Ties that Bind

BOOK I.  Chapter the tenth. Of the PEOPLE, whether ALIENS, DENIZENS, or NATIVES.

This chapter is about the different legal statuses of residents within a governmental territory.  The part that caught my eye was Blackstone’s elucidation of  the concept of “allegiance.”  According to Blackstone, “Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.”  p. 354  Now, the Commentaries are full of these wonderful etymologies, but reading them I always feel a bit like I’m playing that  party game, in which false, but formally plausible, definitions for some unknown term are mixed up with the  dictionary entry, and the object is to pick the authoritative one.  If the game goes on long enough with canny enough participants, the false entries get better and better until eventually the published dictionary definitions begin to seem as contingent as the outrageous lies your fellow players are inventing.  In this case, though, I don’t think it really matters whether the word allegiance actually comes from the word for a physical tie, or whether this is a linguistic creation myth.  Either way, the notion that allegiance to a government leader is like being tied to that person with ligaments illuminates something about Blackstone’s concept of government.  

There is something so personal, even physically intimate, about the relationship Blackstone draws between sovereign and subject — and between the law and the people.  Quoting Sir Edward Coke, he explains that even without taking any express oath, “all subjects are equally bounden to their allegiance . . . because it is written by the finger of the law in their hearts.”  p. 357  Is this a sentimentalized characterization of subjection by governmental force?  (I can almost hear Nietszche cackling.)  Or does it offer us a glimpse of some authentic affective connection between a citizen and her government once more readily experienced and now almost completely lost?  Is there any difference? 

Here is a conversation I had recently with my nine-year-old daughter, Lincoln, as we were leaving the house on some quotidian errand:

  • Lincoln:  Mom, you know what’s really funny?
  • Me:  No, what?
  • Lincoln:  If you weren’t my mom, I wouldn’t love you.
  • Me:  Unh.
  • Lincoln:  I mean, I can’t imagine not loving you, but if you weren’t my mom, I wouldn’t.

 Though I find this particular structural analysis of affective connection a bit unsettling, I don’t for a second doubt its accuracy.  My child is passionately attached to me and I to her, and there is no question that our roles as mother and daughter begat the passion, not vice versa.  She didn’t see me one day across a crowded playground and think to herself — “now there goes a womanI would like to be my mother.”  More to the point of this essay, she didn’t check off my name on a list of candidates vying for that position.  She didn’t choose me, nor I her.  We were thrust into our role relation by an accident of genetics — just like the sovereign and subject of a hereditary monarchy.  

Here, I realize that I need to clarify that the mother daughter role relation I mean to reference as the source of maternal/filial connection is practical, not biological.  Just as my daughter did not fall in love with me on a playground, so I did not instantly love the baby that came from inside me.  I did the things mothers do and love followed.  And though it is, as she said, impossible to imagine, if she were not my child, I would not love her.  

The way I love Lincoln seems utterly bound up in her unique individual self — in the way she raises her eyebrows when she makes a joke, in her voice, her joyousness, her smell.  And yet, it is undeniable that if she were not my daughter — if she were just exactly who she is in every other way but some other relationship brought us into daily contact — I might recognize and appreciate all those same qualities, but I would not love her — passionately, totally and beyond all reason or restraint of any kind, indeed I doubt I would love her at all.  And just as soon as I write these words I want to take them back.   That can’t be right!  It’s not possible, it can’t be so — and, I feel as if in saying it I have just somehow threatened the safety of that connection — it is like a kind of sedition, true as it may be.  For how can a relationship be both so contingent and, once formed, so indissoluble?

I pledge allegiance to the flag, of the United States of America, and to the republic, for which it stands . . . .

So, going back to Blackstone’s allegiance between sovereign and subjects the thing that strikes me now is what this all means for the importance of the role of “choice” in democratic government.  Because in the standard Lockean, libertarian account of representative democracy, choice is everything.  The entire legitimacy and a large part of the efficacy of government and the rule of law is supposed to flow from the fact that in a democracy citizens choose to be bound to that government and by its laws.  Moreover, in an electoral democracy, citizens choose who that government is.  We think this guy is absolutely great, so we make him  our president.  And that is supposed to matter.  

Of course I’m not suggesting that the feeling of connection doesn’t also depend on how good a parent or a sovereign the person turns out to be — however s/he is selected.  But in the classic social contract story, quite apart from how good they are at their jobs, or how good they are, period, it is supposed to matter greatly that government leaders were freely chosen instead of genetically determined.  But for my connection to my daughter — and hers to me, that doesn’t matter a bit.  Just as she wouldn’t love me if I were not her mother, I dare say that she would not love me more if, instead of having me thrust upon her, she had selected me.  But why not?  Shouldn’t her allegiance be greater to a mother she had picked for her excellent qualifications — or because of a mad attraction — than to a mother she got stuck with in the biological lottery?

