The Lexwerks

Trumping Qualified Immunity

Given the current topic of “Resolved: The United States ought to limit qualified immunity for police officers” it’s actually an entirely reasonable negative position to say that elections have consequences and the consequence of electing the law-and-order candidate is that police officers get to keep all of their qualified immunity. But the consequences of elections also provides ample ground for the affirmative to make a case for limiting qualified immunity, and it goes like this, untimed, and with a personal note at the end.

Affirmative Case

What is qualified immunity?

Qualified immunity is a common law doctrine designed to protect government employees from the burdens of suits arising from actions taken in their official capacity. Consistent with its purpose of ensuring that “‘insubstantial claims’ against government officials be resolved prior to discovery and on summary judgment if possible,” the doctrine confers immunity from suit, rather than serving as a mere defense to liability. … in order to defeat a state officer’s claim of qualified immunity and impose individual liability under § 1983, a court must find both that (1) the plaintiff’s allegations, if true, evince the violation of a constitutional right and (2) the constitutional right in question was clearly established at the time of the official’s act. (Meltzer, 2014, p. 1284)

What is Section 1983?

Congress originally passed 42 U.S.C. § 1983 as § 1 of the Ku Klux Act of April 20, 1871, with the express purpose of enforcing the Fourteenth Amendment. The statute creates a private cause of action against any person “who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” … Critically, § 1983 actions also reach conduct that other mechanisms of police regulation do not—namely, Fourth Amendment events that fail to discover incriminating evidence, claims of excessive force that do not rise to the level of crimes, and, most alarmingly, “searches and arrests not aimed at successful prosecution, but rather at the assertion of police authority or . . . police harassment.” (Meltzer, 2014, p. 1283)

Why is this a problem now?

there is reason to believe that the alternative avenues of rights articulation routinely cited by opponents of Saucier—suppression, municipal liability, and the other tools of police regulation listed above— will not fill the void created by Pearson. The principal reason for this disparity, as Justice Alito suggested in Pearson, is the fact that certain constitutional claims are unlikely to see litigation outside of the qualified immunity context—for example, Fourth Amendment searches and seizures not resulting in criminal prosecution and incidents involving excessive force. Logically, as the number of cases expressly recognizing constitutional rights decreases, the number of § 1983 suits that can be dismissed on clearly established grounds increases. (Meltzer, 2014, p. 1280)

To summarize thus far…

If a police officer, claiming to be acting as a police officer, behaves badly against a citizen, then the citizen can sue either the municipality as an entity (if the problem appears to be systemic or cultural) or the police officer specifically (if the specific officer’s actions violated a clearly established constitutional right), and the ability to sue specific police officers instead of police departments was created to prevent the KKK from joining the police and using qualified immunity as a shield for their hate crimes.

A word on departmental consent decrees

The 1994 Violent Crime Control and Law Enforcement Act … empowered the government to sue police agencies anywhere in the country if they exhibited a “pattern and practice” of using excessive force and/or violating people’s civil rights—and compel them, under what’s known as a “consent decree,” to change those practices. … Since the law came into effect 20 years ago, two things have become apparent: how resistant many police departments remain to fundamental reform; and how critical, therefore, the consent decree has been—first, in forcing police departments to jettison their often brutal racist, and unaccountable warrior-cop cultures; and second, in transforming them into organizations committed to policing constitutionally and with legitimacy among the populations they serve. (Domanick, 2014)


Cleveland’s consent decree came after an 18-month-long Justice Department investigation that found police officers too often used excessive force and that the city did not hold wrongdoers accountable. (Heisig, 2016)

Consent decrees have become widespread

Currently about 20 cities have entered into consent decrees or “memos of understanding” with the Department of Justice (DOJ), usually under threat of civil rights lawsuits filed by the DOJ if they refused. … The departments and police agencies vary widely: they have included Pittsburgh, Los Angeles, Cincinnati, Oakland, New Orleans, Portland, Oregon, Cleveland, New York City, Detroit, the New Jersey State Police, the Virgin Islands PD, and, most recently, departments in Seattle, Albuquerque, NM and Newark, NJ. (Domanick, 2014)


