Easily Distracted

Even back when my political sensibilities were more party-line progressive than they are now, I was always uneasy about the expectation that any given action by a labor union mandatorily demanded unquestioning support.

Partly that’s the consequence of growing up with a father who represented management in labor disputes. Not just my father’s views on things, but also some of his concrete experiences (like the time that someone showily broke into his office and messed up papers during one negotiation, to ‘send a message’), were persuasive to me as a young adult that there was a morally complex terrain involved in modern unionism, that any given strike or labor action required independent assessment rather than reflexive endorsement. Heck, even my dad thought some strikes were legitimate, and that unions were an important institution. Near the end of his life, he was sometimes bothered, in fact, by the waning of the union movement: my sense was that he preferred arbitration with many union leaders to some of the kinds of workplace litigation he was increasingly involved in. I once saw a videotape he did for non-union workplaces about how to handle drives to unionize, and he went well beyond explaining what their legal obligations were: the first and last thing he said, I recall, was that any employer who thought that a lack of a union was a license to squeeze his employees was going to get a union and he was going to deserve every consequence that followed from that.

So, for example, the proposition that Wal-Mart employees need collective representation that aggressively stands up for their interests strikes me as unquestionable. The only solution for predatory employment practices in cases where workers have few if any alternative sources of employment and woefully unfair terms of labor is unionization. You have to have a legally protected right to unionize or to bargain collectively in a free society, and some strikes or labor actions deserve the general endorsement of a public, even when those strikes inconvenience us.

That support is for me, and I think it ought to be for anyone, given only on a case-by-case basis. Some strikes I simply can’t work up any support for. It’s hard for me, like almost everyone else in the Philadelphia area, to feel any real support or warmth for the striking mass transit workers who have crippled transportation this week. It doesn’t affect me personally, though it has increased my wife’s commuting times due to the big spike in cars on the road. However, this is a very public event: it completely changes and complicates the landscape of daily life for a large number of people in the metropolitan area, most especially poorer Philadelphians who are dependent on bus transport and schoolchildren in the city who use vouchers to travel on public transportation to get to school. Moreover, if the union gets even some of what it is asking for in health care benefits, the cost of that is going to come out of the pockets of transport riders in some fashion or another. A strike against a private business is one thing: in a way, you can usually just avoid engaging it altogether, work with some other business for the time being. This is different.

The union involved doesn’t seem to recognize the difference, and in failing to do so, neatly explains the eclipse of the modern labor movement in America. They’ve made no meaningful effort to speak to the public in advance of the strike, to prepare the ground, no attempt to explain or frame their actions in that arena. They’ve acted in a way that has huge public consequences with almost no sense of engagement with that public, and this particular union has done that quite a few times in the last decade. The general public are treated largely as spectators with their noses pressed to the glass, watching some private tableau unfold inside a distant interior. This is equally true for the managers on the other side of the negotiations, of course, but that’s the problem. People expect them to be inscrutable, distant and self-interested (even though they are also public servants); they have a different expectation of labor. Labor’s decline began in the United States almost as soon as it won legitimacy as a public institution, as soon as the right to organize was enshrined (and also obstructed) by statute, precisely because of a consistent inability to articulate its actions through an alliance with some larger general interest. That accelerated in the late 1970s and early 1980s; now many unions don’t even bother to try to pretend that the public consequences of their labor actions are worth more than a cursory address, or maintain incorrectly that the public interest is best addressed not at the site of particular actions, but instead through general political engagement at the level of national and state elections. (There are very important and exciting exceptions to this, but that’s just it: they’re exceptions.)

As long as unions seem too inwardly self-interested, anybody who has a cultural ethos that values labor in terms beyond the contractual and financial, who has a sense of professional pride and commonsensical tolerance for small-scale workplace injustices, who sees their labor in relation to some larger obligation (a sensibility that spans across social class in the United States) is likely to feel uneasy with contemporary unionism. As long as unions seem as obsessed with bureaucratic over-regulation of workplace obligations as any middle-manager straight out of “The Office”, as eager to return all their members to some mediocre mean of on-the-job effort, or as uninterested in the long-term viability of the institutions for which they labor as stock-price obsessed CEOs, they’re going to turn off many potential members. Yes, these are all caricatures, exaggerated by the news media, but I suspect many people in their working lives have encountered a few vividly personal examples as well as telling public anecdotes that verify the caricatures in some respect.

Certainly that’s what’s happening in Philadelphia now. Most people would probably be annoyed by the strike no matter what the union did, but it would help to see that the union is at least trying to care about the consequences.

So Harriet Miers withdraws. Not a surprise.

I never weighed in on the nomination in the first place, and that’s because I had (perhaps characteristically) ambivalent feelings about it.

On one hand, I thought some of those who were hesitant to uncritically join in the complaints about her lack of qualifications had a point, that the grooming of meritocratic credentials has become more and more of a barrier to usefully heterogenous composition of various important institutions, that past justices who have made useful contributions to the Supreme Court have come in without service as federal judges. You could even argue that this is just what the Court needs now, someone with practical real-world experience of the law rather than someone who has primarily been inside the Beltway.

There was also the tantalizing possibility that Miers wouldn’t be a far-right ideologue, but instead a fair-minded, deliberative presence on the Court. And many on the left have been mindful that the next nomination we get may be far less palatable than this one, that in fact Bush may placate the factions of his party who want the second coming of Robert Bork. I couldn’t help but think that this is what some on the far right were disappointed by: not Miers’ qualifications or lack thereof, but that they wanted a nomination that they could rub liberals’ noses in, an unmistakeable trophy of ascendancy. Now maybe they’ll get it.

