The Volokh Conspiracy is not truly a "libertarian" blog [UPDATED!]

One of the first blogs I've ever started reading was the "Volokh Conspiracy."  It had, and probably still has, a reputation as a libertarian-oriented site whose authors are libertarian oriented lawyers and legal scholars.  It was my introduction to thoughtful libertarianism.  Indirectly, it was through VC that I stumbled upon the belated "Positive Liberty" blog, when Jon Rowe made a comment and I clicked on his url link.  From PL, it was only a few steps to the League of Ordinary Gentlemen.  The League is perhaps not a libertarian blog properly speaking, and some of the libertarian commenters have left (to the detriment of the comment-culture there), but I respectfully submit it's still a solid blog.

In other words, VC introduced me to libertarianism and blogging culture.  And so I kind of have a soft spot in my heart for it.

But its libertarian bona fides have never been absolute, and they're are now still less "bona" than before.  I offer two examples, one old, one recent.

The old example is Paul Cassell.  He has been an author there, albeit an infrequent one, for as long as I've been reading it and probably longer.  That intrepid defender of liberty devotes much of his legal scholarship to overturning Miranda rights and to support for the death penalty.  Maybe there are arguments to be made in the favor for both propositions, although I disagree with those arguments.  But I find it hard to call those propositions "libertarian" by most stretches of the imagination.

About the only "libertarian" line consistent with those propositions is that in order for a happy and free citizenry to enjoy the blessings of economic and civil liberty, that citizenry needs to have confidence that fraudsters and violent criminals shall be dealt with quickly and fairly.  And in fairness to Cassell, part of his argument against Miranda is that it can have poor consequences for the accused.  So, I'll give the law-and-order libertarian his due and just admit that I'm not sympathetic to his argument and confess I lack a j.d. degree.

The new example is Eugene Kontorovich.  He is a recent addition, and maybe he's been there for about a year.  One occasional topic is Israeli policy in the Palestinian territories.  This is such a fraught, emotional issue, that although I'm inclined to criticize his position, which strikes me as too dismissive of Palestinians' claims, I am also nevertheless inclined to admit that I don't follow the situation closely enough to know even most of the basic facts.  And I should admit the following as well.  That's a rough area of the world..  Israel is a liberal democracy, and it exists in an international situation of perpetual war or quasi-war, with some neighboring states observing official policies of eliminating Israel.  And the governing faction in part of the territories is also officially dedicated to eliminating Israel.  In light of those facts and the numerous difficulties, it's not so easy for me to determine whether the putative libertarian commentator is truly Scottish.

However, Mr. Kontorovich has just published a post about the recent tragedy in Boston that, unless he was being satirical or ironic, suggests a dangerous dismissiveness of the individual rights libertarians hold dear and a dangerous allocation of collective responsibility that ought to disturb anyone, liberal, conservative, or libertarian.  After discussing the citywide lockdown the police instituted to capture the suspect and after complaining (plausibly) that the lockdown has dangers of its own for civil liberties, he writes the following:

Yet such freakouts are nothing compared to what is in store if the the Marathon bombing means that Chechen jihadis has come to U.S. shores. The Chechens mounted one of the most vicious terror campaigns ever against Russia in the 1990s, blowing up apartment buildings, and launching massive attacks on theaters and even schools. They are known as among the most violent and dedicated terrorists in the world. They can be found fighting in Libya, Syria and every other major jihadi campaign. Though usually they have to sneak into the target countries, rather than coming on a visa as the Boston bombers apparently did.)

Russia only succeeded in suprresing the Chechen Islamists with extremely brutal tactics that would never find support in the U.S – essentially leveling the Chechen capital. Yet dealing with such a threat would also be impossible with a politically correct approach to counter-terror that, for example, turns away from talking frankly about the terrorists profiles and motives.

You see, if someone is Chechen, they are automatically suspect, perhaps especially because they are Islamists.  And even if most of us don't know anything about Chechnya, we all know "Islamists" are bad and dangerous.

What is the "politically correct approach to counter-terror"?  I suspect it requires such leftist approaches as assuming that people are innocent until proven guilty and that people haven't committed a crime until they have taken at least one overt act in furtherance of a crime.  On the other hand, Korematsu v. U.S. is still technically a valid legal opinion,* and recent innovations in dealing with people whom the president has named an "enemy combatant"--along with extra-judicial, extra-battlefield killings of U.S. citizens--has demonstrated that the "politically correct approach to counter-terror" doesn't have a lot of practical weight to it.

Perhaps Mr. Kontorovich will protest that when he mentions "terrorists['] profiles and motives" and the "talking frankly" about them, what he means is that law enforcement, in order to prevent crimes, has to develop schemas--"profiles"--of who is likely to be a criminal.  To a certain degree, I think that's reasonable.  If someone is acting suspiciously and if someone is part of a group [see update below] that is dedicated to violence or violent overthrow, then perhaps that is a sign that law enforcement can take proactive steps to prevent a future crime.  The issue is indeed messier than the snarkiness of my preceding paragraph might suggest.  And sometimes there are real tradeoffs between "security" and "liberty," and if one really values the latter, one needs to surrender a certain measure of security.

That's all easy for me to say.  I don't live in Boston, and neither I nor (to my knowledge) anyone I know has been the victim of a terrorist attack.  I have never even been the victim of so much as a mugging.  Who knows what position I might take if I had good reason to believe my security were threatened?  To be honest, I'm not positive I'd take the side of "more liberty."  For example, although I understand the concerns about TSA and "security theater," I don't personally find it onerous and I'm glad they're there, even though the concerns are more plausible than not.

But whatever the hypocrisies or resort to the idol of fear I might indulge in, I do suggest this:  these are not positions that a libertarian, qua libertarian, ought to permit.  They might be positions that a libertarian, qua imperfect human being, might be forgiven for assuming while afraid for her or his safety, but they are not consistent with what I understand libertarianism to be.  And a blog whose authors, even if they are in a minority, endorse these positions is not a truly libertarian blog.

