To get this all started I had a question concerning a term found in the reading, which also popped up in readings for Dr. Steffen's seminar on Revolutionary America.  Does anyone have a good understanding of "parvenu?"  Does this term have any significance for class or cullture in colonial Virginia specifically?

Instructions for Posting

Welcome to Constitutional Studies--a blog for HIST 8035 students. This blog will be a source of ongoing communication for the class. It is designed to highlight conversations on our weekly reading, on research questions that we have, and on contemporary constitutional issues that require historical perspective.

There are a simple set of rules that we will use for posting, included below.

Rule 1: you may post on discussion questions for next week's reading, or you may share extra readings or other ideas connected with the next week's topic. OR, you may post links to websites of interest, books or articles, or other resources that others in the class may find helpful. Especially of interest are links to examples of the uses of history in the modern day world.
Rule 2: you should comment early and often on posts. All posts should be invitations to discussion.

Rule 3: debates are permitted. Rules of courtesy and professionalism apply. As administrator, I will remove any and all inappropriate posts.

Rule 4: you MUST add labels to all of your posts, so that we can find them and use them later. You should add a LABEL for any author you are referencing (make sure you do the last name, first name format for this kind of posting, e.g.: Morgan, Edmund), as well as something to identify the topic or period. Try to match tags already in existence, and if one does not exist, then go ahead and create it.

Rule 5: more rules will be added as we go along.

Happy blogging!

Tonight on the Obamacare Soapopera: Lonely Chief Justice Roberts makes peace with history

There are legal commentators far better equipped than I to discuss the Supreme Court's decision, so I will leave it to parse over its many facets. But I could not resist posting about Chief Justice Roberts's odd placement in this decision. This being the first time over a major case that he has ventured from the conservative wing of the Supreme Court, many are assuming that he has at least one eye on his historical legacy. I think this is correct, but perhaps a little more complicated than some are assuming. If Roberts is beginning to think about his legacy, then there are at least three things this decision does that might help define a new kind of conservative jurisprudence for the next half century.

1) The return of judicial restraint. Conservatives love to complain about "activist" judges and "legislating from the bench," but they don't really mean it. Most conservatives are happy to have judges invent economic rights (substantive due process, anyone?) and actively enforce them against legislative proscription. Roberts has, up until now, appeared squarely in this camp, preferring confrontation to restraint in most cases. But Roberts has worked hard here to use statutory interpretation to avoid coming into collision with Congress and the president. This is what judicial restraint really means, and Roberts's endorsement of it might be a harbinger of things to come.

2) Deploying a legal fiction. Roberts's departure in this decision is significant because he essentially says that the taxation clause, rather than the commerce clause, governs the individual mandate. Commentators right and left have complained that this is bad reasoning because it effectively gives Congress the same power it claimed it had before while muddying the waters in the process. Conservatives can point right to the president himself, who repeatedly called this provision a penalty, not a tax. Liberals complain that the test invented by Roberts (the "inaction" is not commerce test) is poorly suited to judge the current reach of federal power. Well, ok. But I rather like his fiction. I have always been uncomfortable with the notion that the federal government can compel you to participate in a particular kind of commerce. There are things that legislatures should not be able to do, and we do have to think about these limits from time to time. As Roberts pointed out, energy and transportation are both subjects of interstate commerce and we don't really want the government ordering us to buy a particular lightbulb or an automobile. Liberals have largely dismissed this argument, pointing out that the mandate was part of a comprehensive set of reforms and was special. In short, that Congress would not (could not) start ordering everybody to eat broccoli (or purchase cars, or whatever else). Liberals also repeatedly analogized the mandate with social security, and with other programs that rely largely on a redistribution of wealth through taxes. Roberts's opinion speaks to this. He deploys a legal fiction (the mandate, described as a penalty and denied as a tax, is actually a tax) in order to reserve the commerce clause. There are limits, he is reminding everyone, and we can be creative in enforcing them.

