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Russell Kirk on Higher Education

In America, American History, American Literature, Arts & Letters, Books, Conservatism, higher education, History, Humanities, Imagination, liberal arts, Liberalism, Literature, Pedagogy, Philosophy, Scholarship, Western Civilization, Western Philosophy on February 12, 2020 at 6:45 am

This piece originally appeared here at the James G. Martin Center for Academic Renewal 

Russell Kirk isn’t known as a policy wonk. The Great Books, not the mathematical or statistical models of economic technicians, were his organon of choice. He devoted essays to broad, perennial themes like “the moral imagination,” “liberal learning,” and “the permanent things.”

Read his numerous columns about higher education, however, and you might come away with a different impression, one of Kirk as a political strategist with a strong grasp of educational policy.

Kirk wrote on a wide variety of issues involving higher education: accreditation, academic freedom, tenure, curriculum, vocational training, community colleges, adult education, college presidents, textbooks, fraternities and Greek life, enrollment, seminaries, tuition, teachers’ unions, collective bargaining, student activism, British universities, urban versus rural schools, boards of trustees, university governance, the hard sciences, grade inflation, lowering academic standards, libraries, private versus public schooling, civics education, sex education, school vouchers, university presses, and more.

One of his go-to subjects implicates several of those issues: federal subsidies. He believed that federal money threatened the mission and integrity of universities in numerous areas.

For starters, he believed that federal subsidies—and, it must be added, foundation grants—created perverse incentives for researchers, who might conform to the benefactor’s “preferences” and “value judgments.”[1] Recalling the proverb that “[t]he man who pays the piper calls the tune,”[2] he cautioned against financial dependency on outside influences, which, he worried, could impose ideological conditions on grants to advance or purge particular viewpoints.

Moreover, the grantors, whether they were foundations or the government, would, he believed, quantify the value of their funded work according to measurable outcome assessments that were “easily tabulated and defensible.”[3] The intrinsic value of reading Homer, Aristotle, Plato, Herodotus, or Euripides, however, is not easily assessed in instrumental terms.

More fundamentally, Kirk viewed federal involvement in higher education as a step toward the centralization and consolidation of power at the expense of local variety. He foresaw the creation of the U.S. Department of Education long before it occurred.[4] Fearing the growth of an “educationist hierarchy” or an “empire of educationism” corrupted by “sinecures” and “patronage,”[5] he favored small, private, liberal-arts colleges, which, he believed, flourished when they committed to mission and tradition.[6]

“The American college—the small liberal arts college—is worth preserving,” Kirk wrote, “but it can be preserved, in our time of flux, only if it is reformed.”[7] Kirk’s reform was reactionary, not progressive.[8] It rejected the popular focus on vocation and specialization and sought to train “men and women who know what it is to be truly human, who have some taste for contemplation, who take long views, and who have a sense of moral responsibility and intellectual order.”[9] Even if they can’t be calculated precisely, these vague-yet-discernable qualities of literate people are beneficial to society writ large, in Kirk’s view. In other words, there’s an appreciable difference between literate and illiterate societies.

Kirk decried the alarming escalation of tuition prices. In 1979, he wrote, “Attendance at colleges and universities is becoming hopelessly expensive.”[10] Forty years later, the costs of attending college have risen exponentially. Kirk opposed federal aid or scholarships to students,[11] but not, from what I can tell, for the economic reason that the ready availability of federal funding would enable universities to hike tuition rates to artificially high levels. Perhaps, even in his skepticism, he couldn’t conceive of university leadership as so systematically exploitative.

We continue to hear echoes of Kirk’s observation that the typical college student “oughtn’t to be in college at all: he has simply come along for the fun and a snob-degree, and his bored presence reduces standards at most American universities.”[12] Elsewhere, he claimed that “[w]e have been trying to confer the higher learning upon far too many young people, and the cost per capita has become inordinate.”[13] The question of why students attend college is closely related to that of the fundamental purpose of college.

Uncertainty regarding the point of higher education—whether it’s to develop the inquisitive mind, expand the frontiers of knowledge, equip students with jobs skills, or something else entirely—seems more pronounced today in light of technological, economic, and population changes. Moreover, it remains true that “most of the universities and colleges are forced to do the work that ordinary schools did only a generation ago.”[14] Shouldn’t higher education accomplish more than remedial education? Doesn’t it have a greater end?

Kirk certainly thought so—at least if higher education were properly liberal. “By ‘liberal education,’” he explained, “we mean an ordering and integrating of knowledge for the benefit of the free person—as contrasted with technical or professional schooling, now somewhat vaingloriously called ‘career education.’”[15]

Kirk’s surprising wonkishness, and his facility in policy debates, always submitted to this overarching goal: Defending order against disorder, in both the soul and the larger polity.[16] “The primary purpose of a liberal education,” he said, “is the cultivation of the person’s own intellect and imagination, for the person’s own sake.”[17]

The aspiration of policy wasn’t policymaking. Kirk’s short-term strategies serviced a paramount objective: Namely, to seek wisdom, virtue, truth, clarity, and understanding. You can’t simply quantify the value of that.

[1] Russell Kirk, “Massive Subsidies and Academic Freedom,” Law and Contemporary Problems, Vol. 28, No. 3 (1963), 608.

[2] Ibid. at 607.

[3] Ibid. at 611.

[4] Russell Kirk, “Federal Aid to Educational Bureaucracy,” National Review, Vol. 10 (February 25, 1961), 116.

[5] Russell Kirk, “The Federal Educational Boondoggle,” National Review, Vol. 5 (March 15, 1958), 257.

[6] See generally Russell Kirk, “The American College: A Proposal for Reform,” The Georgia Review, Vol. 11, No. 2 (Summer 1957), 177-186.

[7] Ibid. at 177.

[8] Ibid. (“our age seems to require a reform that is reactionary, rather than innovating”).

[9] Ibid. at 182-83.

[10] Russell Kirk, “More Freedom Per Dollar,” National Review, Vol 31 (April 13, 1979), 488.

[11] Russell Kirk, “Federal Scholarships,” National Review, Vol. 2 (November 24, 1956), 18.

[12] Ibid.

[13] Russell Kirk, “Who Should Pay for Higher Education?” Vol. 23 (May 18, 1971), 534.

[14] Russell Kirk, “Federal Education,” National Review, Vol. 4 (December 28, 1957), 592.

[15] Russell Kirk, “The Conservative Purpose of a Liberal Education,” in The Essential Russell Kirk, edited by George A. Panichas (Wilmington, Delaware: ISI Books, 2007), 398.

[16] Ibid. at 400.

[17] Ibid.

Dr. Jason Jewell on Justice versus Social Justice

In Conservatism, Economics, Ethics, History, Humanities, Law, liberal arts, Liberalism, Philosophy, Politics on February 5, 2020 at 6:45 am

What do “Change” and “Equality” Mean?

In Humanities, Law, liberal arts, Philosophy, Politics on November 6, 2019 at 6:45 am

This piece originally appeared here in The Intercollegiate Review.

As the elections of 2020 near, the left has weaponized two principles that are now prevailing orthodoxies on college campuses, in the mass media, and among activist blatherskites: change and equality.

Examples of change?

Senator Sanders and Senator Warren advocate differing forms of “free college” at public institutions of higher learning. Most of the Democratic presidential candidates have proposed eliminating the Electoral College. Andrew Yang backs a government-funded “universal basic income” program.

These are specific policies. What about large-scale models of government like socialism, openly embraced by Senator Sanders and Representative Ocasio-Cortez?

Which brings us to equality. “Equality,” today, refers to diverse causes: gender equality, marriage equality, income equality, transgender equality, racial equality, housing equality, healthcare equality, environmental equality—in short, you can affix the term “equality” to just about any hot-button political issue or mobilized interest group and find some politician supporting it.

Change and equality sound nice in theory, but what, exactly, do these words mean? The eminent thinker and man of letters Russell Kirk provides key insights into the nature and limitations of change and equality.

THERE ARE MANY KINDS OF “CHANGE”

Is change always for the better? Isn’t there regress, deterioration, degeneration, and decay? Wouldn’t we need a conservative disposition—an understanding of history in its immeasurable complexity—to know the difference between change that’s good and change that’s bad?

“When a society is progressing in some respects,” Kirk warns, “usually it is declining in other respects.” The French Revolution certainly brought changes: widespread violence, corruption, the beheading of innocents, the massacring of clergy, looting, chaos, food shortages, and the destruction of churches. The Russian Revolution promised change and delivered it in the form of war, mass murder, riots, starvation, and dictatorship. The Chinese Communist Revolution successfully instituted changes that resulted in tens of millions of deaths.

If you want change for the sake of something different, the object is transformation itself, not a definitive outcome. What do you achieve? The creed of change implies that you can never get things right: the only correct state is that of perpetual flow and flux.

“You’re on the wrong side of history,” we’re told by those who demand change. They value progress as the summum bonum, as though the past were devoid of good people and useful data, as if it were a monolithic evil from which you must flee and hide your eyes. But you should not move forward—you should not change—without the past to guide you.

We must be mindful of the debts we owe our ancestors, without whom, after all, we wouldn’t have the ideas, luxuries, technologies, and freedoms we enjoy. Kirk exemplifies a proper attitude toward change in his Concise Guide to Conservatism: “Change is essential to a good society,” but it must take place “within the framework of tradition.” He adds that “progress is possible only so long as it is undertaken upon the sure footing of permanence.”

