Friday, January 24, 2003

A note before sleep.
Jack Balkin argues that 'symmetry', specifically in racial terms, is not necessarily a precondition for constitutionality. This is something I find odd. My assumption is that, when arguing for or about principles in a democracy, one should treat each individual in a given situation as interchangable with another. And within that assumption, I am interested in logical ways to maintain that balance of representation. "Equal protection of the law" can 'logically' mean only that, regardless of how those who wrote the words acted after the fact.

My assumption is that the forced removal of racial barriers in favor of 'social' equality came about because it was argued that the separation between social equality and civil equality- equality before the law- was artificial. Due to the of the amount of economic activity that takes place in the private, social, realm, it was deemed an unfair asymmetrical political relation if blacks were excluded from aspects of social life.
I think, however, that this argument for the collapsing of the economic and the social into one order, dominated as it obviously by economic interests, can be presented with clear conscience as damaging to democracy. I'll make this quick because I'm tired.
Law is a funny thing. You end up in the position of having to find the logic in illogical positions just to continue struggling in the direction you want to go in. I am not a lawyer, so when I hear of an illogical decision, and in a democracy I would refer to that as an argument for, or from, asymmetry, I throw it out even if the Supremes wrote it. [I'm not big on the terminology of logic, but symmetry again I read as meaning the terms are reversable: a+b=b+a. Or if there is a law A and two people B and W , then AB=AW] Lawyers can't do that. They have to use what they can, even it it means making reference to illogical decisions that can nontheless be used as a precedents. But by finding a history of asymmetry in a democracy, does that therefore make it logical? No.
Having legal precedent is not the equivalent of logic.

The conflation of economic and social man is a problem for a democracy. That we do so as a way of counterbalancing economic inequality, rather than questioning the economic equality itself, is not something that we should be proud of, since by going with the flow we give the game away.
What is interesting about those who criticise such decisions- even those critics who are racist- is that they are arguing-within the limits of their understanding- for a more democratic definition of society. Even though their democracy contributes to the disenfranchisement of an entire segment of the population, it does so not by attacking that segment but by wishing it would just go away. Of course it won't (but the distinction matters) They are nontheless making an argument against the cultural hegemony of economic man.

Leftist analysis, even sloppily written at 12:30 AM
still has its merits.

No comments: