Tuesday, May 31, 2022

2nd Energy Transition Colloquium Registration Information and Program (16-17 June 2022 Hybrid Program)


it is my pleasure to invite you for the June session of the 2nd Energy Transition Colloquium, which will be on Zoom. Please register separately, here for the June 16, 2022 9 AM 1 PM (EST, Washington, DC) session and here for the June 17, 2022 9 AM 1 PM (EST, Washington, DC) session. The full program in PDF is available here.

The international conference is organized by the Rockefeller School of Policy and Politics, Department of Public Administration of West Virginia University, USA. The event is in collaboration with the WVU Center for Resilient Communities (CRC), the WVU Eberly College Interdisciplinary Research Collaborative on Global Challenges and Local Response Initiatives & WVU Eberly College Interdisciplinary Research Collaborative on Climate, the American Society of International Law (ASIL) Interest Group on International Environmental Law and Interest Group on Intellectual Property Law, gLAWcal - Global Law Initiatives for Sustainable Development, UK, and Qatar University, Center for Law and Development (CLD), Qatar.

Information for registration follows below. 

Brief Thoughts on the Statement by UN High Commissioner for Human Rights Michelle Bachelet after official visit to China (28 May 2022)


"I should state from the outset what this visit was – and what it wasn’t. This visit was not an investigation – official visits by a High Commissioner are by their nature high-profile and simply not conducive to the kind of detailed, methodical, discreet work of an investigative nature. The visit was an opportunity to hold direct discussions – with China’s most senior leaders – on human rights, to listen to each other, raise concerns, explore and pave the way for more regular, meaningful interactions in the future, with a view to supporting China in fulfilling its obligations under international human rights law."Michelle Bachelet, Statement by UN High Commissioner for Human Rights Michelle Bachelet after official visit to China (28 May 2022))
That, reduced to its essence, is the sum total of the value of the recent visit, the first of its kind, of the UN High Commissioner for Human Rights (herself a former sitting head of state) to the People's Republic of China.

The text of High Commissioner Bachelet follows below in full. A broadcast quality video is available at https://vimeo.com/714742493

Brief comments follow:

1. Official visits are always disappointing to those who believe that they produce something other than the start, deepening, or continuation of relationships.  But that is no small matter. The absence of relationship makes interaction, if not impossible, then perhaps less fruitful.  Yet the building of relationships can, in the end, offer nothing ore than that there will be a relationship.  Duty, ideology, and the internal politics of those with mutual relationships may cause those relationships to produce little more than an intensification of failure. In this case it is far too early to determine the extent to which the visit produced the positive of a relationship, and that this relationship may facilitate communication, if not solidarity. 

2. If the visit was meant as little more than the theatre of legitimacy, it is not clear who got the better part of the deal.  For Chinese officials, the visit enhanced the narrative of Chinese engagement in the world, and more specifically with international organs, even one with the (bad) habit of being critical.  It also offered the opportunity to educate (though at this level of officialdom the value of education is likely quite attenuated). Additionally it might suggest a special status for China as a global power--China ought not to be subjected to 2nd or 3rd level functionaries but ought to be accommodated by being dealt with only at the highest level of the global institutions for human rights. In return for this it might well have been worth the inconvenience of hosting the OHCHR. For Michelle Bachelet and the OHCHR the visit also offered the opportunity to enhance legitimacy.  But more than that to extend and project a narrative of effective engagement--that the OHCHR and its bureau is worth not just keeping but enhancing.  The OHCHR might also have gambled that such a visit might make it easier for 2nd and 3rd level functionaries to penetrate China and insinuate its narrative into the operation and development of Socialist human rights. That fits nicely into the imaginaries of European and sometimes Latin American elites who cling to the idea that any form of engagement will, like Christians witnessing the gospel to pagans, eventually bring the heathen to the spirit of the (human rights) Lord. Thus the grand prize for the OHCHR (from their perspective): "We agreed to establish regular engagement between the UN Human Rights Office and the Government of China, including through an annual senior strategic meeting for discussion of issues of respective interest at national, regional, or global levels." (Ibid.)

3. And, indeed, the remarks of the High Commissioner suggested the great difficulties in a context in which the same words are used by both parties with quite distinctive cultural-political referents.  An example from the remarks: "In my discussions with senior officials, the themes of development, peace and security arose in every meeting. Of course, for development, peace and security to be sustainable, it needs to be inclusive and rooted in protection of human rights." (Statement by UN High Commissioner for Human Rights ). The semiotic limits, and perhaps the tragedy, of the visit is thus on full display. And that was the point.  The High Commissioner dutifully did her duty--she raised all of the issues on the international human rights wish list (from the perspective of the elite elements of the UN Geneva and NY  staff establishment along with their supporting consultancies in the academy and the NGO worlds). And Chinese officials dutifully listened and then equally dutifully reframed all of those issues from the foundational perspectives of Socialist human rights (development, peace, security).  And so it will go dutifully at periodic intervals going forward.  And yet that is a good thing. It opens even the smallest possibility that at some point both sides will not merely understand each other, but that they may begin to have the conversation that is really necessary--a conversation about first principles of human rights and the means of bridging the gaps between its liberal democratic, developing state, and Marxist-Leninist foundational premises.

But not today.

And not by these actors. 

Perhaps in some tomorrow. We ought to salute all actors for opening the door to that future possibility.

Monday, May 30, 2022

Opinions of the Supreme People’s Court on Strengthening Blockchain Application in the Judicial Field (Full text in English and Chinese)《最高人民法院关于加强区块链司法应用的意见》全文(中英文版)


Pix Credit here

"China’s Guiding Cases (指导性案例) refer to cases selected by the Supreme People’s Court (SPC) from the effective judgments of courts nationwide through specific procedures, and should be referred to by courts at all levels when hearing similar cases." (China Justice Observer: Highlights of China's Guiding Case System – Guiding Cases & Similar Cases Series; also here).  They have become an important part of the juridical contribution to the cage of regulation that is Chinese Socialist legality in the 21st century.

Though unusual, on 23 May 2022 the Supreme People's Court issued a bilingual Opinions of the Supreme People’s Court on Strengthening Blockchain Application in the Judicial Field (Full text in English and Chinese)《最高人民法院关于加强区块链司法应用的意见》全文(中英文版). This is important not just because it was projected outward (via the official English translation) to foreigners who may engage with Chinese law across chains of global production, but also because of its topic--blockchain. The aim is advancing institutional reform, as well as in managing and legitimating  new tech:

the Opinions aim to leverage the role of blockchain in cementing judicial credibility, facilitating social governance, preventing and resolving risks, promoting high-quality development, etc., so as to reinforce the advance of smart courts on all fronts and the modernization of the judicial system and judicial capabilities. (最高人民法院关于加强区块链司法应用的意见》)

The bilingual text as distributed follows below.