I like asking progressives what society would need to look like for them to become conservatives. What is their teleology, their ultimate goal for culture and governing institutions? What achievement would they preserve and defend?

Change can be dangerous. The wisdom of generations—the taking of the long view—acts as a check against those radical changes that lead to loss of life and violations of the dignity and bodily integrity of every human person.

EQUALITY IS AN ILLUSION

Equality raises the questions: Equal to what? Equal in what sense? But this means it is a signifier without a signified. There’s no such thing as equality in the tangible, phenomenal world.

Every lawyer knows on some level that differentiations between people are inevitable.

“Civilized society requires that all men and women have equal rights before the law,” Kirk writes, “but that equality should not extend to equality of condition: that is, society is a great partnership, in which all have equal rights—but not to equal things.”

Why? Because justice, in Kirk’s view, demands “sound leadership, different rewards for different abilities, and a sense of respect and duty.” Moreover, “In the name of equality, the collectivist establishes a political and economic order which subjects a great mass of individuals to the will and whim of a new managerial elite.”

The law categorizes us: citizen and noncitizen, parent and child, minor and adult, alive and dead, employer and employee, buyer and seller, debtor and creditor, single and married, majority and minority, donor and donee, plaintiff and defendant, prosecution and defense, innocent and guilty, solvent and insolvent, offeror and offeree, payer and payee, promisor and promisee, landlord and tenant, agent and principal.

Nobody escapes labels under the law: human, mother, father, child, spouse, brother, sister, niece, nephew, cousin, aunt, uncle, descendant, heir, client, guardian, bystander, driver, owner, resident, patient, insured, devisee, witness, litigant, student, taxpayer, guest, signatory, broker, trustee, volunteer, testator, mortgagor, investor, author, licensee, victim, subscriber, decedent—the list goes on.

Everyone fits within more than one of these classifications, which are not necessarily hierarchical. The flesh-and-blood people to whom they refer, however, are not treated equally in all circumstances. They cannot be because no one can occupy an identical position in society, nor hold the exact same provisions in the exact same settings within the exact same jurisdiction.

We have different jobs, careers, ages, obligations, goals, talents, and familial statuses. The law treats people differently because of their different roles and responsibilities in specified contexts. Taxonomical differences are natural and inevitable, flowing from the diversity of human experience.

Laws by definition discriminate: they state who may or may not do something, who possesses or protects rights, who creates or enforces rules, who must or must not act in particular situations, which acts are proper or improper in light of unique circumstances. Discrimination is inevitable. The operative question, then, is on what basis laws discriminate. Some bases are acceptable, whereas others are not.

Aristotle maintained that the telos, or the purpose, of the law is to achieve goodness and virtue. Accordingly, laws discriminating on the grounds of race are presumptively invalid because they have no bearing upon human intent or action, on the pursuit of goodness or virtue. Rather, they involve an immutable characteristic, a trait people cannot help, an unchosen quality of the human body.

Goodness and virtue, by contrast, involve choices. A person acts morally by selecting one course of action over another. The law incentivizes good behavior and punishes crime or mischief. It shouldn’t penalize people for acts they didn’t or couldn’t commit, for properties they are incapable of changing or affecting.

Except in the eyes of God, absolute equality, true equality, doesn’t exist. Attempts to attain it necessitate coercion, perhaps even the annihilation of certain people or the destruction of certain places and things. Yet I wouldn’t expect the government forcibly to remove someone else’s good lung to replace my bad lung to equalize our conditions. Besides, no two lungs are alike.

Equality, as a concept, is the enemy of another concept the left purports to champion: diversity. Every human being is unique. Every person has distinct skills, aptitudes, weaknesses, and temptations. Diversity involves differences. It is real, not an ideal like equality.

“Variety and diversity are the characteristics of a high civilization,” Kirk says. “Uniformity and absolute equality are the death of all real vigor and freedom in existence.”

We should celebrate the fact that no two people are alike, that our variety as a species makes us wonderful and marvelous. We’re in awe when musicians produce sounds we cannot produce, when artists render images we cannot render, when athletes leap or jump or run in ways foreign to our bodies, when writers arrange words on a page with a facility we lack.

Diversity is good and beautiful; seeking to eliminate it in the name of equality is cruel and misguided. We rightly fear societies in which one group uses political power and the apparatus of government to deprive individuals of their wealth and property in pursuit of hypotheticals like equality. Kirk reminds, after all, that the “aim of the collectivistic state is to abolish classes, voluntary associations, and private rights, swallowing all these in the formless blur of the ‘general will’ and absolute equality of condition—equality, that is, of everyone except the clique which rules the state.”

FOCUS ON PRINCIPLES, NOT JUST POLICY

Understandably, we focus on policy during election seasons. But maybe we should quiz candidates on their philosophical moorings. If we do, we might find that progressives have embraced quixotic concepts that lead, in practice, to violence and coercion rather than their intended outcomes.

Kirk cautioned against the siren songs of change and equality. We should listen.

St. George Tucker’s Jeffersonian Constitution

In American History, Arts & Letters, Books, Civics, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Nineteenth-Century America, Philosophy, Politics, Western Civilization, Western Philosophy on October 30, 2019 at 6:45 am

This piece originally appeared here in Law & Liberty. 

One could argue that there are two basic visions for America: the Hamiltonian and the Jeffersonian. The former is nationalist, calling for centralized power and an industrial, mercantilist society characterized by banking, commercialism, and a robust military. Its early leaders had monarchical tendencies. The latter vision involves a slower, more leisurely and agrarian society, political decentralization, popular sovereignty, and local republicanism. Think farmers over factories.

Both have claimed the mantle of liberty. Both have aristocratic elements, despite today’s celebration of America as democratic. On the Hamiltonian side we can include John Adams, John Marshall, Noah Webster, Henry Clay, Joseph Story, and Abraham Lincoln. In the Jeffersonian camp we can place George Mason and Patrick Henry (who, because they were born before Jefferson, could be considered his precursors), the mature (rather than the youthful) James Madison, John Taylor of Caroline, John C. Calhoun, Abel Upshur, and Robert Y. Hayne. The Jeffersonian Republicans won out in the early nineteenth century, but since the Civil War, the centralizing, bellicose paradigm has dominated American politics, foreign and monetary policy, and federal institutions.

St. George Tucker falls into the Jeffersonian category. View of the Constitution of the United States, published by Liberty Fund in 1999, features his disquisitions on various legal subjects, each thematically linked. Most come from essays appended to his edition of Sir William Blackstone’s Commentaries on the Laws of England.

Born in Bermuda, Tucker became a Virginian through and through, studying law at the College of William and Mary under George Wythe, whose post at the law school he would eventually hold. On Tucker’s résumé we might find his credentials as a poet, essayist, and judge. He was an influential expositor of the limited-government jurisprudence that located sovereignty in the people themselves, as opposed to the monarch or the legislature, which, he believed, was a surrogate for the general will in that it consisted of the people’s chosen representatives.

Tucker furnished Jeffersonians with the “compact theory” of the Constitution:

The constitution of the United States of America . . . is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several states of North-America, and ratified by the people thereof, respectively; whereby the several states, and the people thereof, respectively, have bound themselves to each other, and to the federal government of the United States; and by which the federal government is bound to the several states, and to every citizen of the United States.

Under this model, each sovereign, independent state is contractually and consensually committed to confederacy, and the federal government possesses only limited and delegated powers—e.g., “to be the organ through which the united republics communicate with foreign nations.”

Employing the term “strict construction,” Tucker decried what today we’d call “activist” federal judges, insisting that “every attempt in any government to change the constitution (otherwise than in that mode which the constitution may prescribe) is in fact a subversion of the foundations of its own authority.” Strictly construing the language of the Constitution meant fidelity to the binding, basic framework of government, but it didn’t mean that the law was static. Among Tucker’s concerns, for instance, was how the states should incorporate, discard, or adapt the British common law that Blackstone had delineated.

Tucker understood the common law as embedded, situated, and contextual rather than as a fixed body of definite rules or as the magnificent perfection of right reason, a grandiose conception derived from the quixotic portrayals of Sir Edward Coke. “[I]n our inquiries how far the common law and statutes of England were adopted in the British colonies,” Tucker announced, “we must again abandon all hope of satisfaction from any general theory, and resort to their several charters, provincial establishments, legislative codes, and civil histories, for information.”

In other words, if you want to know what the common law is on this side of the pond, look to the operative language of governing texts before you invoke abstract theories. Doing so led Tucker to conclude that parts of English law were “either obsolete, or have been deemed inapplicable to our local circumstances and policy.” In this, he anticipated Justice Holmes’s claim that the law “is forever adopting new principles from life at one end” while retaining “old ones from history at the other, which have not yet been absorbed or sloughed off.”

What the several states borrowed from England was, for Tucker, a filtering mechanism that repurposed old rules for new contexts. Tucker used other verbs to describe how states, each in their own way, revised elements of the common law in their native jurisdictions: “modified,” “abridged,” “shaken off,” “rejected,” “repealed,” “expunged,” “altered,” “changed,” “suspended,” “omitted,” “stricken out,” “substituted,” “superseded,” “introduced.” The list could go on.

