"Breaking The Rules" To Fix The System Part 1 (The Political Duality of Rep and Dem, Part 5a)

by: Paul Rosenberg

Sat Oct 27, 2007 at 11:51

A significant key to why this is so (though certainly not the whole story) lies in the realm of cognitive development: On policy matters, Republicans (now dominated by movement conservatives) cling to "traditional values"--the set of expectations and understandings that are generated out of the pre-existing social system--what I have referred to (following Robert Kegan) as "level 3" consciousness.  While these expectations and understandings work reasonably well in traditional societies, where the pace of social change is slow and the force of pressures driving them is relatively modest, they are utterly inadequate when the roles and relationships of society are no longer adequate to guide social behavior--a shift that first became quite noticeable in Europe during the Italian Renaissance, when the trade-oriented Italian city-states developed vibrant, innovative societies sharply at odds with the land-based, tradition-bound feudal systems that dominated the rest of Europe.  Among other things, these city-states revived the older form of Republican government, establishing a participatory framework for civic self-government in which all sectors of society had a voice.

The core innovations of liberal political theory--freedom of religion, and thereafter freedom of conscience more generally, a broad framework of individual rights, government based on the bottom-up consent of the governed (as opposed to top-down theocracy), separation of powers, etc., are all responses to the dynamic waves of change that successively swept over Europe, from the Renaissance, through the Reformation, the Enlightenment and the Industrial Revolution (which, finally, through generations of class struggle, brought the industrial working class into the status of full citizenship).  Conservatives have gradually adapted to these innovations, which, ironically, actually have a stabilizing, conservative effect on the social system as a whole, but not before bitterly opposing them first.

What makes the past, 30+ year period of rightwing ascendancy different is that during this period liberals have come to identify with and support the status quo to an historically unusual extent, and conservatives have opposed it so thoroughly that they have adopted the same sort of tradition-breaking attitude toward political struggle that liberals have typically had toward political policy.

The result is what I refer to as the "political duality" of Rep and Dem: Democrats are oriented toward shaping policies in response to changing realities, rather than being dictated to by existing forms as defining limits, while Republicans are oriented toward shaping the political process in response to changing realities, rather than being dictated to by existing forms as defining limits.  Thus, the Republicans ran an off-the-books foreign policy under Reagan/Bush (Iran/Contra) in defiance of Congress's power of the purse, they tried to establish a de facto parliamentary system of government under Gingrich when they took back Congress in 1994, they tried to force Clinton from office for personal conduct having nothing to do with "high crimes and misdemeanors," they stood the 14th Amendment on its head to steal the 2000 election, and they tried to demote Congress to a merely advisory role in the aftermath of 9/11 (the exact opposite of what they tried after winning Congress in 1994.

Democrats have been inhibited by a number of factors in fighting back effectively, not the least of which is the fear of "becoming just like them."  This begins a sub-series of diaries devoted specifically to overcoming that fear.  Key to this is the recognition that there are principled ways to reshape custom, as well as unprincipled ones.  Indeed, as Thoreau taught us long ago, there are even principled ways to break the law.  Knowing this is the very essence of what it means to transcend level 3.

Just to refresh our memories, I reproduce the chart of Kegan's levels of development--explained in his books The Evolving Self: Problem and Process in Human Development and In Over Our Heads: The Mental Demands of Modern Life--stressing the process by which what is subject (the background processes of consciousness) at one level becomes object (the foreground focus of conscioussnes) at the next level:

Kegan's Subject/Object Schema of Cognitive Development
Stage	We Are: Subject (structure of knowing)	We Have: Object (content of knowing)	Underlying Structure
1	Perceptions SOCIAL PERCEPTIONS Impulses	Movement Sensation
2	Concrete POINT OF VIEW Enduring Dispositions	Perceptions SOCIAL PERCEPTIONS Impulses
3 Traditionalism	Abstractions MUTUALITY/ INTERPERSONALISM Relationship Inner states	Concrete POINT OF VIEW Enduring Dispositions Needs, Peferences
4 Modernism	Abstract Systems INSTITUTION Relationship-Regulating Forms Self-authorship	Abstractions MUTUALITY/ INTERPERSONALISM Relationship Inner states Subjectivity Self-consciousness
5 Post- Modernism	Dialectical INTER- INSTITUTIONAL Self-transformation	Abstract Systems Ideology INSTITUTION Relationship-Regulating Forms Self-authorship Self-regulation Self-formation

Here, our focus is on levels 3 and 4.  As can be seen from the chart, while "MUTUALITY/
INTERPERSONALISM" and "Relationship" are core aspects of what is subject at level 3, they become object at level 4.  What this means is faitly striking: the only way to break with the social order at level 3 is to violate its laws, because there is no place to stand outside the social order and judge it as a whole.  In 1848, in response to the Mexican-American War, Henry David Thoreau found just such a place: jail.

