The purpose of this unusually long post is to review and expand upon a discussion under a set of posts by Tim Kowal and Burt Likko, who are practicing attorneys with interest in Constitutional Law, on doctrines of Constitutional interpretation. The perhaps still distant objective is a framework for a “synthetic originalism” or “vital originalism” or “living originalism,” or a Unified Theory or at least Adequate Description of American Constitutionalism…
Because the idea of “terror” is a definitional and circumscribing topic for our “way of life,” perhaps for ways of life at all, we should not be surprised if it is not merely difficult to define, but ends up seeming to connect everything to everything – if every particular question explodes like a conceptual bomb striking ever other question in the vicinity.
founding the sacrificial state and the incipient civil religion, a system of mutual obligations justifying living, as well as killing and dying,
…a residue or by-product of the same (world-)historical process realized as a nearly entirely dysfunctional passive aggressive national government care-taking the affairs of the passive aggressive polity that it passive-aggressively reflects, represents, and embodies, and that it is expected to preserve and to protect.
As is typical for Administration critics among left-liberals and libertarians, Digby blames the the executive branch, here represented by its last two chiefs and its current top lawyer, for offering lawyerly locutions on a decisively legal matter, as though the answers to the underlying questions would and must be both non-legalistically simple as well as simply favorable to the ideological liberal legal position. As an ideologue, she is unwilling to imagine that the truth might be relatively simple, but unfavorable to her ideology or at least to the notion of its universality and completeness. The spokesperson for the executive branch is at such times embodying the foundational paradoxes of the liberal democratic order, at the classic exceptional moment in which liberalism encounters the coincidence of its own real-political and conceptual limits.
A political identity and a position on political identity may in the final analysis be indistinguishable from each other, and I cannot legitimize my own concept of legitimacy or of political identity without referring to the same to be legitimized, identity-creating or -affirming or -confirming concepts.
The overall dysfunctionality of a political discussion can be the product of countless such lesser dysfunctionalities, though the overall dysfunctionality of that discourse may in turn be what makes it manageable, or manageable enough. We dislike things the way they dysfunctionally are, and that is how we like things.
The pathos of the libertarian lament reminds us of real death and suffering, and of real failures of policy and moral imagination, but such stubborn self-insistence makes it difficult for others to speak to the would-be prophets other than as to children. Here as so often, the ideological libertarian position reveals itself to be implicitly pacifist and essentially anti-political, in a word utopian, in calling for an impossible polity, one that would be inherently incapable of defending itself or its integrity against violent opposition, whether from actual states or from so-called non-state (actually crypto- or proto-state) actors.
In an “objective” if not necessarily “morally clear” accounting, the thousands killed and thousands more disfigured and terrified would receive many thousands of times greater concern. The child dismembered by a bomb blast, the soldier buried alive in a bunker, the prisoner merely sent off to some conventional Hell, and on and on, precisely as they become multiplied by thousands or millions and turned into numbers, all seem to command less outrage and concern than the captive in manacles.