The English common law, accordingly, wasn’t an exemplification of natural law or abstract rationalism; it was rather the aggregation of workable solutions to actual problems presented in concrete cases involving real people. Sometimes, in its British iterations, it was oppressive, reinforcing the power of the king and his agents and functionaries. Thus it couldn’t fully obtain in the United States. “[E]very rule of the common law, and every statute of England,” Tucker wrote on this score, “founded on the nature of regal government, in derogation of the natural and unalienable rights of mankind, were absolutely abrogated, repealed, and annulled, by the establishment of such a form of government in the states.”

Having been clipped from its English roots, the common law in the United States had, in Tucker’s view, an organic opportunity to grow anew in the varying cultural environments of the sovereign states. In this respect, Tucker prefigured Justice Brandeis’s assertion in Erie Railroad Company v. Tompkins (1938) that “[t]here is no federal general common law.” Tucker would have agreed with Brandeis that, “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.”

In fact, summarizing competing contentions about the Sedition Act, Tucker subtly supported the position that “the United States as a federal government have no common law” and that “the common law of one state . . . is not the common law of another.” The common law, in Tucker’s paradigm, is bottom-up and home-grown; it’s not a formula that can be lifted from one jurisdiction and placed down anywhere else with similar results and effects.

By far the most complex essay here is “On the State of Slavery in Virginia,” which advocated the gradual extirpation of slavery. With admirable clarity, Tucker zeroed in on the hypocrisy of his generation:

Whilst we were offering up vows at the shrine of Liberty, and sacrificing hecatombs upon her altars; whilst we swore irreconcilable hostility to her enemies, and hurled defiance in their faces; whilst we adjured the God of Hosts to witness our resolution to live free, or die, and imprecated curses on their heads who refused to unite us in establishing the empire of freedom; we were imposing upon our fellow men, who differ in complexion from us, a slavery, ten thousand times more cruel than the utmost extremity of those grievances and oppressions, of which we complained.

Despite his disdain for the institution of slavery, Tucker expressed ideas that are racist by any measurable standard today—for instance, his notion that slavery proliferated in the South because the climate there was “more congenial to the African constitution.”

On the level of pure writing quality and style, Tucker had a knack for aphorism. “[T]he ignorance of the people,” he said, “is the footstool of despotism.” More examples: “Ignorance is invariably the parent of error.” “A tyranny that governs by the sword, has few friends but men of the sword.”

Reading Tucker reminds us that for most of our country’s formative history the principal jurisprudential debates were not about natural law versus positivism, or originalism versus living constitutionalism, but about state versus federal authority, local versus national jurisdiction, the proper scale and scope of government, checks and balances, and so forth. To the extent these subjects have diminished in importance, Hamilton has prevailed over Jefferson. Reading Tucker today can help us see the costs of that victory.

Review of Stephen Budiansky’s “Oliver Wendell Holmes Jr.”

In Academia, America, American History, American Literature, Arts & Letters, Book Reviews, Books, Historicism, History, Humanities, Jurisprudence, Law, liberal arts, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Scholarship, Western Philosophy on September 25, 2019 at 6:45 am

This review originally appeared here in Los Angeles Review of Books.

Do we need another biography of Oliver Wendell Holmes Jr., who served nearly 30 years as an Associate Justice of the United States Supreme Court and nearly 20 years before that on the Massachusetts Supreme Judicial Court? He has been the subject of numerous biographies since his death in 1935. We have not discovered new details about him since Harvard made his papers available to researchers in 1985, so why has Stephen Budiansky chosen to tell his story?

The answer may have to do with something Holmes said in The Common Law, his only book: “If truth were not often suggested by error, if old implements could not be adjusted to new uses, human progress would be slow. But scrutiny and revision are justified.”

Indeed, they are — both in the law and in the transmission of history. Holmes has been so singularly misunderstood by jurists and scholars that his life and thought require scrutiny and revision. Because his story is bound up with judicial methods and tenets — his opinions still cited regularly, by no less than the US Supreme Court as recently as this past term — we need to get him right, or at least “righter,” lest we fall into error, sending the path of the law in the wrong direction.

A veritable cottage industry of anti-Holmes invective has arisen on both the left and the right side of the political spectrum. No one, it seems, of any political persuasion, wants to adopt Holmes. He’s a giant of the law with no champions or defenders.

For some critics, Holmes is the paragon of states’ rights and judicial restraint who upheld local laws authorizing the disenfranchisement of blacks (Giles v. Harris, 1903) and the compulsory sterilization of individuals whom the state deemed unfit (Buck v. Bell, 1927). This latter decision he announced with horrifying enthusiasm: “Three generations of imbeciles are enough.” For other critics, he’s the prototypical progressive, decrying natural law, deferring to legislation that regulated economic activity, embracing an evolutionary view of law akin to living constitutionalism, and bequeathing most of his estate to the federal government.

The truth, as always, is more complicated than tendentious caricatures. Budiansky follows Frederic R. Kellogg — whose Oliver Wendell Holmes Jr. and Legal Logic appeared last year — in reconsidering this irreducible man who came to be known as the Yankee from Olympus.

Not since Mark DeWolfe Howe’s two-volume (but unfinished) biography, The Proving Years and The Shaping Years, has any author so ably rendered Holmes’s wartime service. Budiansky devotes considerable attention to this period perhaps because it fundamentally changed Holmes. Before the war, Holmes, an admirer of Ralph Waldo Emerson, gravitated toward abolitionism and volunteered to serve as a bodyguard for Wendell Phillips. He was appalled by a minstrel show he witnessed as a student. During the war, however, he “grew disdainful of the high-minded talk of people at home who did not grasp that any good the war might still accomplish was being threatened by the evil it had itself become.”

Holmes had “daddy issues” — who wouldn’t with a father like Oliver Wendell Holmes Sr., the diminutive, gregarious, vainglorious, and sometimes obnoxious celebrity, physician, and author of the popular “Breakfast Table” series in The Atlantic Monthly? — that were exacerbated by the elder Holmes’s sanctimonious grandstanding about his noble, valiant son. For the aloof father, the son’s military service was a status marker. For the son, war was gruesome, fearsome, and real. The son despised the father’s flighty ignorance of the on-the-ground realities of bloody conflict.

Holmes fought alongside Copperheads as well, a fact that might have contributed to his skepticism about the motives of the war and the patriotic fervor in Boston. His friend and courageous comrade Henry Abbott — no fan of Lincoln — died at the Battle of the Wilderness in a manner that Budianksy calls “suicidal” rather than bold. The war and its carnage raised Holmes’s doubts regarding “the morally superior certainty that often went hand in hand with belief: he grew to distrust, and to detest, zealotry and causes of all kinds.”

This distrust — this cynicism about the human ability to know anything with absolute certainty — led Holmes as a judge to favor decentralization. He did not presume to understand from afar which rules and practices optimally regulated distant communities. Whatever legislation they enacted was for him presumptively valid, and he would not impose his preferences on their government. His disdain for his father’s moralizing, moreover, may have contributed to his formulation of the “bad man” theory of the law. “If you want to know the law and nothing else,” he wrote, “you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

Budiansky’s treatment of Holmes’s experience as a trial judge — the Justices on the Massachusetts Supreme Judicial Court in those days presided over trials of first instance — is distinctive among the biographies. Budisansky avers,

[I]n his role as a trial justice, Holmes was on the sharp edge of the law, seeing and hearing firsthand all of the tangled dramas of the courtroom, sizing up the honesty of often conflicting witnesses, rendering decisions that had immediate and dramatic consequences — the breakup of families, financial ruin, even death — to the people standing right before him.

Holmes’s opinions as a US Supreme Court Justice have received much attention, but more interesting — perhaps because less known — are the salacious divorce cases and shocking murder trials he handled with acute sensitivity to evidence and testimony.

Budiansky skillfully summarizes Holmes’s almost 30-year tenure on the US Supreme Court, the era for which he is best known. He highlights Holmes’s dissenting opinions and his friendship with Justice Louis Brandeis, who was also willing to dissent from majority opinions — and with flair. For those looking for more detailed narratives about opinions Holmes authored as a Supreme Court Justice, other resources are available. Thomas Healy’s The Great Dissent, for example, dives more deeply into Holmes’s shifting positions on freedom of speech. Healy spends a whole book describing this jurisprudential development that Budiansky clears in one chapter.

Contemptuous of academics, Budiansky irrelevantly claims that “humorless moralizing is the predominant mode of thought in much of academia today.” He adds, “A more enduring fact about academic life is that taking on the great is the most reliable way for those who will never attain greatness themselves to gain attention for themselves.” Harsh words! Budianksy accuses the French historian Jules Michelet of rambling “on for pages, as only a French intellectual can.” Is this playful wit or spiteful animus? Is it even necessary?

Budiansky might have avoided occasional lapses had he consulted the academics he seems to despise. For instance, he asserts that the “common law in America traces its origins to the Middle Ages in England […] following the Norman invasion in 1066,” and that the “Normans brought with them a body of customary law that, under Henry II, was extended across England by judges of the King’s Bench who traveled on circuit to hold court.” This isn’t so. Writing in The Genius of the Common Law, Sir Frederick Pollock — “an English jurist,” in Budiansky’s words, “whose friendship with Holmes spanned sixty years” — mapped the roots of the common law “as far back as the customs of the Germanic tribes who confronted the Roman legions when Britain was still a Roman province and Celtic.” In other words, Budiansky is approximately one thousand years off. Rather than supplanting British customs, the Normans instituted new practices that complemented, absorbed, and blended with British customs.