Sunday, May 29, 2022

Origin Cultures and Post-Global Empire--习近平:把中国文明历史研究引向深入 推动增强历史自觉坚定文化自信 [Xi Jinping: Lead the study of the history of Chinese civilization in-depth, promote the enhancement of historical consciousness and strengthen cultural self-confidence]


Worshipers at the Tree of Souls from the Movie Avatar; credit here

 Post global empire is not built on racial, ethnic or religious markers. Those are the detritus  of modernist empire, which collapsed of its own weight--and the growing irrelevance of those markers as effective and efficient modalities of imperial incarnation and control. Post global empire is not built on territory; an insight that second tier states fail to recognize as they continue to equate empire with physical territory.  That also is an impediment to effective imperium

Post global empire is built on markets and its management; it is built on production; and it is built on the control of meaning in the social, economic, and cultural spheres. Post global empire abhors anarchy, order without a center--which was the foundation of the post 1945 settlement that produced the first generation globalized global ordering anchored through the UN system and based on the supremacy of the state and sovereign equality. Post global empire is ordered on centers, on cores of comprehensive leadership from which spokes of authority are arranged. Those spokes arrange social life within the imperial metropolis, and another set arranges the interconnections between the metropolitan leadership core and its outside collectives sitting along spokes of economic, social, cultural, and political chains. Post global imperium, then, is built on tendrils of dependency--of mutual obligation vertically arranged and extending out from a core.  Dependency is comprehensive but not coercive in the ways of modernist empire effectively extinguished in the last century.  

While both China and the United State occupy, at this stage of historical development, at the core of empire. Others do not. Russia certainly aims for a reactionary revival of notions of racialized ethno-territorial empire in its raiding and pillaging adventurism in what is now Ukraine. Even should they manage to wrest territorial concessions, that sort of imperium is a dead man walking-- the foundations of which were blasted away with the subjugation of the last great imperial exponents of that view (Germany and Japan) and the senescent devolution of the rest (mostly European based). Still others project culture--and cultural power in more modest settings, though powerful within their spheres all the same.  And others thrive beneath the overlay of cultural imperium; intact but at the edges and in the safe spaces where imperium leaves spaces open, though supervised (for a curious example here).

China and the US have adopted quite distinctive ways of building both the dominance of the imperial cores and the construction of the tendrils through which mutual dependencies can be structured, managed and disciplined. One thing both share is the conviction that each is the true heir of a substantially unbroken line of cultural development extending back to the edges of pre-history.  That unbroken line of cultural development provides both  the marker of legitimacy and its structure.  It is, semiotically speaking, both an object and a symbol. As a tool and the expression of imperium in the post-global, then, culture acquires singular characteristics. Culture in this context--and the long unbroken line of connection between culture at its origin and its contemporary expression-- is a 'thing' evidenced by the artifacts that evidence both origin and continuity (books, language, customs, dress, architecture, habits, and the like). These are 'things' that can be touched--and put in museums, and to which youth may be exposed. At the same time these objects are 'activated' by their connection to a viewer who invests the object with an animating quality (language is spoken or written, architecture is used to certain ends; dress is worn and understood to signal, etc.). Nonetheless, it is the movement from object-symbol to signification within an ordered universe of meaning through which communities are constructed and cultural production is rationalized and made an instrument for communal discipline (rules determining clothing choices; the meaning of words in context; the meaning and use of buildings; the relationship of the individual to all of these objects-symbols and the constitution of the societal order).  

The signification of object and symbol, that is the way each is given meaning embraced (and managed) by human collectives, in this way serves as the glue that gives a collective its form, protects its autonomy (from other cultural collectives), and creates the means through which it may interact with (and to some extent absorb) other collectives. Cultures, of course, exist in the contemporary world in complex ecologies, overlapping in part, conflicting in part, and arranged in dynamic vertical relations at times. In the era of the post-global, these ecologies suggest the ordering of interaction. For political collectives, it follows that culture and cultural production is of crucial importance-- and all the more so when exercising imperium in whatever form appeals in any particular stage of historical development.

To speak of culture, then, is to speak of the fundamental structures of authority--not external but internal; nor coercive but consensual (in the sense of consent as a price for belonging to a community). The imaginaries of empire, its lifeworld (Lebenswelt), is expressed through its culture, even as its cultures become the instrument in and through which post-global empire is constituted. This is not Samuel Huntington's "Clash of Civilizations, but its post-global manifestation, not as a clash but as a series of interconnected dependencies based on the core ordering notions of cores and collectives--of cultures that absorb (cultures through which imperium may be exercised) and cultures that do not. Chinese and U.S. cultures grow stronger in contact with interaction with others; they change even as they encounter and nationalize the foreign and make it their own. In both cases, this cultural power is founded on the cultivation of a deep connection with and the nurturing of  a sense of origin.  These, then, are origin cultures, the curation of the collective meaning of the past serving as the foundation for encountering and adjusting to current conditions.  To those ends one needs a priesthood (Nietzsche, Antichrist), when the medium of empire was exogenous and the semiotics religious; or one needs a vanguard, in the later case organized as a political or economic or social collective (party in the language of Marxist-Leninists) within, without or through the organizational structures of the collective.  One needs, in other words, a Communist Party or an aristocracy (elite in contemporary 'speak').

From the core of the heartland of one of the great origin cultures, Xi Jinping has lately been speaking much to these ideas of cultures.  In particular he has devoted a substantial energy to the constitution and autonomy of Chinese culture as an object (with a pedigree), as a symbol (of success, prosperity, and longevity), and as a meaning universe (an imaginary or lifeworld around which communities of collectives may proceed together under the leadership of the cultural core of leadership).   It was reported that on 27 May 2022 the Politburo of the CPC Central Committee conducted the thirty-ninth collective study on deepening the project of exploring the source of Chinese civilization at which Xi Jinping delivered an important address .

Xi Jinping, General Secretary of the Central Committee of the Communist Party of China, emphasized when presiding over the study that the Chinese civilization has a long history and is extensive and profound. It is the unique spiritual symbol of the Chinese nation, the foundation of contemporary Chinese culture, the spiritual bond that maintains the Chinese around the world, and the treasure of Chinese cultural innovation. (习近平:把中国文明历史研究引向深入 推动增强历史自觉坚定文化自信 [Xi Jinping: Lead the study of the history of Chinese civilization in-depth, promote the enhancement of historical consciousness and strengthen cultural self-confidence]).

The insights are deeply embedded in New Era theory, and thus in the construction of the Chinese political-economic model going forward. The summary of the speech is critically instructive on the paths to the orientation of socialist post-global empire built on its post-racial/ethnic/religious/territory sensibilities of core-collective frameworks and webs of dependency built through them. To these ends culture provides the critical object-symbol-signification; the core of empire measured against the eternity of the apex culture. But it is an apex culture precisely because it is of its essence global in the sense that its draws strength from its interaction with and absorption of other cultures with which it comes in contact.  And  it draws its strength from the meaning and preservation (as well as its curation) of its origin as an imperium bearing culture. That may well be what (at least in this line of thinking) differentiates the cultures of post-global imperium from the rest.  Where naturalization and absorption mark a dependency for others, for core imperial culture, the essence of its strength is the ability, even the desire, for contact, engagement, absorption and naturalization within its ever extending imaginaries. That project, in turn requires first the protection of the sources of imperial culture(its past), and the projection of that culture outward as a core leadership culture (the skin defining the body post global empire) within which its economic, social, political leadership may be manifested. That appears to be the way of post global empire manifested through the semiotics of origin culture--more rationally manifested in China and better veiled in the more loosely organized (in accordance with its own imaginaries) US-Anglo-European-Japanese imperium. To that end the control of origin stories, and the preservation of its artifacts (writings, statuary and the like) is a critical function of the manifestation of imperium, both internal and as projected abroad.  Its iconoclasm, especially in the US-Anglo-European-Japanese sphere, is however misguidedly, meant to purify and reach back to a better understood and useful past, obliterating error and privileging manifestations of the past that serve the present.  But that an imperial space may attempt this and not obliterate itself remains to be seen (and thus the great not yet fully digested lessons of the Great Proletarian Cultural Revolution and the cultural aspects of the ongoing equally great social justice revolution in the West). 