3) Connecting to the past. John Roberts loves John Marshall. John Roberts would like to be John Marshall. He is looking forward to a long tenure on the Court. He has an opportunity to lead the conservative wing in dominating jurisprudence for the next quarter century. And his legacy, he likely hopes, will live on past his chief justiceship. These were all traits of Marshall's, and so the parallels are striking. And there must be a reason that Roberts went back to McCulloch v. Maryland and Marbury v. Madison and the public writings of John Marshall on so many occasions. There are some ironies, however. Marshall famously used the power of the Court to curtail the police powers of the states and to bolster the federal government. His iconic opinion in McCulloch (1819) supported the power of Congress to incorporate a bank, something it was not granted in the original Constitution and which more than one Framer (including James Madison) believed was outside of Congress's power. (Full disclosure: President Madison signed the second Bank of the United States into law.) But perhaps the irony is intentional. The balance of power between the states and the federal government was different in the 1810s. The federal government was resisted far more frequently, and was much much smaller than it was before the end of World War II brought us a military-industrial complex and a Great Society. Marshall, one might say, fought for the underdog. Is this what Roberts is doing?

These are little more than the musings of someone who is trying to understand Roberts's positioning on the Court. But I must close with tears for poor John Roberts, whose opinion on the commerce clause leaves him in a 1-4-4 position, alone and lonely, naked to his enemies, etc. etc. But it is not his alienation from his compatriots that saddens me. It is, rather, his alienation from John Marshall. For a good portion of Marshall's chief justiceship, he was able to achieve consensus on the Court, to issue unanimous opinions and discourage even concurrences. Roberts clearly cannot. But then again, not even John Marshall could get this Court to put down its politics and behave like a judicial court.

Jeff Bell and the Conservative Society Myth

The Wall Street Journal interviewed Jeff Bell, a conservative thinker of sorts, on the subject of social issues and Rick Santorum's recent surge. The upshot of the article is Bell's notion that conservative social issues will send the GOP to victory in 2012 and help create a permanent Republican majority in politics. This runs against traditional wisdom, which regards such social issues as divisive and ultimately off-putting to swing voters. The title of Bell's forthcoming book, "The Case for Polarized Politics," reveals what he thinks of such an argument.

What I find immediately interesting about Bell's point of view is not so much his analysis of current politics (it seems transparently wrong about the tenor of conservative politics), but his attempt to justify his position as morally true. That is, he regards the socially conservative positions he espouses as objectively right. If the interview is to be believed, he believes that this truth is grounded in History (capital "H" History). As such, it is narrative that creates moral meaning, that in essence give norms their objective reality. (For anyone interested in a theoretical position endorsing this, see Robert M. Cover's article "Foreword: Nomos and Narrative," in the Harvard Law Review, volume 97 (1983-1984).)

So what is Bell's narrative? The roots of social conservatism lie in the Revolution. "Nature's God is the only authority cited in the Declaration of Independence," said Bell, and he then says that natural law is god-given, although conveniently non-denominational. "If you believe that rights are unalienable and that they come from God, the odds are you're a social conservative." This position then allows Bell one more intervention. The Tea Party has made a connection with the Founding one of its central tenets. (Economic and social conservatives unite!) In Bell's reading, "liberals" have (since the French Revolution) attempted to pull down the institutions of family and religion. Obama's presidency proves this. After all, he let gays into the military and took on the Catholic church over contraception.

I won't comment on the weakness of the narrative--it would be unfair given that it is not fleshed out. Suffice it to say that natural law had obvious Christian roots, but the beginnings of liberal theory (Grotius, Hobbes, Pufendorf, Locke, etc.) divorced natural law from the traditional hierarchical society that had once dominated political understandings of politics. Natural law became at first a theoretical and then later a political attack on hierarchy. This meant an attack on slavery, monarchy, and--wait for it--traditional marriage. Of course, "traditional marriage" at the time of the Revolution meant the absolute subjection of women to men--women who literally lost their legal identity to their husbands, surrendered their property, their wages, and their right to defend themselves in court from attack. Conservatives who opposed them complained that to grant women the right to their own property would undermine the "natural" foundation of society. Women thought otherwise. Some men did too, and marriage was reformed (a process taking generations),and  ultimately brought into line with the equality implicit in natural law thinking.