UPDATE [4-21-13]:  By "group," I mean "organization" and not, for example, "ethnic group."  Even when used to mean "organization," special scrutiny for some "groups" raises legitimate first-amendment and freedom of assembly concerns.

UPDATE #2 [4-22-13]:  Here is the link to Mr. Kontorovich's blog post.

*A few years after the Iraq war, probably sometime in 2005, I was at a bar one evening hanging out with some friends.  We got to talking with one of the other bar patrons, who was a fairly robust supporter of the war and of other incidents to that war and the Afghanistan war.  The conversation eventually turned to Guantanamo and why he believed there was nothing wrong with the indefinite detentions.  His justifications (I paraphrase):  "We did the same thing to the Japanese during World War II."  It's hard to argue with that logic.

Naming the nameless

In Hermann Hesse's novel Journey to the East,* the protagonist/narrator, "H.H.," contemplates writing about what to him was an incredible, lost experience.  He has great difficulty doing so, and he says the following [p. 47]:

I imagine that every historian is similarly affected when he begins to record the events of some period and wishes to portray them sincerely.  Where is the center of events, the common standpoint around which they revolve and which gives them cohesion?  In order that something like cohesion, something like causality, that some kind of meaning might ensue and that it can in some way be narrated, the historian must invent units, a hero, a nation, an idea, and he must allow to happen to this invented unit what has in reality happened to the nameless.

Perhaps I risk jinxing something by saying this, but I have just finished this process for my dissertation.  Over the last few days, I have had six copies of the 582-page monstrosity printed up and have given a copy to the members of my committee.  If my defense, in May, is successful, I shall soon receive my PHD in history.

There have been peaks and valleys along the way, and I have on several occasions considered giving up altogether.  But intellectually speaking, one of the most difficult parts has been determining what it all means, what are its bounds, what is is "about."  It is certainly "about" some things that are at least rouglhy definable--coal dealers, antitrust laws, city-coal ordinances, prosecutors, trade associations, newspaper magnates, mayors, unions, presidents, and (I swear it's true) gangsters--but over the last few months, as I have written my introduction and conclusion, I have been forced to decide the larger, big question issues:

How does what I wrote contribute to the field of history?

Why should anyone in their right mind even read it?

These questions are supposed to be related.  Historians read the works of other historians because those contribute to a "historiography," something often defined as "the history of history," but perhaps is more usefully conceived as "a conversation among those interested in the past about the past."  Non-historians might also be interested in "historiography," too.  They (along with, perhaps, historians) can also have additional reasons for reading the works of historians.  Some of these reasons are a desire to engage a story, to learn about a specific event or to specific facts, to be seen as the type of person who reads history, or to look for the unexpected and expand one's knowledge.

But the principal goal in a dissertation is to establish how it contributes to the historiography, along with, perhaps, a stab at demonstrating how marketable it is generally and demonstrating the ability to undertake a long-term study using primary sources.  And I have had to establish my dissertation's relationship to the historiography as I constructed my introduction and conclusion.

My grasp of historiography is weaker than it should be.  I really have only myself to blame for this.  I simply haven't devoted the time I ought to have in mastering it.  Neither is the historiography requirement a "gotcha requirement," a mere technicality and "last hurdle" before a good student can get her or his PHD.  From day one in graduate school, we are impressed with the need to learn historiography.  Knowing what other historians have done--what they've studied, what arguments they make, who they agree and disagree with--is part and parcel of professional history and most non-research-oriented grad seminar (in other words, almost all graduate courses stress learning the historiography).  So the requirement that I make my dissertation relevant to the historiography comes with the decision to write it and with the decision to finish grad school.

So like H.H.'s historian, I have had to look at my work from over the past five years or so--the time from when I finished my prospectus to now--and decide what meaning to attach to what I've done, to decide on how to name the nameless.  I have had to look at the story I have written and determine what it is bound by and what it signifies.

That's a hard thing to do.  Why, for example, should I begin my study in the 1880s and why should I end it in the late 1930s?  On the one hand, the answer is easy.  Because I am studying antitrust, the 1880s are a "logical" starting point because most state-level (in the U.S.) antitrust laws were enacted during the 1880s and 1890s, Canada's federal-level law was enacted in 1889, and the U.S. federal-level law was enacted in 1890.  The late 1930s are a good stopping point because that's the era of the New Deal (in the U.S.) and the Canadian variants of the New Deal (there was a brief, and abortive, federal New Deal in Canada, but what I focus on are the provincial-level "little new deals," especially the one in Ontario implemented under the province's "Industrial Standards Act" of 1935).  And the end of the 1930s comes with World War II, and since I'm too lazy to go into wartime economy (World War I was a bear to figure out and I simply didn't want to go into the weeds of wartime price controls, etc.).

And yet, these starting and stopping points are not as obvious as they might seem. For the starting point, I can't help but notice the many, many antecedents to what eventually became antitrust statutes (and in some cases, antitrust provisions of state constitutions).  These antecedents included laws and legal doctrines against conspiracy, the evolution of incorporation laws and corporation practice, common-law prohibitions against "restraints on trade" and common-law and statutory prohibitions against practices known as "forestalling, regrating, and engrossing" that formally date back at least to Queen Elizabeth I and informally date back even farther to the time of the Black Death in Europe.  In fact, some of the principals underlying antitrust go back to attempts by Emperor Diocletion in the Roman Empire to institute price-controls.  In further fact, they also arguably go back to the institution of "government" and the state itself, if one supposes that the (or "a") primary purpose of government is to regulate the terms of business competition.