That, at any rate, is one possible way of looking towards the future through the preservation of the past. The text of 习近平:把中国文明历史研究引向深入 推动增强历史自觉坚定文化自信 [Xi Jinping: Lead the study of the history of Chinese civilization in-depth, promote the enhancement of historical consciousness and strengthen cultural self-confidence] follows in the original Chinese along with a crude English translation.


Saturday, May 28, 2022

《送柴侍御》[Farewell to Assistant Inspector Chai]: Brief Thoughts on 习近平在中华人民共和国恢复联合国合法席位50周年纪念会议上的讲话(全文)[Remarks by Xi Jinping at the Commemorative Meeting of the 50th Anniversary of the Restoration of the Legal Seat of the People's Republic of China in the United Nations (full text)]


By now virtually anybody with public responsibilities (except perhaps within China) has dutifully or careless forgotten Xi Jinping's speech delivered  at the Commemorative Meeting of the 50th Anniversary of the Restoration of the Legal Seat of the People's Republic of China in the United Nations [习近平在中华人民共和国恢复联合国合法席位50周年纪念会议上的讲话] (25 October 2021). The remarks are worth revisiting now.  There are two reasons, one obvious and the other far more interesting. The obvious touches on the relationship of the rhetoric of the remarks in the shadow of Chinese policy (and actions) in the context of the Russo-Ukrainian war. 

The first part of the remarks continues to make the case for the worthiness of the People's Republic as a good world citizen, evidenced by the nature of its relaxations with foreigners, its engagement with foreign states in international forums, and especially by its own development through the internal version of its external narratives of stability and peace grounded in the vertically ordered interplay between leadership cores and their collectives. It is ion the second half of these remarks thaty Chinese socialist internationalism is again summarized--and in ways that have soem relevance to the position of China in the Russo-Ukraine war.

The core concept of peace, stability and development are contextually dependent and semiotically transient. The words and concepts can mean only what they are meant to means at the time that meaning is expressed by the actions of others and one's own:   "Whether a country's path is feasible or not depends on whether it conforms to its own national conditions, whether it conforms to the trend of the times, whether it can bring about economic development, social progress, improvement of people's livelihood, and social stability, whether it can win the support and support of the people, and whether it can serve the human race. Contribute to progress." [一个国家走的道路行不行,关键要看是否符合本国国情,是否顺应时代发展潮流,能否带来经济发展、社会进步、民生改善、社会稳定,能否得到人民支持和拥护,能否为人类进步事业作出贡献。] ( Xi Jinping's speech).

But the second, and perhaps more subtle, reason touches on the discursive projections embedded in the speech. These draw on a famous poem by Tang dynasty (唐朝) poet, statement, soldier--Wang Changling (王昌齡; 698–756) in his 《送柴侍御》[Farewell to Assistant Inspector Chai S].

The flowing water connects Wugang with waves, sending you off without realizing hurt. The green hills are together with the cloud and the rain, and when  two townships were under the bright moon.

Xi Jinping used only the second line to close his speech--and to summarize the complicated view from China of its entanglements with the international community.

“青山一道同云雨,明月何曾是两乡。”让我们携起手来,站在历史正确的一边,站在人类进步的一边,为实现世界永续和平发展,为推动构建人类命运共同体而不懈奋斗!["The green mountains are the same as the cloud and the rain, and the bright moon was once two towns." Let us join hands, stand on the right side of history, stand on the side of human progress, and make unremitting efforts to achieve sustainable and peaceful development of the world and to promote the building of a community with a shared future for mankind. struggle!] ( Xi Jinping's speech)

It was used as well by others: for example in 2017 by Liang Jianyong, at the time Fujian' s Secretary-General of the Provincial Party Committee to describe the relationship between Fujian and Taiwan  (reported here). Nonetheless, to understand it, both lines are useful (something quite familiar to Chinese readers but lost in the West--and perhaps deliberately so); one can in this way speak to a Chinese audience while appearing to the speak to foreigners).  The poem is famous for speaking of connection, certainly.  But it also speaks to the way that one captures the moment when detachment becomes necessary as duty draws two friends apart. Duty to self and to a higher power (ion this case perhaps of national culture and sovereign imperatives; see discussion here).  It speaks to severance and detachment, when friends must part and distance (conceptual and physical) must now produce a distance between them, though one bridged by good feeling for the connection of friendship. It is an affectionate rather than a divisive parting. A nice Chinese language commentary  on the poem may be helpful here:

说到这里,读者便可以感到诗人未必没有“离伤”,但是为了宽慰友人,也只有将它强压心底,不让它去触发、去感染对方。更可能是对方已经表现出“离伤”之情,才使得工于用意、善于言情的诗人,不得不用那些离而不远、别而未分、既乐观开朗又深情婉转的语言,以减轻对方的离愁。* * * 流水和波浪感觉不到离别的滋味,仍不知疲倦地在武冈流淌。诗人说:马上就要离开你了,在这送别之际,我却不觉得悲伤。同在一条江边,风雨共进,明月哪里知道我们身处两地?仍然照耀着我们的前方。[Having said this, readers can feel that the poet may not be without "severance", but in order to comfort his friends, he can only press it down in his heart and prevent it from triggering and infecting him. It is more likely that the other party has already shown a feeling of "disengagement", which makes the poets who are intentional and good at romance have to use those words that are not far away, separate but not separated, optimistic, cheerful and affectionate and tactful to relieve the other party. of sorrow. Flowing water and waves do not feel the taste of parting, and they are still flowing in Wugang tirelessly. The poet said: I will leave you soon, but I don't feel sad at the time of farewell. We are on the same riverside, wind and rain advance together, how does the bright moon know that we are in two places? It still shines before us.] (王昌龄《送柴侍御》翻译赏析)

Pix Credit here
This is not a poem of coming together but of physical separation and emotive unity. based on friendship and community. It is a recognition of parting, but it is an amicable parting among friends who remain united under the heavens. It is a recollection of the warmth generated by the memory of a time together at the moment when it ends (this stage in the historical development of the relationship).  What lingers is the amity cementing a connection through which each, from their own place, may continue to interact in a positive way. Here is the essence of the Chinese "win -win" strategy, and more generally of Chinese Socialists internationalism. Two towns--one moon; each connected in the way that the green mountains are connected to the clouds and rain--each feeding off the other but connected by the greater (ideal) under the same moon.  Detachment and severance, but one that comes together at a greater level of generality (conceptual space). The friendship is so deep that geographical distance becomes irrelevant; it is in that sense that at some level the necessary distance between friends can be overcome through the sharing of common experiences under a common sky. This is a warm yet fragile metaphor for states. And a warning.
But why the fuss over what in the liberal democratic discursive universe would be a flourish and a conceit? The reason is simple--the poetry of 唐朝 the Great Tang reveals more about the imaginaries of Chinese foreign policy than any hundreds of pages of more academically dense prose. One sees in the New Era the rise of a Socialist 唐朝 internationalism. And it might be useful to have that in mind as one trudges through the more densely packed prose of official documents and the even more veiled intimations from action and inaction on the international stage.  It is as much about the calculus of Chinese-Russian friendship as it is about the calculus of Ukraine. One bright moon over all, as friends depart for duty in an ordered world under the heavens.

