John G Bell

DIAMOA

Fall '03 - Gómez & Unsel

Final Paper

Analysis of dissent, injustice and the making of the United States: an induction from vitriol to victory; a deduction from justice to jurisprudence.

"Our problems stem from our acceptance of this filthy, rotten system" - Dorothy Day

"Discontent is at the root of the creative process: the most gifted members of the human species are at their creative best when they cannot have their way…" - Eric Hoffer in The Ordeal of Change

Dissent is a fundamental element in the making of the United States and must be preserved for decision-making to function, especially as a tool to surface and address injustice. The making of the United States is a continual revolution to confront injustice with a dissenting voice that contains the intent to realize change toward the ideals of the Constitution. When the actualities, of political and civil rights, do not match the ideals of the constitutional project, this is injustice. Political and civil rights codify and protect inherent and unalienable social rights because of specific observed instances where, without protection, injustice occurs.

The Constitution is an attempt to actualize amorphous, social ideals – ideals created by committee, by the whole of society in dialogue; not ideals directly derived from specific theocratic or autocratic guidance. The legal system is an imperfect implementation of these ideals that works toward justice over time. As an imperfect implementation, the institution of jurisprudence exhibits a process tending toward specificity to address injustices. The presence of injustice demands a dissenting voice, a voice that raises awareness of the shortfall between justice and jurisprudence.

1. Dissent

   1. Definition of dissent

The first question to ask is what is dissent. To define dissent as an action one would have to determine what is an action. How small can an action be and still qualify? Can a mere thought be an action? This risks reducing the question to insoluble levels, such as asking if the force of a butterfly wing moving creates the monsoon. Nor, for the same reason, should dissent be characterized by having been heard, because how is it to actually be determined that something is heard or understood? Neither an actor nor an observer may necessarily know that they have been affected by something - whether they've heard it, whether it causes a change in thinking. But that there is a change, in behaviour or observable conditions, can be verified.

Dissent expresses a viewpoint and takes place within the public sphere of ideas. There is an inherent quality of opposition to the term “dissent.” This can be recognition of an opinion in opposition to one's own views, or a label applied to opinions in opposition to a majority or status quo opinion. The Anti-Federalist voices were framed as dissent in contrast to the position held by the Federalists during the Early Republic. [Cornell]

An essential element to dissent is that there is intent to create change, because criticism without intent to change is merely being grumpy. Grumbling in isolation is not dissent. Jack O’Dell, a well-known civil rights activist, has said, “[Protest has] got to be organized or it's meaningless. We can't become private revolutionaries. Private revolution only effects you.” [O’Dell]

Dissent is the tension between the way things are and the way things should be. A function of dissent is to point out these spaces where change is possible or necessary. Dissent is based on some ideal or value that is not being met.

Therefore, dissent is a viewpoint in opposition to another viewpoint with intent to cause change that surfaces injustice, the creative tension between what should be and what is.

Whether the change is aligned with the intent or not, dissent is effective when it creates an effect. There’s a chance this might be confusing because some people equate effective with beneficial and desired, but like psychological feedback, there are positive and negative. The taxonomy of this change also suggests that if one's own behaviour changes effective dissent played a part in that process. Further, if others' behaviour changes then effective dissent has occurred.

It should also be clarified that dissent is not just speech, but can be things such as a boycott, of grapes by the United Farm Workers or Pullman cars by the American Railway Union, or the Boston tea party.

2. Normalizing and suppressing dissent

Appeals to tradition can block effective dissent. One example of an appeal to tradition that is constantly present in this society is legal precedent. By pointing to tradition as an example, it’s possible to direct people’s attention away from the injustice that dissent is attempting to foreground. This points to the negative impact on rational thought that comes from a general susceptibility to poor inference, whether accidental or intentional.