This historical interlude is, I repeat, not meant to comment on Bell's untenable historical narrative, but rather to illustrate the ways in which narrative can construct meaning. In Bell's narrative, he wishes to draw a line through time which connects today's social conservatives to the Founders. The line that connects them is respect for traditional institutions and a belief in God. These are absolute values, in Bell's reading. And the narrative gives them objective value. But the objective truth to which he clings is a chimera. And this, if he is not aware of it, ultimately dooms not so much his analysis of present politics as it does his own pretended morality.

Perhaps in a future post I will comment more about the substance of his narrative. At present it deserves no comment simply because it is so patently absurd. But perhaps after I have paused to read the comments on the WSJ post I will see whether a significant segment of the population actually takes this seriously.

The Historic 2010 Midterms

This is a misleading title. There is nothing historic about incumbent party losses in a midterm cycle. Those of us who have living memory of 1994 know just how profound the changes can be. We'll leave aside for a moment how the undemocratic nature of the Senate has prevented the democratic majority (small "d" here--the ones who voted Republican) from claiming a total victory as well. There's nothing historic about that; it's just ironic.

I'm more interested in the historic narrative. I listened to Rand Paul's victory speech last night, which I think is a pretty typical rendering of how the Tea Party has sought to cast itself in terms of its own historic role:

Why is America great? Why are we the greatest, richest and freest country ever known to man? (Applause.) America -- America -- is exceptional, but it is not inherently so. America is exceptional because we embraced freedom, because we enshrined it in our documents and because we have lived and fought for the principles of freedom. (Cheers, applause.)

America will remain great if we remain proud of America, if we remain proud of the American system, the system that is enshrined in our founding documents, the system that protects and promotes the free exchange of goods, the system that protects capitalism that has made this country great. (Cheers, applause.)

This is historical fundamentalism at its most simple. Read from the back forward, it can be further summarized thus:

1. our Constitution and Declaration of Independence codify liberty and capitalism.

2. These values have made America the richest nation in the world.

3. And this has made (all) Americans an exceptional people.

4. 2010 is about restoring these fundamental values to again make us an exceptional people.

As a narrative, this invokes several complex literary tropes: the tragic flaw; the nation as prodigal son; return to original virtue. It is rather amazing to think that so short a narrative can encompass so many concepts without expressly stating them. This, of course, is the power of narratives, and precisely their purpose. The ability to position one's self in a historical continuum is how we orient ourselves to project a possible future. This, I would argue, is why the Tea Party has made so much of its connection to the founders, which Rand Paul invoked when he directly (mis)quoted Thomas Jefferson in his speech: "that government is best which governs least." But the misquote is not important. Jefferson may never have written the above line, but he vaguely stood for a smaller federal government, and in that sense Rand Paul got his Jefferson right.

The invocation of exceptionalism is worth noting for two reasons. First, exceptionalism as a historical concept is really a nineteenth century invention, associated with the historian George Bancroft. It had racial overtones, suggesting that the favor bestowed upon America was really the Anglo-America. Second, exceptionalism was a matter of Puritan faith. (Anglo) Americans were God's chosen people, and America's history was a chronicle of divinely-inspired events. There was very little choice in it, although those muddling through history had made plenty of choices themselves.

Rand Paul explicitly rejects the second assumption. His exceptionalism is a matter of libertarian will rather than religious faith. We are not predestined for greatness; we must earn it. The immediate prescriptions seem to be deregulation and an end to deficit spending, although Mr. Paul did not have time to draw out a plan to greatness.

As for the racial overtones, the Tea Party is stuck with it, even though they don't like it. Even when we dismiss the nuttier elements (former Tea Party spokesman Mark Williams's satiric historical letter, e.g.), we cannot dismiss the party's demographic makeup. This is a party of disaffected, middle-class white Americans who feel marginalized and voiceless. Hence the "take back America" slogan.

And Rand Paul's victory speech verifies this. The historic(al) nature of the speech was its invocation of a simpler, whites-only history--one that quotes Thomas Jefferson for demanding less government without acknowledging the daily theft of liberty and labor that was necessary to sustain Jefferson and his ilk. Those who truly believe that our nation is founded upon laissez-faire principles are guilty of serious amnesia. The exercise of direct power on the vast majority of people in the eighteenth and nineteenth centuries regularly invaded people's liberty and property. Jefferson was aware of this. He condoned it in many cases, and fought against it in others. He was complicit in its crimes and his conscience bore the burden of this complicity his whole life.