The text of Xi Jinping's speech follows, along with a crude English translation.



Friday, May 27, 2022

ASCE: Concurso Estudiantil Jorge Pérez López 2022--2022 Graduate and Undergraduate Student Paper Competition


 The ASCE student prize was initiated early in our history. Over the years some of these studies have been excellent and novel explorations of Cuban society and economy. At least one of the prize winners, Ted Henken, went on to be the President of ASCE. Winners have come from all over the world.  We hope that interested students might apply.

Information in English and Español follows

Thursday, May 26, 2022

UNIDROIT hosts Hybrid Conference on Digital Platforms and Global Governance; Program Materials Available


On 29 April 2022, UNIDROIT hosted a Conference on Digital Platforms and Global Governance, Co-organised with Professor Fabio Bassan of Roma Tre University and the European Law Institute (ELI).
The Hybrid Conference was opened by President Maria Chiara Malaguti, and featured opening Keynote speeches from Deputy Governor Piero Cipollone of the Bank of Italy and Guido Alpa (Emeritus, La Sapienza), followed by a rich programme divided into three sessions concerned with discussing the EU vs US models, moderated by Secretary-General Ignacio Tirado, Platforms for International Trade, Exchanges and Dispute Resolution, moderated by Deputy Secretary-General Anna Veneziano, and New Proposals for Governance moderated by President Malaguti. 

The following material is freely accessible online (the rest may be provided upon request submitted to the Secretariat):  Programme, Larry Backer’s slides and remarks, Piero Cipollone’s remarks, Silvio Micali’s remarks


Tuesday, May 24, 2022

Realigning Europe and Recalibrating its Center; the Piper will be Paid: Speeches by the Polish and Ukrainian Presidents to the Ukrainian Parliament


Pix Credit HERE


One of the great ramifications of the proxy war being undertaken in physical form on the territory of Ukraine looks to potentially significantly dynamic power relationships both within Europe, between Europe and their American partners (a marriage that has had its dramatic moments since 1945 but which appears incapable of either equal relations or separation)." One of its potentially more important consequences is on the realignment of relations among states on the Eastern peripheries of Europe  and beyond the western territorial limits of Russia. 

Polish President Andrzej Duda became the first foreign leader to speak to the Ukrainian parliament in person since the war began. Duda stressed his support for Ukraine's bid to join the EU, and said that any territorial concessions to Russia would be a blow for the entire Western world." So it was reported in DW on 22 May 2022. The speech by the Polish President, along with that of Ukrainian President Zelenskyy, of course, were richer than  that bare reporting.  And also far more important. Their quick translation into English (like many others) suggests the self-conscious projection of the speeches to different audiences, the messages for which are embedded in different parts of the speeches.

While it appears that the 'bigger fish' in first tier states and their governing cliques (both within and just beyond government) continue to angle for the Prussian solution --a second partitioning of Ukraine (the first of course by default in the conquest of Crimea)--those that have been the subject of these machinations appear to have other ideas.  They have made good their intentions and their resolve in blood, and treasure (recalling the US Declaration of Independence: "with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor") as a reproach to the world. That calculus has shifted, of course. The nature of hedging on the parts of the Europeans, the Chinese and the Americans is now plainly visible in the form of the way in which they manifest their contributions to and participation in the non-direct military operations around the  physical fighting (including logistics, support, and targeted projections of power in social, cultural, and economic space). Nonetheless, the fundamental calculus of partition remains unchanged, though now it appears to be shifting toward a smaller partition in the Ukrainian East (and of course Crimea) perhaps to be papered over with some ridiculously absurd conceptual pyrotechnics that will fool fool no one and create future problems for all. 

Yet Poland, along with the Czechs and Slovaks, have now joined with Ukraine to resist.  And they are resisting in quite interesting ways.  The most profound, of course, is the indication of the development of an anti-Franco/German front. This front will target concepts, and politics, as well as the actual management of the war against the Russians. It will become politically dangerous for the current crop of Angela Merkel era ruling intellectuals and influencers along with their allies in the old Carolingian heartland if Ukrainian entry into Europe shifts the balance of the European ideological center. It is to them that some key passages in the Polish Presidential speech were directed ("Unfortunately, also in Europe in recent days, now and then, one has been hearing disconcerting voices suggesting that Ukraine should give in to Putin’s demands. . . As Poland, we have long warned Europe about the imperial inclinations of Russia and Putin. . . Our warnings were downplayed. We were accused of Russophobia." (Duda Speech)).

What that center will look like may be gleaned from the speeches of the Polish and Ukrainian Presidents.  There is more to the speeches, of course--beyond the expressions of common destiny, solidarity and mutual support.  Equally interesting, and resonating with the attempt at Franco-German reconciliation after the 1950s, was the acknowledgement of past grievances and the efforts to overcome them.  

"Enemies on many occasions tried to play us off against each other, to turn us against one another. Also today they attempt to do so by scaring Poles with Ukrainians, and Ukrainians – with Poles. To this end, they exploit painful strains from our mutual past, from our history. But they will not achieve their goal! We have come to know such methods too well. We know that tensions in the Polish–Ukrainian relations serve foreign interests only. And act to our detriment: Poles’ and Ukrainians’ alike." (Duda Speech)

Success on that front, even more than on the battlefield, may increase the likelihood of permanently detaching Ukraine from its Russian past and more solidly aligning Ukraine westward.  It is a pity that this is not better nurtured up the chain of power in the liberal democratic camp. 

Pix Credit HERE
In that respect the quite pointed references to Polish President Lech Kaczyński, killed in 2010 when the plane carrying him and a host of leading officials of Poland crashed in Russia under circumstances that remain unclear after an investigation headed by Mr. Putin. The Polish President had been on his way to to commemorate the Katyn massacre. He had not been a great friend of Russia. As President Duda noted, "The late President Lech Kaczyński spoke about the threat from Russia on many occasions. My professor, my teacher, my president and a great friend of Ukraine. I had a chance to closely follow his struggles for Ukraine and Georgia to be admitted to the North Atlantic Alliance. . . If President Lech Kaczynski had been listened to back then, the aggression of 2014 probably would not have happened, there would not be the current war, there would not have been the massive destruction and human suffering. History would have turned out differently." (Duda Speech). The pointed reference was echoed by President Zelenskyy in his remarks ("Ukraine is already doing this. On the very frontline. It defends not just itself but the whole of Europe. Poles know this, appreciate, respect and help Ukraine - not out of courtesy, but as brothers and allies who remember Lech Kaczyński's words about who could be next. This does not mean fear. This means readiness to face the enemy and repel him."(Zelenskyy Speech)).