When dissent is marginalized there’s a tendency for those dissenting to exert more coercive force in order to be heard. This transforms the appearance of dissent into something reprehensible to the mainstream. Often this tends to produce the opposite of intended change. A primary example of this is the way that the Plebeian agenda of radical localism resorted to increasing levels of coercion as it was marginalized by the Federalists and Ant-Federalists in the Early Republic. [Cornell]

Another side to this struggle of the Plebeians to be heard is how the creation of a loyal opposition marginalizes extremes, aligns middling opposition in support of the status quo. This is demonstrated by the way that the anti-federalist agenda was divided between the middling and plebeians in The Other Founders. This is the other side of the mobocracy issue. This suppresses extremes in order to create moderate dissent.

Part of why this tendency toward moderation occurs is that highly opposite viewpoints isolate and positionalize the participants in conflict. Extreme divisions require extreme action to make change happen and “anything taken in extreme blocks the original purpose.” [Gómez 4dec03] A highly positional stance precludes win-win solutions, and implies that the only endgame is for one side to completely silence opposition, such as Taney's positionality leading up to Dred Scott. [Finkleman 51] Taking sides does not address conflict, but rather insures that the conflict escalates into a win-lose proposition.

Within the attempts to organize dissent by the abolitionist and suffrage movements can be seen several other qualities of marginalized and normalized dissent. Examining the historical events of the period around the adoption of the 15^th amendment, the tensions over including the woman's movement demand for a new grant of suffrage can reveal some ways that dissent fails to be effective and internally consistent in reaching for ideals.

If a problem doesn't directly affect a person they may not take the time to analyze the potential implications for their own position. One example, from Goldman’s Reconstruction and Black Suffrage, is the comment about how progressives were for equality until their white supremacy was challenged. This is also in the conflict between the woman's movement and the abolitionists. The male abolitionists failed to recognize that the scope of the suffrage movement included the struggle of the woman’s movement for suffrage. Although this division had complex causes, the one that’s relevant to this point is that the male abolitionists were disconnected from the issue, and were therefore less inclined to recognize the authentic needs of the woman’s movement for suffrage. [Unsel 3nov03] The conflict between the abolitionists and the woman’s movement in defining the scope and limit to an increase in the grant of suffrage raises questions of relevance for each the participants in the conflict. Unless each participant is willing and able to recognize the relevance of issues to which they are disconnected, then the tendency will be to limit the scope of the movement. This tendency to limit scope is also reflected in how there's often a feeling in progressive groups that if others aren't fighting the same fight, then they are taking resources away from what's important. One of the complex causes for the division between the abolitionist and woman’s movement work for suffrage was this marginalizing tendency toward anyone that brings up a topic that appears to take away from the primary focus. The other side of this is when someone insists that an apparently tangential issue is of more primary importance. When there appears to be a tangential issue there may be a tendency toward division. When the connections are not found and acknowledged between issues, solidarity is damaged and a movement sabotages itself.

In some ways the flip side of the “limited resources” problem is when there’s a position that holds that the primary issue is the only permissible topic, not connected to any other. In a movement, any attempts to bring up a tangential topic are met with refutation based on the questions not being connected. This is a problem of scope. There's a meta-topic being ignored that connects issues. This meta-topic is an opportunity to create a community dialogue, but it also requires willingness to address broad-based injustice. One example of this is the later work of Martin Luther King, Jr. where the realization is made that “racism, economic exploitation and militarism are all tied together.” [King] The specific progressive, dissenting movement for civil rights is connected to a much larger economic issues that had the opportunity to widen the scope of the dissenting group. King goes on to say of these interconnected, broad-based issues that “you can't really get rid of one without getting rid of the others.... the whole structure of American life must be changed..." In this sense, the whole realm of dissent is integrated, and connected. The attempt to divide these interconnected issues merely marginalizes and suppresses the full range and force of dissent.

Power inequity disables dissent. For example, when one party to a conflict has the power of privilege they may refuse to engage in dialogue or negotiation with other parties. This is demonstrated in the continual refusal of the Pullman company to negotiate with a union in the 1890's [Papke 24] and in the refusals of the agribusinesses to negotiate with the farm workers in the 1960's. [Gómez 4dec03] Avoiding discussions of privilege is a function of privilege.

