ethical theory is more sensitive to precisely what’s at stake in the water boarding controversy. Rule utilitarians would be more circumspect. They would insist on carefully weighing the costs of water-boarding, not just its benefits. Why can’t we expect such circumspection from Vice-President Cheney? Agreeing with the interviewer that water-boarding is just “a dunk in the water” and calling the decision to use this method “a no-brainer” reveals a truncated, short-circuited process of ratiocination. It is no trivial matter to light-heartedly characterize a practice, prohibited by the U.S. Army’s Field Manual, in this manner as if water-boarding is just a familiar sunny day at the shore. Put on your bathing suit Mr. Vice-President we’re going for a dunk in the water. Water-boarding anyone?

Yesterday, New Jersey’s highest court made it crystal clear that straights and gays have the same right to publicly recognized intimacy. Does that mean same-sex marriage for all? Not really. The Court left the choice to the legislature of whether same-sex intimacy interests should be codified in marriage or something less in name but equal in rights, thus, following our very own judicial Solomonic practice of splitting the difference. Why judges seem to operate just like legislators. (Surprise! Surprise!)

Why all the fuss over same-sex marriage? There are many potentially intractable reasons for this controversy. Indeed, the same sex marriage debate is a place-holder for much broader and deeper controversies in American culture such as one’s tolerance for change, exclusionary versus inclusionary values, whether courts or legislatures should have the primary responsibility for deciding controversial social and cultural conflicts, and a host of others. For now I want to mention just one often neglected issue implicated by the same-sex marriage controversy: the problem of clashing normative environments in a democracy.

One’s normative environment consists of those fundamental values, attitudes, customs, and habits through which one experiences the world. Our sense of self, morality, and perception of other people, and the world generally is experienced through a normative environment. For good or ill, everyone seeks to retain one’s normative environment and feels threatened when, as is inevitable in a democracy, one’s normative environment clashes with the hostile or perceived to be hostile normative environment of others. Normative environments are all both inclusionary and exclusionary. The question is to what degree and how inclusion and exclusion are balanced or accommodated in one’s normative environment. A problem arises however when the dominant normative environment of the majority is significantly exclusionary. In those circumstances, minority normative environments are in peril. However, because the dominant normative environment is exclusionary it sees itself threatened by opposing normative environments, especially in this case, one embracing same-sex marriage. The same-sex marriage controversy pits the exclusionary normative environment of the opponents of same-sex marriage against the normative environment of a minority.

How should this conflict be resolved in a democracy? The obvious answer is through the legislature. The problem is that in a constitutional democracy embracing judicial supremacy, such as ours, the courts have been assigned the role of guardian of minority rights and interests. Many of the majority-minority conflicts are over the basic features of human flourishing. These issues which define the self and the society occupied by the self, include the most attractive design of democracy; how majority and minority normative environments should interact with one another, how much change in a practice is required for us to say that it has been threatened or eliminated, what sorts of resolutions should be adopted when conflicts arise between those embracing fundamentally opposed normative environments, and the mother of all controversies, should public democratic societies err on the side of including or excluding minority normative environments.

For now, let’s make one point: In a democracy championing judicial supremacy, the legislature and the courts both share the responsibility for deciding this issue. The decision is one link in a chain that one day will lead inevitably to the recognition of gays and lesbians as completely equal citizens with the same rights, privileges, and responsibilities of every other American citizen. How should opponents react to this inevitability? Probably, in the same manner each of us must react to normative environments we disdain. We voice our displeasure, perhaps engage in political action to reverse the trend, and when that fails, we recognize that our democratic institutions–both the legislature and the courts–have spoken. And that should end the matter at least for the immediate future. Any good democratic citizen must recognize that losing in such conflicts is the price democrats must pay for democracy. And once an extraordinary effort to suppress a minority environment has taken its course, closure or provisional closure is necessary and desirable for our culture to reconstitute itself.

Michael Ignatieff, a renowned philosopher and contender for the leadership of the Liberty Party in Canada, needs to take genuine responsibility for his support of the invasion of Iraq. Both in a recent political debate for Liberal Party leader, and earlier in an article in the New York Times Magazine, Ignatieff either contrives rationalizations for his support or blames others for his mistaken judgment about invading Iraq. Or when he can’t do either, he simply changes the subject. At a time when almost everyone–except the Bush Brigade, the resistance, the insurgents, and the terrorists–concedes that the invasion has been a failure, Ignatieff still refuses to take unqualified responsibility for supporting an invasion he now admits was a mistake.

