Archive for the ‘Scholarly Criticism’ Category

“The thing speaks for itself.” Res Ipsa Loquitur is a standard legal term, one of the Latin standbys every lawyer holds in their back pocket. A rather vapid phrase, these three words often find themselves standing in for actual argument: When we are already persuaded, things speak for themselves; when we have no substantive argument, we say “just because.” Res Ipsa is in this sense the relative of the most brutal of William F. Buckley’s rhetorical putdowns: Ipse Dixit-ism, “It is because it is.”

I was reminded of the broader danger of Res Ipsa in a recent conversation with a brilliant young attorney. We were discussing politics, rhetoric, and the tendency of the left to expect that simply by stating things they will persuade. Example: “There is a massive income disparity in our nation.” A fact. But not an argument. For those who already believe it is a social and moral problem that there is a huge income disparity, the statement implies that political and legislative actions should therefore be taken. For that audience, Res Ipsa Loquitur. For everyone else not already persuaded, there is only a question mark. It is a classic problem of political communication; to return to WFB, who from his very first moments in the vanguard guided the conservative movement to its modern success: “The truth does not necessarily vanquish…The cause of truth must be championed, and it must be championed dynamically.”

Down with Res Ipsa, with Ipse Dixit.

As lawyers, though, we often fall back on these rhetorical feints — and with so many lawyers in politics it’s no wonder that the concept of “It speaks for itself” is so common. Law, as a discipline, is constantly in the practice of denying its rhetoricity; never quite comfortable with the fact (yes, fact) that law is ultimately, and only, about the process of persuasion. Constitutions and laws do not, actually “speak for themselves,” they require people to read them and interpret them. Cases are applied to situations; cases are also overturned. Judges and lawyers and politicians disagree.

If the law spoke for itself we would have nothing but 9-0 Supreme Court decisions.

But we don’t. The truism is not true; if it walks like a duck and quacks like a duck…it is not Res Ipsa that makes it a duck. It is argument. We have to be persuaded that the walk is like a duck’s walk; we have to be persuaded that the quack is a duck’s quack. Law all too often denies the process of persuasion and shoots to the conclusion, assuming the connections are already made.

“There is a massive income disparity in our nation” is, for the progressive left, a walking and quacking duck. But stating things, however often and emphatically, does not an argument make (see, e.g., Ed Schultz). As WFB said — truth does not necessarily vanquish. And getting away from the mentality that Things Speak For Themselves would be a great start.

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The horrific terrorist attack in Oslo has led to a flurry of controversial accusations among commentators and critics over whether the anti-immigrant, anti-Ismlamic right wing extremism favored by the accused Anders Ehring Breivik are symptomatic—or even directly linked to—other movements on the political right in this country and in Europe. On the one hand, the lone gunman theory (actually the proper term is “lone wolf,” within the community of those who sturdy hate crimes); on the other the environmental and cultural argument. This holds that whether or not Breivik was or was not technically acting alone, he was also acting out crimes justified and enflamed by rhetoric and activism that speaks of “Islamification” of the west, “invasions” of immigrants, and the rejection of modern government as at once Marxist, fascist, multiculturalist, and socialist.

Yes, we have heard much of this before. And many on the left are pointing to the Tea Party. To anti-Islamist crusaders like Frank Gaffney, the group Citizens for National Security, and various conservative columnists.

Is this fair?

I’m going to dodge, and raise another point, about national sovereignty.

Beyond the rhetoric of Sharia-law takeovers and immigrant invasions is a more serious, legal and even philosophical dispute about the nature of nations and national sovereignty. About borders and citizenship. Especially since the Bush era, a cadre of intellectuals on the right have been advancing a “New Sovereignty” theory that is related to this current debate.

At its core, the New Sovereigntists argue that nations and their laws stop at their borders; thus the important of citizenship and immigration are implicated. Sovereignty and rights are enforced by nations and governments, set down in constitutions and codes by responsible governments, ideally democratic ones. Hence these thinkers harbor deep skepticism of “human” rights of “universal” rights, which they see as empty concepts, devoid of real legal meaning and thus potential tools of distant organizations such as the United Nations, which are not elected and therefore cannot be held accountable by the peoples of sovereign nations. A similarly deep skepticism of international bodies such as the U.N. and International Criminal Court usually follows. As does a similarly fierce defense of Israel’s absolute sovereignty–which is seen as perpetually under attack not only by Islamic terrorists on its own soil, but by Islamic nations and their allies at the United Nations.

New Sovereignty found many acolytes in the George W. Bush administration. Much has changed since the foreign policy of the United States has moved away from the his “preemption” doctrine championed by the neoconservatives then in government, who asserted we didn’t need anyone’s permission, thank you very much, to act in self defense. At least self defense as they understood it. In fact the war in Libya is almost Sovereignty in reverse. The United States sought and gained the approval of international bodies, but not the Congress of the United States.