The term “dissent” itself denotes “minority opinion” and inherently marginalizes and suppresses opinions by these status quo, majority or privileged positions. If an opinion or movement has been characterized as “dissent” then it has already been marginalized. This means more coercion is necessary to be heard, but, in balance, less compromise. There's a danger of being viewed as violent or seditious and “dissent” becomes a term used as and leading to vituperation.

3. Systems of dissent

The previous examples of how dissent is marginalized and normalized can combine to create systems that further amplify and decrease the efficacy of dissent. Examples of this can be found in Cornell’s The Other Founders.

One example is a system where dissent becomes reprehensible. When dissent is marginalized or suppressed, this leads to greater need for coercion in order to be heard. The increase in coercion by the dissenting voices leads to the increasing appearance of that dissent as reprehensible. When dissent appears reprehensible this leads to a greater tendency toward marginalization and suppression and back to the need for more coercion to be heard.

Another example system is where the dissenting voice itself becomes divided. The appearance of dissent as reprehensible also leads to creation of loyal opposition and marginalized extremes. As previously suggested, when dissent is marginalized there is a need for more coercion, which further aligns the loyal opposition with the status quo and divides the dissenting voices. The conflict between the elements of the Anti-Federalist movement resulted in the creation of a loyal opposition as the radical Plebeians were splintered off. The loyal opposition was created when the radical elements of the Anti-Federalist became an apparent liability to the whole movement. The marginalized extremes then use more coercion to be heard voicing dissent which further aligns the loyal opposition to the status quo. This shifting alignment within movements dismembers the force of dissent.

As issues are mainstreamed from the critique by dissent and internalized by society, there is a tendency for movements to disband or abandon the wider issues connected to together in the movement. This is demonstrated in the way that the women working toward suffrage melted into the existing political parties when it appeared the issue of the women's vote had mainstreamed in the 19^th amendment. [Unsel 3nov03]

4. Implications and strategies

The systems of dissent suggest that there are strategies that can be developed to address the marginalization and suppression of dissent.

Dissent is a function of dialogue that requires collective development of ideas. [Bohm] Without dissent, there's no dialogue. Another example of how the lack of dissent creates dysfunctional decision-making is Irving Janis’ hypothesis in Groupthink, that there is a psychological urge toward consensus where quality decisions are sacrificed for uniformity of opinion. Dissent acts as part of a balancing system with decision-making. The process of negotiation creates new, community-developed ideals. This is a 3^rd way that meets the collective needs of the participants in the political dialogue.

Instead of abandoning radical ideas in order to secure, what amounts to non-voting, space with the status quo or a majority, the middle position should act as a mediating tool between its adjacent viewpoints. By abandoning the solidarity of dissent, the middle weakens its ability to affect the ideological outcome.

Given that conflict comes from diversity; [Winslade 41] pluralism comes from effective dissent.

2. Dissent and Injustice

   1. Definition of injustice

Injustice is a function of not having a voice to dissent without coercion. The coercion necessary to be heard starts a normalizing and suppressing counter force. Unless there is a way to dissent effectively, there is no voice. Being unable to make positive dissent forces and marginalizes dissent into negative and reprehensible use of coercion.

As defined, dissent points out the gap between action and ideal. Injustice is the product of insufficiently realized ideals. Dissent is the voice of those suffering injustice. Justice is the reaction to remedy this lack. Justice is both a reaction and a solution. Therefore dissent is the natural and necessary recognition of the space between action and ideal in a project about ideals. Further, dissent is what leads to greater justice.

2. The legal system

A primary societal venue, in contrast to the political system or the public sphere, for the mediation of social conflict is the legal system. The system of jurisprudence is the actualization and enforcement of the framework of ideas and ideals in the constitutional project. The ideal of this jurisprudence is creating justice.