Irrespective of the West's failure to grasp the dynamic changes in the East of Europe, the emerging Slavic bloc that may emerge may upend settled political expectations for a long time to come. And ironically enough, given the more flexible posture of the Americans, this bloc may solidify the US-EU partnership, with Washington at the center. "Kyiv is a place from which one can clearly see that we need more America in Europe, equally in military and economic terms." (Duda Speech). And this from President Zelenskyy:

Poland is one of the leaders not only in supporting our state, but also in defending and promoting the sanctions that are absolutely necessary to force Russia into peace. The absolute majority of Poles support the embargo on energy resources from Russia. This is just one manifestation - but how important it is - of our common vision of the political front in this war. I believe that Poland's leadership will help establish at the European level what our nations already understand. The unity of our nations must remain constant. Neither now nor in the future does anyone have the right to break this unity. Neither our politicians, nor hostile agents, nor even members of the jury at Eurovision. The Ukrainian and Polish nations gave each other 12 points - today and forever. (Zelenskyy Speech)

These ought not to be taken as mere  temporary expressions of mutual support in crisis.  They point to a larger and slower realignment. Europe will be unlikely to resist it effectively; the United States may (reluctantly) be driven by it (through its projection in American mass politics).  For Russia and its Chinese partner, that would suggest that their gamble might not have produced the desired result. Their counter-move will be worth watching, and better, anticipating by those at the front lines of this contest.

The text of the speeches of Polish President Duda and Ukrainian President Zelenskyy follow below (in English). President Duda's speech may also be accessed in English on the official website of the Polish President HERE.

Monday, May 23, 2022

US-China Decoupling Gathering Strength-- Border Control for Taboo Goods and Re-Directing Global Supply Chains


Pix Credit HERE


The decoupling of the two great market drivers of global production is proceeding apace.  It is now well enough advanced that even the relatively official presses in the West are beginning to take notice.  The Wall Street Journal reported (at long last) the slow moving journey of even the stubbornest of the great American drivers of global production (Apple, Inc) that both Xi Jinping and Donald Trump-Joe Biden meant what they said about decoupling and about dual circulation economies. The move is important in two respects.  First with respect to the action by Apple to re-structure its global production to align with markets decoupling; and second focusing on  the decision by the editorial staff of the Wall Street Journal to run the story in a prominent place. Strategically, the action and its announcement in press organs also emphasizes a larger policy trajectory to align defense and production objectives along the new borderlands of post-global empire, while retaining  a more well managed connection between them. The reporting makes this clear enough.

Apple Inc. has told some of its contract manufacturers that it wants to boost production outside China, citing Beijing’s strict anti-Covid policy among other reasons, people involved in the discussions said. India and Vietnam, already sites for a small portion of Apple’s global production, are among the countries getting a closer look from the company as alternatives to China, the people said. * * *   Any move by Apple, the largest U.S. company by market capitalization, to emphasize production outside China could influence the thinking of other Western companies that have been considering how to reduce dependence on China for manufacturing or key materials. Such consideration has stepped up this year after Beijing refrained from criticizing Russia for its invasion of Ukraine and carried out lockdowns in some cities to fight Covid-19.  * * * China’s travel restrictions have meant that Apple has curtailed sending executives and engineers into the country over the past two years, making it hard to check production sites in person. Power outages last year also dented China’s reputation for reliability. (Apple Looks to Boost Production Outside China)

One speaks here of dual circulation strategies in the context of two decoupling imperial cores. The Chinese dual circulation policy will acquire teeth, even if understood from the perspective of protecting Chinese economic security against the Liberal Democratic West and meeting the ideological challenge of the principal contradiction at this stage of Chinese historical development  (see eg here, and here). The American project (allied if not entirely aligned with that of the EU) of targeted sanctions, based on security, human rights and sustainability and political-trade objectives will ensure effectively an American version of a dual circulation economy (eg here, and here) despite the skepticism of the influence-chattering classes (eg here) many of whom appear to belief that it is still 2002. 

It is important to emphasize that the policies on both ends emphasize DUAL circulation.  Decoupling ought not to be understood as simpleminded detachment. Rather, decoupling might better be conceptualized as a series of concentric trade (and dynamic) rings. At the core of these rings are the great post-global drivers and consumers of production and their 'inner circle' partners. This core of production and consumption (economic but also cultural production) would be insulated from targeted projections of power from outside. Beyond the core there is a strong trade sector (well managed and subject to intensified surveillance) between the cores. These have been organized for public consumption as either a Belt and Road Initiative or an America First/Brussels Effect structure, through which systems of economic reward-dependency may be organized and protected. One does not speak here about territory or direct control, but of management and mutually beneficial relations along chains of production and consumption (nicely captured by the Chinese discursive 'win-win strategy)  The WSJ story hints at this system. Thus, for example, Apple might continue to rely on another great multinational, Foxconn (Hon Hai Precision Industry Co., Ltd., HQ'ed in Taiwan) with strong ties and production capability within and outside of China) for production, but shift the site of that production from Foxconn's Mainland plants to those say in India (see image above).

At the same time, elements of those parts of the state apparatus that drives policy appear to be pushing for more effective use of borders to ensure that taboo goods. The drive is important for the effective implementation of detachment, as these tend to underscore and embody the fundamental  ideological dividing lines between Socialist and liberal democratic production. Its manifestation is built around the implementation of policies of identification of taboo objects of production and the suppression of domestic markets for its consumption. Decoupling, then, is to be manifested at borders.  Among the thought leaders at the official level is the Congressional Executive Commission on China (CECC; more here). CECC forms an important element of the emerging US two thrust strategy that complements and mirror the Chinese dual circulation policy (See, The US Two Thrust Strategy Against Chinese Interests on the Anniversary of the Tiananmen Incident: Targeted Sanctions from the Biden Administration; Discursive Projections from the Congressional-Executive Commission on China (CECC); see also here).The current focus, and template, is centered around the Uyghur Forced Labor Prevention Act. UFLPA "establishes a rebuttable presumption that the importation of any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur [SAR], or produced by certain entities, is prohibited . . .  and that such goods . . . are not entitled to entry to the United States." (US Customs and Border Protection Act Information Website). 

CECC recently has lobbied for more stringent enforcement of UFLPA:

Pix Credit and Report here
[The Co-Chairs] released a letter to the Chairs and Ranking Members of the Homeland Security Subcommittees of the House and Senate Appropriations Committee requesting expanded funding for U.S. Customs and Border Protection (CBP) to vigorously enforce the import restrictions required by [UFPA]. The Chairs were also joined on the request letter by Senator Marco Rubio (R-FL) and Representative Christopher Smith (R-NJ), the CECC’s ranking members. “We championed the Uyghur Forced Labor Prevention Act because of the appalling evidence of widespread forced labor in the [Xinjiang Uyghur Autonomous Region], as well as elsewhere in China via coercive labor transfers, and our conviction that U.S. consumers should never be unwittingly complicit in supporting slavery,” said the bipartisan group of CECC Commissioners. “Enactment of this law sent a resounding signal of the U.S. commitment to address the activities that fund genocide, protect U.S. consumers, and defend human rights. Fully funding the CBP request will support the bipartisan, bicameral vision of the U.S. Congress.”

Pix Credit and Timeline HERE
In both cases, the dual circulation (two thrust) policy appears in more visible form.  On the private side, these take the form of more pragmatic judgments about dividing operations and then strengthening supply chains within Chinese and US trade areas in accordance with their respective logic.  At the same time, both public  and private actors will continue to re-constitute trade between the two economic cores, but now more intensely managed through sanctions regimes, national security protocols, product inspection, IP, markets integrity structures, and other regimes that will serve--not as  traditional trade barriers--but as the new porous but managed borders between competing economic cores.  On the one side is the protection of the territorial integrity and economic-political model of Chinese Marxist-Leninism and its spokes through the developing world.  On the other, the post 1945 markets driven and human rights based liberal order with its center in Anglo-European-Japanese convergence and interlinkages. 

For both, a primary objective is the protection of their core institutionalized economic engines (private in the liberal democratic camp and state owned in the Marxist Leninist camp) against interference by the other. For rest of the 'greater' states, each faces both a choice of main patron, and the task of developing  strategies of accommodation that permits survival at worst and development at best.

The full CECC Co-Chairs Letter follows below.

Sunday, May 22, 2022

The Biden Administration's Cuba Policy Mini Reset

Pix Credit Here



To the great wailing of those opposed, On 17 May 2022 the Biden Administration announced what amounted to a mini reset of The US's Cuba policy. In many respects it returns the US to something like the US position immediately before Mr. Trump changed it early in his Administration.  Yet in most matters that count, little has changed. The fundamental policy of the United States remains regime change--from a  Marxist Leninist to a liberal democratic, markets driven economic-political model. The tactics revert to something like late-Obama era approaches--emphasizing direct aid to the Cuban population (including aid, facilitation of entrepreneurs, and remittances), facilitation of so-called people to people exchanges, flooding Cuba with Americans, and emphasizing family reunification as the preferred migratory policy (reinstating the Cuba Family Reunification Parole Program), expanding consular services, and continuation to add to the usual layers of the generalized Cuban embargo a set of targeted sanctions to punish what the US will judge to be bad acts by the Cuban state apparatus (including for example, governmental responses to the popular protests of July 2021). And explained by officials at a Background Press Call (18 May 2022),  "the President’s direction has been to find ways to hold the regime accountable and to support the Cuban people. And that’s been what has informed this policy outcome."

Nonetheless, the idea is not qiute to return to the heady days of the Obama administration's Cuba policy:

The announcement, however, fell short of previous polices enacted by the Obama administration. Individual "people-to-people" travel will not be reinstated, for example. A senior administration official said the U.S. also would not remove entities from the Cuba Restricted List, the list of Cuban government- and military-aligned companies that U.S. companies are blocked from doing business with. (Biden eases restrictions on Cuban travel and remittances)

The text of the Background Press Call follows.  

Thursday, May 19, 2022

The Crossover Podcast (Thursday 19 May 2022): Ricardo Komotar and Larry Catá Backer Discuss the End of Roe v. Wade and the Turbulence Left in its Wake



It was a great privilege to have been invited onto the Crossover Podcast hosted by Ricardo Komotar.  The topic of our discussion was the possible end of the constitutional protection (such as it is) of a woman's autonomy with respect to issues around pregnancy and (especially) its termination which was announced in an irregular way through the the leak of the draft opinion in Dobbs v. Jackson Women's Health Organization. My initial thoughts on the questions I was asked to consider in preparation for the conversation might  be accessed HERE). 

The  entire conversation may be accessed HERE


I take this opportunity to VERY briefly sketch seven issues around which our conversation was woven.

1. IDEA OF ROE (rights as a political concept) Vs the JURISPRUDENCE OF ROE (debate over state regulatory policy) [long term strategic consequences of reframing the Debate (evident from the early 1990s—Calvo and Rosenstone 1989 Pilot Study].  

--This was the essence of the move from centering rights based discourse in Roe, to the discourse of state authority in Casey (1992) and its "undue burden test." --With rights detached from governance it was then possible to detach the political conversation around fundamental rights from the jurisprudence of institutional integrity and the allocation of power.
--Revert to federalism and reasonable basis approach (slip op. 65- et seq);
--Detached from rights discourse and attached to a discussion of federalism; it was easier to avoid the bother of a jurisprudence of right and replace it with that of institutional allocation of power with its infinitely forgiving so-called "reasonable basis" standard of review of the  validity assertions of power(slip op. 66).
2. Dormant Commerce clause and extraterritorial reach of state bans?
--Burden on interstate commerce versus protectionism versus public policy—
Will likely affect advertising and actors entering BAN state to facilitate travel to NO BAN states.
--1st Amendment Implications: Commercial Speech jurisprudence
--Had been some writing about using Dormant Commerce dastards to attack targeted regulation of abortion provider rules (TRAPs).
3. Right to Travel and state control of terminations 

--Here one enters the world of state barriers to national coherence and coordination targeting activities between people of different states, one of which makes available what the orther bans

--conspiracy, complicity, aiding; private attorney general provisions and the like
--The BATTLE OF THE STATES is already emerging  (from Bloomberg 4 May 2022):
Missouri S.B. 8, Missouri state Rep. Mary Elizabeth Coleman (R) introduced a proposal in December to allow private citizens to sue anyone who performs an abortion or helps a pregnant person obtain one, even if the procedure takes place outside Missouri.

2005 untested Missouri law: the state passed a law that created a civil cause of action against anyone who helps a minor get an abortion without parental consent or a judge’s permission, even if the abortion takes place in another state that doesn’t require it. Narrowed to state terminations by local Supreme court

California, S.B. 1142, which would provide funding for out-of-state residents who may travel there for an abortion, is scheduled for a May 9 hearing in the Senate Appropriations Committee. California lawmakers are also considering a measure to shield those who help a pregnant person travel to the Golden State for an abortion from getting sued.

Connecticut lawmakers passed a bill (H.B. 5414) to shield providers and anyone who travels to the state for an abortion from lawsuits or out-of-state investigations and prosecutions. The law would allow anyone sued by a state that bans abortion to countersue in Connecticut for damages and attorneys’ fees.
4. Religion Clauses: Mostly Free Exercise but perhaps Establishment
--Federal Law protections would include exceptions for Free Exercise under Federal RFRA and Religion Clause standards
--State BANS subject to State RFRA (Irony here is that most state RFRAs are in states likely to BAN terminations).
--Do the bans favor one religion over another and thus violate Establishment Clause (to the extent that I t is driven by privileging one Religion’s views).
--All sorts of subsidiary issues with ambiguity in the jurisprudence ((1) what/where is religious belief under RFRA and under Constitution (need not be the same thing); (2) what is the nature of strict scrutiny applied (how to value state interest); (3)to what extent must the state protect religious practices and belief in the face of a purportedly secular statute; etc; (4) neutrality and general applicability issues (Alito ironically has been a strong advocate of broad protection of religions easily finding lack of neutrality or general applicability).