New Sovereignty has interesting and substantial intellectual roots, some interesting, and surprising. One being Carl Schmitt, a German legal philosopher and Nazi collaborator who mostly rehabilitated himself after the war and is now being reexamined by postmodern scholars. Schmitt believed that the only distinction that matters in politics is friend and enemy; this blunt and Bismarckian idea grew in his later scholarship to a view of human and political history that encompassed the “Nomos of the Earth.” Nomos is the Greek word for the concept of rule of law on territory owned by a sovereign power.

“The friend and enemy concepts are to be understood in their concrete and existential sense, not as metaphors or symbols, not mixed and weakened by economic, moral, and other conceptions.” -Carl Schmitt, The Concept of the Political

What we hear today on the right about the incursion of foreign laws into our courts and invasions of foreigners into our communities, diluting our culture and the rule of law has parallels to this. It is happening here with the Tea Party movement and it is happening in Europe as well, in organized and sporadic fashion. I am not, to be clear, proposing a cause and effect scenario. Many of the New Sovereigntists’ arguments are intellectually and legally persuasive. They are important arguments worthy of consideration; my own critique of President Obama’s handling of the war in Libya is, actually, influenced by this thinking to a strong extent.

But ideas, and their followers, do not exist in a vacuum. I do not know if Breivik was reading Carl Schmitt, or anyone else. Or secretly in league with Tea Party Minutemen on the Arizona border. For my purposes, those are only some of the relevant questions. The underlying ideas matter as well, and they go far beyond what a deranged Norwegian scribbled in a manifesto.

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I posted today on POLITICO about the ongoing dust being kicked up by GOP Presidential hopeful Haley Barbour, whose recent utterances have reminded us of the lingering tinge of racism in the deep South and within the base of the GOP. In my post I refer to the race-related missteps of conservatives past, including Ronald Reagan, who made the unfortunate choice of launching his 1980 presidential bid with a speech on “states’ rights” in Philadelphia, Mississippi — site of the brutal murders of Civil Rights activists that I and many younger folks first learned about through the film Mississippi Burning. I discussed this episode at length with Reagan’s biographer Lou Cannon, who said to me that his extensive research (and first hand knowledge) led him to the conclusion that there was no intentional decision to choose Philadelphia because of its racially inflammatory history, but also that it illustrated an insensitivity on race that is hardly unique among those on the right. The impact of actions such as the Philadelphia speech are real, and they linger. The most apt phrase I’ve come across in my research on conservatism on this problem is from former New Jersey Governor Christine Todd Whitman, who wrote in her memoir “It’s My Party Too,” that Republicans do not know how to “think racially.” Haley Barbour is just the latest example, with his rosy reference to the White Citizens’ Councils and his Confederate license plates.

Read my POLITICO article here, published February 15, 2011.

Read my Scholarly research paper “Conservatives and the Rhetoric of Equality” posted here on a friend’s blog in 2007.

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Two years ago I prepared a presentation for the National Communication Association on the rhetorical parallels between Ronald Reagan and the newly elected President, Barack Obama. I was coming off the campaign trail myself, having served as communications director for David Kurkowski, the Democratic candidate for Congress in New Jersey’s 2nd District. We were up against a seven-term incumbent, Frank LoBiondo, whose popular image, pork barrell projects (and massive stockpile of cash) made him a formidable opponent. We ran an agressive campaign and gave LoBiondo the toughest challenge of his career, but even the Obama tide wasn’t enough to put us over the top.

In my own speechwriting and message strategy with Dave, I followed Obama’s model, and in doing so I also realized I was following the Reagan model. In the analysis here I am focused on Obama’s campaign rhetoric, not the more mangerial, impersonal communication style that he seemed to switch to after he was elected. In part, one must conclude that this switch was due to a misperception by Obama that “governing” is not the same as running a campaign. Actually, it is; whether campaigning for election, or campaigning for a health care bill, or campaigning to maintain suppport for a war in Afghanistan…it is always about campaigning, about persuasion.

With the re-hiring of David Plouffe and a distinct recalibration of the White House communication strategy there are signs Obama may be returning to the Reaganesque style that propelled him to office two years ago. His Tuscon speech struck all of the right notes, and aprt comparisons were made to Reagan’s Challenger speech. The State of the Union fell short, though, and as I blogged earlier missed far too many rhetorical opporunities.

On Reagan’s 100th Birthday, it is worth a look back, though, at how Obama’s campaign followed the Gipper’s playbook. Let’s hope he sticks with it.

I. Obama’s Nevada Interview

Barack Obama had been an established figure on the political stage, let alone a presidential candidate, for quite some time before a remarkable interview he conducted with the Reno Gazette-Journal prior to the “Super Tuesday” primaries in 2008. His keynote speech at the 2004 Democratic Party National Convention thrust him into the public eye, generated comparisons to some of the most acclaimed convention speeches of the past, and attracted the attention of scholars of rhetoric and communication.

What made news in the hour-long Reno interview was a short segment that finds Obama implicitly comparing himself to Ronald Reagan. Here is part of the relevant passage:

I don’t want to present myself as some sort of singular figure. I think part of what’s different are the times. I do think that for example the 1980 was different. I think Ronald Reagan changed the trajectory of America in a way that Richard Nixon did not and in a way that Bill Clinton did not. He put us on a fundamentally different path because the country was ready for it.


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