According to the story, Ralph Waldo Emerson came to visit Thoreau.  "What are you doing in there, Henry?" Emerson asked of Thoreau-a quintessentially level 3 question.  "What are you doing out there, Ralph?" Thoreau shot back-a quintessentially level 4 response.

Now, Emerson was not a level 3 thinker.  In fact, both men showed clear signs of level 5.  But if we are not intensely interested in something-and even sometimes when we are-there is no guarantee that we will bring our highest level of awareness to bear on a given subject, issue or controversy.  Indeed, one of the most effective ways of organizing in the early stages is to reach out to those who have the general capacity to understand, but who simply have not focused on a particular cause.  Emerson was anything but a conventional thinker when it came to the matters that concerned him most-and this included the political realm, as he was a staunch abolitionist.  Yet, Thoreau's straightforward act of civil disobedience was something Emerson was not really prepared for.

Bush v. Gore--A Prime Example

That's quite parallel to the situation we find ourselves in today-there are many people who have the abstract capacity to recognize the dire circumstances we are in, but they are not really prepared for the confrontational response that is called for.  Indeed, more than a generation of political experience has taught them that aggressive confrontation more often than not is carried out for destructive, unprincipled ends.  This was quite evident in response to the Supreme Court's decision in Bush v. Gore, for example.  It was not simply that many people disagreed with the decision, there was virtually no one who could make sense of it, except as a rationalization.  There was only one prominent defender of the decision-Judge Richard Posner, who defended it solely on what he termed pragmatist grounds (which surely would have deeply offended William James, the founder of American pragmatism).  Posner's refusal to defend the Court's reasoning left it utterly undefended as a piece of reasoning.  He defended it purely as an act of will: they did what was necessary, or so he argued.

And yet, it was virtually unthinkable to ponder what this meant, although it was widely said at the time: Bush v. Gore was a lawless decision, a de facto blow at the very heart of Anglo-American jurisprudence.  It was, in profound sense, the exact opposite of conservative jurisprudence, since it threw out the very principle of lawful argument.  Despite this, the U.S. Senate, following Al Gore's lead, refused to lend any support to Black Congressmembers who wished to formally challenge Bush's supposed election.  Not one senator would support their challenge.  Two books were written that utterly decimated the Court-going beyond the mere lack of logic in the decision to attacking the motives of the justices, a move that their lawless decision not merely invited, but seemingly demanded, since there literally is no other way to understand what they had done.  These were Vincent Bugliosdi's The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President and Alan Dershowitz's Supreme Injustice: How the High Court Hijacked Election 2000.

Bush v. Gore is a perfect encapsulation of the challenge we face.  The decision itself was utterly arbitrary and lawless, but was solidly defended not just by the conservative movement, but by the media establishment itself, and was accepted without challenge by the entire Democratic Senatre-including even Russ Feingold and Paul Wellstone, both men quite similar to Emerson in their capacity for independence.  To understand just how lawless this decision was, let me quote from a Findlaw review of Bugliosi's book by Lauda Hodes:

First, normally in equal protection cases, the aggrieved party - in this case, the Florida voter who claims his or her vote was not counted equally - brings the action. That was not the case in Bush v. Gore, which raises the question whether Bush had standing (that is, the legal right) to sue.

This is among the most basic of legal principles: in order to have a case heard, one must first have the right to sue.  And in order to have that right, one must show that one has been harmed in a manner consistent with the cause of action one brings.  Thus, while it is clear that Bush would be harmed by a recount that elected Gore, the 14th Amendment doesn't protect the right to steal elections.  It protects the right to vote on an equal footing (the underlying right to vote is not constitutionally protected, however, a further indication of how bizarre our system is).  Therefore, a 14th Amendment claim could not be brought by Bush, because he lacked standing.

Amazingly, Gore's legal team failed to press this argument.  But it is a point so basic that the Court itself should have simply refused to hear the case originally.  Under the 14th Amendment, Bush never had a leg to stand on, and if a first-year law student had thought otherwise, they would have promptly received a big fat red "F" for their troubles.

Hodes continues:

Second, the Supreme Court has consistently held that the equal protection clause can only be successfully invoked if the discrimination was intentional, and in this case, an excellent case can be made that it was not. Any differences from county to county as to how intent was assessed probably were not intended to discriminate among various voters, though they may have had that effect.

This is so obvious, it scarcely needs comment-except to make a finer point.  In fact, what was being alleged was not discrimination against voters, but against ballots--that originally uncounted ballots in some counties would be counted under a different standard than those in another county.