In framing the Constitution, the Federalists worked to remove politics from the legal system. [Cornell] This meant that the localism of juries and local political influence on the judiciary was to be minimized. One of the protections from tyranny for which the Anti-Federalists fought was the right of the accused to have a jury trial, specifically to maintain some localism in the judical system. This conflict between the local political influence on the judicial system and the Nationalism of the Federalists is put into distinct relief when compared the to history of highly political judicial appointments and politicized opinions of the Federal courts. This includes a litany of politically motivated appointments to the Supreme Court and decisions from the bench that were also politically motivated and influenced. [Irons] [Goldman]

In fact, it is reasonable to expect that judges will have personal biases but there is also an expectation that these biases are balanced by civility. [Rehnquist] This civility means a willingness to hear dissenting opinions, possibly being influenced by that dissent. [Gómez 27oct03]

3. Implications and strategies

The structure of the courts is adversarial, and thus includes a structural support for opposing opinions to be voiced. Further, the structure of the higher courts provides for opinions to be expressed in mediated ways through concurring and dissenting opinions. However, these opposing viewpoints are heard in an adversarial context with the losing viewpoint inherently suppressed.

An adversarial system requires that there be dissent in order for the system to work. When there is inadequate representation for the sides of a court case, there is a clear failure in the system to produce justice. Each side must have adequate and strong representation. Further, in the higher courts, the judges themselves provide opportunity for dissenting opinion from the bench.

The legal system has a model of satisfaction that comes from its adversarial style of conflict resolution. This method of resolution is in distinct contrast to the resolution model of the legislative and executive branches. The legislative and executive work to create compromise and negotiated solutions to mutual issues. The juridical process of problem solving involves determining a winner of the conflict – a satisfaction model that derives from the adversarial nature of the system. These two satisfaction models work in different ways – one to create negotiated solutions, the other to determine winners and losers. By combining these two, any full system solution must satisfy both models and pass muster in both styles of conflict resolution.

The very nature of the juridical review of negotiated solutions, however, creates a situation where the ruling of the Supreme Court becomes the final arbiter in any full system political conflict. The legislative branch can change laws or re-write laws or adopt new laws in response to the ruling of the Supreme Court, but it cannot ex post facto change the ruling in specific cases unless it were to invalidate the rule of law itself. For example, the Dred Scott v. Sandford decision maintained even after the fourteenth amendment was framed to specifically address the Supreme Court ruling – the laws were changed but the decision was not. Another example is the period of Reconstruction when the law only worked in a reactive manner, and even then the tools of law enforcement were inadequate in themselves and not even sufficiently supported by the local or national authorities. [Goldman] This is important to remember: the full system can create robust satisfaction meeting the needs of both negotiated and adversarial models over time, but the way the full system addresses injustice is not as robust.

3. Dissent, Injustice and the Making of the United States

“Your revolution, Mr. Jefferson, appears incomplete.” – Jefferson in Paris

1. The tradition of dissent

The tradition of dissent points out the injustice of not yet reaching the ideals of the constitutional project. The making of the United States was a project that started with dissent pointing out injustice and producing remedies within the continuum of a continuous legal tradition. However, the constitutional project is incomplete. There was no single American revolution, but rather a continual fight towards the ideals of the constitutional project. Further, the ideals are continually being re-framed as wider in scope and purpose. Therefore, the revolution is not only continuous but continuously renews itself toward greater expectations and expressions of justice. The expansion of justice is not the increasing inclusion of more people that are similar, but the realization that the same issues of justice are just as important for people that are different.

The voice of dissent points out that the status quo is insufficient in providing the ideals. This discontent leads toward creative political, economic and social dissonance that further leads toward a frisson of protest and the peak experience of justice. Discontent creates a motive for dissent to surface injustice. Surfacing injustice creates more discontent with the gap between what is and should be. The reaction to this injustice is a push toward justice as a solution. This peak of justice is merely a plateau on the scale of increasing social actualization. Examples of these moments are captured in the courtroom scenes of Amistad. (This romantic portrayal of the judicial system is also, unfortunately, an example of increasing hidden terror and the development of internalized social discipline in Foucault [Unsel 20nov03])