In last weekend’s political contest for leader of the Liberal Party in Canada, Ignatieff sought to rationalize his ardent support of the United States’ duplicitous argument leading to the invasion by saying that he underestimated American incompetence in waging the war. In the NYT Magazine he acknowledges that he is no longer a proponent of the war, but then rationalizes his original support. He remains convinced that leaders of the U.S. and Great Britain made honest mistakes and those early critics of the war misdiagnosed the reasons (motives) for war. That Ignatieff has not learned from U.S. history how wayward presidents wage wars of choice, that he did not see through the subterfuge and obfuscation of Bush’s deceptive campaign for invasion, that he thinks Hussein’s barbarism justified the invasion–when many other military and civil crises causing a greater violations of human rights exist–speaks volumes about either Ingatieff’s naivete or his political ambitions. Were Ignatieff made of more substantial moral timber, he might have just come clean and admitted his judgment was mistaken. But his incapacity to apologize–perhaps even an incapacity to experience remorse a fundamentally important moral emotion–seems to be central element in his character (or lack thereof). In a recent interview, Ignatieff worried over whether he was ever ruthless to people in the past, but the most he could offer was: “There may be people who I’ve left behind who feel that I was ruthless, and if they feel that, then all I can say is–I wouldn’t apologize–all I could say is, I don’t want to hurt people.” Why is that all he can say? At best, without apologizing for his ruthlessness, one really doesn’t know whether he cares. At worst, such indifference appears to derive from an arrogant smugness, almost a sense of royal superiority. Just as kings don’t apologize, members of intellectual and perhaps political elites–such as Michael Ignatieff–ought not to apologize either.

No one can deny Ignatieff’s scholarly talents in championing the cause of human rights. However, given his inability or refusal to take responsibility for his misdeeds, his passion for remedying violations of human rights appears suspect. Sure, there is no contradiction between genuine passion for human rights and ruthlessness. One can have and be both. But how should Ignatieff be judged for his refusal to apologize for his ruthlessness and for his advocacy of what many predicted would be a disastrous, illegal, and immoral preventive war? Do liberal Canadians really want to pick a leader that emulates George W. Bush’s utter incapacity to take responsibility and admit errors? Will independent Canadians vote for a Liberal Party candidate for Prime Minister whose character prevents him from saying: “It was my fault”? Period. Though some might think it chic to “stay the course” and never admit fault, this fashion reveals an impoverished moral sense, which should disqualify individuals from gaining leadership roles in any deliberative democracy.

Jessica Selby’s interesting answer to the question–why not torture terrorists?–has implications, as a possible limitation, on the idea of an essentially contested culture. Surely neither the meaning of “torture,” nor the question of its propriety is essentially contested. Torture is just plain wrong. Some arguments just can’t be taken seriously. Right? Well, yes, in one sense that’s clearly correct. However, in an essentially contested society precisely which topics cannot be taken seriously is itself essentially contested. There’s no escaping the significance of the sting of essentially contested concepts, arguments, or perspectives. Just what “torture” means inevitably will be debated as passionately as the question whether torture is ever permissible. How much weight to give the “ticking time bomb” hypothetical, for example, will vary according to one’s moral principles, one’s temperament, one’s ability to reason and evaluate evidence, one’s aversion to risk, and a host of other factors defining a person’s perspective. Acknowledging the force of the idea of essentially contested concepts precludes first pruning the domain of all conceivable arguments in order to reduce their number to only those which reasonable people would acknowledge. The domain of reasonableness is itself essentially contested. Nothing escapes this sting.
Nevertheless, a commitment to the sting of essentially contested concepts does not entail skepticism, relativism, or nihilism. Rather, it means we must develop intellectual humility and acknowledge that what was laughable yesterday may become tomorrow’s certainty. Of course, that doesn’t mean we should avoid taking a stand on an essentially contested issue. It only means that no one has a corner on truth, and those recognizing the importance of essentially contested concepts should go out of their way to find fault with their own positions. There are no intellectual magic bullets providing slam-dunks in intellectual disputation, only deliberative conversation reaching for the best sorts of arguments–an essentially contested goal itself–available to the deliberating public. Working one’s way through essentially contested concepts to a conclusion one is deliberatively entitled to embrace–working society’s way through an essentially contested America–to a reliable idea of the meaning of America–is a project that has the capacity to define and illuminate an historical era. Despite abundant evidence to the contrary that era may be ours.

