Corey Robin's Blog, page 84

The War on Workers’ Rights

I have an oped in the New York Times on the Republican war on workers’ rights at the state level. My conclusion:

The overall thrust of this state legislation is to create workers who are docile and employers who are empowered. That may be why Republican legislators in Idaho, Wisconsin, Michigan, Maine, Ohio, Minnesota, Utah and Missouri have been so eager to ease restrictions on when and how much children can work. High schoolers should learn workplace virtues, says the conservative commentator Ben Stein, like “not talking back.” Early exposure to employment will teach 12-year-olds, as the spokesman of an Idaho school district put it, that “you have to do what you’re asked, what your supervisor is telling you.”

And if workers don’t learn that lesson in junior high, recent Republican changes to state unemployment codes will ensure that they learn it as adults. In 2011, Florida stipulated that any employee fired for “deliberate violation or disregard of the reasonable standards of behavior which the employer expects” would be ineligible for unemployment benefits. Arkansas passed a similar amendment (“violation of any behavioral policies of the employer”). The following year so did South Carolina (“deliberate violations or disregard of standards of behavior which the employer has the right to expect”) and Tennessee. The upshot of these changes is that any employee breaking the rules of her employer — be they posting comments about work on Facebook, dating a co-worker or an employee from a rival firm, going to the bathroom without permission — can be fired and denied unemployment. Faced with that double penalty, any worker might think twice about crossing her boss.

What might Adam Smith, often claimed as the intellectual godfather of the American right, have said about these legislative efforts? “Whenever the legislature attempts to regulate the differences between masters and their workmen,” wrote Smith in “The Wealth of Nations,” “its counsellors are always the masters. When the regulation, therefore, is in favour of the workmen, it is always just and equitable; but it is sometimes otherwise when in favour of the masters.”

Indeed.

The oped is based on Gordon Lafer’s eye-opening report last fall for the Economic Policy Institute, “The Legislative Attack on American Wages and Labor Standards, 2011-2012,” which you should also read.

Mr. Carter’s Missive

Yale legal scholar Stephen Carter waxes disapproving of Rutgers’s and Smith’s cancellations of commencement speeches by Condoleezza Rice and Christine Lagarde.

The literary critic George Steiner, in a wonderful little book titled “Nostalgia for the Absolute,” long ago predicted this moment. We have an attraction, he contended, to higher truths that can sweep away complexity and nuance. We like systems that can explain everything. Intellectuals in the West are nostalgic for the tight grip religion once held on the Western imagination. They are attracted to modes of thought that are as comprehensive and authoritarian as the medieval church. You and your fellow students — and your professors as well; one mustn’t forget their role — are therefore to be congratulated for your involvement in the excellent work of bringing back the Middle Ages.

Right. Cause nothing says “complexity and nuance” like a commencement speech.

Methinks there is a massive mismatch between rhetoric and reality in Mr. Carter’s missive.

Reality Bites

According to Cass Sunstein, studies in psychology and behavioral economics show that 80% of the population is “unrealistically optimistic.” When it comes to their own actions and life prospects, people tend to have unwarranted expectations that things will work out well for them. The other 20%? The realists? They “include a number of people who are clinically depressed.”

The Gender Gap in Political Theory

I just wanted to give a quick shout-out to an important new blog—Ms. Perestroika—that’s keeping track of the gender gap in academic political theory. It just started, but already it’s got informative posts on recent job searches and hires, the publication record of Political Theory, whose books are getting reviewed and by whom, and the composition of panels at the Western Political Science Association. This seems like an important initiative, so I wanted to make sure folks knew about it.

Machiavelli: The Novel

For all you readers, teachers, and students of Machiavelli:

There’s a wonderful graphic artist up in Boston named Don MacDonald who wrote a graphic novel Machiavelli. The aim of the novel, beyond its aesthetic and literary qualities, is to bring the scholarly knowledge about Machiavelli that we in the academy have been accumulating over the years—about his republicanism, his humanism, his literary excellence—to the public. That Machiavelli was not, as a famous book would have it, a teacher of evil, that he was not especially Machiavellian, and that his teaching was not especially Machiavellian, at least as we’ve come to understand that term.

Anyway, Don is now launching a Kickstarter campaign in order to raise money for the conversion of the novel from an online text, which is what it is now, into a printed text, an e-book, and a website. I don’t often make pitches for you to contribute money, but this is a worthy cause. One that’s especially dear to me, as a teacher and reader of Machiavelli.