For the end point, "World War II" is also in some ways arbitrary.  In my study of Ontario (i.e., Toronto as an example of what happens in Ontario), I actually get into the early World War II years because that's around the time that the Industrial Standards Act becomes important for the coal dealers I study.  (Keep in mind that Canada entered the war just a few days after Germany's invasion of Poland in September 1939, while the U.S. entered the conflict formally only after Pearl Harbor in December 1941, although Roosevelt had begun positioning the U.S. to enter the conflict at a much earlier date.)

It's also arbitrary because the coal dealers I study didn't simply adopt different interests or concerns right when the war started, never to look back.  Coal remained and remains and important part of the U.S. and (to a lesser extent) Canadian economies, although it is worthwhile to note that throughout the twentieth century, householders' reliance on coal for heat and energy decreased steadily, especially when it comes to use of coal in household furnaces.**  Antitrust didn't disappear after World War II, either, and although one of the principal arguments of my dissertation is that there was never an antitrust "movement" in most meaningful senses of the word "movement," there was still--and there is still--much agitation in the name of "antitrust" or, more broadly, "antimonopoly."

Still, in my study, I had to place a limit somewhere.  And in writing my intro and conclusion, I had to justify those limits.  And I've chosen to do so along the "easy" reasons I cite above.  My point is, though, that there's no true limit to my study.  (However, I wouldn't be surprised if my committee insists that a "true enough" limit would be, say, 250 pages and not 582!)  I had to, in a sense, impose an arbitrary starting and stopping point.  I had to invent a "unit" of time--a period that scholars of U.S. antitrust usually call the "formative era" (c. 1890 to c. 1914) and the post-formative era of "associationalism" (1910s-1920s) and direct government regulation in the 1930s.  The obvious program for the latter is the temporary suspension of antitrust laws under the National Industrial Recovery Act of 1933, but I also consider later innovations to be just as important even though I focus on the Recovery Act (I'm referring, for example, to welfare-state programs, to the AAA, to the Wagner Act, and to the Robinson-Patman Act).

There are other limits that I have placed on my dissertation while writing it and that I have had to justify in my intro and conclusion.  One is, for lack of a better term, spatial.  I look specifically at what I call two "markets" for coal--Chicago and Toronto--and I define "market" as a site of regulation.  So, I look at how federal, state and provincial, and city and county regulations affect the way members of the coal industry (primarily coal retailer, but also sometimes operators, miners, wholesalers, and teamsters) compete(d) with each other.  Another limit is industry-specific:  the coal industry as opposed to industries that aren't the coal industry.

I won't go, here, into my justifications for looking at this industry or at those sites--or "markets"--as opposed to other industries or other markets.  Neither will I go into my conclusions about significance, other than to say I see a very disturbing tendency among the subjects I study to invoke antitrust in the service of exacting arbitrary punishments on people who are unpopular.  But my point is to note that I have had to place names and limits on what I have studied.

There is a certain mystery to historical study that cannot be fully grasped or elucidated.  I cannot "capture" the past in my study--all I can do, really, is study it and place limits on it, and analyze--or more accurately, offer suppositions about--the meaning of those limits.

To return to The Journey to the East, H.H., toward the end of the novel, finds that the great, mystical experience he has undergone--a journey to the east as a member of some inchoately defined "League"--has been narrated by at least two other persons in addition to him.  And although his story and the other two stories recount the same events, their constructions on the meaning of those events vary so widely as to call into question the whole enterprise of narrating the past at all.  H.H. reads these histories as part of a challenge offered to him by the "League" of which he had been a member and wished to rejoin.  He needs to consult the "League's" files about himself.  And what he finds is the gradual effacing of his own self into the image of the "League's" president, who, depending on how you are inclined to interpret Hesse's work, may indicate a Christ-figure or a Buddha/Enlightened One figure (or some other construct).  This is the loss of the ego, the surrender of all stories, back to the timeless and boundless and nameless.

And that, I think, is the true lesson we take from history.  It's a lesson in humility and demolition of the ego, of our attachedness to the ephemeral world and the fluid past.  I'm under few illusions that my dissertation is a great epic--it's one of scores, perhaps hundreds, to be finished in history this year alone, and it's one of thousands to have been written in history over the past decades.  And all that is assuming that my dissertation is passed by my committee, something about which I'm hopeful but also something I don't wish to assume too soon.  But it has been an exercise in finding and naming the nameless, and in reflecting it all back again to that which cannot be named.



*Hermann Hesse, The Journey to the East, trans. Hilda Rosner (1932; translated edition, New York:  The Noonday Press, 1956).

**Coal is still important because it can be burned in energy producing plants, which provide the energy to heat, or more frequently, to provide electricity to households.

Dodging the issue

When I was in 7th grade, our gym class played a game called "bombardment," or basically dodge ball.  As an elementary school student, I had loved dodge ball.  But in middle school two things were different.  First, the balls used were much harder (the ones in elementary school were softer, "nerf" variety, the ones in middle school were the inflatable hard rubber type....there's probably a better term here, but I don't know it).  Second, a certain proportion of the students were much, much taller and stronger because, well, puberty had happened.  They could throw those balls hard and it could hurt. 

I hated "bombardment."  And it hurt.  On at least one occasion (but admittedly probably only one), I was hit so hard in the chest that I had a hard time breathing afterward.  It wasn't a medical emergency and within seconds I was physically all right.  But I was really afraid.  Some of those balls came hurtling so fast, banging against some sort of metal heat register that created a booming sound when it was hit. 

In colder weather, when we couldn't have gym class outside, there was always a possibility that we would have to play bombardment.  Fridays, on inside days, were always reserved for bombardment while occasionally other days the gym teachers would "surprise" us with an unscheduled game.  I grew to the point where I hated Fridays and where I hated rainy days (which I otherwise loved....the dry Colorado weather sometimes can make rain a welcome thing).

