 The Utopian Mask of WIlliam O. Douglas: Law and Anticipatory Illumination
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Dec. 31st, 2005 @ 04:05 pm 
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Is it possible to imagine an intellectual influenced by Foucault writing a parody of a United States Supreme Court opinion? Yes, but fortunately for us there is no need to write such a parody because Justice William O. Douglas got there first. This came home to me when I reread Douglas's (in)famous opinion in Griswold v. Connecticut. (GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).)
Peter Irons in his A People's History of the Supreme Court, puts it aptly, "Douglas was a former Yale law professor, and his Griswold opinion read almost like a parody of academic jargon." (p. 429). In other words, Douglas did not only want to find a "right to privacy" in the Constitution he also wanted to send up all of those who wrote opinions as if 'the rule of law' could be derived from a set of propositions with something like deductive accuracy.
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman… (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' (Griswold v. Connecticut 85 S.Ct. 1678, 1682.)
(Is it any wonder that Scalia despises Douglas?)
There is no doubt that Douglas was having fun with the idea that he could find a right to use birth control in the zones, penumbras, emanations of the constitution. The dissenting opinion that he cites as authority is of course his own. If Nabokov could have written a few opinions for the U.S. Supreme Court (and why not?) they would probably exhibit some of the self-referential humor that Douglas allowed himself.
Before I went to law school William O. Douglas was one of the few justices who was able to inspire within me some bit of hope for the legal system. It was precisely because he was able to write legal decisions that were self-critical of the exalted majesty of legal reasoning that I looked upon him with some kindness. All judges, all writers, wear a mask and the mask is as much a part of reality as the face... in fact the face is just another mask as the 'voice' of a writer is never the voice you will hear when he talks to the butcher. So I understood that Douglas when he wrote his decisions and acted on the national stage as Justice Douglas, by necessity was talking in a legally mediated voice, a voice that was never completely his. And yet, when he put on the mask of Justice Douglas, and when he decided to write opinions in the voice of William O. Douglas, I knew that we no longer simply 'receive' the 'law of masks', but rather something that felt true to the artifact of the law as well as to everyday life.
So it was a small surprise when I arrived at law school that I discovered that not only conservatives despised Douglas, but even most of my liberal professors. They despised him for the same reason that I admired him.
Peter Goodrich in his wonderful tour de force (if a little too intensely pomo) The Languages of Law: From Logics of Memory to Nomadic Masks speaks wonderfully of the masks of law. It is my contention that in many of his opinions Douglas quite self-consciously tried to show those masks as masks, tried to reveal the voice of law as a legitimation of violence and rapaciousness, while at the same time assuming that there was somewhere another mask he could wear that looked to a more realistically hopeful future and another voice that he could sound, a voice emerging from Shelley and Wordsworth, two of his favorite poets. By the time the Warren Court had ended he knew that the mask he would wish to wear on the national stage and the voice he would wish to hear in his opinions could never actually be worn or heard, yet in many of his opinions he would reflect self-consciously on what could be seen and heard by the law and what the principalities and powers have always already pre-ordained what must be seen and heard of the law.
Listen to Douglas's voice in his dissent in Sierra Club v. Morton, where he claims that inanimate objects should have standing to sue the United States Government for possible environmental damage.
Mr. Justice DOUGLAS, dissenting.
****
The critical question of 'standing' would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. (My emphasis).
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole--a creature of ecclesiastical law--is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a 'person' for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes--fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water--whether it be a fisherman, a canoeist, a zoologist, or a logger--must be able to speak for the values which the river represents and which are threatened with destruction. (Sierra Club v. Morton 92 S.Ct. 1361, 1370 (Douglas, dissenting.)
The stones will stand up and speak! This is the ancient wisdom of the New Testament and ur-Myths of the matricentric return to the Dike of Love and a further return to the older goddess Themis and her Furies, the old justice of primitive communism that was mother earth herself. (Or at least this was the leftist myth promoted by way of Bachoffen, Engels, Erich Fromm, radical Feminists, and New Age occultists.) Douglas was good enough to take a cue from his own experience and "discover" this return to earth. He found in the legal fictions of Maritime Law and Corporate Law, a legal reason for an "ecological unit" to find advocates against a Federal Agency which wanted to allow the Disney corporation to build a resort in a national wilderness area.