The fact that Budiansky never mentions some of the most interesting researchers working on Holmes — Susan Haack, Seth Vannatta, and Catharine Wells come to mind — suggests willful ignorance, the deliberate avoidance of the latest scholarship. But to what end? For what reason?

It takes years of study to truly understand Holmes. The epigraph to Vannatta’s new edition, The Pragmatism and Prejudice of Oliver Wendell Holmes Jr., aptly encapsulates the complexity of Holmes’s thought with lines from Whitman’s Song of Myself: “Do I contradict myself? / Very well then I contradict myself, / (I am large, I contain multitudes.)” Budiansky recognizes, as others haven’t, that Holmes was large and contained multitudes. Holmes’s contradictions, if they are contradictions, might be explained by the famous dictum of his childhood hero, Emerson: “A foolish consistency is the hobgoblin of little minds.”

Holmes was consistently inconsistent. His mind was expansive, his reading habits extraordinary. How to categorize such a wide-ranging man? What were the defining features of his belief? Or did he, as Louis Menand has alleged, “lose his belief in beliefs”? Budiansky condenses Holmes’s philosophy into this helpful principle: “[T]hat none of us has all the answers; that perfection will never be found in the law as it is not to be found in life; but that its pursuit is still worth the effort, if only for the sake of giving our lives meaning.”

Holmes was intellectually humble, warning us against the complacency that attends certainty. Driving his methods was the sober awareness that he, or anyone for that matter, might be incorrect about some deep-seated conviction. During this time of polarized politics, self-righteous indignation, widespread incivility, and rancorous public discourse, we could learn from Holmes. How civil and respectful we could be if we all recognized that our cherished ideas and working paradigms might, at some level, be erroneous, if we were constantly mindful of our inevitable limitations, if we were searchers and seekers who refuse to accept, with utter finality, that we’ve figured it all out?

On Patrick Deneen’s “Why Liberalism Failed”

In Arts & Letters, Book Reviews, Books, Christianity, Conservatism, Historicism, History, Humane Economy, Humanities, Law, liberal arts, Liberalism, Libertarianism, Philosophy, Politics, Scholarship, Western Civilization, Western Philosophy on August 28, 2019 at 6:45 am

The original version of this piece appeared here in the Journal of Faith and the Academy. A later version appeared here at Mises Wire.

Only the bold would title a book Why Liberalism Failed. Patrick Deneen, the David A. Potenziani Memorial Associate Professor of Political Science at the University of Notre Dame, has done just that, proposing that such failure has actually occurred and setting the unreasonable expectation that he can explain it. His operative premise is that liberalism so called created the conditions for its inevitable demise—that it is a self-consuming, self-defeating ideology only around 500 years old. (p. 1) “Liberalism has failed,” he declares triumphantly, “not because it fell short, but because it was true to itself. It has failed because it has succeeded.” (p.3)

Deneen doesn’t define the term liberalism, which isn’t in his index even though it’s littered throughout the book. I have it on reliable authority that one of the peer reviewers of the pre-published manuscript recommended publication to the editors at Yale University Press, provided that Deneen cogently defined liberalism and then cleaned up his sloppy references to it. Deneen ignored this advice, leaving the manuscript as is. His genealogy of liberalism is all the more problematic in light of this refusal to clarify.

Deneen presents a seeming paradox, namely that liberalism, under the banner of liberty and emancipation, produced their opposite: a vast, progressive, and coercive administrative state under which individuals have grown alienated, amoral, dependent, conditioned, and servile. “[T]he political project of liberalism,” he claims, “is shaping us into the creatures of its prehistorical fantasy, which in fact required the combined massive apparatus of the modern state, economy, education system, and science and technology to make us into: increasingly separate, autonomous, nonrelational selves replete with rights and defined by our liberty, but insecure, powerless, afraid, and alone.” (p.16)

One hears in this line echoes of Sartre, and indeed existentialism recommends a certain kind of individualism: the freedom of the rational agent, having been thrust into existence through no choice or fault of his own, to will his own meaning in an absurd and chaotic world. But existentialism is a different species of individualism from that which motivated Hobbes, Locke, and Mill: chief targets of Deneen’s ire. It’s true that Mill disliked dogmatic conformity to custom, but that is a customary—one might even say conservative—position to take. One must preserve, or conserve, after all, a critical mode for undertaking difficult questions without assuming to have already ascertained all suitable solutions. Every age must rework its approaches to perennial problems. There’s plenty of Mill to dislike from a Christian perspective, but his unlikable conclusions do not necessarily follow from his method of inquiry or openness to examining afresh the puzzles and issues with which our ancestors struggled.

The classical liberalism or libertarianism to which Christian individualists adhere promotes peace, cooperation, coordination, collaboration, community, stewardship, ingenuity, prosperity, dignity, knowledge, understanding, humility, virtuousness, creativity, justice, ingenuity, and more, taking as its starting point the dignity of every human person before both God and humanity. This individualism prospers in fundamentally conservative cultures and does not square with Deneen’s caricature of a caricature of a caricature of “liberal” individualism. This conservative individualism, a creature of classical liberalism, advocates liberty in order to free human beings to achieve their fullest potential, cultivate widespread ethics and morality, and improve lives and institutions through economic growth and development. And who can deny that the market economy with which it is bound up has, throughout the globe, given rise to improved living conditions, technological and medical advances, scientific discovery, intellectual curiosity, and industrial innovation?

Deneen wishes to rewind the clock, to recover the virtuous “self-governance” of the ancients that, he believes, was predicated on “the common good.” (p. 99) He sees in antiquity a social rootedness that aligns with Christianity as exemplified in the modern world by Amish communities.(p 106-107) His celebration of the traditional liberal arts adopts, he says, “a classical or Christian understanding of liberty” (p. 129) that emphasizes situated norms and localities, embedded cultures, and institutional continuities. This, however, is a curious take on antiquity, one that flies in the face of the anti-Christian features of classical and ancient thought extolled by Friedrich Nietzsche, Ayn Rand, and Julius Evola, who valued the pagan elements of “the ancient commendation of virtue” (p. 165) and disparaged the modern world as being too Christian.

Deneen is not interested in liberalisms, i.e., the multiplicity of concepts that fly under the banner of liberalism. He prefers casually to lump together varieties of generic ills (everything from industrialized agriculture to the infatuation with STEM, diversity, multiculturalism, materialism, and sexual autonomy) as products of the one common enemy of everything good that the classical and medieval periods had to offer. He then gives that enemy a name: liberalism. He would plunge us back, if not into antiquity, then into medieval tribalism, into periods in which the accused were tried by ordeal or combat, when blood oaths and kinship rather than trust, goodwill, or economic exchange determined one’s loyalties and allegiances.

It isn’t correct that liberalism “requires liberation from all forms of associations and relationships, from family to church, from schools to village and community.” (p. 38) On the contrary, liberalism frees people from the tyrannical and institutionalized coercion that prevents them from enjoying local associations and relationships, including those in families, churches, schools, and communities. Liberalism properly understood empowers people to group themselves and define their experience by their own customs and mores. Thanks to liberalism, Deneen himself enjoys the freedom to critique the rapidly growing government that increasingly attempts to impose on him standards and rules at odds with his own.

Extending the individualism that characterized classical liberalism to twentieth century progressivism and modern identity politics, as Deneen does, is misguided. Modern identity politics is about collectivism in the name of self-definition, self-awareness, and self-constitution, about choosing which communities (Black Lives Matter, LGBTQ, the Democratic Socialists of America, neo-Nazis, etc.) embrace the physical (e.g. ethnic or racial), ideological (e.g., pan-nationalist, Marxist, ecosocialist, feminist, anarcho-syndicalist, white supremacist), or normative characteristics (e.g. social justice or egalitarianism) around which one forms group associations.

The truth is that individualism thrives in moral, virtuous communities, and that the common good and group associations flourish in societies that acknowledge and understand the inherent worth and dignity of every individual. Of the interdependence and mutually strengthening nature of freedom and order, of the individual and society, Frank Meyer proclaimed that “truth withers when freedom dies, however righteous the authority that kills it; and free individualism uninformed by moral value rots at its core and soon brings about conditions that pave the way for surrender to tyranny.”1 To those who insist that individualism is antithetical to religious belief, which is itself indispensable to conservatism and the common good, M. Stanton Evans stated, “affirmation of a transcendent order is not only compatible with individual autonomy, but the condition of it; […] a skeptical view of man’s nature [i.e., as inherently flawed and prone to sin] not only permits political liberty but demands it.”2

In a free society, entrepreneurs and producers are looking to others, to communities, to determine basic needs to satisfy. The rational self-interest motivating creativity and inventiveness is fundamentally about serving others more efficiently and effectively, about generating personal rewards, yes—but personal rewards for making life better and easier for others. The Adam Smith of The Wealth of Nations is the same Adam Smith of The Theory of Moral Sentiments. Human beings are wired both to look out for themselves, protecting their homes and loved ones, and to feel for, and empathize with, others. Beneficence and generosity are principal aspects of the liberal individualism that Deneen maligns.

The “second wave” of liberalism, in Deneen’s paradigm, is Progressivism. (p. 142) Yet modern progressivism and the Democratic Party have almost nothing to do with classical liberalism. Curiously and, I daresay, lazily, Deneen wishes to connect them. He cannot draw a clearly connecting line between them, however, because there isn’t one. The alleged connection is the supposed ambition “to liberate individuals from any arbitrary and unchosen relationships and remake the world into one in which those especially disposed to expressive individualism would thrive.” (p. 143–44) Should we take this assertion to mean that Deneen would prefer our relations and interactions to be arbitrarily coerced by a central power in a closed society where subordinated individuals habitually follow the unquestioned commands of established superiors?