Once, for some  holiday--I think it was before Christmas break, but it probably wasn't a Friday because it wasn't a scheduled "bombardment day"--one of the gym teachers talked about how in the spirit of the holidays, we had to give each other "gifts."  And the other teacher (we had two gym teachers), who was hidden in the ball room, started lobbing out the bombardment balls, and most of the other kids seemed to get really excited that they now got to play their favorite game.  I remember a sense of panic rising in me, almost to the point of wanting to cry.


At the end of the 7th grade year, we had to choose our electives for the 8th grade year.  Gym wasn't required for 8th grade like it was for 7th, so it was optional.  But we also had to have our parents sign off on our choice of electives.  And I thought that my mother--who constantly feared that I wasn't getting enough exercise or eating enough--would be angry if I didn't take gym.  So I put it on my schedule.  However, the electives were done through a ranking system.  We had to choose 8 electives and rank them based on preference.  I put gym at 7 or 8, hoping that would be enough for me to, err, dodge the gym obligation.

I worried much of the following summer about what my schedule would be.  The school would mail us our schedules in August.  When my schedule came, it had me down for a gym class.  I remember actually crying when I saw that.

This was one instance where I stood up for myself.  I actually walked to the middle school a week before classes started, and respectfully asked for the school to drop me from the gym class.  I didn't say why.  After enduring a lecture from the guidance counselor about how not everyone's preference could be satisfied, my schedule was changed. 

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Now, I hear that one school district in New Hampshire has banned dodge ball [this is a yahoo news link, so it probably has a short life] on the grounds that it can be a way for some kids to target and bully others.  Cameron Smith, in the linked to article, calls this move "the latest episode of an over-active school board making an overtly PC move."

The linked-to article has an embedded video from "NBC sports," in which the two hosts bemoan the move, too.  One of them, trying to play devil's advocate, says, "if you had a small weak kid...." and his colleague interrupts him, "First of all, I wouldn't."  But to more seriously answer the question, his colleague says such moves like the banning of dodge ball make her "cringe when I think of what kind of kids we're raising and what kind of adults we're going to end up having walking around."

The other host then calls it "the wussification of America" and says "it's a lot like the kids that get trophies for everyone."  He then adds that as much as he wanted to play devil's advocate, "I think dodge ball like a lot of things breeds character."

I don't have much to say about whether dodge ball is a vector for bullying.  Although the claim makes a certain amount of sense, I for one was never explicitly targeted.  I wasn't singled out.  In my case at least, as much as I hated it and feared it, it wasn't an instance of bullying.

But I find the dismissive attitude represented by Cameron Smith and these two NBS Sports peoples to be reprehensible.  It's not about "wussification."  It's about subjecting people to low-level physical battery and not giving them a real chance to opt out.  I for one was not particularly confident that I could go to either of my gym teachers and explain that I wanted to sit out the game.  Over the door to the locker room, they had a sign that said "No Wimps Allowed."  Neither was I confident that I talk to my parents, for reasons that I won't go into here. 

Now, maybe it did build character.  For example, it taught me to, or reinforced my tendency to, want to placate people who are stronger than I am, or to hide in the shadows in order to avoid loud and strong people while they rant and express their rage through their physical strength.  Who knows?  If enough people have to live through bombardment, then maybe they can grow up to write the great American novel, or become secretary of defense and oversee the invasion of a small country.

And--I mean this next point seriously--maybe it wouldn't have hurt me to take a few licks, to learn that getting hit a few times by balls that in reality left no lasting damage wasn't the end of the world.

But the choice should have been mine.  And it should have been meaningful, too, not one of those "okay, you opt out....here's your yellow pariah card you have to wear while the non-wimps play dodge ball" choices.

Again, I haven't much to say about the bullying aspect--although a link between dodge ball and bullying wouldn't surprise me--but I'm not going to criticize that school board for banning it.

Quo vadis, conservator americane?

Not that anyone cares much of a wit, but a careful reader of my blogroll will notice that I have deleted the link to the "American Conservative" site.

I have done so not necessarily because I intend to stop reading that site--in fact I have saved a link to the blog of Noah Millman, one of my favorite commentators there--but rather because I believe that by linking to the site in general, I am giving some endorsement to it, or at least stating that it is a site worthy of being shouted out at to.  (P.S.:  if I were grading this blog post, I would write "awk" next to that last sentence.)  But I cannot do that as long as the site continues to sport columns by Patrick Buchanan and Rod Dreher.  The former resorts consistently to thinly and not so thinly veiled racism.  Perhaps I am still judging him for his speech at the 1992 Republican convention.

The latter, whatever "ism" he is or isn't guilty of, adopts a "beggar-thy-interlocutor" approach to public discussion, eliding all nuance in favor of drive-by arguments and the "look at me, I'm hurt by a modern liberal society that just won't understand my needs!".....unless, of course, the discussion veers toward food, and then he adopts all the nuance you can ask for, including admonitions to his fellow conservatives about too quickly condemning healthful eating as some sort of liberal-elitist plot to undermine good, wholesome American freedom fries.  It's not that his food blogging is bad (it's not exactly my cup of celestial seasonings tea--and I probably have more sympathy/empathy for the defensive "but I like my Doritos and frozen pizza!" posture than many liberals I know--but his food blogging is well done, I admit).  It's that he doesn't, it seems, carry his thoughtfulness over to almost any other issue.  (I must add, though, that I have often offered comments to his moderated page that disagree with what he has said, and he has always posted my comments despite the fact they disagree with him.)

There is much to praise about the site, however.  As I said above, I admire Noah Millman's work.  Daniel Larison and Alan Jacobs, from what I've read of them, aren't too bad either.  (However, I ought to be careful, at least in respect to Larison.....perhaps I like him because he was quite a vocal opponent of Romney and eschews the neo-con hawkishness one can find among some movement conservatives.  In other words, I already agree with him, so I cannot claim to be exposing myself to new ideas by reading him.)