Let me be clear here--I am not accusing Rand Paul (or the Tea Party) of racism. The vast majority do not see themselves in this light. Their invocations of historical narrative have a practical purpose: to connect their visions of a possible future with a real past. But in the margins of their historical invocations lie some unsettling truths, conveniently ignored. If we are to be honest about the problems America faces today then we might want to start by being more honest about our country's past. And that will require some thinking about the losers as well as the winners, both then and now.

Federal Hate Crimes Law and Editorial Missives

As I'm sure everybody knows now, Obama just signed landmark hate crimes legislation making it a federal crime to willfully cause bodily harm to someone because of their actual or perceived sexual orientation, gender identity, or disability. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (enrolled as H.R. 2647, now Public Law No: 111-84) is Division E of the "National Defense Authorization Act for Fiscal Year 2010," meaning that this landmark civil rights legislation was a rider on a military appropriation act.

I was curious to see how (or even if) any respectable opposition to this bill exists. I have found at present only Jillian Bandes at Townhall, who writes:

The Department of Defense Authorization Act (H.R. 2647) is going to a vote on Thursday. It's caused significant strife among Republican Senators who want to vote to fund our troops, but will also be forced to vote for controversial hate crimes legislation if they do so.

Some legislators have said they will withhold their vote; others said they're going to just bite their tongue, but whatever the case, it's a dirty tactic on an issue that deserves a separate, Democratic vote by itself.

I think we can reject the argument on its merits fairly simply. Her definition of "controversial" appears to stem from her misreading of the bill, and to this I would direct people to her April 30 article on the subject. To summarize: this law makes it a federal crime to beat, kidnap, kill, maim, or otherwise inflict bodily harm to someone because they are gay. Where is the controversy in that?

More interesting is an analysis of her rhetoric. Although this two paragraph report is thin, she identifies the use of attaching riders on bills as a "dirty tactic," but perhaps only when engaging an issue that "deserves" a "Democratic vote." I don't want to speculate about her capitalization of Democratic--I suspect this was just careless grammar. But why a "dirty" tactic? The word conjures up an immediate sexual reference, suggesting both the forbidden and the obscene. There seems to be some level of association here between the subject matter--protection of gay men and women--and the author's own feelings on the matter.

I do not deny that this may be making a mountain out of a molehill. But that is precisely what Brand's own reporting does--to point the finger at relatively innocuous legislation that has strong moral content (prevention of violence) and hooks into a well-established constitutional tradition of protecting civil rights (this extends back to 1866) and call it "dirty" is laughable. Unless, of course, one begins with the assumption that federal support of gays' civil rights is morally wrong.

I should point out here that the interesting constitutional issue--well known to constitutional lawyers--is whether the Thirteenth Amendment, which ended slavery, can really provide Congress with the authority to pass hate crimes laws that protect people other than former slaves. Historically, the real question is the ebb and flow of congressional and judicial enforcement of these laws protecting basic human rights. The Supreme Court has swung from one extreme to the other in its history on the subject. Congress has been alternately hot and cool on the subject. And a parallel (although problematic) might be antilynching law, which Congress could never pass in the early twentieth century despite tremendous need because southern senators banded to filibuster and kill such legislation. Now that was a dirty trick.

Saturday Night Supreme Court Smackdown: Scalia v. Breyer!!!!!

Okay, not so much Wrestlemania as civilized discussion. But those interested in pinning down disagreements on constitutional interpretation might be interested in this combative discussion between Supreme Court associate justices Antonin Scalia and Stephen Breyer.