What is political solipsism? A little background explanation is required. Philosophical solipsism is an ontological and epistemological doctrine. As an ontological doctrine, solipsism contends that since a person apprehends or experiences the world only through a first-perspective perspective, and since the person has a privileged access to his or her own mental states, including thoughts, attitudes, emotions, and feelings, it is quite meaningless to ascribe such mental states to others.¬† The exclusive touchstone of mind is one’s own mental states. Since only first-person experience reveals these states, attribution of mental states to other people is quite incoherent. The solipsist is locked into his or her own mental life necessarily isolated and alone. As an epistemological doctrine, solipsism insists that even if it made sense to attribute mental states to others, one can never know that other people in fact have minds, because one can never directly experience or become aware of anyone else’s first-person perspective. All one perceives is other people’s behavior. Consequently, even though others might have minds, the solipsist can never know this. Other people’s behavior can be explained by the hypothesis that they are only ingenious, evolutionarily derived biotechnical machines, not persons. According to both doctrines, the solipsist might possess the only mind in the universe. Strictly speaking as a philosophical doctrine both forms of solipsism have been discredited. However, the idea of solipsism can be used as a metaphor in other contexts.

One such context is politics. Political solipsism is the view that other people have nothing to teach the political solipsist about domestic or international politics. If the political solipsist alone understands politics, it would be perfectly appropriate to refuse to seek advice from other people. Indeed, it would be perfectly reasonable to ignore such advice if proffered. Evidence for political decisions can be labeled such and evaluated only by the political solipsist alone. Similarly, seeking international alliances is well and good as long as the practical solipsist dictates the strategic and tactical plans in any joint international effort. No other political leader has anything to contribute to the decisions of our solipsist leader. The metaphor of political solipsism helps characterize George W. Bush’s presidency. According to this metaphor, he is the only one in the world who can appreciate the reason for invading Iraq, distorting the Constitution, and eschewing any real bipartisan domestic consensus or a consensus of members of the international community. If he is the only one who possesses a political mind, why should he–how can he–pursue consensus? He should, rather, stick to his guns on Iraq, for example, even if only his wife, Laura, and dog, Barney, support him. Perhaps, when push comes to shove, George W. Bush, the leader most likely to be dubbed a “political solipsist,” will even ignore Laura and Barney’s advice.

Philosophical solipsists would be dangerous people to have around, if it were conceptually or practically possible for them to exist. If no one else has a mind, torturing or killing others cannot be morally unacceptable. Presidents, unconsciously aspiring to be political solipsists, are equally dangerous. Indeed, characterizing George W. Bush as a political solipsist may be instrumental in accurately explaining his obduracy–”stay the course” policy in Iraq as well as his inability to appreciate the perspectives of anyone but himself and (to extend the metaphor slightly) perhaps his privileged inner circle. George W. Bush appears oblivious to the importance of evidence and the necessity of testing one’s hypotheses against a rich diversity of other perspectives. But why should he when the only real perspective in the world–or the only perspective that matters–is his?

The 2000 Florida misvote has changed the United States and the world permanently for the worse. Had the intent of approximately three thousand elderly Jewish retirees in Broward County been accurately recorded and placed in Al Gore’s column, George W. Bush would now have been long gone and thankfully forgotten. Instead, due to the confusing design of the “butterfly” ballots these elderly retirees cast their votes for Pat Buchanan and the consequences have been devastating. Of course, had one thousand Nader voters defected, or had minorities illegally excluded from voting been able to record their votes, or had a Supreme Court majority not fallen off the wagon of judicial restraint, the history of the last six years would also have been unrecognizably different. But none of these America-saviors happened. And that’s why we are presently in the grips of a President who has been and is likelihood to continue to be the most dangerous, lawless, and inhumane president of any President over the course of the last fifty years, if not longer. What is more important, perhaps, a president should be chosen and evaluated, in large part, by the people with whom he surrounds himself. We vote for management teams, not really individuals. In that regard, people like Rumsfeld, Cheney, Perle, Frum, Kagan, Wolfowitz, Abrams, and so forth are antithetical to almost every humane, decent, and democratic value to which America stands for, if it stands for anything. They’ve seized an opportunity when the United States is the only super-power and do what many of us believed they were surreptitiously trying to do during the Cold War, namely, perfecting American domination. The War in Iraq, the remarkable rewriting of the Constitution’s conception of executive power, the inability and disinterest in forming coalitions with Democrats and leaders of other nations–perhaps the same category of individuals for this administration–will have consequences our children and their children will be confronted with and plagued by for decades.

So, while generally Republicans and Democrats are sides of the same oppressive coin, repudiating the Bush administration’s arrogance, political and moral solipsism, and criminal acts against innocent peoples provide reasons for conservatives, liberals, and progressives to seek regime change in this election. Tough talk? Maybe. But not as tough as Kevin Tillman’s, the brother of the former NFL defensive back, Pat Tillman, killed in Afghanistan. Kevin Tillman excoriated those in charge of Bush’s War as “the same incompetent, narcissistic, virtueless, vacuous, malicious criminals [who] are still in charge of this country. Somehow, this is tolerated. Somehow, nobody is accountable for this.” Take heart Kevin. Maybe on November 7th, the American people will finally hold Bush and his administration accountable.