It’s interesting that the role of choice is so different in these two kinds of connection, in our 21st century democracy.  Choice is the source, the fountain of our allegiance to government.  In our allegiance to children and to parents it’s out of the picture.  Of course as soon as I say that, I realize that in terms of the choice to have a child at all (as opposed to the ability to choose who your children will be) “choice” has a huge role in the liberal conception of maternal allegiance.  Indeed, a big part of the argument in favor of abortion rights is the idea that if someone is forced to be a mother, rather than choosing to be one, she won’t be a very good one.  And indeed isn’t one of the, often unspoken, critiques of that position an idea that in rationalizing motherhood in this way — in making the relationship between a mother and her child more chosen and less accidental — something is lost,  that in some way the depth of feeling I have been describing between a parent and child depends on being flung into that relationship by fate, rather than walking into it with your eyes open, as a matter of deliberate choice?  And come to think of it the choice-based allegiance of modern electoral democracy has its counterpart in family relations too:   Unlike one’s child, in the U.S.A. today, one’s spouse is a matter of individual choice, with at least the ideal that affective connection precedes marriage.  In this light the move from monarchy to electoral democracy looks like the shift from arranged marriage to a love match. 

For that matter it would be easy to see the development of electoral democracy as part of a larger modern trend toward rationalization and abstraction in all forms of social relations in families and governments generally.  You might think that the founders of our republic were looking to repudiate exactly the kind of heated up, emotional, irrational connection between sovereign and subject that appears in the Commentaries.  Blackstone himself laments the rationalization of the British oath of allegiance that took place after the English revolution, substituting a “more general and indeterminate” promise to be “faithful and bear true allegiance to the king” for the older, more visceral promise “to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him, without defending him therefrom.”  p. 356  The thing is, as everyone knows, there is nothing cooly rational about our modern system of electing government officials.  

Finally, all this makes me wonder about  that crazy rumor that our current chosen leader was born abroad and is thus ineligible to be president under the constitutional clause that says the U.S. president must be “a natural born Citizen.”  First of all, focusing on the role of choice in ties to democratic government makes me wonder why the U.S. Constitution includes the requirement that a presidential candidate be a native in the first place.   Because if the choice to be governed is what distinguishes a democratic citizen, you would think that naturalized citizens would get priority when we chose our governmental leaders.  After all, these are the people who come closest to actually instantiating the social contract ideal — the ones who have stepped forward and selected the United States and its governmental structure as their government of choice and sworn an oath to defend them.  (I seem to recall Sanford Levinson arguing this point in his excellent book Constitutional Faith, which I don’t have in front of me so I can’t check the reference.)  

This chapter of the Commentaries suggests that the native birth requirement in the U.S. constitution may be just another vestige of the English system that sort of came along for the ride without a great deal of consideration.  Blackstone reports that in England, although naturalization puts an alien “in exactly the same state as if he had been born in the king’s ligeance,”  no naturalized citizen could be a member of either privy council or parliament.  p 362  The more I read Blackstone, the more I realize how much of the 18th Century British parliamentary monarchy got passed along to our U.S. government.  It may be that the native birth prerequisite was simply transposed by the constitution’s framers from the parliamentary to the presidential context, without stopping to consider that the U.S. Constitution’s underlying political theory ought to reverse, or at least erase, the preference for accidental native birth.  Then again, the fact that the constitution expressly allows legislators to be naturalized citizens makes this theory less plausible.

If I were looking for a more geneaological explanation, I might say that in the nativist preference for the presidency, we seem to have preserved a role for chance in determining the object of our allegiance.  Maybe the important feature is not so much the requirement of native birth as the absence of rational choice in meeting that requirement.  It’s as though on some level the constitution injects back into the carefully structured method of choosing our nation’s leader a role for a kind of arbitrariness, of luck and fate, more associated with emotional than rational ties.

Peace and Beer

Book 1. Chapter the ninth. Of subordinate MAGISTRATES.

This chapter is about the keepers of the king’s peace – sheriffs, under-sheriffs, constables, coroners, bailiffs, and justices of the peace, all of whom “may apprehend all breakers of the peace, and commit them,” (p. 338) i.e., it’s about the police. Reading it, I realized that although I have occasionally heard the police referred to as “peace officers,” I am much more likely to think of them as “law enforcement officers” a term which, with its encapsulated “force,” carries almost the opposite valence of Blackstone’s peacekeepers. Whose description is more clear-eyed, mine or Blackstone’s?