Serious students of Supreme Court methodology and judicial philosophy will likely be disappointed in this discussion. Both justices articulate their philosophies reasonably well, but speak in generalities that make make them both appear startlingly naive at times. Breyer, for instance, identifies affirmative action as a hard topic because of its challenges in terms of understanding precisely what "equal protection" means (i.e., is the Constitution color blind or does it allow legislators to promote equality through affirmative action policies?) but offers little in the way of guidance for how justices might solve this riddle. One is tempted at times to conclude, with Scalia, that his philosophy is just the substitution of modern moral outlook for key phrases in the Constitution. If "equal protection of the laws" in the Fourteenth Amendment merely means whatever we want it to mean--if it has no fixed meaning--then we are really at sea (Scalia's phrase).

But this raises the perennial problem of "fixed" meaning in legal texts. Consider Scalia's jaw-dropping statement that Brown v. Board of Education was an easy case. Originalist principles, Scalia argued, would lead one to conclude that segregated schools violated the "equal protection clause" of the Fourteenth Amendment. But his application of original meaning jurisprudence does not lead to this conclusion. Given that some schools were segregated in northern states at the time of the Fourteenth Amendment's adoption and that courts had consistently upheld race-based laws and reconciled them with "equal protection" requirements, any credible application of originalism would allow in 1954 for the continued segregation of educational facilities. Scalia warded this off by suggesting that the text was clear--equal protection of the laws means that you have to treat everyone equally. But formal legal equality was part of the segregationist regime in the United States, and formalist legal principles masked the inequality that is so apparent to us today.

I should note quickly that I am not commenting here upon those journalists who misquoted Scalia as suggesting that segregation was constitutional under the provisions of the Fourteenth Amendment (hat tip to Jack Balkin and Balkinization, linked above). But I think it ironic that misquoting Scalia actually gets closer to the true application of Scalia's jurisprudence. After all, Scalia is to be applauded for demonstrating the limits of his own jurisprudence. Certain laws, he says, may be appalling. Or just stupid. But that does not necessarily mean that they are unconstitutional. I agree. But, I fear, application of this judicial philosophy would have upheld school segregation in 1954. And Scalia ought really to come to terms with it.

Veterans, the Desert Cross, and the Separation of Church and State

The Supreme Court heard oral arguments yesterday in Salazar v. Buono, an interesting (albeit somewhat technical) case involving the existence of a five-foot white cross on public land (in the Mojave National Preserve) erected by the Veterans of Foreign Wars to honor those who died in World War I. The VFW was initially hit with an injunction directing that the cross not be displayed as a violation of the Establishment Clause of the First Amendment. The federal government covered the cross, and Congress in the mean time organized a land transfer to the VFW that required that organization to maintain a war memorial on the land. A second injunction was sought, the district court ruled the land transfer invalid, the Ninth Circuit upheld, and the case is now pending before the Supreme Court.

The most interesting exchange in oral arguments was arguably the least important, from a legal standpoint. The issues before the Court (e.g.: standing of the respondent; constitutionality of a land swap with a reversionary interest) turn on technical issues that will have to be translated into English for the rest of us. But the interesting exchange had to do with the meaning of religious symbols. I quote from the transcript, which you can find here.

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --
MR. ELIASBERG (counsel for the respondent): I believe that's actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans --
JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me --what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have ben in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.

Outrageous indeed. Scalia probably meant that the intent of the cross's erectors (the VFW in 1934) was to honor all the war dead. What he left out was that in 1934, the VFW could conflate "American war dead" with "Christian war dead" and receive very little in the way of argument. This conflation may still have offended Jewish, Muslim, Buddhist, and veterans of other faiths, but this was not the intent of the VFW. They were simply using a common cultural symbol. In this sense, Scalia misses the mark entirely--his comments were predicated on the fact that nowhere did the memorial explicitly exclude any other religion. But symbols are useful precisely because they implicitly (through a cultural identification process) include and exclude certain groups of people. To be blind to this is to be obtuse (if not outrageous).

But I reiterate: this exchange was not central to the issues in the case. It is interesting precisely because it gets at the heart of the question of how culture can inform our understanding of legal and constitutional issues. And for the record, I understand Scalia's evident frustration. I attended Pomona College, an educational institution founded by Congregationalists and whose official seal portrays a cross and the words: "Our Tribute to Christian Civilization." As a senior student there, I publicly opposed changing the seal to be more inclusive. I did so not because I value "Christian Civilization" (it is a misnomer), but rather because the symbol has historical import and we cannot simply change out symbols in the name of multiculturalism without risk of losing our sense of historical presence.