Follow up on strikers' problem in a liberal society

My recent post on "strikers' problem in a liberal society" tried to make the point that there is what I call a conflict in values when it comes to unions' resort to striking tactics.  I hope I made clear (despite the indulgent footnotes [1] (and several parenthetical remarks (and related meanderings (which I am wont to do (especially when I have a lot of time (like now))))) what the basics of this conflict were.

However, I think I left the reader hanging a bit, without giving much indication of where I was going or what I wanted the takeaway to be.  Here's a brief (I hope) summary of what I want people to come away with as well as a qualification of some of my harsher language.

First, I think it's possible someone could have read my post and come away with the impression that I was accusing labor historians as being apologists for violence.  I do think someo of them fall into that role, and more certainly, a number of them gainsay violence.  However, what I call "gainsaying" is often no more than establishing necessary context to counter a simplistic, manichean narrative of "business good, unions bad."  Also, I have trouble finding any labor historian, save one (a trotskyite acquaintance of mine), who has actually in their writing or in their personal statements given me any reason to believe they condone violence by workers, and even the exception is prone to contrarian-sounding hyperbole that may mask a more decent motivation that I sometimes decline to see.  Finally, several labor historians have written on labor violence and have not shied away from exploring unions' role.

Second, I mentioned in a footnote, but did not elaborate further, that the state during strikes is often very guilty of perpetuating or condoning unnecessary violence or itself engaging in it.  It is possible that state-implicated "unnecessary" violence ("unnecessary" being perhaps a term of art) is used more against unions during strikes than  union-implicated violence is used or even threatened against employers or replacement workers.  This is, at least theoretically, an empirical claim that might be proven or disproven, and I'm open to the possibility that what I call the "specter of labor violence" is perhaps only a subset of, or a defensive reaction to, what is a fundamentally violent system.

Third, my principal goal is to address an attitude in a criticism I sometimes see.  This criticism goes, "the strikers were advocating for a just society, and they might have succeeded if the state hadn't 'sent in the troops.'"  My point is that there are perfectly understandable reasons for the state to intervene in strikes that have the potential for violence, and further, that if one accepts commonly held assumptions about the rightness of violence and the principal function of the state, then state intervention is (in principal and perhaps even usually) a good thing and something to be welcomed.



-------------------

[1] Hah!

The strikers' problem in a liberal society

First, let me clarify what I mean by "Liberal society." It can mean many things, but for the purposes of this blog post, it means a legal regime that recognizes a person's legal right to pursue any lawful calling and to quit his or her job whenever he or she wants.  A corollary states that the liberal state, as part of its obligation to protect its citizens those others who reside in its jurisdiction, has the sole prerogative to use force and thereby denies to others the use of force to constrain others' choice of where and whether to work.[1]  No society, including the United States, is perfectly "liberal" in this sense, but I wager that the U.S. is at least liberal enough to fit the bill for the average case. I say "liberal society" and not "liberal legal regime" because "liberal society" sounds better and "liberal legal regime" is too toothy and cumbersome.  But in this blog post, I mean "liberal legal regime."

Now, on to strikes. During a strike, the union's goal is usually to convince its members to abstain from work, to withhold their labor collectively, in order to convince the employer to negotiate with the union or if the employer agrees in principle to negotiate, to convince the employer to adopt certain contract terms the union finds acceptable.  Another, closely related goal, is to advertise to others that there is a labor dispute and, especially if the employer is involved in a customer-oriented industry, to induce customers to boycott the employer's product.

This description is quite a wide brush stroke, because there are shades of other reasons people and unions strike: "hate" strikes (when, for example, white workers refuse to work alongside black workers); "syndicalist" strikes (workers strike over one or even several points of dispute, but don't necessarily seek a contract, preferring instead to use shop-floor revolts to assert their preferred labor conditions); "sympathy" or "secondary" strikes (striking to support workers in another dispute or refusing to cross picket lines simply because they are picket lines even if the workers who so refuse are not involved directly in the dispute). I think these are all related to the general phenomenon of strikes I am writing about, but I will focus on the simpler case of workers in a shop trying to withhold their labor to force a concession from their employer.

To address the strikers' problem, I am positing a situation that does not always occur, namely, a situation in which the employer tries to use replacement workers.[2]  Sometimes, of course, the employer prefers to wait out the work stoppage. (In some cases, the employer may welcome the work stoppage, such as when business is slow and keeping people on the payroll represents more an added expense, or when, especially during an industry-wide strike, the work stoppage creates a shortage in supply of whatever good is produced and creates a corresponding increase in demand.)[3]  In such a situation, where the employer introduces replacement workers, he or she is trying to undermine the union's attempt to withhold labor.

What's the union to do? In a liberal society, not much, at least not much that is legal. The union pickets can shame the replacement workers (e.g., call them "scabs"), can try to reason with the replacement workers (e.g., explain why they are striking in an effort to convince them not to cross the line), can try to offer inducements not to work (e.g., during a smelter strike in Denver in 1899,the union offered food vouchers, redeemable at sympathetic stores, to replacement workers who pled hunger as a reason for crossing the line.  The goal was to encourage these workers to honor the strike).

What strikers cannot do in liberal society, inasmuch as the state's monopoly over "legitimate coercion" is concerned and inasmuch as the state is truly "liberal" in the sense I discussed above, is use "coercion" to prevent the replacement workers from crossing the picket lines. Strikers cannot legally, for example, threaten replacement workers who cross the line, and (I assume) they cannot legally form some sort of "human barricade" to prevent free passage of the replacement workers.  The state in the liberal society, again inasmuch as that society is liberal and the state aligns itself with that liberalism, is charged with ensuring that people's right to pursue any lawful calling. It might use its own "legitimate" mechanism of force--the police or national guard--to ensure that right when it is allegedly endangered by strikers.