F. A. Hayek once stated that, “[u]ntil the rise of socialism,” the opposite of conservatism was liberalism but that, in the United States, “the defender of the American tradition was a liberal in the European sense.”3 Is Deneen so immersed in American culture that he cannot recognize this basic distinction? Deneen prizes the common, collective good as manifest in local communities, blaming rational self-interest for the allegedly universalizing tendency of liberalism to stamp out venerable customs and cultural norms. But he seems befuddled by the American taxonomy into which liberalism has fallen and would do well to revisit the works of Ludwig von Mises, who explained, “In the United States ‘liberal’ means today a set of ideas and political postulates that in every regard are the opposite of all that liberalism meant to the preceding generations. The American self-styled liberal aims at government omnipotence, is a resolute foe of free enterprise, and advocates all-round planning by authorities, i.e., socialism.”4

A comparison of Deneen’s speculative political theory and its abstract narrative of decline with Larry Siedentop’s deeply historical, ideologically neutral Inventing the Individual (Belknap / Harvard, 2014) reveals critical flaws in Deneen’s argument, starting with the proposition that the individualism key to liberalism is merely 500 years old. Siedentop undercuts the common portrayal of a medieval Europe gripped by poverty and superstition, monarchy and tyranny, widespread corruption and early death from which the Renaissance and, later, the Enlightenment allegedly rescued us. Siedentop sees, instead, the rise of Christianity—long before medievalism—as the cause of the rise of liberal individualism, which, in fact, has roots in the teachings of St. Paul and Jesus Christ. Whereas Deneen theorizes individualism as recent and anti-Christian, Siedentop traces its actual history as distinctly Christian, mapping its concrete features over time as it proliferated and supplanted ancient pagan cultures and customs that lacked a structural understanding of the dignity and primacy of the human person.

Siedentop attributes liberal individualism to Christianity; Deneen treats liberal individualism as inimical to Christianity. Both men cannot correct, at least not fully.

Walking back some of his grand claims, Deneen acknowledges in his final pages that liberalism, in certain manifestations, has in fact been around longer than 500 years and that it has much in common with Christianity:

While liberalism pretended to be a wholly new edifice that rejected the political architecture of all previous ages, it naturally drew upon long developments from antiquity to the late Middle Ages. A significant part of its appeal was not that it was something wholly new but that it drew upon deep reservoirs of belief and commitment. Ancient political philosophy was especially devoted to the question of how best to avoid the rise of tyranny, and how best to achieve the conditions of political liberty and self-governance. The basic terms that inform our political tradition—liberty, equality, dignity, justice, constitutionalism—are of ancient pedigree. The advent of Christianity, and its development in the now largely neglected political philosophy of the Middle Ages, emphasized the dignity of the individual, the concept of the person, the existence of rights and corresponding duties, the paramount importance of civil society and a multiplicity of associations, and the concept of limited government as the best means of forestalling the inevitable human temptation toward tyranny. Liberalism’s most basic appeal was not its rejection of the past but its reliance upon basic concepts that were foundational to the Western political identity. (pp. 184–85)

Forgive me for being confused, but I thought Deneen had set out to criticize liberalism and chart its failure, not to exalt or defend it, and certainly not to tie it to an ancient lineage associated with Christianity. This passage represents the discombobulation at the heart of Deneen’s book. Liberalism is not to blame for the massive administrative state and its networks of agents and functionaries that coerce local communities. Deneen is part of the problem he describes, championing ways of thinking and organizing human behavior that undercut his hope for the reawakening of traditional values and familial or neighborly bonds on local levels.

Deneen airs his opinions with such maddening certitude that he comes across as haughty and tendentious, as a zealously anti-libertarian manqué with an axe to grind. He lacks the delicacy and charity with which reasonable scholars of good faith approach their ideological opponents. He does not entertain the position of those who, like me, believe that liberal individualism is a necessary condition for the flourishing of local communities, the cultivation of virtue and responsibility, the forming of mediating institutions and bottom-up political associations, and the decentralization and diffusion of government power. He just can’t grasp the possibility that liberal individualism creates a vehicle for the preservation of custom and heritage, the family unit, and social bonds on local levels.

“Statism enables individualism, individualism demands statism,” (p. 17) Deneen insists with little proof beyond his own ahistorical speculative theories—ironically given his call for “smaller, local forms of resistance: practicesmore than theories.” (pp. 19–20) Here’s an alternative proposition: liberal individualism and the community bonds it generates are best protected in a Christian society that is solemnly mindful of the fallibility of the human mind, the sinful tendencies of the human flesh, and the inevitable imperfection of human institutions.

Reading Why Liberalism Failed, one might come away questioning not whether Deneen is right, but whether he’s even sufficiently well-read in the history of liberalism to pass judgment on this wide-ranging, centuries-old school of philosophy that grew out of Christianity. What an unfortunate impression to impart for someone who writes with such flair about such important trends and figures. The reality, I think, is that Deneen is erudite and learned. His tendentious depiction of liberalism is thus disappointing for not putting his erudition and learning properly on display, for promoting an idiosyncratic take on liberalism that could ultimately undermine the classical and Christian commitment to liberty that he wishes to reinvigorate.

  • 1.Frank Meyer, “Freedom, Tradition, Conservatism,” in What is Conservatism? (Wilmington, Delaware: ISI Books, 2015), p. 12.
  • 2.M. Stanton Evans, “A Conservative Case for Freedom,” in What is Conservatism? (Wilmington, Delaware: ISI Books, 2015), p. 86.
  • 3.F. A. Hayek, “Why I Am Not a Conservative,” The Constitution of Liberty: The Definitive Edition, Vol 17, The Collected Works of F. A. Hayek(Routledge, 2013), p. 519.
  • 4.Ludwig von Mises, Liberalism in the Classical Tradition (1927) (The Foundation for Economic Education and Cobden Press, 2002) (Ralph Raico, trans.), pgs. xvi-xvii.

Three Poems by Bruce Craven

In Arts & Letters, Creative Writing, Creativity, Humanities, liberal arts, Poetry on June 19, 2019 at 6:45 am

Bruce Craven is a member of the Columbia Business School Executive Education faculty in New York City. In addition to directing and teaching in a variety of executive programs, he teaches graduate business students his popular elective Leadership Through Fiction.  His book Win or Die: Leadership Secrets from Game of Thrones, was published in March 2019 by Thomas Dunne Books, an imprint of St. Martin’s Press.  The book is currently being translated into Russian and Turkish. He wrote the novel Fast Sofa (1993) which was published in Japanese and German. He also co-wrote the script for the film adaptation, starring Jennifer Tilly, Jake Busey and Crispin Glover. His collection of poetry, Buena Suerte in Red Glitter will be published in 2019 by Red Dirt Press. He lives with his wife and two sons in the Coachella Valley in California.

 

Gun Crazy

I’m a failure. I fell in love

with the sharpshooting girl

with pearl-handled pistols

in white holsters and the short skirt

trimmed with fringe.

We shot six-shooters together,

then she came

around the corner in a Buick

with running boards and a hood ornament

that shined like God’s right eye in the Kansas sun.

Her patent leather boots were ice-cream white,

same as those dangerous holsters and the yoke

of her midnight blue silk rodeo shirt. White

as her teeth and the fake-pearl snaps.

Her small bosom

unveiled in the carnival noise of sweeping up,

the sound of a generator, voices from a distant poker game.

I’m almost scared.

Her breasts in my hands make me think

of mounds of warm dirt when I was a boy

sitting beside the lake. I leaned

against a big rock out past the drive-in,

took potshots at birds in the sky

with my Crosman Pellgun,

dreaming of coyote, catamount or wolf.

And now

the towns don’t know what hit ‘em.

Bank alarms clang, people wave their arms

or lie down on the sidewalk. And we

count the money and drive.

 

My love can pick a lit cigarette out of my lips from thirty feet, eyes closed.

My love can hold an empty beer can bouncing in the air on bullets

like it was bouncing down from heaven on a string.

My love can talk for hours, then sleep, curled, in the shotgun seat

with her head in my lap, one arm between her legs

and the road never ends and she only complains about the heat

and this engine is a gem, an oiled gun that fires fast and smooth.

You know they’re never going to catch you.

 

We got married on the run.

Like real lovers should, she whispered.

Like criminals, joked the man in Reno who sold us a couple boxes of .38 shells,

a bottle of rye and an extra blanket for the cold desert nights.

Then we reached the ocean…the big blue desert

where the Buick is useless.

During day we hide in our white motel and pay cash.

At night, we walk the sand and don’t talk anymore.

Tonight, the waves spill in moonlight. We made a fire out of driftwood and finished the rye.

I held a cigarette in my lips under the carousel of stars.

Her shot ripped the cherry spark

and I jumped like it was the first time.

My love’s breasts are small and beautiful and she trembles

under me now in the cold sand and cries,

not from our passion, but because she shot a man

in the back in the back of a Saving’s & Loan

back near San Bernardino. Three shots.

He was armed. That’s what the newspaper’s say.

He died. Call us killers. Call us another Bonnie and Clyde.