This leads us directly to an outright absurdity:

Third, if the five justices were truly concerned about the voters' equal protection rights, then how could they adopt a solution that meant that those who submitted "undervotes" would not have their votes counted at all? Certainly eliminating certain voters' ballots, and not those of others, is the greatest voting inequality of all.

In fact, it's even worse than this, since the practical effect of the decision was to prevent any recounting of votes at all-thus depriving all those whose votes were uncounted of their right to vote.  With "equal treatment" like that, who needs inequality?

In fact, lurking behind the three points Hodes makes there is a single absurd fact: the 14th Amendment exists to protect against group discrimination.  Cases are brought by individuals and groups who have been harmed because they are part of a larger group that has been (as noted above, intentionally) discriminated against.  But in this case, not only was Bush not such a person-no one in Florida was such a person.  Indeed, no such person existed.  It was the ballots that were potentially subject to different standards, and there was no way to tell which ballot was cast by which person.  Thus, if the Court had simply been scrupulous about standing, and it required that Bush join a suit brought by someone who did have standing, no such person could be found: no one could prove that their vote was not being treated equally by the recount that Bush successfully sought to stop

The Republicans pulled such an endless parade of shenanigans that it's hardly surprising folks eventually lost track.  That was part of the plan, really: bury them in bullshit.  But when it came down to the final Supreme Court decision, this fundamental absurdity stands out like no other:  no one had standing to bring a 14th Amendment claim to stop the recount.  The case should never have been heard. And any law student who thought otherwise would never become a lawyer, much less a Supreme Court justice.

Given this elemental violation of Anglo-American law, what did the American legal community do?

Answer: Nothing.

A Level 4 Alternative Response To Bush v. Gore

What could they have done?  Let's consider the example of Henry David Thoreau.  Thoreau thought the Mexican-American War unjust.  And thus, he thought the same of the tax to support it.  So he refused to pay the tax.  He did not, however, defy the law.  He broke the law requiring payment of the tax, but he accepted the consequences, and went to jail for his action.  In doing so, he complied with the law, but did so by reframing it from a level 4 perspective:  The law doesn't say, "You must do X."  The law says "You must do X or go to jail."  I choose to go to jail.

The beauty, power and genius of Thoreau's response is that, although it came from a level 4 consciousness, it was comprehensible at level 3.  This doesn't mean that everyone at level 3 will comprehend it.  But it does mean that simply functioning at level 3 does not prevent one from understanding it.  A level 3 consciousness would never have thought of it in the first place, but a level 3 consciousness can comprehend it after the fact. 

This goes to the very heart of what must guide liberals and progressives in taking on conservatives by breaking the conventional rules of how politics is practiced: if we break the rules, acting from a level 4 perspective, we must do so in a way that makes sense within a level 3 perspective, and this invariably means establishing a willingness to pay a price for doing so.

Returning to Bush v. Gore, what could this have meant?  Clearly the Senate was not going to lead, but the legal community itself could have.  They could have followed Thoreau's example.  They could have refused to cooperate, and paid the price for doing so.  Quite simply, they could have refused to take cases before the Supreme Court until the justices responsible all resigned.

Naturally, this is a very difficult choice to make.  Normally, the highest goal is to take cases as far as possible until one wins-and the Supreme Court is the ultimate goal.  Refusing to go that far goes deeply against everything that being a lawyer means-except, of course, for respecting the rule of law.  When the highest court in the land has deliberately ignored the cornerstone of the rule of law, then the highest way of defending the rule of law-from a level 4 perspective-is to sacrifice everything else to defend it.  Therefore, a universal refusal to take cases before the Supreme Court-a strike against the Supreme Court-is what was called for in response to Bush v. Gore.  Because lawyers have an obligation to vigorously defend their clients, they would have to resign, rather than continue representing them, but refusing to appeal to the Supreme Court.  And since many more cases are appealed to the Supreme Court than are taken, this would involve a very large number of resignations.  Invariably, some judges would not allow this, and lawyers would have to go to jail for contempt. This would be a massive, unprecedented act of civil disobedience.

[UPDATED: Oct. 27 circa 6 PM] In a comment below Mobar explains that this won't work to get lawyers thrown in jail, and suggests an alternative.

Of course, no one even suggested such an action at the time.  The chances of it succeeding are virtually non-existent, given that it was apparently unthinkable.  But there are times when it only takes one person thinking the unthinkable.  Henry David Thoreau proved that.  And so it is at least conceivable what it would have looked like to organize a bottom-up shunning of the Supreme Court in response to their violation of law.  Knowing this in theory is the first step toward framing actually effective measures.  It serves as a guide to show us that breaking out of level 3 processes does not have to make us "just like them."  We can find ways of stepping outside level 3 confines without becoming lawless, unaccountable thus, just like Karl Rove or Tom DeLay.  There is another way.