In case it isn't clear from what I wrote above, I am hinting toward the specter of "labor violence." In American labor history, and most other "[Name-the-nation] labor histories," there have been occasional and spectacular instances of violence arising in the midst of strikes.  For America, think of the 1877 railroad strikes, the Pullman Strike in 1894, and the "Herrin Massacre" during the 1922 coal strike.  There are also more punctuated and more targeted instances of violence that might be ascribed to labor radicals, such as the attempted assassination of GM CEO Alfred Sloan.  But I'm focusing more on the instances where the goal of violence is to discourage strikebreaking. 

These instances illustrate a potential problem for strikers. If the state does its job to protect people's right to work where and when they want, it must at some point draw a line against activities that can be described as coercive.  We can probably mostly agree that certain activities fall among the proscribable activities within the competence of the state qua state.  Taking a baseball bat and battering a replacement worker, for example, is "violence" by almost every recognized sense of the word "violence."  I suspect that even the very union-friendly labor historians whom I know would acknowledge such battery to be "violence," even if they (or some of them) insist that the violence is somehow justified.  It is also, I believe, at least understandable that the state sees its responsibility in such a situation as to prevent the violence.  Even those same labor historians who might claim that in some cases striker-initiated violence be justified might recognize that the state has an interest (even if they say it's not a defensible interest) in asserting its prerogative to control or prevent violence.

There are some instances where the line is fuzzier. Some of the tactics I mentioned above that strikers might use might conceivably be considered coercion.  Shouting "scab!,"  for instance, might imply a threat that something worse than being called a name will happen to the replacement worker.  Setting up pickets to "inform" passersby that a labor dispute is going on might at least by implication have an effect that is more strident and more robust than simple education on current events at the factory.  Sending a "conscience committee" to represent "the situation" to recalcitrant replacement workers is to my mind even iffier


And herein lies one problem.  Where and how ought the state to draw the line?  In the early 20th century, up to about 1930, the state sometimes drew the line at places we of today's sensibilities might bristle at.  During a smelter strike in Denver in 1903, for example, a state judge issued an injunction that forbade strikers not only from threatening replacement workers, but from advertising the strike. The context for this injunction, it should be noted, was a very destructive move by the union in question when it commenced its strike (the workers left the smelters without drawing down the furnaces, an action that essentially ruined the part of the property in which the melted ore froze over; one might also mention incidents of outright fighting between union members and replacement workers.)  Still, extending the prohibition the mere advertising of the strike likely seems too far to most of us in the U.S. in 2012. [4]

And another problem for strikers, it seems to me, is that they--most of them, with some exceptions as always and allowing for the inconsistency of thought-in-practice that afflicts almost all humans--sincerely buy into the notion that "informing" and "persuading" and "shaming" are as far as they ought to go.  I'll even venture the hypothesis that whatever strikers' actual feelings, which might be a historically contingent fact, in practice they have usually acted this way.  I suspect in other words that if one took a tally of every single event in history that could count as a strike, one would find the vast majority to include no instances of what most people would identify clearly and unambiguously as "violence."

By saying this is a "problem," I do not intend to interject a criticism.  Some apologists for violence and some champions of the working class and some advocates for "labor militancy" see such a disinclination to violence as a sort of "false consciousness." [5]  But I'm inclined to see it as a sincere respect for some standard of right and wrong.  And I happen to agree with that standard.  I'm no pacifist, but I do think that violence, domestic or foreign, ought to be either a last resort, or an only resort, to obtain "a vitally important end."  As desperate and "vitally important" as a dispute over wages and working conditions on jobs can seem--and I admit, I have never myself been in the severe and degrading circumstances that have in the past been the context for much of labor violence--I don't think these issues necessarily become therefore "a vitally important end" in the sense that I intend it.[6]

I'm saying, rather, that (most?) strikers' notion that violence is unacceptable is a "problem" in the sense that it's a conceptual difficulty strikers deal with.  They might speak as if the jobs they are striking for are "their" jobs, with perhaps a whiff of a belief in a proprietary interest in these jobs.  They might even speak as if the jobs are extensions of themselves in a way that, say, a mere piece of non-real property is not an extension of oneself.  They may believe, in short, that something approaching 'self-defense" is on the line, and yet I posit that most of them, at least today, would not endorse actual, according-to-Hoyle, physical violence.

What I'm talking about is more than the difficulties of simple line-drawing, although the difficulties of line-drawing are an issue.[7]  I'm suggesting also that there is a conflict in values, and a conflict over the legitimacy of those values most of us in the U.S. in 2012 are inclined to accept.  We place a value on life and safety from violence.  We place a value on peaceable assembly.  We place a value on freedom of association and the attendant freedom of speech to promote one's views.  We place a value on personal autonomy.[8]  All of these values enter the picture when it comes to strikes.

I ask my pro-union friends and my fellow labor historians to keep in mind some of the costs involved when they promote "labor solidarity" or even more modest, institutionalized tools to help unions, such as union shop laws (which, for lack of a better term, is my name for what are called "right to work" laws).

[1] Perhaps this is more of a feature of "states" in general, whether liberal or not.  Max Weber supposedly elucidated this concept--a monopoly on legitimate coercion or a monopoly on legitimate violence--as the defining feature of the state.  The one source that people often link to in order to demonstrate his definition is an essay he wrote on "Politics as a Vocation." [click here]  I must not have read it closely enough or understood it as well as I ought to have, but although Weber in that essay does mention the state as that which observes a monopoly on violence, he does not seem to theorize the concept all that much in the essay, or at least not as much as I would expect from the instances in which his name has so often been invoked in support of the concept.  I have some reservations about the concept, especially the "legitimate" part of "legitimate violence."  And I also wonder about the many instances of what can be called "violence" that are in some way tolerated by (or more accurately ignored by) the state, as well as other practices that might be deemed "coercive" but nevertheless accepted (or ignored) by the state. There seems to be a question-begging aspect to this definition that bothers me.  Again, as I'm not a theorist or a political scientist, and I don't mean to question that definition overmuch.  And I recognize that I may simply be misunderstanding Weber's essay.  I do think, however, that any "liberal state" worthy of the attribute "liberal" would protect people's basic prerogative to pursue any lawful calling and, especially, to quit their jobs.  My own definition of "liberal society" is question-begging in this way (how is a calling "lawful" in a way that doesn't invoke the definition of "lawful" in the first place).