Please make a contribution.

Clarence Thomas’s Counterrevolution

What follows is the talk I gave at the University of Washington this past weekend on my paper about Clarence Thomas: “Smiling Faces Tell Lies: Pessimism, Originalism, and Capitalism in the Jurisprudence of Clarence Thomas.” The paper is still incomplete. I only managed to write about Thomas’s theories of racism and how they intersect with his philosophy of constitutional interpretation. In the coming months, I intend to expand the paper to talk about Thomas’s views on capitalism, and how they inform his jurisprudence about the Commerce Clause, the Takings Clause, and more. Ultimately, this paper will be published by the University of Chicago Press in a volume on African-American political thought, edited by Melvin Rogers and Jack Turner. Other contributors will include: Cedric Johnson on Huey Newton, Nikhil Singh on Malcolm X, Lawrie Balfour on Toni Morrison, Michael Dawson on Marcus Garvey, Naomi Murakawa on Ida B. Wells, Jason Frank on Langston Hughes, Tommie Shelby on Richard Wright, Danielle Allen on Ralph Ellison, and many many more. It’s going to be fantastic. But until then, here’s my talk on Clarence Thomas.

• • • • • 

Yesterday, Nikhil Singh said that more than any other figure in the African American canon, Malcolm X is someone who everyone thinks they know. Clarence Thomas, I’ve discovered in the past six months, is also a figure who everyone thinks they know. In the interest of dispelling that expectation, which I suspect many of you share, I’d like to present five facts about Clarence Thomas that perhaps you didn’t know.

The first time Clarence Thomas went to Washington, DC, it was to protest the Vietnam War. The last time that Clarence Thomas attended a protest, as far as I can tell, it was to free Bobby Seale and Erikah Huggins.
Clarence Thomas does not believe in color-blindness: “I don’t think this society has ever been color-blind,” he said in 1985, in the third year of his tenure as head of the EEOC. “I grew up in Savannah, Georgia under segregation. It wasn’t color-blind and America is not color-blind today…Code words like ‘color-blind’ aren’t all that useful.” Or, as he told Juan Williams in 1987, “there is nothing you can do to get past black skin. I don’t care how educated you are, how good you are—you’ll never have the same contacts or opportunities, you’ll never be seen as equal to whites.”
When Clarence Thomas was in college he memorized the speeches of Malcolm X; two decades later, he could still recite them by heart. “I’ve been very partial to Malcolm X,” he told a libertarian magazine in 1987. “There is a lot of good in what he says.”
There’s a law review article about Clarence Thomas that’s called “Clarence X?: The Black Nationalist Behind Justice Thomas’s Constitutionalism.”
Clarence Thomas resents the fact that as a black man he’s not allowed to listen to Carole King.

Now, the truth is that there’s nothing all that surprising about the fact that Clarence Thomas is black and conservative. There’s a long tradition of black conservatism in this country. And from Edmund Burke to Ayn Rand, conservatism always and everywhere has been the work of outsiders, men and women who hail from the peripheries or margins of the national experience.

Nor, in the end, is Clarence Thomas’s early engagement with black radicalism all that surprising. After all, one of the great clichés of the twentieth century is the young left-wing radical graduating into middle-aged conservatism. And, of course, as Cedric Johnson, Michael Dawson, and other scholars have reminded us, there’s a deep affinity between conservatism and parts of the Black Power/Black Nationalist tradition.

But here, I think, is what is surprising about Clarence Thomas: First, he’s a Supreme Court justice who has managed in his jurisprudence to incorporate rather than repudiate some of his early commitments to Black Nationalism and Black Power; I think it’s fair to say no other Supreme Court justice has ever done that. And, second, Thomas is a constitutional originalist, and a rather radical one at that. Unlike any other justice—not Scalia, not Roberts, not Alito—Thomas wants to restore the Constitution to the meaning it had in 1789.

How Thomas has been able to marry an incredibly bleak vision of the black past, a vision rooted in black nationalism, to a document that is not only the fountainhead of that past but is also, on his account, the source of an alternative black future—not, as Thurgood Marshall and other liberal constitutionalists would have it, because it is a “living Constitution,” but precisely because it is dead: that is the basic puzzle of Clarence Thomas and what makes him, I think, more interesting than many of us realized.