The legal issue here is the wonderfully absurd notion of standing. It is a piece of transcendental nonsense and non-lawyers will need some brief explanation of the concept. The doctrine of standing derives from Article Three of the United States Constitution and the "case or controversy" limitation that the early Supreme Court placed upon itself. If there is no case or no controversy to be judged then there is no reason to deliver a judgment. One of the ways to decide whether there is a case or controversy involved when a plaintiff comes before the court is to ask if the plaintiff has been 'injured in fact.' The plaintiff herself must be somehow injured for that plaintiff to have standing to bring the case. Standing is a jurisdictional issue and since subject matter jurisdiction cannot be waived courts will often examine whether standing in fact exists even if the parties to the case do not raise the issue. Before the Warren Court the Supreme Court had a narrower view of standing but during the 1960's the doctrine of standing almost looked as if it would become obsolete, especially in the area of administrative law. Beginning with Sierra Club v. Morton the court began to once again tighten the standards. Thus there are many administrative rules which the administrative agency can simply ignore and no one has standing to make sure they are enforced.
For an example I refer the reader to ALLEN v. WRIGHT, 468 U.S. 737 (1984). The situation in Allen was the following. According to the IRS Code the Internal Revenue Service is not supposed to grant tax exempt status to racially discriminatory private schools. The plaintiffs, who were black, claimed that the IRS was granting tax exempt status to many such schools. They claimed that as attendees of public schools in school districts that were in fact segregated, granting tax exempt status to these white flight public schools caused them harm. This sounds like a reasonable argument to me. In the real world if you believe that integrated schools are a good and granting tax exempt status to racist private schools is harmful and the agency that is supposed to monitor tax exempt status is ignoring its duty then one would think that somebody somewhere must have received a harm. But Justice O'Connor, writing for the court did not grant the parents standing, essentially saying that no harm was done to the plaintiffs. The problem here is that if the parents don't have standing then no one has standing. Thus we must conclude, and this is never stated in O'Connor's opinion, that when the IRS grants tax exempt status to racist private schools, an action which is prohibited by 'the rule of law' there is no injury done to anyone in the world.
Professor Douglas O. Linder on his website Exploring Constitutional Law has some rye comments about this aspect of the doctrine of standing.
Standing doctrine confuses both lower courts and litigants, because the Court manipulates the doctrine to serve other objectives. When the Court wants to reach the merits of a case, the standing doctrine is often relaxed. Conversely, when the Court wishes to avoid deciding the merits of a case--or perhaps, when it wants to shut a whole category of cases out of court--, the requirements for standing are tightened.
Those who believe that the rule of law is somehow derivative from principles or texts could never make such a statement. To believe the above essentially draws the curtain back and reveals the man (sometimes, but rarely, the woman - see above Justice O'Connor) who pulls the levers.
Douglas wanted to pull back the curtain. Towards the end of his career he wanted to show the hand that manipulates the judicial "opinion", as if saying that there are many occasions where the rule of law is no more than the judges opinion. In his dissent in Sierra Club v. Morton Douglas wants to show how "standing," is mostly used as an excuse for the Court to blind itself. Thus by limiting who the court can see as a party the court can also limit whole classes of cases it can hear as a court. If the court does not want to see you standing in front of it then by definition the law is unable to see you or your injury. Like magic, from a magician who is believed, a charlatan who wears the mask of the law, the case disappears from the box and there is no controversy. In Sierra Club v. Morton the Sierra Club has no standing to sue because it didn't allege in its complaint that any of its members had a relation to Mineral King, the mountain and valley where the Disney Corporation wanted to build a resort The court's own inability to see the party is displaced, through legal reasoning, onto the party who is suddenly unable to be seen, something like Ralph Ellison's invisible man. In relation to this particular suit the party is legally invisible. It then becomes the party's inability to stand for the issue in the conflict at hand that is made the excuse for the Court's inability to see the party's relation to the conflict. It was Sierra Club v. Morton that began the roll back that resulted in Allen v. Wright and thus the parents of black children do not have standing to challenge the Internal Revenue Services' refusal to enforce a law that would refuse tax breaks to segregated white flight private schools. If an administration or the IRS wants to violate the law by giving tax breaks to racist non-profits then nobody has "standing" to challenge the law.
But Douglas wanted to do something different, probably more radical than he realized. For him the earth itself could provide standing, thus the legal fiction of the corporate person that is the Disney Corporation, could be countered by the legal fiction that a forest could also be a recognizable 'entity' thereby providing a place for the stand of trees to be represented in the legal fiction that is called 'standing'. Fiction upon fiction allowed Douglas to stand trees on the earth itself thus finding some reality in all of the legal metaphors and narratives.