2. Expanding protections address injustice

The compromises that led to ratification of the Constitution were over the question of amendments, and the eventual inclusion of protections for specific social rights as civil rights. [Cornell] The struggle to define civil and political rights in an ever broader context is a continuation of the Anti-Federalist dissenting view that the Federalist supported Constitutional document was insufficient to protect the people from the entities to which they were investing governmental powers. Positive and progressive protection of civil rights is necessary because the tendency of the government is to only allow such rights when convenient. As unintentionally shown by Rehnquist in All the Laws but One, mere expediency is consistently enough to tautologically justify abridging the political, civil and social rights of citizens and other people in the United States. The Bill of Rights and other amendments are an amplification and clarification of the ideals that are the cultural and societal basis of the continuing revolution in the United States. The dominant cultures in the society of the United States are those of white males and the legal tradition. Both of these cultures had and continue to have undue, disproportionate influence on all other cultures in society. Sustained, popular dissent to these cultures is the tool to address the injustice in society. Without dissent, society tends toward monoculture. However, diversity inherently increases conflict and thus precludes such a monoculture fully developing. This diversity cannot avoid conflict, and in this conflict is the opportunity for either creative advance toward societally negotiated ideals or maintaining states of injustice.

3. Dissent is essential to the political system

In The Other Founders, the public sphere is shown as the space for dialogue and is created when there is a balance between decision-making and dissent. The political system doesn’t function without dissent. [Richter] The political system is the framework in which society mediates between cultures. This mediation is a societal-level dialogue that takes place in the public sphere. In a 1787 letter, Thomas Jefferson wrote, ”I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. Unsuccessful rebellions, indeed, generally establish the encroachments on the rights of the people which have produced them.” The full function of dissent is not simply important, but is essential and necessary to a successful political system and the preservation of rights.

Power conforms to the demands of dissent as a survival strategy. The structure of the law co=opts progressive agendas, but this is a form of justice. Political rhetoric co-opts progressive agendas, but this is a form of political progress. When power conforms the opportunity is that dissent may become mainstreamed and the agenda of dissenting intent for change may solidify. Therefore, it's insufficient to be satisfied with power conforming to the demands of dissent. This will merely be a temporary concession unless the change is solidified. One key element in this process of solidifying concessions is that dissent cannot be reprehensible or movement to solidify changes will merely be seen as another faction using unjust levels of coercion and force, merely mobilizing opposition to the new status quo.

Maintaining power is not dissent so much as using power to create change aligned with intent is. Unless there is a commitment to consistent change then dissent fails to become more than a new status quo, becomes mainstream or is defeated eventually by creative strategic work by opposition.

Laws are rules that come out of a power struggle [Gómez 9dec03] and this conflict is reflected in the Constitution and the constitutional project of the United States. The priorities of both property and liberty are reflected in the constitutional project because they are factions in the Early Republic. Dissent was essential to the development of the Constitution and to the history of the United States.

4. Conclusion

Changing “hearts and minds” is a process of internalizing negotiated ideals. A society internalizes ideals negotiated between the cultures of that society. Therefore, the more pluralistic the negotiation; the broader will be the appeal of those ideas to society. Suppressing dissent disables the process of internalizing negotiated ideals because it removes participants from the negotiation. The broader the ability to participate in these negotiations the more complete and effective will be the process of internalization. Therefore, dissent between people, citizens and cultures is essential to participation in the process of creating broadly acceptable societal ideals.

Not only is it essential, for the ongoing project of making the United States, that dissent exists to voice the spaces where “the filthy, rotten system” fails to address injustice, but it is the very existence of this space of discontent from which comes the greatest cultural, social and political opportunities to create justice.

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Gómez, José . Class lectures. Fall Quarter 2003.

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Jefferson, Thomas. Letter to James Madison, Jan 30, 1787. <http://earlyamerica.com/review/summer/letter.html>

King, Rev. Martin Luther. Beyond Vietnam: A Time to Break Silence. <http://www.hartford-hwp.com/archives/45a/058.html>.

O’Dell, Jack. Public Speech. Nov 5, 2002.

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Winslade, John, and Gerald Monk. Narrative Mediation. Jossey-Bass, 2000.