I can’t really bend my head around easily to that kind of calculation, supporting some specific person instrumentally because other outcomes may be worse. This is the problem with being strongly driven by a specific view of “best practices” in political and deliberative process: you are sometimes bound to support results or decisions that you personally dislike, and sometimes bound to oppose results or decisions that you think might produce some temporary strategic advantage for you or your interests. I’ve been thinking about that a lot this semester, and realizing that in many cases my political affiliations are mobilized largely by the same kinds of things that come into my work on deliberative bodies of various kinds within my own institutional world. If I’m dealing with someone who is judicious and sagacious, willing to see all sides of an issue, able to detach from their immediate advocacy or constituency commitments, able to argue pro and con with equal facility, I’m basically happy even if the outcomes of deliberation aren’t entirely favorable to my own preferences. If I’m dealing with someone who can’t or won’t exhibit that kind of restraint, who can’t step back, who always advances their own interests and prior designs by hook or by crook, I’m unhappy even when the results are favorable to my own judgement on the issue at hand.

When all was said and done, Miers wasn’t even convincing as a hard-nosed, accomplished lawyer who would bring practical experience to the Court: there simply wasn’t any evidence at all of her thought, of her deliberative profile, and too much evidence that she was a lackey and sycophant. Maybe she would have been great: everyone said Conan O’Brian would suck at being a late-night host based on a similar lack of external evidence of his talents, but that was a case where people should have listened to what the insiders knew. But the stakes are a bit higher here, and the bar should be set lower. Let’s just hope that the course correction in the next nomination is towards demonstrable merit rather than towards producing a trophy for the religious right.

I despair, I really do, whenever I read someone like Maggie Gallagher over at the Volokh Conspiracy combine what appears to be a functioning intellect with sheer empirical bullheadness when it comes to characterizing the history of marriage and using that history as a way to characterize what is universally common (and therefore pragmatically dictated) about marriage as a social institution.

It’s worse because Gallagher is apparently aware in some sense of the true picture, but somehow doesn’t seem to allow that awareness to penetrate her idee fixe about marriage. The argument she makes is that marriage is cultural and social, rather than natural or innate (good so far) and that this is demonstrated in fact by the wide historical and spatial variation in actual forms and institutions of marriage. Also good so far.

But then we get flatly stupid, pulled-out-of-the-ass comments like, “anthropologists in the thirties went out into the vanishing world of human diversity, the reason they found marriage everywhere is that societies that do not hang onto the marriage idea do not survive very long”. I’m sorry, but what? Where the hell is that coming from? Could we have some specifics? Societies “not surviving” in the 1930s where that non-survival is singularly linked to the abandonment of the “marriage idea”? Or how about the equally strange idea in the same entry that the Roman Empire fell because of “sexual disorganization”. That ought to be the new example given in the dictionary under the term “reductionism”.

Gallagher is clearly aware that many societies in world history, some of them “surviving” over centuries, did not cleanly contain much procreative activity inside of clearly defined legalistic institutions of marriage. She also clearly knows that polygamy is a far more common form of marriage across human history than legally exclusive monogamy. Both facts have profound implications for the argument she’s making, but she largely ignores those implications, or shifts the goalposts so that she professes to be less concerned by polygamy than by gay marriage, because at least polygamy maintains a marriage-procreation connection, in her reading. Or she offers really misleading observations, such as the fact that most polygamous societies actually practice monogamy when you get down to the average marriage. Yes, perhaps, but that’s not a function of law or social institutions: it’s a function of money: you can have as many wives as you can afford in most cases.

This is not even touching all the other complications that haven’t come up in the Volokh threads: fosterage. Wet nursing. Sanctioned extramarital relations or institutionalizations of bastardry.

Which gets at the function of marriage in many historical cases, if it can be reduced to a function. It’s not managing procreation, or ensuring child-care. It’s about many other things as well, such as mobilizing labor through kinship (not the child-parent bond, but other lateral kinship bonds). And following that, not just labor, but mobilizing, containing and regularizing the distribution and circulation of wealth and resources between kinship groups. It’s not surprising that Gallagher ignores this entirely, or reduces it to parent-child issues, because if this is the function of marriage in many societies, then it’s perfectly consistent with many of the desires for the institutionalization of gay marriage, which is being asked for in many cases in order to manage inheritance and wealth sharing.

And, of course, to manage those issues not just between partners (and their respective families) but between gay couples and children. It somehow escapes Gallagher that it is now possible for lesbians to have children with the help of some male masturbation and a turkey-baster. Technologically-facilitated single-sex male production of children is longer off, but it is more than possible for two male partners to wish to raise a child together. This ought to make Gallagher’s desire to extend marriage stronger given her exclusive reading of it as a social institution designed to manage procreation, but it doesn’t. If she’s against the extension of marriage to all social units which might wish to manage the consequences of procreation, then she ought to be against adoption, fosterage, orphanages, child support payments or anything that tries to substitute for or manage procreation outside of exclusive heterosexual marriage. She doesn’t appear to be, though maybe she’s saving that for later in the crusade.

Update: Another factual howler in Gallagher’s final substantive post over at Volokh: that historical examples of marriage institutions demonstrate that successful societies understand that children need fathers, and provide social institutions that ensure the presence of fathers in the life of children. If there’s anything more variable in human child-rearing practices across space and time than the role of fathers, I’m hard pressed to think what it is. 20th Century nuclear-family ideas about fatherly involvement with the nurturing of children are definitely not the common standard, any more than the companionate vision of marriage as partnership in domestic and familial tasks is.