5. Authority in Constitutional Interpretation
--What is left of STARE DECISIS? Slip op. 35-65 

--The end effectively of stability; or the weakening of the embrace of notions of Supreme Court opinions with legislative effect (Cooper v. Aaron)
--Resurrection of Ed Meese’s argument that it is a shred authority (Tulane Law Review 1986).
--What is the role of interpretation: find the right answer (Precedent weakened (Dobbs)) or the plausible answer (precedent strengthened (Casey)).
--Judicial SUPREMACY: One has to obey Supreme Court Precedent (inferior courts certainly burt maybe also everyone else (Cooper v. Aaron) BUT NOT THE COURT ITSELF. That may affect the dynamics of constitutional litigation
-“wrong from the start”
-“reasoning exceptionally weak”
-“decision has damaging consequences”
-“fails to produce a national settlement of the issue”
--What is left of the regulatory nature of constitutional interpretation? The better practice now appears to be to refuse to recognize interpretations with which one disagrees and demand reconsideration--over and over--until the conditions for abandonment of the initial (wrong) interpretation occurs. 

--No way out of the resulting jurisprudence trap

6. What is left of Substantive Due Process
--Dobbs draft suggests Roe is a special case; but Dobbs also says one has to get precedent “right”—so not clear what shifting majorities may seek to entertain in the coming years (contraception, Same sex marriage; decriminalization of certain sexual acts, etc.; adultery and fornication laws).
--Dobbs slip op at 5: “any such right must be ‘deeply rooted in this Nation’s history and tradition’ AND ‘implicit in the concept of ordered liberty’” citing Washington v. Glucksberg
--The history and traditional test at the forefront: “we must guard against the natural human tendency to confuse what that Amendment protects without own ardent views about the liberty that Americans should enjoy” Dobbs slip op. at 13. 

--Strategic history and semiotic meaning making: (1) where does history start? (2) whose history? Through what lens is it interpreted? Is history the history of opinion or facts of everyday life? Etc. One gets a sense of that from the dismissive tropes used to counter arguments made that history might have an alternative meaning (slip op. 25-30).

-Thus the question for every case: what history?: Dobbs relies on the official history of acts and governmental measures stretching back several hundred years; it ignores history going back to the foundations of Western culture (Rome); and it ignores the social history of abortion and the role of women in giving the effect. The art of instrumentalizing history strategically has been  a weak underbelly of jurisprudence in the US (lawyers make bad historians but better ideological philologists or semioticians) 
--The status of rights embedded in other rights slip op. 30- 32 is rejected. Abortion unique; though that is likely to be tested in subsequent cases.

--Strategies to invert Roe to develop a constitutional protection for life beginning at conception.
--The next big target: the 20th century adminbistrative state and the narrowing of federal authority


--A court that styles itself a political instrument cannot be surprised if politics creeps into not just its jurisprudence but also its working style.

--CROWDSOURCING JURISPRUDENCE cannot be far off; the Amicus brief as an elitist tool for those with clout--populism in jurisprudence that is more overtly political requires direct connection to the masses; tech makes that now possible.

There were many more questions than answers; and substantial concern about the state of the judicial project and its interposition within the framework of American government--not because it is bad or good, but because it appears now  affect the stability and prosperity of the nation in important ways. Nonetheless, though rich, our conversation was just the start of a very complicated conversation that will touch on virtually every aspect of American life--pulling on the string of Roe v. Wade is an invitation to unravel the bulk of the fabric of American institutional life crafted since the first third of the last century.  There are those who relish this prospect; many don't--whatever their view of the relationship between women, the state, and the state of their reproductive choices. 

As I finished reading the draft opinion in Dobbs, and no doubt as I will finish each of the several concurring and dissenting opinions that this draft will produce, I could not help but return to what for many may be a higher source of insight--to Job 38:2-4 (KJV):

2Who is this that darkeneth counsel
By words without knowledge?
3Gird up now thy loins like a man;
For I will demand of thee, and answer thou me.

4Where wast thou when I laid the foundations of the earth?
Declare, if thou hast understanding.

 We now seem to be in an age where the temptation to make such declarations appears irresistible.


Tuesday, May 17, 2022

The Crossover Podcast (Thursday 19 May 2022): Speaking About the Supreme Court Leak, Dobbs v. Jackson Women's Health Organization, and the End of Roe-Casey


 I was delighted to be asked to chat with the marvelous Ricardo Kometar about the leak of the draft opinion in Dobbs v. Jackson Women's Health Organization for his excellent podcast: The Crossover Podcast.

Both Dobbs and its leak provide a fascinating glimpse at the tremendous transformations occurring at the heart of the liberal democratic constitutionalist machinery so finely developed and cared for by elites since the early part of the 20th century. The Dobbs leak is particularly significant with respect to (1) the substance of the opinion, overturning the Roe-Casey-Whole Women's Health line of cases that had provided some sort protection of a woman's right-power-authority to terminate a pregnancy, even though that protection had been always disputed at the edges; and (2) the leak itself, for what it tells us about the state of institutional decrepitude, both as to the event itself and as to the enormous infatuation cultivated among the masses by those with the power to do so. Together they remind us of the problem that the Supreme Court has represented within our constitutional system almost from the first decades of the Republic (my take here, here, and here).   That last sentiment, of course, is heresy in some quarters, one that was thought to have been stamped out among the ruling collectives with the end of the 2nd World War and the rise of the techno-bureaucratic administrator classes in both business and government. But the heresy is fickle--where the court has pleased its most intimate stakeholders (elite lawyers, academics, and the administrative.-bureaucratic apparatus and its retainers) the functioning of the court and its pronouncements were treated as almost divinely inspired (considered here).  When there was disagreement then the court became horned devils propounding error that would undo the Republic. With the former the narrative of the indispensability of a vigorous court with broad interpretative authority was advanced; with the later, the narrative of erroneous and corrupted officials (in this case judges stepping pout of their role) was advanced. 

Pix Credit: The Puzzling Search for Perfect Randomness
Everyone, or at least anyone worth acknowledging, has been or professed to be passionate about embracing a narrative, emphasized by the named author of Dobbs, that the search for the "right" answer is both a duty of the judge and the apex principle on which constitutional interpretation rests. Justice Alito instructs his readers (Dobbs draft slip op 35-36) "But when it comes to the interpretation of the Constitution—the 'great charter of our liberties,' which was meant 'to endure through a long lapse of ages,' [Martin v. Hunter's Lessee] —we place a high value on having the matter 'settled right.'” That is a dangerous and misguided proposition at variance with the constitutional traditions of the Republic and a respect for the role of the judge  operating within and not above law.  I have never much believed in this principle, nor its narrative, nor its supposition that the Common law and it ideology on which the character and role of this Republic's judges were derived, was ever much preoccupied with perfection. There are "just answers", or "answers that comport with a reasonable reading of text or intent  or the reasoning of prior generations of judges," or "fair answers," or "ideologically driven answers," or even "answers that build collective meaning into words", or "answers that are faithful to a specific perspective of values." But semiotics reminds us that one can never give the correct answer even when one strives for the just one within the constraints of text and tradition.  It is no surprise, then, that what becomes most in cases like Dobbs is not its jurisprudence but its psychology; and text serves merely as the memorialization of an enforced change in communal meaning making in the serve of something other than text itself. What is "right" then becomes something more intimately connected to the imposition of a "right meaning" rather than a "right answer" in a context in which meaning is not itself malleable.