The same argument, I think, might apply here. And the oral arguments are worth perusing just to see how the justices signaled one another about the inherent trickiness of Establishment Clause jurisprudence, and just how much context matters in making determinations that honor the spirit of the First Amendment, the concerns of a pluralistic United States, and our own sense of identity and history.

Rove, the DOJ, and the Politics of Law

The cacophony accompanying health care reform has drowned out most other news these days, but this one ought not to slip through the cracks: internal documents released to federal prosecutors have shed light on Karl Rove's role in the firing of U.S. attorneys by George W. Bush. For those who need a refresher, the scandal stems from the firing of eight U.S. attorneys. Democrats complained that the attorneys were specifically targeted for political reasons (namely, for not using their position as U.S. attorneys to investigate voter fraud in districts where Democrats held seats). Conservatives have responded that such rotation-in-office is a fundamental part of democracy, practiced by both political parties.

They are right, of course, but this scandal has deeper, more sinister undertones. We are not talking about rotation in office so much as a perversion of the role of the Justice Department, from that of an impartial legal authority charged with carrying out and executing laws (passed by Congress, one must note) to a surgical political tool, in the service of a particular party.

Rove has downplayed his role. Nonetheless, the e-mails he sent in the thick of the battle seem to implicate him in manipulating the justice system. This, of course, fits his profile. Rove has self-consciously modeled himself after Mark Hanna, the Republican strategist who midwifed the modern political campaign in 1896 and engineered a Republican majority that lasted the better part of a third of a century. It should surprise no one, not even Rove supporters, that he was sedulous in his efforts to use all the powers at his disposal to achieve a like result. (His failure will be a matter for scholarly reflection for decades to come.)

It is unclear, however, precisely what will come of all this. It is doubtful that Rove will be prosecuted. If anything, this is evidence of executive branch mismanagement, and that also fits the M.O. of our last president, who simply did not have the wherewithal to know what was going on where. But we are hardly going to prosecute Bush for his incompetence. Will we prosecute Rove for his malevolence?

There are convincing arguments against such prosecutions, the main one being that we do not want to engender a culture of using official power to punish the last party in office. While serious offenses (woeful disregard of laws prohibiting torture, e.g.) should not be overlooked, the manipulation of executive departments for political gain may well fall into a more minor category. (This recalls, at least in part, the question visited during Clinton's impeachment: what precisely constitutes a "high crime or misdemeanor"?)

I advance the following as an observation only, but perhaps it is time for Congress to assert a more predominant role as watchdog against executive excess. This must occur while the president is in office, not after. It might also require some institutional reform, in terms of how people are removed from office and for what reason. And the weapon of impeachment, seriously unleashed only three times in our nation's history, needs a more serious and solid institutional and intellectual foundation. It is worth note that 2 of the 3 impeachment rumblings, against Andrew Johnson and Bill Clinton, were unapologetically partisan in nature. What will it take to establish some guidelines for serious congressional checks on an executive that has become, for all intents and purposes, an elective kingship?

Badiou’s Ethics of Singularity, The Federalist 10, and Shakespeare’s Merchant of Venice

The relationship between ethics and politics is a curious one. It highlights an even deeper relationship between theory and practice. In a debate with Cornel West at Princeton University in March, 2006, French Philosopher Alain Badiou highlights three classical conceptions of ethics: the Theological, the Natural conception, and the Formalist. Perhaps this should be our beginning. Theological ethics, Badiou articulates, is an ethics of submission. The difference between good and evil is a transcendental one ruled by God and not by human beings. You have to obey the law—as divine law is the most important concept. In the Natural conception, the dichotomy of good and evil is a human one. There is a certain sensibility that guides action. Badiou suggests this conception is based on pity in understanding the suffering of one or another, “you have an immediate pity for the suffering of the human animal” Badiou says. Natural ethics is an ethics of sensibility where the most important concept is that of the victim. In the formal conception, the difference of good and evil depends on the form of action. This form is subjective. The form is not the content or the goal of action of but the subjective intention of action. If one acts exclusively, taking into consideration a moral duty, he or she is right. If one acts taking into consideration personal interests, he or she is wrong. The formalist ethics, Badiou says, is based on “purely subjective liberty.” The most important concept here is that of the formal imperative—what Kant calls the Categorical Imperative—a standard of rationality which all moral requirements are derived.