Douglas shows us how flexible any notion of the "rule of law" actually is and does not hide the fact that he does so… If the judge wants to make a "rule of law" then all that he has to worry about is whether someone is interested in the particular fiction he wants to tell. The fiction of giving standing to rocks and tress and rivers only has to be accepted by a critical mass of people who believe in it as a legal 'reality' and then it will become true. A little known fact is that Douglas and his good friend Justice Hugo Black were the only two modern justices to dissent from the most destructive legal fiction ever invented: i.e. that corporate business institutions should be granted constitutional rights as legal persons. (See Wheeling Steel Corp. v. Glander 337 U.S. 562, 579 (1949), (Douglas Dissenting.)) Douglas could never win that battle. (At this point, a substantial revolution would be required to take constitutional rights away from these immortal fictional persons that we call Corporations.) But as long as we are able to see corporations as legal persons why not allow rivers and forests the same fictional status to defend "themselves" against corporate exploitation. Douglas's attitude could be stated in something like the terms of Georg Lukacs' in this way: As long as we are on this path of reification let me show you how it can be done without a slight of hand. I have no need for mystification. I can create legal fictions from whatever story I choose. As long as we as a court have the power we might as well use it to tell a good story. The only thing the court has to worry about is whether anybody will be engaged enough by this fiction to accept it as a metaphor we can live by.
In some of his best opinions Justice William O. Douglas was performing what Ernst Bloch called in his book The Utopian Function of Art and Literature 'anticipatory illumination.' Anticipatory illumination is a kind of vanishing mediator between a vision of a possible "reality" and the realization of the subject within "reality." It appears through working; the way we imagine how working might be and the working we do when we create symbols and recreate them for ourselves. Anticipatory illumination is both a critical stance toward a work and a way of working through. It's original meaning for Bloch was to explain why a work of art was strong - revelatory of the past and open to anticipation of possible futures - and also a way for a critic or reader to see into the work of art, see how it provides possibilities of hope we are missing in our unimaginative drudgery of everyday life. Douglas, on occasion, showed how the law was a fiction that could be used for anticipatory illumination and showed how a 'judge-critic' of the law could create an imaginative space open to the hopeful choices of our future.
This post has been Carnivalized at Blawg Review #38 @ Legal Underground. Also take a look at previous Blawg Reviews @ http://www.blawgreview.com/
Jerry Monaco
New York City
31 December 2005
This work is licensed under a Creative Commons License.
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Utopiamusic: Pavlov's Ball - Aimee Mann |
| From: | ![[info]](http://l-stat.livejournal.com/img/userinfo.gif) jerrymonaco |
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| Date: |
December 31st, 2005 09:19 pm (UTC) |
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A summary of this piece
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An appreciation of Justice Douglas's doctrine of standing in his dissent in Sierra Club v. Morton, where he claims that inanimate objects should have standing to sue the United States Government for possible environmental damage. I use the philosopher's Ernst Bloch's notion of 'anticipatory illumination' to show that a Supreme Court Justice in dissent can be hopefully utopian.
![[User Picture Icon]](http://l-userpic.livejournal.com/72078940/3072132) |
| From: | monacojerry |
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December 31st, 2005 09:24 pm (UTC) |
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Re: A summary of this piece
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Extend the ideas in this essay....
| From: | (Anonymous) |
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January 19th, 2006 03:56 pm (UTC) |
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Who stands for the public at large?
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The real question is, who stands (or is permitted to stand) for the interests of "everybody"? In particular, who "stands" for the Rule of Law in general?
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| From: | monacojerry |
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January 19th, 2006 07:17 pm (UTC) |
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The rule of law as limit and as social dominatiion
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My attitude toward the rule of law has been shaped by the abolitionist William Lloyd Garrison, who I find to be a profound moral thinker on these issues.
I am not sure I believe in the Rule of Law in general. I think that the rule of law is not a bad thing but it is a matter of social contest and struggle. The rule of law is a part of historically developed human institutions that are specific to each society.
(This is in contrast to our moral judgements, which I think, to some unknown extent, are human universals. If we can see the world from a fictionally established distance of 'anticipatory illumination' it is because our desires transcend each society and are represented in art through the never fully articulated universals of human nature. My pomo friends object to such statements.)
In normal times the rule of law is usually used as a means of social domination and partially as a limit to social domination. In as much as the rule of law codifies the limitations imposed upon the rulers of society by social struggle which sought to limit the arbitrariness of those rulers I think that the rule of law is a good. In so far as it codifies an established regime of domination, and allows us to ignore the everyday violence of life, then I think the rule of law needs to be rectified and struggled against.
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