I wrote a short essay about this once:

Americans have been obsessed about the mechanics of perfectibility. Perfectibility is built into the constitutive documents of the American Republic. The expression of that perfection is Law, and Government provides the means. The mechanics of perfectibility lies in philosophy and theology. Through these mechanics Americans can discern the spirit of perfection - as God or as the genius of the American community made manifest. The essay considers these notions in the context of two cases, Swift v. Tyson (1842) and Erie Railroad Co. v. Tomkins (1938), which provide both the antipodes of American conceptions of the sources and hierarchy of law, and also suggest the mechanics of a mandatory perfectibility in American. But the judge is not the only intermediary between perfection and its expression in law. The essay suggests the way the political branches also seek the role of privileged (and uniquely privileged) intermediaries between the people and perfection. The essay ends with a consideration of the value of the theology of faith and reason in the elaboration of American jurisprudence. ('The mechanics of perfection : Philosophy, theology, and the foundations of american law' (Francis J. Mootz & William S. Boyd (eds.), On Philosophy in American Law. Cambridge University Press. pp. 44 (2009).

Plausibility made more sense than perfection (the endless search for the 'right-true-correct' answer) as foundational interpretive doctrine--but the narrative of perfection has been an infection that has been hard to isolate much less cure. Certainly that is what the late Romans thought in the opening of the first book of the Institutes. . . but who reads this old stuff now anyway. . . . Dutifully, that is mindful of a duty to a constructed normative system of right and wrong intimately connected to the judge (and therefore the state), Dobbs takes plausibility off the table--at least as far as five justices are currently concerned--and for the result in this case at least. What is right is the satisfaction of (finally) proving those old justices wrong. At the very least they have taken that off the table when it suits five of them.  And that, indeed, the zealotry of the search for "right" distorts as well as inflates the role of the judge well beyond what it is capable of legitimately containing. It is no wonder then, that people worry about the extent to which virtually every other law of the constitution, built on the now weaker reed of judicial gloss, is also on the chopping block. That chopping block can be brought out at any time--either now or later when the current crop of judges is replaced by another.--perpetuating a state of insecurity in the stability of constitutional gloss.  For this group of justices sex based rules appear high on the agenda, but then so does the reconstruction of a 19th century federal state and the undoing of the 1930s judicial revolution in federal power and the construction of the American administrative state. Fair enough I suppose; nonetheless, for the Republic quite disruptive. For people who believe in the therapeutic qualities of constant states of revolution in society and politics, this may be their day; while it lasts. And with it an interesting wrinkle on theories of continuous revolution once the province of Marxist-Leninist theorists and now in a liberal democratic judicial variation. 

Curiously also off the table--the question around the presumption that the state owns or controls the bodies, minds and souls of the individuals subject to its Republic. In that sense Dobbs merely redirected the source of that power (in states rather than in the General Government) in this case. In all of this, of course, the fundamental question of the extent of public (state) power as parens patriae appears both avoidable and assumed--in the sense that the courts confirm yet again the migration of the power of life and death from the head of family in the Roman Republican and Imperial Eras, to the contemporary American government and its apparatus in this century--and over every aspect of life. This applies as much with respect to the discretionary authority over the bodies of women and their pregnancies, as it does in quite different respect to the parens patriae authority of private economic and social collectives who purchase and consume labor.  Like heroin, once absorbed into the body politic it is hard to find a cure either for the nonsense that the text of the Federal Constitution is made up of "perfect" answers to virtually every problem or that it is to the state alone to determine whether or to what extent an individual may be herself. The jurisprudential methadone available to relieve but not cure this addiction is hardly satisfying.  That would require the return of the search for perfection to a fractured society society; this is something less than acceptable to a nation trying to cobble itself together by some sort of enforced nudging toward an ideal state defined (and redefined) from time to time by those with the power to do so. American Leninism does not consist of a revolutionary party but rather a therapeutic master element willing to assert control in the service of the social, political, and economic ideal. All of these elements are nicely present in Dobbs.

One can surmise from this background baseline that the conversation may be interesting. We will chat about many aspects of the case beyond the technicalities that fascinate lawyers and tend to frustrate the rest of the population. The case is certainly important for its legal ramifications--from its attack on substantive due process and the constitutionalization of human rights, to the reconstitution of federalism, to the diminution of the value of Supreme Court opinions and its precedent (not by inferiors outside the court but by the court in its at least 5-4 majesty from time to time). Nonetheless, cleverness provides its own punishment. Dobbs even in draft form may be one of those jurisprudential moments when the cleverest weaving of multiple strands of jurisprudence can produce a null set or suggest that cloth be purchased elsewhere. In this case in the construction of a broad protection under the Black Letter of the Free Exercise Clause of the 1st Amendment, and of the power of markets and transport. 

Pix Credit HERE
Nonetheless, this collective of justices are not entirely to blame for the state of or more specifically the presumptions of contemporary federal constitutional jurisprudence that can turn rights on and off like a faucet; in this case a leaky faucet.  The judiciary believed they had the power to pronounce a constitutional right in notions of liberty; they now believe they can un-pronoounce it; and they draw on the history of judicial reconsideration of what regrettable decisions (in hindsight mostly) that had to be undone. Nor can they be blamed for being socialized to believe that they have an outsize role in the management of the state. It is only natural given the willingness of the rest of the state apparatus, and the people, to so willingly concede that possibility. The result: the justices must be understood as prisoners of the institutional cultures that generations of judges, elite lawyers and academics, elected officials and societal leaders found convenient through which to build on discursive tropes that they eventually believed (considered here). It was, indeed, a long time coming, woven strand by strand over the course of a century in which societal collectives and the elected branches increasingly found it possible to avoid their duty, and certainly their responsibility to the nation, sloughing it off on the judges who then perhaps out of necessity or perhaps out of pride, took up the challenge. And yet it bears remembering that our courts are much like bitcoin, or most national currencies--they value is wholly a function of what people believe they are worth. And here Dobbs suggests the courts are of two minds.  On the one hand, among themselves,  they believe they are worth very little outside the law of the case: their precedent has as much value as future judges in other cases are willing to give them. On the other hand, with respect to the rest of us, we are meant to take as  inspired--by something-- whatever manifests itself as opinion and at least with respect to inferior courts, be bound by it.  Governmental official resist this narrative when it suits them (for example during the leadership of President Reagan, see here); but are more than happy to use them when convenient.  As for the people, well, they will do what they can, and in the process judicial glosses will become more diminished as a stabilizing source of social solidarity and more valuables a stick to beat political opponents--at least in the realm of judicialized constitutional law glossing (can one use the term law anymore?) with a normative dimension. 

Pix Credit: El Sultán
And thus we speak about the judges the way that in another time and place we might have considered the politics, for a time at least, of the Ottoman Imperial harem (there is a curiously relevant television series built around the legendary Roxanna--Hurrem Sultan playing recently). And we speak about the role of the court in the ordering and protection of our political system; and as the censors of foundational moral-political values. We speak of the courts as the arbiters of division of authority in our political system and all through the process of determining disputes among individual litigants--which have been transformed into contests by collectives for their share of power over others within a Republic much changed from 1798, or 1868, or 1937, or even 1989.  That may or may not be a good-bad-virtuous-evil-necessary etc. thing. The courts, however, have played their role in this very long term transformation.   The abortion of Roe-Casey-Whole Women's Health is just one blip in a very long and complicated road. 

A short list of the questions we may discuss follows