In my paper, I document both Thomas’s involvement as a younger man in the broad milieu of Black Nationalism and how that involvement carries over into his jurisprudence. I use the phrase “broad milieu” deliberately. I don’t want to overstate the depth or intensity of his involvement, and I don’t want to posit a specificity, a precise location, to that involvement. Reading Cedric Johnson’s paper on Huey Newton, which Cedric presented yesterday, one sees this deep texture and particularity to the different arguments within the Black Power movement. You don’t see that in Thomas. Instead you see someone who breathed in the broader atmosphere of Black Power and Black Nationalism, and never, I argue, stopped entirely breathing it. Or at least never stopped breathing part of it.

Specifically, what I think Thomas took away from that early engagement are two ideas. First, not only is racism a perdurable element of the American experience—and I want to stress that Thomas’s concern, unlike that of more internationally minded figures like Newton, Malcolm X, or Angela Davis, is with racism as an American experience—but it is also a protean and often hidden element of that experience.

Thomas believes that racism is so profoundly inscribed in the white soul that you’ll never be able to remove it. You see this belief in these quiet, throwaway lines in his opinions, which if you’re reading too fast you’ll miss. In 1992, in one of his early cases, Georgia v. McCollum, Thomas stated, “Conscious and unconscious prejudice persists in our society. Common sense and common experience confirms this understanding.” In Zelman v. Simmons-Harris (2002), he wrote, “If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination’s effects.” That “if” is a conditional only in the grammatical sense – that is, it governs the phrase that comes after – but not in the historical sense. Thomas’s point is that society cannot in fact end discrimination.

Racism is so profoundly inscribed in the white soul, as I’ve said, that you also have to dig deep in order to see its full extent. The deeper you dig, the closer you get to its beating heart. The overt bigotry of the South is merely the surface; its true depths are to be found in the North. Not among the angry white faces throwing rocks in South Boston, but in the genteel white smiles of liberal institutions like Yale Law School, which Thomas attended.

In his memoir, which came out in 2007, Thomas described the difference thus:

At least southerners were up front about their bigotry; you knew exactly where they were coming from, just like the Georgia rattlesnakes that always let you know when they were ready to strike. Not so the paternalistic big-city [Northern and liberal] whites who offered you a helpful hand so long as you were careful to agree with them, but slapped you down if you started acting as if you didn’t know your place. Like the water moccasin, they struck without warning.

If you’re hearing a distant echo in that comment, you should. Think back to that famous passage in Malcolm X’s “Chickens Come Home to Roost” speech:

 The white conservatives aren’t friends of the Negro either, but they at least don’t try to hide it. They are like wolves; they show their teeth in a snarl that keeps the Negro always aware of where he stands with them. But the white liberals are foxes, who also show their teeth to the Negro but pretend that they are smiling. The white liberals are more dangerous than the conservatives; they lure the Negro, and as the Negro runs from the growling wolf, he flees into the open jaws of the “smiling” fox.

You’ve got the same animal imagery; the same emphasis on deceit and insincerity as the crucial marker.

And here we come to the second idea that Thomas develops from his early engagements. And that is that the evil of the color line lies less in the hierarchies of white privilege and the humiliations of black subordination than in the deception and deceit that racism imposes upon blacks and whites alike. Unlike many in the Black Power tradition, or even in the black conservative tradition, Thomas seems never to have developed a political or economic analysis of racism. His is primarily a moral account of racism. Racism is shape-shifting, often hidden; that is its poison. The antidote to racism, the moral answer to it, is race sincerity: being truthful with and to oneself, and seeking truth, in however malignant a form, in and from one’s enemies. The goal is not, and never can be, color-blindness. The goal is racial candor or race sincerity, achieving a congruence between inner feeling and outward form.

For black Americans, that means giving up on the idea of racial authenticity, that there’s an official way to be black: i.e., liberal, Democrat, etc. Hence, the black conservative who listens to Carole King. “How could a black man be truly free if he felt obliged to act in a certain way,” Thomas asks in his memoir, “and how was that any different from being forced to live under segregation?” Now that nod to segregation can sound pretty cheap. But I think it’s a sincere statement from Thomas of the psychological and moral terms in which he understands the harm of racism: that it imposes a false, outward self upon the true, inner self.