It is here that Badiou breaks from classical ethics as articulated above in that he believes there is no abstract or divine law which says to or for us which is good or evil. There is no general or natural feeling between victims which says what we have to do. And there is no formal imperative which allows us to separate good will and bad will. In other words, to fix an orientation to action or judgment, there is no general rule, no immediate sensibility, or pure form. One must think about the immediate situation and find a new rule of action. It is within this that Badiou introduces an “Ethics of Singularity”—the singular situation that guides action. Furthermore, Badiou says knowing the immediate situation is not enough. One must know the day’s geopolitical situation. Where I feel Badiou’s Ethics of singularity falls short but doesn’t necessarily lose potency is in his taking for granted the concept of the state—particularly the liberal state theoretically birthed within a sense of republicanism but also the notion of private ownership.

In the Federalist No. 10, Madison writes, “The diversity in the faculties of men from which the rights of property originate, is not less and insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of Government.” Madison goes on further to add,

“…the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results: and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.”

I contend that it is critical to keep Madison’s reasoning for factions within a state in context with the social developments of the day—particularly the economic. Historian Joyce Appleby has argued that the development of the free market was one of the few true novelties in history, changing the relationship of not only person to person, but of person to government—and that the roots of liberal social thought did not lie in past politics or classical theories of government, but to the first writings on the free-market economy (Appleby 1992, 166-167). Appleby also quotes English economist Charles Davenant, as he went further and connected the setting of prices and the law of self-preservation, in so saying that the “Naturall [sic] course of trade, each commodity will find its price,” going further, that “the supreme power can do many things, but it cannot alter the Laws of Nature of which the most original is, that every man should preserve himself” (Appleby 1992, 169). In many senses, there was something moral represented in every economic act. If we explore these premises (of Madison and Appleby), we can see how the market has the ability to cause social tensions and affect political life. We can also reasonably agree that those who were more suited to understand the mechanics of the market are able to exact better ends from their means and acquire more than those who do not.

Taking this notion of private property and the market—seen by many as having its own moral force—growing to influence political life from at least the late 17th century—we can begin to see a place where the classical articulation of formal of ethics—the formal imperative lies—in the free-market as it had the jurisdiction to play into Madison’s reasoning for factions and various political interests coming out of the dynamics of ownership. This situation proposes an interesting scenario on a society premised on republicanism. If the free-market is seen as a natural entity within which those who are more aware of its machinery can benefit and acquire more than those who do not, from where will the protections from faction emerge but within government and from where but governmental institutions can protections be secured? What is to keep the masters of the market from gaining overwhelming control of the very institutions that were created to check power? And what is to keep people engaged in the political process as they are crowded out by powerful interests? Concerning the formal imperative, Badiou walks away from it because there is no general principle that separates good will from bad. In fact, he calls this scenario of formal imperative (in this case, the market being seen as a moral arbiter where standards of rationality emerge) “subjective liberty.”

This republican spirit fused with commercialism is certainly not new to history. Late 16th century Venice as depicted by William Shakespeare in The Merchant of Venice allows us to see some of the social effects of Republicanism when mingled with commercialism. The first interesting parallel of 16th century Venice to what would become the United States is that there existed strong religious sentiments. Each professing doctrines of how life should be lived while on earth with special attention to the hereafter. Many authors of high esteem have produced work of such high caliber on this era of history that I dare not speak after them, but I do feel it necessary to make a point of connection. My argument here is that of Allan Bloom’s, which is to say that in the United States, like in Venice, republicanism had to overcome a religious question. This dealt mainly with how to teach people to deal with the here and now rather than to the hereafter (Bloom 1996, 15). This commercial spirit was perhaps a moderating factor from which toleration had to emerge so all involved in the society could benefit (though some more than others). In other words, the State had to become tolerant to be able to embrace in a stable order, men of widely differing beliefs (Bloom 1996, 15). In the play, the main conflict is between Shylock, a Jewish moneylender, and Antonio, a Christian merchant whose love for his friend Bassanio, who needs money in order to embark on a voyage to find a good match for himself, leads him to sign a contract with Shylock. Shylock does not care for the man or his interest, but through them he can profit for himself. What he does is neither noble nor generous, but it is not unjust (Bloom 1996, 19). As Badiou says, in this formal conception, where there is no formal law/imperative to separate good will from bad, shows us a point where the ethical tensions between Shylock and Antonio originate. Under the contract signed by Antonio, Shylock would extract a pound of flesh if the debt could not be repaid. It is Antonio’s basic understanding or gravitation towards life that leads him to contract with shylock in the first place, who doesn’t appear to have that same view.

