Dark Bilious Vapors

”... Katrina's big lesson is that the crust of civilisation on which we tread is always wafer thin. One tremor, and you've fallen through, scratching and gouging for your life like a wild dog.

You think the looting, rape and armed terror that emerged within hours in New Orleans would never happen in nice, civilised Europe? Think again. It happened here, all over our continent only 60 years ago. Read the memoirs of Holocaust and gulag survivors, Norman Lewis's account of Naples in 1944, or the recently republished anonymous diary of a German woman in Berlin in 1945. It happened again in Bosnia just 10 years ago. And that wasn't even the force majeure of a natural disaster. Europe's were man-made hurricanes.

The basic point is the same: remove the elementary staples of organised, civilised life - food, shelter, drinkable water, minimal personal security - and we go back within hours to a Hobbesian state of nature, a war of all against all. Some people, some of the time, behave with heroic solidarity; most people, most of the time, engage in a ruthless fight for individual and genetic survival. A few become temporary angels, most revert to being apes.

The word civilisation, in one of its earliest senses, referred to the process of human animals being civilised - by which we mean, I suppose, achieving a mutual recognition of human dignity, or at least accepting in principle the desirability of such a recognition. (As the slave-owning Thomas Jefferson did, even if he failed to practise what he preached.) Reading Jack London the other day, I came across an unusual word: decivilisation. The opposite process, that is, the one by which people cease to be civilised and become barbaric. Katrina tells us about the ever-present possibility of decivilisation.
…
So never mind Samuel Huntington's "clash of civilisations". That, as the old Russian saying goes, was long ago and not true anyway. What's under threat here is simply civilisation, the thin crust we lay across the seething magma of nature, including human nature. New Orleans opened a small hole through which we glimpsed what always lies below. The Big Easy shows us the Big Difficult, which is to preserve that crust.

In political preaching mode, we may take Katrina as an appeal to get serious about addressing these challenges, which means the great blocs and the great powers of the world - Europe, America, China, India, Russia, Japan, Latin America, the UN - reaching for a new level of international cooperation. But on a sober analysis, we may venture a more pessimistic conclusion: that somewhere around the year 2000 the world reached a high point in the diffusion of civilisation, to which future generations may look back with nostalgia and envy.

As so often, I hope I'm wrong….”

” The two key constitutional commitments of those who would make government small enough to "drown in a bathtub"—as conservative Grover Norquist puts it—are the doctrines of federalism and individual property rights. Together, these two doctrines comprise what some conservatives call the "Constitution in Exile." The Constitution in Exile sees government as the enemy of individual rights. It insists that the preservation of such rights requires that government refrain from amassing power. And the individual rights it deems paramount are those of property and contract—rights that, if taken to the lengths the conservative jurists propose, would hobble government power as we now know it. The Constitution in Exile is, in many ways, the Constitution that existed before the New Deal.

Since at least the New Deal, and in some circumstances even earlier, federal officials, Supreme Court justices, and the American populace have replaced that limited vision with an alternative model of federal power. The modern constitutional vision remembers that the purpose of the Constitution is to provide for the general welfare. The general welfare in turn requires the government to affirmatively ensure the safety and security of the person, to maintain the minimal material conditions necessary to sustain one's civil and political life.

Under this vision, federal power is used to protect the weak and the vulnerable rather than harm them. Under this vision, individual rights require affirmative steps by the government, rather than passive restraint. Private power—and in the case of Katrina, the forces of nature—can pose greater threats to individual liberty than public power. It is, this New Deal vision holds, only government power that creates such liberty...
…
Yet shrinking government even more than it's been trimmed already is precisely the goal of the Constitution in Exile. Such a Constitution is a figment. It invokes nostalgia for an agrarian society with individualistic values of self-reliance that may never have existed, and that certainly disappeared entirely more than a century ago. It is a world in which FEMA, the Department of Education, and the Department of Health and Human Services—not to mention Social Security, Medicare, and unemployment insurance—do not exist or are severely constrained.

The outrage Americans on both sides of the political spectrum have expressed toward the sluggish federal response to Katrina suggests just how divorced the Constitution in Exile, and those who reify it, is from the expectations of the great majority of the population. Those left stranded in New Orleans felt acutely the absence, the national government's abdication of responsibility, but they were hardly alone. Reporters, commentators, and politicians everywhere had no doubt that resolution of this crisis was a job for the national government—and that the national government had failed miserably. None of them could possibly support a Constitution in Exile. The very idea offends, when the need for government is so dire.
…
Judicial philosophies are not abstractions. They represent visions of a Constitution that are used to govern our very real world. Those who would reinstate the so-called Constitution In Exile would turn their backs on 75 years of federal commitment to protecting individuals. They would indeed have a federal government that they can "drown in a bathtub"; an unfortunate but telling metaphor after the events of the last week. No judge should be confirmed to the Supreme Court unless he or she repudiates that worldview. The consequences are no longer merely academic.”