[2] I'm not a fan of the word "scab." People who serve as replacement workers are often in very marginal positions and I wager that as often as not are in worse situations than the strikers. To smear them as "scabs" represents, in my view, a striking lack of compassion or empathy. Of course, maybe I'd feel differently if I were the striker and someone was crossing picket lines to take "my" job.

[3] I'm no economist, and perhaps I am using "shortage of supply" and "increase in demand" incorrectly, as far as the discipline of economics is concerned. However, I wager that in some cases, employers and sometimes even unions think along the lines of limiting supply and increasing demand. This way of thinking appears to have been true of the administration of the United Mine Workers and the coal operators' associations of the "central competitive field" of bituminous mines (mines located primarily in Illinois, Indiana, Ohio, and western Pennsylvania) from c. 1898 through c. 1910.

[4] I should note I am purposely bracketing, for the sake of this blog post, state and quasi-state violence that goes over the line.  One might cite President Cleveland's zealous use of soldiers--over then Governor John Altgeld of Illinois--to break the Pullman Strike on the disingenuous pretext that the federal government was merely protecting the free-flow of the mails (I say "disingenuous" because the union offered to facilitate the free-movement of rail cars carrying U.S. mails.)  One might also cite the violent liberties various "citizens alliances" took during the Colorado "labor wars" of 1903-1905 (and in other states in other years), under the tacit--and sometimes explicit, with the aid of national guardsmen--approval of the governor, George Peabody.  Any discussion of "the state and the unions" ought at least to acknowledge that the state goes (sometimes? often?) overboard in its exercise of powers against workers.

[5] I name all three separately--"apologists for violence" and "champions of the working class" and "advocates 'labor militancy'"--because I see them as discrete positions.  I submit that even if those who hold these positions sometimes overlap, they need not necessarily overlap.

[6] Maybe sometimes it can be.  I can imagine scenarios--company town, company store, little possibility of exit or "voting with one's feet," robust and arbitrary enforcement of "vagrancy" and "criminal breach of contract" laws--where the resort to violence approaches something that can be justified.  Even in those instances, I believe that violence is to be considered an altogether regrettable, even if necessary, action.  At any rate, it behooves me, as jester at scars who never felt the exact same wound, to keep in reserve at least some of the moral judgment I might mete out in such situations.

[7] Per my discussion in footnote [1] above, I have concerns about what is and is not "coercion" in the sense entailed by "monopoly on legitimate coercion."  It seems to me if one takes the definition attributed to Weber very far, one must claim that the state has at its core pretensions that are essentially totalitarian.  Maybe that's the point and maybe it's supposed to be a thought-provoking parable on the dangers of (too much) statism.  I confess that my thoughts have been so far provoked, but I'm not sure what else I can do with the concept other than reassert the definition.

[8] I suggest that even at the points where such values cause such disagreement--abortion; the death penalty; time, place, and manner restrictions on some forms of speech; campaign finance reform; the PPACA mandate--people on most sides of these issues, at least when pushed gently, acknowledge the existence of these values as legitimate and state either that the conflict is not rally a conflict of values, or that exceptional circumstances require the circumscription of these values.

Not an easy piece

An iconic scene in an iconic movie has an iconic character played by Jack Nicholson who faces the pettiness of an iconic waitress and who comes up with an iconic retort to that pettiness.

In case you don't want to click on the Youtube link, here's a summary:  He orders some sort of breakfast, with special requirements: an omelet with tomatoes instead of potatoes.  The waitress says "no substitutions," so he orders an omelet and asks for a side of toast.  The waitress says the diner offers no sides of toast.  He protests.  She threatens to get the manager.  He orders a chicken salad sandwich on toast, with no butter and no mayonnaise and no chicken, with a bill for the chicken sandwich so she will not have broken any rules.  When she asks what to do with the chicken, he tells her to hold it "between your knees."

I have just presented the scene out of context and it's out of context that I'll continue to discuss it in this blog post.  But first, something about the context.  I have seen at least part of the movie the diner scene comes from, "Five Easy Pieces."  Or at the very least it was on TV several years ago back and I channel-surfed, and I saw much of it in between watching other shows on other channels.  As far as I can tell, the movie is some character study of a piano virtuoso born into an upper-middle-class family who for some reason opts for the semi-anonymous life of an oil rig operator.  (Apparently, being an oil rig operator is so easy even someone who is born into the upper middle class and whose life to to that time had involved no training in that job can do it.)

During the movie, Nicholson's character goes through a series of adventures, one of which is the famous diner scene I have described and linked to above.  The scene probably plays an important role in the movie.  It probably helps define, and elaborate on the viewer's understanding of, Nicholson's character.  One clue to the role of this scene is the admission, at the end of the clip, that Nicholson's character didn't get his toast.  (In fact, he and his gal friends are thrown out of the diner.)  In short, I allow that if I fully understood and appreciated the movie (and my understanding and appreciation is less than "full"), the scene would resonate in a way that is much more nuanced than it might seem without the context.