Shown a big picture of the Buick.

Big pictures of me and my love.

I told you I was bad, she says.

I failed you, I say.

She wipes her tears, lifts her pistol. No, you didn’t.

But she’s wrong.

We got nowhere to drive. We got nowhere to hide.

 

My love points her gun at the sky and fires.

The stars crackle. We got nothing but each other.

We see it before we hear it: the flash of their blue gunfire.

 

 

1966

Fingers against the screen door,

bug-light yellowing the porch beyond

my six-year-old threshold. Burgoyne Drive

glittered with imperforate forms,

neighbors caught in the high-beams

of an idling Ford Falcon. Butcher’s paper

spanned between tentacle streetlights:

a single name in blue paint.

Shadow of rooftops a coal black Monopoly.

Mom and Dad on the lawn, arms linked; their voices hushed.

Bap of moths against the eaves,

one step beyond my cell.

A dense furniture of light radiates from every wall.

 

The world outside in the dark

waits for a neighbor’s son to return from Vietnam.

Everyone waits in that world of hurt.

Horror, a dog-eared pack of playing cards taken home

after the fictional kill-ratios got burned off on the wire.

Skin of some little country bubbling from Napalm,

saturation bombing and the strategy of not losing another domino.

 

The everyday banter as simple as looking up from the dice

to point at the homespun robe stained with blood; the enemy

caught in the coils of razor wire. Black cloth or olive cloth: dead

from exposure or loss of blood or organ failure. Roll

the dice. Oh, the games the leaders play!

 

And a blipping rain of incandescent frogs over Da Nang.

 

But what do I know?

 

Only that I was reading a picture book that night

about a group of children who painted the white walls

of their bedroom into a miraculous jungle

of maroon tigers, thick, green, lustrous fronds

and fierce, flesh-hungry natives. Knives azure.

Teeth tangerine and sharp. The children run

deeper into the jungle, desperate to paint a way

out, an exit strategy. The children scribble their colored brushes:

bridges, rivers, nets, canoes. They draw solutions.

Anything to stay one step ahead. Anything to elude

the nick of time. Until…

They are trapped! No escape.

Lost in the garden of fear. Evil prowls

in the brilliance of vine, petal, flower; hides

waiting in the shadows. Home so far away.

 

And only one can of paint left.

 

The youngest girl grabs a brush, paints the outline

of a door they all remember. A door that will open

into their familiar white bedroom. A door

that will close

and keep the fierce natives locked away.

The danger over by dinner. The jungle as real as TV.

The neighbor’s son returns from Vietnam.

1966.

 

 

 

 

Mud-Flap Girl

You’ve seen her,

against her black curtain backdrop.

She and her sister, silver and shiny,

roar past on the interstate,

bounce behind the gasoline truck

with the brilliant red WARNING

or maybe the yellow and black BIOHAZARD.

In Brooklyn, there’s an ice-cream step-van

covered completely, a friend told me,

with you. O, Mud-Flap Girl,

you’re so much more than a rebel flag, an eagle, the letters N.R.A.

You’re on my Zippo and you’re in my heart.

You go back in time with me.

You teach me and save me. I’ve met you,

in so many disguises, behind the masks

of women with names and wallets and

different driver’s licenses; phone numbers

scribbled on scraps of bar napkin before something

falters and there is hurt and loneliness

and only you, silver outline that became flesh

and warm and sang sentences, then faded

for one reason or another.

 

let me smoke another cigarette.

Let me drink another whiskey.

Let me drive nowhere fast.

Let me run my fingers around your hour-glass hips,

the black curtain your silver legs sculpt as you begin to rise,

icon of slender wrist and ankle. Move to me,

but not like a stripper. I’m out of dollars.

Barbarella of exhaust pipes and road tar

and tasteless fried chicken

I wouldn’t feed a starving cat. Baby,

I don’t care and I forgive you and I do, really,

love you when the red lights of the Highway Patrol

surge past in the fast-lane, siren whining, and I sip

my dead coffee and the dashboard glimmers

and the odometer counts each mile like it matters.

When the bartender fills my glass

with flames of bourbon and screaming ice,

you are there beside my cigarettes, looking good.

Women lean forward, cup fingers

around your red flame, give thanks with their eyes.

Smile when they catch sight of you.

No, I refuse to believe your body is a patriarchal lie,

marketed for profit. Your long hair, parted mouth

and up-thrust breasts are more than pornography, more than

the imposition of an unfair and dangerous standard of femininity.

 

I know this because I have been with you,

have stood beside a white bed, struggling out of my Levi’s

and watched as you pounced onto your knees,

then bounced once on the mattress

like a little girl waiting for a story.

 

I have heard you plead, C’mon! Hurry!

 

And I have crawled to you like a man.

 

A (Mostly) Misbegotten Attempt to Take Scalia’s Measure

In Academia, Arts & Letters, Books, Conservatism, Essays, Humanities, Judicial Activism, Judicial Restraint, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Politics, Scholarship on May 15, 2019 at 6:45 am

This review originally appeared here at Law & Liberty.

On Wednesday [editorial note: this review was published on February 11, 2019] it will be exactly three years since Justice Antonin Scalia passed away, yet his towering presence is still felt. Given the extent of his influence on legal education and his popularization of both originalism and textualism, it is no surprise to see a growing number of books and conferences addressing the importance of his legacy. One such book is The Conservative Revolution of Antonin Scalia, a collection of disparate essays edited by the political scientists David A. Schultz of Hamline University and Howard Schweber of the University of Wisconsin-Madison and published by Lexington Books.

No consensus view emerges from these wide-ranging essays on everything from Scalia’s contributions to administrative law to his Senate confirmation hearings. Nor are the essays  universally admiring. On the contrary, most of them are critical. “Was Antonin Scalia a sissy when it came to administrative law?” Schultz asks—unprofessionally, in my view. Mary Welek Atwell of Radford University scrutinizes Scalia’s opinions in cases about race and gender, highlighting his apparent “comfort” with the “patriarchal, hierarchical” elements of the Roman Catholic Church, and grandly declaring that Scalia “sympathized more with those who were trying to hold on to their privilege by excluding others than with those who sought to be included.”

Is that so? And is it so that Scalia, in the words of contributor Henry L. Chambers, Jr., of the University of Richmond School of Law, “read statutory text relatively simply”? What a relatively simple claim! Scalia’s Reading Law (2012), coauthored with Bryan Garner, outlines principles or canons for interpreting statutes and legal instruments; it has become a landmark in the field, having been cited in hundreds of cases and over a thousand law review articles in the seven years since its release. While it aims to simplify hermeneutics, providing sound methodological guidance to interpreters of legal texts, it is by no measure simple.

Scalia “might be our most Machiavellian Supreme Court justice,” the University of Wyoming law professor Stephen M. Feldman submits. “Scalia sneered, as was his wont,” he writes in an aside. Less ad hominem but equally breezy assertions by Feldman: that originalism “is most often applied in practice as a subterfuge for conservative conclusions,” and that, in any case, “Scalia’s implementation of originalism failed on multiple grounds.”

Most of the critiques in this book, in contrast to those just cited, are responsibly researched and tonally reserved. No reasonable person expects scholarly assessments of a controversial jurist’s legacy to be an exercise in hagiography. On the other hand, such assessments should avoid coming off like intemperate outbursts.

The 18 contributors come from a range of disciplines. Only three are law professors; two are professors of criminal justice; two are doctoral candidates; and one clerks for a federal judge. Equally diverse are the essays’ methodological approaches. The most distinctive belongs to Timothy R. Johnson, Ryan C. Black, and Ryan J. Owens, who in a coauthored chapter attempt to examine empirically—with graphs and figures—Scalia’s influence on the behavior of his Court colleagues during oral argument. Whether they succeed is a determination better left to experts in quantitative research.

Scalia the Liberal?

Coauthors Christopher E. Smith of Michigan State University and Charles F. Jacobs of St. Norbert College consider Scalia’s conservatism in the context of the criminal law. They do not define what they mean by “conservatism.” Before long one gathers that their understanding of it is woefully limited. They conclude, with apparent surprise, that “in nearly 1 in 6 decisions, Scalia cast his vote in support of criminal rights.” If Scalia’s method involved choosing results and then supplying reasoning to justify them, then perhaps some of his opinions regarding the Fourth Amendment might seem uncharacteristically “liberal.” Of course, Scalia’s originalism and textualism do not presuppose conclusions; they demand, instead, a rigorous process of determining the meaning and semantic context of written laws. This process may lead to “liberal” or “conservative” outcomes that do not align with a judge’s political preferences but that the words of the law necessarily require.

The process is conservative even when it yields “liberal” results.

“One might expect,” the editors say of the Smith-Jacobs chapter, “that as a political conservative Justice Scalia would have authored opinions that gave the greatest possible latitude to agents of government.” Such an obtuse claim is enough to cast doubt on Schultz and Schweber’s understanding of conservatism and, hence, of their ability to critique the claims about conservatism that one comes across throughout the book.

By contrast, the essay by Jesse Merriam of Loyola University Maryland, “Justice Scalia and the Legal Conservative Movement: An Exploration of Nino’s Neoconservatism,” stands out as historically informed on matters of conservatism—including the relationship between Scalia’s jurisprudence and the so-called conservative movement as represented by think tanks, politicos, journalists, and academics.