For white Americans, race sincerity means owning up to the racism that lurks within. Particularly among white northern liberals, who find in programs like affirmative action a more palatable way to express their racist condescension toward blacks. So many of Thomas’s opinions about affirmative action have far less to do with any commitment to state neutrality or color-blindness—or even a formalistic comparison between the use of race under Jim Crow and today—than they do with a belief that affirmative action is really just the sneaky face of contemporary racism. As he wrote most recently in the Fisher v. University of Texas decision, which was in 2013, “The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.”

While Thomas’s two beliefs—in race pessimism, a belief in the perdurability and protean quality of racism; and race sincerity, the need to be on the outside what you are on the inside—come out of the black freedom movements, the role they assume in his political theory and jurisprudence reflect the waning power of those movements. Like many counterrevolutionary arguments, Thomas’s beliefs about race are symptomatic of a movement in recession or retreat. In three ways.

First, coming to consciousness at the end of the Black Freedom struggle, Thomas had and has difficulty seeing the achievements of that struggle as black achievements. In Thomas’s eyes, civil rights, anti-discrimination, affirmative action, integration: these were not the work of African-Americans, acting on their own behalf, wrangling power from a power structure that refused to give it to them. They are instead the poisoned apples of white liberals who prefer to give handouts rather than to cede power. Like many counterrevolutionaries (Tocqueville comes to mind), Thomas came too late to the revolution, too late to see the self-formation and self-assertion at work in movements of collective struggle. All he can see is a movement in retreat, and to his mind, the class of passive black dependents, waiting on the largesse of their white patrons of state, that the movement has left in its wake. As he said of his sister, in one of his nastier and truly vicious remarks, “She is so dependent [on the state] that she gets mad when the mailman is late with her welfare check.”

Second, Thomas doesn’t believe in political or collective action. The answer to the persistence of racism is to accept it and to figure out a way around it. A way, however, for individuals only: In Georgia v. McCollum, which I mentioned earlier, the answer to the persistence of white racism in society is to give individual black criminal defendants the right to strike down potential white jurors merely because they are white. Trying to organize collectively to defeat or even confront and call out racism is hopeless. As he told Juan Williams in 1987:

Blacks are the least favored group in this society. Suppose we did band together, group against group—which group do you think would win?…Which group always winds up with the least? Which group always seems to get the hell kicked out of it? Blacks, and maybe American Indians.

Third, the only space for African-American agency is in the market, particularly in the labor that each generation performs on behalf of the next. Where politics is a sphere “you don’t have any control over,” individual action in the market—which Thomas believes, it’s important to stress, can be performed on behalf of the black community—is a space where you can say, “I am in control of what I do today.” This is not an enlarged or particularly hopeful conception of agency; it’s radically circumscribed and contained. The political realities of race cannot be overcome; the best you can do is make your way within those constraints, and whenever or wherever possible, apart from those constraints. That “apart” explains Thomas’s willingness to indulge and support, even at the level of the state, all-black institutions.

This is not the sunny face of Reagan; it’s not morning in Clarence Thomas’s America. It’s twilight: we’re still living in the shadow of Jim Crow. The two most consistent words you’ll find in Thomas’s work are “sustain” and “survive.” The story of black America is a story of black people surviving centuries of horror, from slavery to Jim Crow, by taking care of themselves and each other, and trying to keep away as much as possible from the cruelty around them.

And this, I think, may be why Thomas has such faith in the project of originalism. Where other voices in the Black Freedom struggles either rejected the Constitution or found faith in its evolutionary openness—that is, in the interpretive distance the country has traveled since 1789—Thomas finds a glimmer of hope in the return to its original meaning. The Constitution may be the document of a slave society, but African-Americans survived slavery. By returning to the original meaning of that document, Thomas believes they may find the tools to survive slavery’s aftermath as well.

The Calculus of Their Consent: Gary Becker, Pinochet, and the Chicago Boys

The economist Gary Becker has died. Kieran Healy has a great write-up on Foucault’s engagement with Becker; Kathy Geier has a very smart treatment of, among other things, feminist critiques of Becker’s theory of the family. And some more personal reminiscences of taking a class with Becker.

Kathy mentions this article that Becker wrote in 1997 about the Chicago Boys who worked with the Pinochet regime. Becker’s conclusion about that episode?

In retrospect, their willingness to work for a cruel dictator and start a different economic approach was one of the best things that happened to Chile.