What's my gripe with the scene then?  It's the way some people celebrate it.  Some people seem to think of the diner scene as one of those "perfect retorts" of the sort that one would have oneself oneself if only one had thought of it first.  And the target of the retort is the rules-supersede-all-that-is-sensible-and-decent mentality, what people seem to mean when they rail against the "bureaucratic mindset."  You see, we all encounter stupid rules and inflexible employees who enforce these rules without giving any or at least much regard to how the inflexible enforcement of the rules affect those the rules are enforced against.  The waitress is standing in the way of something that Jack Nicholson's character wants and something that he has a right to:  a side order of toast.  She is the machine of bureaucratic rules, and Nicholson finally pops and rages against the blind subservience to the rules.  (Hah!  you thought I was going to say "rages against the machine," didn't you?)

My claim is that those who celebrate this scene sometimes go overboard.  They operate under the assumption that if rules seem stupid, then they necessarily are stupid and must be broken regardless of the collateral damage.  Worse, the celebrants operate under the assumption that it's okay that Nicholson's character insults the waitress, or at least it's not so bad as to call into question his actions.  She deserves it because she's a bureaucrat waitress.

"Sometimes" really means "sometimes" and not always or not even necessarily most of the time (after all, I did write it in italics, and when I put something in italics, I mean it!).  I am pick and choosing my anecdotes (cue in the tired but true point that the plural of anecdote is not data....there I go with the italics again, but this time not for emphasis!), and the celebration I claim others make of the scene may be more noticed by me than other interpretations of the scene offered by people who, unlike me, have seen the whole movie.

Still, at least one anecdote illustrates my point.  Take this post at the "middle-age cranky" blog.  The author uses the scene as an example of what is for him a decent illustration "of the frustration in that time [c. 1970] for people who blindly followed the rules, no matter how nonsensical those rules were."  He doesn't really comment on whether the waitress deserved her treatment--except perhaps when he describes her as "rigid," and we're probably supposed to know that "rigid" people don't deserve our respect--and he uses the scene primarily as a starting-off point to discuss the allegedly mindless rules he encounters in his career as a freelance technical writer.

Now that the caveats are out of the way, I'll start by noting how convenient the scene is for those who praise it as a strike against THE MAN (well, as a strike against THE PASSIVE-AGGRESSIVE RESTAURANT EMPLOYEE).

First, the rules in this case border on the extreme and unbelievable.  I find it incredible that a diner would not serve sides of toast.  The audience might have viewed it differently, or slightly less sympathetically, if Nicholson's character had noticed that the diner served huevos rancheros and therefore had ordered a side of corn tortillas.  After all, you need corn tortillas to make (some versions of) huevos rancheros, but people don't generally order sides of corn tortillas with their breakfast.  Not that having them for breakfast is wrong, but it's just not the staple of the good ole American dining experience.  I'll also point out that when Nicholson's character learns he can't have "tomatoes instead of potatoes," he accepts that limitation, if grudgingly.  My point is, I imagine the character or the audience might accept a similar limitation on corn tortillas

My second point about the scene's "convenience" is the waitress's rudeness.  She is not only "rigid" in her enforcement of the rules.  She is also pretty far to the rude side of the rude-friendly spectrum, and not in the waitress-who-works-at-a-truck-stop-diner-and-seems-rude-but-has-a-heart-of-gold sense.  She was unapologetic about the restaurant's policy and adopts a tone of "of course these are the rules, didn't you read the small print by the asterisk we put on the last page of the menu?"  If anyone is deserving of the Nicholson treatment, she is.

Fair's fair.  The categorical "no toast" rule is a foolish one.  It might have been different if it had been a special circumstance, say, the diner is perilously short on bread and it needs to, temporarily, impose the ban to make sure there's enough bread for the sandwich-rush at lunch and dinner.  But that doesn't seem to be the case here.  And again, what diners, as a matter of policy, don't serve sides of toast?

And there are indeed rude servers. I personally think it's better to approach encounters with such people with the assumption that the server is overworked and underpaid, or perhaps is having an off-day, or has to deal with a dictatorial manager, or the restaurant is short-staffed, or what seems like rudeness might actually be only a defensive ploy because she knows the management is inflexible on the "no substitutions" policy and she'll get in trouble (or at least scolded for the n'th time) if she doesn't enforce it right away.  But I acknowledge it can be frustrating to deal with passive and not-so passive aggression of that sort.  Certain people (say, a piano virtuoso born into an upper-middle-class family) might not have the service industry experience to make approaching the situation with empathy a realistic possibility.  And maybe at the end of the day one can make a plausible case that a rude affect calls for a sharp retort.

So where are we?  What's accomplished by the Nicholson character's put down of the waitress?  He doesn't get his toast and he and his colleagues get kicked out of the diner.  He's also delivered one of those witty comebacks that other frustrated patrons who have to deal with the lowly service workers wished they had given in lieu of resorting to lectures about good service and about how traumatic it is not to get it.

I think I'm saying something more than simply "we need to be nice to service workers," although we do need to be nice to service workers.  In keeping with my wonted humorless and priggish disposition when it comes to such things, I see in the Nicholson retort a fundamental disrespect for others, a facile notion that the proper comeback is sometimes something you just gotta do regardless of who gets hurt in the process and regardless of the triviality of the "offense" you have suffered.

Wow!  I probably come off as a moralizing jerk.  I admit that my point, taken to an unwarranted extreme, would require me to be courteous to the executioner as I'm walked toward the scaffold, should my circumstances ever become so dire.

And again, the function the scene serves in the movie might very well be more nuanced than I'm allowing.  Maybe a careful viewing of the movie suggests that we are to see Nicholson's character as someone to be criticized and not as someone to celebrate, as someone who really wants to be an island but can't because no man is an island, or as someone who doesn't realize that living in a society means complying with some stupid sounding rules.  And I'll also say that the point of view represented by "middle-age cranky" above, from which I have gathered so much anecdotal straw to build a knock-downable scarecrow out of, might be an interpretation that strays from the movie's main point.

But my main takeaway is that we shouldn't celebrate that comeback uncritically.

UPDATE 12-1-12:  I've edited this post for clarity.