James Staab of the University of Central Missouri asks in the final chapter whether Antonin Scalia was a great Supreme Court justice. Staab answers no, basing his finding on seven factors:

  1. “length of service, including the production of a large body of respected judicial work”;
  2. “judicial craftsmanship, or the ability to communicate clearly and memorably in writing”;
  3. “influence, or whether the judge left an indelible mark on the law”;
  4. “judicial temperament, or the qualities of being dispassionate and even-tempered”;
  5. “impartiality, or the qualities of disinterestedness and maintaining a strict detachment from partisan activities”;
  6. “vision of the judicial function, or the proper role of judges in a constitutional democracy”; and
  7. “game changers, or whether the judge foreshadowed the future direction of the law and was on the right side of history.”

This factoring raises the expectation of a quantitative methodology, yet the chapter lacks any mathematical analysis. Regarding the first criterion, Staab simply offers several paragraphs about Scalia’s years of service and many opinions, discusses the jurist’s extrajudicial writings, and then declares: “In sum, the body of judicial work produced by Scalia is truly impressive. It is safe to say that he easily satisfies the first criteria [sic] of what constitutes a great judge.”

Regarding the second criterion, Staab mentions Scalia’s oft-celebrated writing skills and then lists some of the many memorable Scalia opinions, deducing from this evidence that “Scalia again receives the highest of remarks.” He adds that the quality of Scalia’s opinions “has sometimes been compared to those of Holmes, Cardozo, and Robert Jackson—a comparison I would agree with.” Why should Staab’s agreement or disagreement have any bearing? Where are the statistical and computational values that back up his personal judgments? Staab sounds like someone unconvincingly pretending to do quantitative research. Are his factors the best measure of greatness?

The Vagaries of Balancing Tests

What of Staab’s negative verdicts? He questions Scalia’s temperament and collegiality, pointing to his “strident dissenting opinions” and “no-holds-barred opinions.” These opinions, says Staab, “struck a partisan tone,” and the jurist’s association with the Federalist Society (gasp!) “compromised his impartiality.” Staab suggests that Scalia should have recused himself in Hamdan v. Rumsfeld (2006) and Cheney v. United States District Court (2004). He qualifies as “unprincipled” Scalia’s opinions in the areas of the veto power, state sovereign immunity, the incorporation doctrine, regulatory takings, and affirmative action. He alleges that a “major problem for Justice Scalia’s legacy is that his originalist jurisprudence was on the wrong side of history” in the sense that several of his views did not win out. Scalia was forced to dissent in controversial cases with sweeping results for the country.

Staab’s checklist reminds me of the Scalia line about the utility of balancing tests, or the lack thereof. “The scale analogy is not really appropriate,” he wrote in Bendix Autolite Corporation v. Midwesco Enterprises(1988), “since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy.”

Whatever criteria you use to evaluate greatness, this edition is unlikely to qualify.

El marxismo cultural es real

In Academia, Arts & Letters, History, Humanities, liberal arts, Literary Theory & Criticism, Pedagogy, Philosophy, The Academy, Western Philosophy on May 1, 2019 at 6:45 am

This piece originally appeared here at the Mises Institute. 

Samuel Moyn, un profesor de derecho de Yale, preguntórecientemente: “¿Qué es el “marxismo cultural?””. Su respuesta: “Nada de eso existe en realidad”. Moyn atribuye el término marxismo cultural a la “imaginación desenfrenada de la derecha”, afirmando que implica locas teorías de conspiración y se ha estado “filtrando durante años a través de las alcantarillas globales del odio”.

Alexander Zubatov, un abogado que escribió en Tabletrespondió que el marxismo cultural, “algo confuso y controvertido”, “ha estado en circulación durante más de cuarenta años”. Tiene, además, “usos perfectamente respetables fuera de la oscuridad, silos húmedos de la lejana derecha”. Concluyó que el marxismo cultural no es ni una “conspiración” ni una “fantasmagoría” de la mera derecha, sino un “programa intelectual coherente, una constelación de ideas peligrosas”.

En este debate, me pongo del lado de Zubatov. Este es el por qué.

A pesar de la desconcertante gama de controversias y significados que se le atribuyen, el marxismo cultural (el término y el movimiento) tiene una historia profunda y compleja en la teoría. La palabra “Teoría” (con una T mayúscula) es el encabezado general de la investigación dentro de las ramas interpretativas de las humanidades conocidas como estudios culturales y críticos, crítica literaria y teoría literaria, cada una de las cuales incluye una variedad de enfoques desde lo fenomenológico hasta el psicoanalítico. En los Estados Unidos, la Teoría se enseña y aplica comúnmente en los departamentos de inglés, aunque su influencia es perceptible en todas las humanidades.

Una breve genealogía de diferentes escuelas de Teoría, que se originó fuera de los departamentos de inglés, entre filósofos y sociólogos, por ejemplo, pero que se convirtió en parte del plan de estudios básico de los departamentos de inglés, muestra no solo que el marxismo cultural es un fenómeno identificable, sino que prolifera más allá de la academia.

Los estudiosos versados ​​en Teoría son razonablemente desconfiados de las representaciones crudas y tendenciosas de su campo. Sin embargo, estos campos conservan elementos del marxismo que, en mi opinión, requieren un mayor y sostenido escrutinio. Dadas las estimaciones de que el comunismo mató a más de 100 millones de personas, debemos discutir abierta y honestamente las corrientes del marxismo que atraviesan diferentes modos de interpretación y escuelas de pensamiento. Además, para evitar la complicidad, debemos preguntarnos si y por qué las ideas marxistas, aunque sean atenuadas, siguen motivando a los principales académicos y difundiéndose en la cultura más amplia.

Los departamentos ingleses surgieron en los Estados Unidos a fines del siglo XIX y principios del XX, lo que dio paso a estudios cada vez más profesionalizados de literatura y otras formas de expresión estética. A medida que el inglés se convirtió en una disciplina universitaria distinta con su propio plan de estudios, se alejó del estudio de la literatura británica y de las obras canónicas de la tradición occidental en la traducción, y hacia las filosofías que guían la interpretación textual.

Aunque una breve encuesta general de lo que se sigue puede no satisfacer a los que están en el campo, proporciona a los demás los antecedentes pertinentes.

La nueva crítica

La primera escuela importante que se estableció en los departamentos ingleses fue la Nueva Crítica. Su contraparte fue el formalismo ruso, caracterizado por figuras como Victor Shklovsky y Roman Jakobson, que intentaron distinguir los textos literarios de otros textos, examinando qué cualidades hacían que las representaciones escritas fueran poéticas, convincentes, originales o conmovedoras en lugar de meramente prácticas o utilitarias.

Una de esas cualidades fue la familiarización. La literatura, en otras palabras, desfamiliariza el lenguaje mediante el uso de sonido, sintaxis, metáfora, aliteración, asonancia y otros dispositivos retóricos.

La Nueva Crítica, que era principalmente pedagógica, enfatizaba la lectura atenta, manteniendo que los lectores que buscan un significado deben aislar el texto que se está considerando de las externalidades como la intención del autor, la biografía o el contexto histórico. Este método es similar al textualismo legal mediante el cual los jueces examinan estrictamente el lenguaje de un estatuto, no el historial o la intención legislativa, para interpretar la importancia o el significado de ese estatuto. Los “Nuevos Críticos” acuñaron el término “falacia intencional” para referirse a la búsqueda del significado de un texto en cualquier parte, excepto en el texto mismo. La Nueva Crítica está asociada con John Crowe Ransom, Cleanth Brooks, I. A. Richards y T. S. Eliot. En cierto modo, todas las escuelas de teoría posteriores son respuestas o reacciones a la Nueva Crítica.

Estructuralismo y postestructuralismo

El estructuralismo impregnó los círculos intelectuales franceses en los años sesenta. A través del estructuralismo, pensadores como Michel Foucault, Jacques Lacan, Julia Kristeva y Louis Althusser importaron la política izquierdista en el estudio de los textos literarios. El estructuralismo está arraigado en la lingüística de Ferdinand de Saussure, un lingüista suizo que observó cómo los signos lingüísticos se diferencian dentro de un sistema de lenguaje. Cuando decimos o escribimos algo, lo hacemos de acuerdo con las reglas y convenciones en las que también opera nuestra audiencia anticipada. El orden implícito que utilizamos y comunicamos es la “estructura” a la que se hace referencia en el estructuralismo.

El antropólogo francés Claude Levi-Strauss extendió las ideas de Saussure sobre el signo lingüístico a la cultura, argumentando que las creencias, los valores y los rasgos característicos de un grupo social funcionan de acuerdo con un conjunto de reglas tácitamente conocidas. Estas estructuras son el “discurso”, un término que abarca las normas culturales y no solo las prácticas lingüísticas.

Del estructuralismo y el postestructuralismo surgió el marxismo estructural, una escuela de pensamiento vinculada a Althusser que analiza el papel del estado para perpetuar el dominio de la clase dominante, los capitalistas.

El marxismo y el neomarxismo

En las décadas de 1930 y 1940, la Escuela de Frankfurt popularizó el tipo de trabajo generalmente etiquetado como “marxismo cultural”. Las figuras involucradas o asociadas con esta escuela incluyen a Erich Fromm, Theodore Adorno, Max Horkheimer, Herbert Marcuse y Walter Benjamin. Estos hombres revisaron, replantearon y extendieron el marxismo clásico al enfatizar la cultura y la ideología, incorporando ideas de campos emergentes como el psicoanálisis e investigando el auge de los medios de comunicación y la cultura de masas.