No real surprise there. Many free-marketeers, including Hayek, either defended the Pinochet regime or defended those who worked with it.

But the Becker piece reminded me of that infamous Mont Pelerin Society (MPS) conference in Viña del Mar in 1981, about which I wrote at length two summers ago. The MPS is an organization of economists, philosophers, and assorted action intellectuals and businessmen dedicated to spreading the free market gospel across the globe. In the late 1970s, at the height of Pinochet’s repression, Hayek and a few grandees from Chile began discussions  about holding the MPS’s annual conference in the seaside city where the coup against Allende had been planned. The purpose in meeting there would prove avowedly propagandist. As the organization’s own newsletter later acknowledged, the conference provided participants with an opportunity

for becoming better acquainted with the land which has had such consistently bad and misrepresenting press coverage (and, perhaps for that reason, it was appropriate to have Reed Irvine, head of Accuracy in Media as one of the first speakers in the first session).

Becker was originally targeted or slated to speak on a conference panel titled “Education, Government or Individual Responsibility?” His name appears on an early agenda with a “T” next to it. For “tentative.” But Becker either never confirmed or pulled out. No matter: Milton and Rose Friedman, along with James Buchanan and Gordon Tullock, were there to show the flag—and the calculus of their consent.

Queering the Strike

In The Empire of Necessity, Greg Grandin gives us a fascinating history of the phrase “to strike.” Seems like a good story for May Day.

The phrase to strike to refer to a labor stoppage comes from maritime history and is an example of how revolutionary times can redefine a word to mean its exact opposite. Through the seventeenth and much of the eighteenth century, to strike was used as a metaphor for submission, referring to the practice of captured ships dropping, or striking, their sails to their conquerors and of subordinate ships doing the same to salute their superiors. “Now Margaret / must strike her sail,” wrote William Shakespeare in Henry VI, describing an invitation extended by the “Mighty King” of France to Margaret, the weaker Queen of England, to join him at the dinner table “and learn a while to serve / where kings command.” Or as this 1712 account of a British privateer taking a Spanish man-o’war off the coast of Peru put it: “fir’d two shot over her, and then she struck,” and bowed “down to us.” But in 1768, London sailors turned the term inside out. Joining city artisans and tradesmen—weavers, hatters, sawyers, glass-grinders, and coal heavers—in the fight for better wages, they struck their sails and paralyzed the city’s commerce. They “unmanned or otherwise prevented from sailing every ship in the Thames.” From this point forward, strike meant the refusal of submission.

Not unlike how gays and lesbians owned the word “queer.”

The Closer You Get

Yousef Mounayyer wonders why, in the recent media debate over whether Israel is an apartheid state, Palestinian voices have been so conspicuously absent. In his history of the slave market in the antebellum South, Harvard historian Walter Johnson provides an answer. “One of the most durable paradoxes of white supremacy,” writes Johnson, is “the idea that those who are closest to an experience of oppression (in this case, former slaves) are its least credible witnesses.”

Update (11:50 pm)

Or perhaps it’s that Palestinians are only useful insofar as they provide “personal testimony.” The larger questions—Is this apartheid?—have to be left to the (non-Arab) experts. “Give us the facts,” as Frederick Douglass’s white patrons told him, “we will take care of the philosophy.”

Clarence X?

Malcolm X:

 The white conservatives aren’t friends of the Negro either, but they at least don’t try to hide it. They are like wolves; they show their teeth in a snarl that keeps the Negro always aware of where he stands with them. But the white liberals are foxes, who also show their teeth to the Negro but pretend that they are smiling. The white liberals are more dangerous than the conservatives; they lure the Negro, and as the Negro runs from the growling wolf, he flees into the open jaws of the “smiling” fox.

Clarence Thomas:

I was bitter toward the white bigots whom I held responsible for the unjust treatment of blacks, but even more bitter toward those ostensibly unprejudiced whites who pretended to side with black people while using them to further their own political and social ends, turning against them when it suited their purposes. At least southerners were up front about their bigotry; you knew exactly where they were coming from, just like the Georgia rattlesnakes that always let you know when they were ready to strike. Not so the paternalistic big-city whites who offered you a helpful hand so long as you were careful to agree with them, but slapped you down if you started acting as if you didn’t know your place. Like the water moccasin, they struck without warning—and now I had stepped within striking distance.