Does Blackstone’s emphasis on government’s peacekeeping function reflect a widely shared sentiment back in 18th-century England, identifying hardworking local constables with social serenity? Or is this Blackstone looking at law’s coercive force through rosy hegemonic glasses, seeing legal peacemaking where some of his contemporaries saw state violence – particularly those from economic classes more likely to end up on the receiving end of the government stick? For that matter, Blackstone’s approach may be an attempt at selling the peacekeeping aspect of government force to an audience more attuned to its violent intrusions. And at one point he does acknowledge that constables “are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like.” (p. 344) Interestingly, the last section of this chapter is devoted to the overseers of the poor (pp 347-353), i.e., officials charged with maintaining – and containing – Britain’s indigent citizens, suggesting that then as now government force concentrated on certain sectors of the society perceived as more likely to disrupt the civic peace. My own squeamish ambivalence about government coercion is obviously at least partly class and culture bound. Some of my fellow 21st century Americans are happy to embrace the bond between peacekeeping and force. Up here on the Maine coast, where I am lucky enough to be spending a few weeks this summer, we have an elderly neighbor with a big, black truck. There’s a round decal on the truck’s back door, printed with what looks, from a distance, like a peace sign, but up close you can see that the familiar symbol’s three-pronged fork is actually formed by the body and wings of a fighter jet, and around the edge of the sticker it says “peace the old-fashioned way.”

Blackstone’s official peacekeepers are conceptually central, because “the common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society.” (p. 338) But there is  little discussion of either peacekeeping or law enforcement in law school today. Modern (and post-modern) literature on government structure makes a sharp division between the government officials who make and administer the law and the ones who enforce it, and the enforcers are marginal if not invisible. If the Commentaries were written today, I doubt you’d see much about government officials whose job it is to actually put their hands on people. Again, the class division is palpable. It reminds me of a commercial that used to run on local television late at night when I was a kid for a truck driving school, the tag line of which was “for the man who likes working with his hands but doesn’t like getting his fingernails dirty.” Peacekeeping can be hard on the manicure.

There’s a kind of Hohfeldian point here. For non-lawyers, Hohfeld was a 19th-century Harvard professor who wrote an essay that every law student still reads at least excerpts from, in which he pointed out the reciprocal nature of legal rights and duties. In other words, my right always corresponds to somebody else’s duty and vice versa. If I’m going to be (legally) privileged to enjoy a quiet cup of coffee alone on my front porch, then someone else – in fact, everyone else – is going to have to be (legally) constrained from disrupting my tranquil morning ritual. There’s a tendency to naturalize privileges. But Hohfeld showed the network of laws that not only protect but construct my quiet morning coffee, and this chapter of Blackstone points out the extent to which that construction depends on government officials who enforce those laws.

Indeed, at another level, the whole thing is a construction. We don’t just need laws, we need law breakers in order to have peace. Hohfeld’s binary conceptualization leaves out the first – or is it the last — step in which our very idea of “peace” becomes a belief in the existence of identifiable peace breakers to be constrained by designated peace keepers. In the United States those roles have long been assigned according to race and class. African Americans of all economic classes are the breakers, white working class men are the keepers, of a civic peace to be fully enjoyed only by white folks from the professional and moneyed classes. Of course people sometimes stray from this type casting. But when they do, they are always suspect. Thus the Obamas’ fist bump was seen by some as a “terrorist” gesture and black undercover cops are liable to be shot by fellow officers who mistake them for perps, while job applications from white men with felony convictions draw a more positive response from prospective employers than resumes sent by black men with no record of criminal conduct.

The society-shaping nature of law enforcement, its tendency to disrupt someone’s peace in order to maintain someone else’s, the race and class politics of those roles – and for that matter, the link between government administration and hands-on law enforcement – were all brought home recently by the dust up between another Harvard professor, Henry Louis Gates, and a police officer who wound up arresting Gates at his Cambridge home. The officer was investigating a neighbor’s report of a man breaking into Gates’s home. That would be Gates, who was apparently trying to force open a jammed door and was already inside by the time the police arrived. Professor Gates, who is African American, was nonplussed to be taken for a burglar in his own house, especially after he produced identification proving that he lived there. According to the police, Gates was arrested for “disorderly conduct” (a charge that was later dropped) because of his belligerent behavior toward the officer; according to Gates he had every right to be thoroughly put out by a white policeman’s refusal to back off and recognize that the black man he was confronting was a rightful peace enjoyer not a trespassing peace breaker.

This already freighted episode took on an additional symbolic load with the personal intervention of President Obama, who is, after all, another African American resident of a hitherto exclusively white neighborhood (namely, the oval office of the aptly named “White House”) and the person ultimately responsible for national law enforcement, aka, peacemaking. Artfully combining the householder/peacemaker aspects of his role, President Obama invited both Gates and the officer over to the White House for a beer. Sweet are the (symbolic) uses of adversity, for with this homely invitation the President managed to establish himself as (an African American) man with a pretty classy house whose idea of quiet enjoyment still includes a brewsky with the (working class white) guys. At the same time, the occasion was an opportunity to model the Obama administration’s commitment to peacemaking a “new fashioned” way, i.e., with diplomatic conversation instead of martial coercion and to transform an official building lately much identified as a headquarters of government coercion both at home and abroad into a place of domestic hospitality presided over by a friendly householder whose very presence there offers new hope for achieving a more universal kind of peace that “is the very end and foundation of civil society.” ( p. 338)