This is the point where the formal imperative collapses if one was had to begin with. However, the two men are linked by money. Antonio must borrow from Shylock and this is done under contract not bound by good faith (Bloom 1996, 20) leading us to a testament as to how opposed the two men are in conceiving of the same humanity they operate under. “I will buy with you, sell with you, talke with you, walke with you, and so following: but I will not eate with you, drinke with you, nor pray with you” (Act I, Scene III). Upon this point we can begin to realize the depth of James Madison’s words in the Federalist 10. If republicanism, as understood to be where all can live in liberty and security, was to overcome the religious question, a mechanism was needed to involve those who would rather focus on the hereafter to be involved in the here and now. The development of the free-market effectively or abortively provided such a mechanism and established the foundation for simple toleration under various intentions (as we see with Shylock and Antonio). Under consumerism, people are allowed to gain and claim ownership and are almost compelled to engage society in order to preserve their lot. It is upon this dynamic that we see the possible development of faction. It is perhaps under these influences that Madison puts forth the argument that the causes of faction cannot be removed, but the effects must be controlled.

Madison defines faction as
“…a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or the permanent and aggregate interests of the community.”

We are now left to consider when a faction consists of less than or more than the majority. To cure the problem of faction by a majority, Madison suggests that the principle of a Republic, that of which the scheme of representation takes place, instead of a Democracy. He says the effect of this difference is

“[T]o refine and enlarge the public view, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.”

Madison believes that under these conditions, the public will pronounced by representatives will provide more positive ailment than if the people themselves gather for the purpose. To be sure, Madison was aware of the possibility that there could be those of “factitious tempers” or “sinister designs” could by intrigue, corruption or other means obtain the confidence of the people and betray the public interest. To this he reveals that a larger Republic is better than a smaller one where representatives will be limited to a certain number and will be chosen by a larger number of people. His reasoning is as such,

“Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; […] if such a common motive exists, it will be more difficult for all who feel it do discover their own strength, and to act in unison with each other.”

Tempted, I feel as though there is room to extrapolate to republican governments this notion of formal ethics under a formal imperative as an attempt to establish what is good or bad. For Madison’s Republic, it is stocked in the very principle of republicanism which takes for granted that which compels people to engage, en masse, in political society. In other words, perhaps Madison did not or could not articulate an organizing principle for his Republic that would connect all involved and was only left with that spirit of consumerism we visited in 16th century Venice which is, by his words, is the cause of faction and consequently, its remedy if somehow rerouted. Perhaps it is on this point where Badiou’s Ethics of Singularity has promise. He calls for one or a society in order to fix an orientation to action or judgment to look at the immediate situation and find a new rule. For Madison, Shylock and Antonio, they each have their beliefs of the organizing principles of society and humanity—whether in the Republican principle, general view of humanity or that of contract or societal law—each strand of formal imperatives seems to be guided by this unifying factor which still does not express how one could or should distinguish good from bad. This is where Badiou says one must also know the geopolitical orientation of the world. In a sense, Badiou asks of us to believe in the world and our relation to it. And for this, we must believe in the concrete lives of people. It is through this action that we can find the goodness or badness in the situations we are confronted.


Appleby, Joyce. 1992. Liberalism and Republicanism in the Historical Imagination. Harvard University Press, March 1.
Bloom, Allan. 1996. Shakespeare's Politics. University Of Chicago Press, December 1.