Insatisfechos con el determinismo económico y la coherencia ilusoria del materialismo histórico, y hartados por los fracasos de los gobiernos socialistas y comunistas, estos pensadores reformularon las tácticas y las premisas marxistas a su manera, sin repudiar por completo los diseños o ambiciones marxistas.

A partir de los años sesenta y setenta, académicos como Terry Eagleton y Fredric Jameson fueron explícitos al abrazar el marxismo. Rechazaron los enfoques de la Nueva Crítica que separaban la literatura de la cultura, enfatizando que la literatura reflejaba los intereses económicos y de clase, las estructuras políticas y sociales y el poder. En consecuencia, consideraron cómo los textos literarios reproducían (o socavaban) las estructuras y condiciones culturales o económicas.

Slavoj Žižek podría decirse que ha hecho más que cualquier miembro de la Escuela de Frankfurt para integrar el psicoanálisis en las variantes marxistas. “La erudición de Žižek ocupa un lugar particularmente alto dentro de la crítica cultural que busca explicar las intersecciones entre el psicoanálisis y el marxismo”, escribió la erudita Erin Labbie.1 Agregó que “los escritos prolíficos de Žižek sobre ideología, que revelan las relaciones entre psicoanálisis y marxismo, han modificó la forma en que se aborda y se logra la crítica literaria y cultural en la medida en que la mayoría de los estudiosos ya no pueden mantener firmemente la idea anterior de que los dos campos están en desacuerdo”.2 Žižek es solo uno entre muchos filósofos continentales cuyos pronósticos de marxistas y marxistas flexionados llaman la atención de los académicos estadounidenses.

Deconstrucción

Jacques Derrida es reconocido como el fundador de la deconstrucción. Tomó prestado de la teoría de Saussure que el significado de un signo lingüístico depende de su relación con su opuesto, o de las cosas de las que se diferencia. Por ejemplo, el significado de hombre depende del significado de mujer; el significado de feliz depende del significado de triste; etcétera. Así, la diferencia teórica entre dos términos opuestos, o binarios, los une en nuestra conciencia. Y un binario es privilegiado mientras que el otro es devaluado. Por ejemplo, “hermoso” es privilegiado sobre “feo” y “bueno” sobre “malo”.

El resultado es una jerarquía de binarios que son dependientes del contexto o arbitrariamente, según Derrida, y no pueden ser fijos o definidos en el tiempo y el espacio. Esto se debe a que el significado existe en un estado de flujo, y nunca se convierte en parte de un objeto o idea.

El mismo Derrida, habiendo releído el Manifiesto comunista, reconoció el avance “espectral” de un “espíritu” de Marx y el marxismo.3 Aunque la llamada “hauntología” de Derrida excluye las meta-narrativas mesiánicas del marxismo no cumplido, los comentaristas han salvado Derrida es un marxismo modificado para el clima del “capitalismo tardío” actual.

Derrida usó el término diffèrance para describir el proceso difícil de alcanzar que usan los humanos para asignar significado a signos arbitrarios, incluso si los signos (los códigos y las estructuras gramaticales de la comunicación) no pueden representar adecuadamente un objeto o idea real en la realidad. Las teorías de Derrida tuvieron un amplio impacto que le permitió a él y sus seguidores considerar los signos lingüísticos y los conceptos creados por esos signos, muchos de los cuales eran fundamentales para la tradición occidental y la cultura occidental. Por ejemplo, la crítica de Derrida al logocentrismo cuestiona casi todos los fundamentos filosóficos que se derivan de Atenas y Jerusalén.

Nuevo historicismo

El Nuevo historicismo, una empresa multifacética, está asociado con el erudito de Shakespeare Stephen Greenblatt. Observa las fuerzas y condiciones históricas con un ojo estructuralista y postestructuralista, y trata los textos literarios como productos y contribuyentes al discurso y las comunidades discursivas. Se basa en la idea de que la literatura y el arte circulan a través del discurso e informan y desestabilizan las normas e instituciones culturales.

Los nuevos historicistas exploran cómo las representaciones literarias refuerzan las estructuras de poder o trabajan contra el privilegio arraigado, extrapolando la paradoja de Foucault de que el poder crece cuando se subvierte porque es capaz de reafirmarse sobre la persona subversiva o actuar en una demostración de poder. El marxismo y el materialismo a menudo surgen cuando los nuevos historicistas buscan resaltar textos y autores (o escenas y personajes literarios) en términos de sus efectos sobre la cultura, la clase y el poder. Los nuevos historicistas se centran en figuras de clase baja o marginadas, dándoles voz o agencia y prestándoles atención atrasada. Este reclamo político, aunque pretende proporcionar un contexto, sin embargo, se arriesga a proyectar inquietudes contemporáneas en obras situadas en una cultura y momento histórico particulares.

En palabras del crítico literario Paul Cantor, “existe una diferencia entre los enfoques políticos de la literatura y los enfoques politizados, es decir, entre los que tienen en cuenta la centralidad de las preocupaciones políticas en muchos clásicos literarios y los que intentan intencionalmente reinterpretar y recrear virtualmente las obras de clase a la luz de las agendas políticas contemporáneas.”4

El marxismo cultural es real

Gran parte de la protesta sobre el marxismo cultural es indignante, desinformada y conspirativa. Parte de esto simplifica, ignora o minimiza las fisuras y tensiones entre los grupos e ideas de izquierda. El marxismo cultural no se puede reducir, por ejemplo, a “corrección política” o “política identitaria”. (Recomiendo el breve artículo de Andrew Lynn “Marxismo cultural” en la edición de otoño de 2018 de The Hedgehog Review para una crítica concisa de los tratamientos descuidados y paranoicos de marxismo cultural)

Sin embargo, el marxismo impregna la Teoría, a pesar de la competencia entre las varias ideas bajo esa etiqueta amplia. A veces este marxismo es evidente por sí mismo; en otras ocasiones, es residual e implícito. En cualquier caso, ha alcanzado un carácter distinto pero en evolución, ya que los estudiosos literarios han reelaborado el marxismo clásico para dar cuenta de la relación de la literatura y la cultura con la clase, el poder y el discurso.

El feminismo, los estudios de género, la teoría crítica de la raza, el poscolonialismo, los estudios sobre la discapacidad, estas y otras disciplinas se pasan por alto uno o más de los paradigmas teóricos que he descrito. Sin embargo, el hecho de que se guíen por el marxismo o adopte términos y conceptos marxistas no los hace prohibidos o indignos de atención.

Lo que me lleva a una advertencia: condenar estas ideas como prohibidas, ya que los peligros que corrompen a las mentes jóvenes pueden tener consecuencias imprevistas. Las derivaciones marxistas deben estudiarse para ser comprendidas de manera integral. No los elimines del currículum: contextualízalos, desafíalos y pregúntalos. No reifiques su poder ignorándolos o descuidándolos.

Las iteraciones populares del marxismo cultural se revelan en el uso casual de términos como “privilegio”, “alienación”, “mercantilización”, “fetichismo”, “materialismo”, “hegemonía” o “superestructura”. Como escribió Zubatov para Tablet, “Es un paso corto desde la “hegemonía” de Gramsci hasta los memes tóxicos ahora ubicuos de “patriarcado”, “heteronormatividad”, “supremacía blanca”, “privilegio blanco”, “fragilidad blanca” y “blancura”“. Añade “Es un paso corto de la premisa marxista y marxista cultural de que las ideas son, en su esencia, expresiones de poder para una política de identidad desenfrenada y divisoria y el juicio rutinario de las personas y sus contribuciones culturales basadas en su raza, género, sexualidad y religión.”

Mi breve resumen es simplemente la versión simplificada y aproximada de una historia mucho más grande y compleja, pero orienta a los lectores curiosos que desean aprender más sobre el marxismo cultural en los estudios literarios. Hoy en día, los departamentos de inglés sufren la falta de una misión, propósito e identidad claramente definidos. Al haber perdido el rigor en favor de la política de izquierda como su principal objetivo de estudio, los departamentos de inglés en muchas universidades están en peligro por el énfasis renovado en las habilidades prácticas y la capacitación laboral. Así como los departamentos de inglés reemplazaron a los departamentos de religión y clásicos como los principales lugares para estudiar cultura, también los departamentos o escuelas del futuro podrían reemplazar a los departamentos de inglés.

Y esos lugares pueden no tolerar las agitaciones políticas que se plantean como técnica pedagógica.

El punto, sin embargo, es que el marxismo cultural existe. Tiene una historia, seguidores, adeptos y dejó una marca perceptible en temas académicos y líneas de investigación. Moyn puede desear que desaparezca, o descartarlo como un fantasma, pero es real. Debemos conocer sus efectos en la sociedad, y en qué formas se materializa en nuestra cultura. La polémica intemperada de Moyn demuestra, de hecho, la urgencia y la importancia de examinar el marxismo cultural, en lugar de cerrar los ojos a su significado, propiedades y significado.

Nota del editor: la reciente entrevista en video de Allen Mendenhall con el Centro Martin incluye temas de este artículo.

Este artículo fue publicado originalmente por el Centro Martin.

What Can Libertarians Contribute to the Study of Literature?

In Arts & Letters, higher education, Humane Economy, Humanities, liberal arts, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Scholarship, Western Philosophy on April 10, 2019 at 6:45 am
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