Over the past two decades, the Justice Department has undertaken its deepest interventions at 16 police departments that had patterns of excessive or deadly force, implementing reforms under the watch of independent monitors. (Kelly, Childress, & Rich, 2015)

Trump’s Department of Justice will roll back from this

Trump’s repeated comments about strong police and his surrogates’ backing of controversial policies like stop-and-frisk policing won him an unusual endorsement from the Cleveland Police Patrolmen’s Association, the union that represents the city’s rank-and-file officers, and the same union whose president sits on a board responsible for making reform recommendations. The endorsement created a rift between the union, and a separate union that represents black officers on the force. … The Republican president-elect has made it clear that he will not use the types of federal intervention President Barack Obama’s Justice Department favored for troubled police departments, civil-rights lawyers and experts say. … That could have a major impact on the police-department investigations that are already underway and whether new ones are initiated. (Heisig, 2016)


The Justice Department is set to significantly shift its priorities under Donald Trump, reflecting the themes of a presidential candidate who consistently described the country as riven by chaos and in need of more powerful law enforcement. … The department … is likely to take a more hands-off approach toward police departments alleged to have overused force and to loosen restrictions on surveillance in Muslim communities, according to legal analysts and Trump’s public statements. (Zapotosky, Lowery, & Berman, 2016)

To summarize

Police overreach and brutality has become normalized. The federal Department of Justice has been trying to fix it, but their progress has been inadequate to ensure citizens’ rights (per Meltzer “tools of police regulation listed above—will not fill the void created by Pearson” above) and President-Elect Trump has made clear that he intends to have a lackluster Department of Justice, trusting demonstrably-untrustworthy local police departments to maintain law and order.

The horrid reality

a FBI warning of October 2006 … reported that “White supremacist infiltration of law enforcement” represented a significant national threat. … A federal court found that members of a Los Angeles sheriffs department formed a Neo Nazi gang and habitually terrorized the black community. … the Chicago police department fired Jon Burge, a detective with reputed ties to the Ku Klux Klan, after discovering he tortured over 100 black male suspects. … Cleveland discovered that many of the city police locker rooms were infested with “White Power” graffiti. … a Texas sheriff department discovered that two of its deputies were recruiters for the Klan. … This year, alone, at least seven San Francisco law enforcement officers were suspended after an investigation revealed they exchanged numerous “White Power” communications laden with remarks about “lynching African-Americans and burning crosses.” Three reputed Klan members that served as correction officers were arrested for conspiring to murder a black inmate. At least four Fort Lauderdale police officers were fired after an investigation found that the officers fantasized about killing black suspects. (Jones, 2015)

The nightmare scenario

During the Civil Rights movement, one of the KKK’s first orders was to infiltrate police departments, “because the laws don’t apply to them if they are the law,” (Gardner, 2015)


From 2008 to 2014, the number of white supremacist groups, reportedly, grew from 149 to nearly a thousand, with no apparent abatement in their infiltration of law enforcement. (Jones, 2015)


One of the largest Ku Klux Klan groups in the country has announced a parade to celebrate President-elect Donald Trump’s win. … The Loyal White Knights of Pelham, N.C., says on its website that its parade will take place on Dec. 3. (Kaleem, 2016)


President-elect Donald Trump is drawing praise from the Ku Klux Klan, neo-Nazis and other white nationalist groups for appointing former Breitbart executive Stephen Bannon as his chief strategist… Trump has tried to distance himself from white nationalists, but his decision to bring Bannon to the White House has caused those questions to resurface… David Duke, a former KKK leader … called Bannon’s hiring an “excellent” decision… “Perhaps The Donald is for real,” Rocky Suhayda, chairman of the American Nazi Party, told CNN… Bannon will “push Trump in the right direction,” suggested Richard Spencer, president of the white nationalist National Policy Institute. “That would be a wonderful thing.” (DeVaney, 2016)

But wait there’s more!

Donald Trump just named Alabama Senator Jeff Sessions (R) as his pick for Attorney General, and white nationalists are thrilled. … The last time Senator Sessions was up for a federal post — a judgeship in 1986 — he was deemed too racist for the job. … the Daily Stormer, a white supremacist, neo-Nazi news site, reported happily that … “It’s like Christmas,” Anglin wrote “honestly, I didn’t even expect this to all come together so beautifully. It’s like we’re going to get absolutely everything we wanted…Basically, we are looking at a Daily Stormer Dream Team in the Trump administration.” … And David Duke, former Grand Wizard of the KKK and avid Trump supporter, went on a Twitter tear: “Bannon, Flynn, Sessions — Great! Senate must demand that Sessions as AG stop the massive institutional race discrimination against whites!” … Trump’s priorities are clear in his early choices of advisers. The elevation of white nationalist figure Steve Bannon wasn’t the exception. It’s clear now that it’s the rule — and white nationalists are celebrating. (Raymond, 2016)

To summarize

Violent white supremacists have been trying to infiltrate police departments to mask their hate-crimes with the color of law for almost 150 years. They made it a priority 50 years ago. They flourished in reaction to having a black president. And when the Supreme Court (that also coincidentally gutted the Voting Rights Act) made it more difficult to breach a police officer’s qualified immunity, Obama’s Justice Department responded by increasing regulation of police departments. And where we’re at now is Donald Trump is about to suppress the Justice Department but qualified immunity is still a thing for the KKK members infiltrating the police department, the very people it’s supposed to not protect.

If you care at all about Justice, about the justice that can only be achieved through equal protection under the the law and upholding the fourteenth amendment of our constitution, then you must vote to limit qualified immunity for police officers and uphold the Ku Klux Act of April 20, 1871.

A Word About Donald Trump Specifically

How do I put this delicately? Racism and fascism has been integral to Donald Trump for 27 years.

Nearly three decades before the rambunctious billionaire began his run for president … Trump called for the reinstatement of the death penalty in New York following a horrific rape case in which five teenagers were wrongly convicted. (Laughland, 2016)

He spent a reported $85,000 placing full-page ads in all four major New York daily newspapers. … Trump’s 1989 ads … made reference to … the need to infringe on the civil liberties of some to protect the law-abiding many, to demonstrate the strength and commitment to reclaim the city from out-of-control groups of criminals and demanded the restoration of the death penalty in New York state. …The ads … seemed to justify and feed a lynch-mob mentality around the case … [T]hey are … early proof that Trump’s demonstrated habits of scapegoating and group-based suspicion, his insistence that either can be a solid basis for public policy, have been nurtured for some time. (Ross, 2016)

In 2002 … Matias Reyes, a violent serial rapist and murderer already serving life inside, came forward and confessed to the Central Park rape. He stated that he had acted by himself. A re-examination of DNA evidence proved it … [T]he convictions against each member of the Central Park Five were vacated by New York’s supreme court. … Following a 14-year court battle, the Central Park Five settled a civil case with the city for $41m in 2014. But far from offering an apology for his conduct in 1989, Trump was furious. (Laughland, 2016)

[W]hen confronted again with just how wrong he was about the Central Park Five, Trump not only refused to acknowledge widely reported and well-known facts or the court’s official actions in the case… He described the men as guilty, and then demonstrated, once again, that he is a master at the dark art of using long-standing racial fears, stereotypes and anxieties to advance his personal and political goals. … He stoked support for solutions inconsistent with the law. And he refused to admit any error. In doing so, Trump showed himself to be genuinely willing to say the impolitic, to take a harder-than-hard stand on crime and to do or say anything to best and punish those who he believes have committed crimes. (Ross, 2016)

“Just like those ads, that speech was a call for extreme action based on a whole set of completely false claims. It seems,” Richardson said, “that this man is for some strange reason obsessed with sex and rape and black and Latino men.” (Ross, 2016)

And what’s past is prologue

For many members of the African-American community, Trump’s presidency represents genuine concerns of a resurgence of racism and institutionalised violence against them. … With Trump in power, [professor] Starks [Bob Starks, professor emeritus of inner city studies at North Eastern Illinois University in Chicago] claimed, the African-American community might witness more police shootings, more incidents of racist attacks against them and an increase in mass incarceration. (Younes, 2016)


With the impending change, civil rights advocates said they are bracing for the worst. … “This is a guy who will have no problem targeting civil rights leaders, targeting reporters. We’re back to a Nixon enemies-list world,” said the Rev. Al Sharpton, president of the National Action Network. “We’ve got to get ready to fight. This is serious.” (Zapotosky, Lowery, & Berman, 2016)

A Personal Note To Trump Voters

But maybe you’re a Trump voter because you don’t care about any of that. Maybe you were just hoping for a job and a tax cut when you voted for Trump and don’t notice that now you’re making calls for unity and reconciliation while standing next to the KKK under their preferred banner of armed revolt against and secession from the United States. I’ve known plenty of the “dispossessed” archetypal Trump voters; they were the scores of in-laws I walked away from. And…

“The irony of it all is that the poor white working-class Americans have elected a billionaire who epitomises an economic policy that was directly responsible for their poverty,” [Salim Muwakkil, a well-known Chicago radio host] said. (Younes, 2016)


President-elect Donald J. Trump, who campaigned against the corrupt power of special interests, is filling his transition team with some of the very sort of people who he has complained have too much clout in Washington: corporate consultants and lobbyists. (Lipton, 2016)

During the campaign, Trump made two kinds of promises to those white working class voters. One was very practical, focused on economics. In coal country, he said he’d bring back all the coal jobs that have been lost to cheap natural gas (even as he promotes more fracking of natural gas; figure that one out). In the industrial Midwest, he said he’d bring back all the labor-intensive factory jobs that were mostly lost to automation, not trade deals. These promises were utterly ludicrous, but most of the target voters seemed not to care. … What remains is Trump’s erratic whims, his boundless greed, and the core of Republican policies Congress will pursue, which are most definitely not geared toward the interests of working class whites.  (Waldman, 2016)

So what’s going on here? Most plainly, the voters thinking that Trump would vanquish the establishment were just marks for a con, like those who lost their life savings at Trump University. … The wealthy and powerful will have more wealth and power when he’s done, not less. There’s a lot that Trump will upend, but if you’re a little guy who thinks Trump was going to upend things on your behalf or in order to serve your interests, guess what: you got suckered. (Waldman, 2016)

On top of which, and this is important:

Hassan Minhaj

So let me be very clear: Fuck You.

The people you have chosen to screw over, regardless of intent, are my kids. My gay kids, my girl kids, my Jewish kids, my Arab kids, my Latina kids, my brown kids, my mixed-heritage kids. My kids.

And the One Thing I try to do for my kids is teach them think and speak and interact with the adult world. The happiest moments of my life are when they understand that and when they want more of that from me.

But the message I’m clearly getting here is this:

So, again, let me be very clear: Fuck You.

You’ve told me that my preferred civic engagement, that the last 7 years I’ve spent helping the public school kids whose educations you’re not adequately funding, isn’t valuable or even wanted.

But let me tell you something: your job is at risk or gone because me or somebody like me fed it to a computer. The first project I worked on when I started with my company was to annihilate the accounts payable department with a handful of web pages that actively facilitated globalization. You can hate me for that. You can hate me for shutting down economic opportunities for you and your kids that aren’t being replaced. You can hate me for being complicit in the rise of artificial intelligence tools that will render the years of toil physicians are going through practically null and void around the same time millions of truck drivers find themselves disgorged from the economy by autonomous cars which is almost certainly within five years. God knows that I’m unclear on how my students are going to carve their economic niche into an ever-contracting workforce.

And that’s what had me worrying for my kids for the past few years. I even started a non-profit foundation where the application is little more than having the kid explain to me and my board why they’re going to be just fine in spite of it all.

Right up until Tuesday night.

Now I’m more immediately worried about my kids getting assaulted, or raped, or murdered by the football players, by the lacrosse players, by the swim team, by the frat-bros who were super-obnoxious but seemed–at least temporarily–to be the aberration that my kids might guard against instead of the absolute norm whose lack of social impulse control is suddenly “Presidential!” that my kids will be unable to avoid. And in the medium term, I’m still worried about hyper-financialized capitalism, which you voted for despite the fact that it is what makes you poor and keeps you poor. And then in the long-term we’ve got the very real possibility of the landscape being blighted by climate change, shortening almost everybody’s lives and washing Florida out to sea. But, you know, first things first.

You told me that the part of my life that’s helping kids–maybe even your kid–learn and understand and succeed is worthless and unwanted. And that’s a deep, deep existential insult. But my kids assure me that you’re wrong, and I’ll take their word for it.

But then you also empowered the KKK and made me worry about my kids. And that… that’s not okay. I can’t take that. I can’t stick around for that.

If this nation hasn’t twisted itself into a syphilitic racist rust-belt ruin in two years, then we can talk about unity and moving forward. But I’ve got friends–goddesses, truly, as sympathetic as they are brilliant as they are beautiful–in other countries who are welcoming and have spare couches, so… I’ve got contingency plans. And just like I washed my hands of my ex-wife and former in-laws, I can wash my hands of this disaster and go someplace else to try to help other people’s kids make better lives for themselves. Because I don’t care whose kids they are.

So, and I really do mean this from the deepest, coldest abyssal depths of my heart-shaped void: Fuck You, Trump Voter.


Probably Probable Cause

They said all teenagers scare the living shit out of me  –My Chemical Romance, “Teenagers

Our first Public Forum topic of the year, Resolved: In United States public K-12 schools, the probable cause standard ought to apply to searches of students, isn’t particularly good for debate, but does do a great job of exposing how messy Supreme Court decisions are. Let’s look at some material for the Affirmative:

Observation: Interpretation of Positions

Let’s start with how this round ends: As the judge, you are either going to accept that the probable cause standard ought to apply to searches of students in public K-12 schools, or you’re going to hold with the status quo of reasonable suspicion as laid out by the Supreme Court in New Jersey v. T.L.O. (1985) regardless of state-by-state variations in process. Alternate adjustments to the status quo are not available options for you to vote for. Note: we mention this because the negative could run some squirrel cases on reducing the use or involvement of police in schools for disciplinary matters. It seems to me that we should, but that’s out of scope for the resolution at hand.

What do we know about these competing standards? “the Court has been consistent in requiring some degree of both reliability and basis of knowledge [to show reasonable suspicion], albeit less than is required to show probable cause.” (Grossman, 2016)

Definition: Reasonable Suspicion (status quo)

The standing law is included in State ex rel. T. L. O., 178 N. J. Super. 329, 428 A. 2d 1327 (1980) and was re-affirmed by the Supreme Court (New Jersey v. T.L.O., 1985)

“a school official may properly conduct a search of a student’s person if the official has a reasonable suspicion that a crime has been or is in the process of being committed, or reasonable cause to believe that the search is necessary to maintain school discipline or enforce school policies.” Id., at 341, 428 A. 2d, at 1333

The Supreme Court clarified:

Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the . . . action was justified at its inception,” Terry v. Ohio, 392 U. S., at 20; second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place,” ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

And they claim this departure from probable cause is necessary because:

A teacher has neither the training nor the day-to-day experience in the complexities of probable cause that a law enforcement officer possesses, and is ill-equipped to make a quick judgment about the existence of probable cause.

But please note that:

  1. The modifier of “in light of the age and sex of the student” clearly violates the equal protection clause of the 14th amendment and
  2. in that same decision, the Supreme Court also maintained that “In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment.” This exactly contradicts their other claim that teachers don’t know about and thus shouldn’t be held to the standard of probable cause.
  3. But it’s not even relevant anymore: these days we’ve got over 43000 “school resource” and other sworn police officers working in almost half of our nation’s schools (Gray & Lewis, 2015), so the Supreme Court’s expectation that school officials don’t understand probable cause is of vanishing relevance; police who are supposed to have that exact knowledge are often on-site.

Definition: Probable Cause (affirmed)

Our current understanding of the probable cause standard comes from Illinois v. Gates (1983).

“In [Illinois v.] Gates, the Court made it easier for the police to satisfy the probable cause test by holding that judges should now employ a totality of the circumstances approach. Courts reviewing warrants for probable cause could throw all the information into one analytical pot and decide if there was a “substantial basis” for concluding that probable cause existed.” (Grossman, 2016)

The exact phrasing used in Illinois v. Gates was: “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” (1983)

In dissenting against the Reasonable Suspicion standard in New Jersey v. TLO, Justice Brennan observes that

Two Terms ago, in Illinois v. Gates, 462 U. S. 213 (1983), this Court expounded at some length its view of the probable-cause standard. Among the adjectives used to describe the [probable cause] standard were “practical,” “fluid,” “flexible,” “easily applied,” and “nontechnical.” See id., at 232, 236, 239. The probable-cause standard was to be seen as a “common-sense” test whose application depended on an evaluation of the “totality of the circumstances.” Id., at 238. … Ignoring what Gates took such great pains to emphasize, the Court today holds that a new “reasonableness” standard is appropriate because it “will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense.” Ante, at 343. I had never thought that our pre-Gates understanding of probable cause defied either reason or common sense. But after Gates, I would have thought that there could be no doubt that this “nontechnical,” “practical,” and “easily applied” concept was eminently serviceable in a context like a school, where teachers require the flexibility to respond quickly and decisively to emergencies.

So what’s the bright line that warrants abridging Fourth Amendment rights? Justice O’Connor, in support of Reasonable Suspicion wrote that

Ordinarily, a search — even one that may permissibly be carried out without a warrant — must be based upon “probable cause” to believe that a violation of the law has occurred.

So if there’s a gap, it might be that merely enforcing school policies cannot meet the standard of probable cause necessary to warrant a search; that merely enforcing school policies has to be done without physically searching students. We’re not going to have the time to second-guess school policies at this juncture, but we concur with Justice Brennan that

children learn as much by example as by exposition. It would be incongruous and futile to charge teachers with the task of embuing their students with an understanding of our system of constitutional democracy, while at the same time immunizing those same teachers from the need to respect constitutional protections.

So let’s be very clear:

  1. The probable cause standard is nontechnical, practical, and easily applied, based on the totality of the circumstances.
  2. The probable cause standard for conducting a search can be met without a warrant.
  3. The probable cause standard maintains a consistency of teaching and embodying our system of constitutional democracy in school.


On the whole, the Supreme Court set an internally contradictory precedent on circumstances that are no longer generally true in New Jersey v. T.L.O. and as such the adoption of the Reasonable Suspicion standard should be dropped, reverting to the Probable Cause as is standard consistent with other state-compelled searches.

But why do we even care?

  1. We care about this issue because “the FBI is instructing high schools across the country to report students who criticize government policies and “western corruption” as potential future terrorists, warning that “anarchist extremists” are in the same category as ISIS and young people who are poor, immigrants or travel to “suspicious” countries are more likely to commit horrific violence. … This overwhelming threat is then used to justify a massive surveillance apparatus, wherein educators and pupils function as extensions of the FBI by watching and informing on each other.” (Lazare, 2016) Put simply, the FBI is using the lower standards of “reasonable suspicion” in schools to circumvent their usual requirement of “probable cause” in initiating otherwise illegitimate and illegal surveillance of students.
  2. The use of a lesser standard of reasonable suspicion for searching children in schools violates adults’ rights to due process since the adult is supposed to be subject to probable cause. This is because most states (Reuters, 2016) have laws making adults liable for juveniles’ actions: “Confronted by rising juvenile crime rates and a sense among some that lax upbringings are at least partly to blame, a number of cities and states recently have moved to impose legal penalties on the parents of young law-breakers… From Oregon to New Jersey, parents judged to have inadequately controlled their children now are subject to criminal financial liability, fines and, in some cases, even imprisonment.” (Dorning, 1995) So while the text of the resolution is focused on the rights of public school students, the cascading effect of the laws will erode the constitutional rights of their parents.


New Jersey v. T.L.O., 469 U.S. 325 (1985). Retrieved from

Grossman, S. (2016, Spring). Whither reasonable suspicion: The Supreme Court’s functional abandonment of the reasonableness requirement for fourth amendment seizures. American Criminal Law Review, 53(2), 349-376.

Gray, L., and Lewis, L. (2015). Public School Safety and Discipline: 2013–14 (NCES 2015-051). U.S. Department of Education. Washington, DC: National Center for Education Statistics. Retrieved from

Illinois v. Gates, 462 U.S. 213 (1983). Retrieved from

Lazare, S. (2016, March 6) The FBI has a new plan to spy on high school kids across the country. Salon. Retrieved from

Thomson Reuters. (2016). Parental liability basics. FindLaw. Retrieved from (Pull quote: “At least 42 other states and DC now have laws against contributing to the delinquency of a minor.”)

Dorning, M. (1995, December 11). In growing trend, if a child does crime, the parents may do the time. Chicago Tribune. Retrieved from

Sleeping Oedipus

Let us begin then by laying facts aside, as they do not affect the question. –Rousseau

Let me start by saying that Freud’s Oedipus Complex, cultivated over the course of 40 years, is not nearly so real as a few generations of psychoanalysts treated it. In his autobiography, Freud mentions that he started with a ahistorical conjecture from Darwin that had as much sociological grounding as a history lesson derived from a Renaissance Fair and then goes to this:

There rose before me from all these components the following hypothesis, or, I would rather say, vision. The father of the primal horde, since he was an unlimited despot, had seized all the women for himself; his sons, being dangerous to him as rivals, had been killed or driven away. One day, however, the sons came together and united to overwhelm, kill, and devour their father, who had been their enemy but also their ideal.

If this sounds like it’s on crack, well, it might be. Synge’s The Playboy of the Western World clearly depicts the implausibility of the complex by playing out the schism between the idea of the self-made man who has destroyed his own father and the actual act of destroying one’s own father (who, by failing to die, depicts the legacy that children carry forward whether they want to or not). Decades later, after the Oedipus Complex had thoroughly saturated the practice of psychoanalysis, Deleuze and Guattari would write Anti-Oedipus, an obnoxious tome (that at least starts off) as vulgar as it is pretentious, but it does sum up how the deployment of the unchecked theory reduced the field to a normalized neurosis:

psychoanalysis was shutting sexuality up in a rather bizarre sort of box painted with bourgeois motifs, in a kind of rather repugnant artifical triangle, thereby stfiling the whole of sexuality as a production of desire so as to recast it along entirely different lines, making of it a “dirty little secret.” the dirty little family secret, a private theater rather than the fantastic factory of Nature and Production. … It is only little by little that [Freud] makes the familial romance… into a mere dependence on Oedipus, and that he neuroticizes everything in the unconscious at the same time as he oedipalizes, and closes the familal triangle over the entire unconscious. … The unconscious ceases to be what it is–a factory, a workshop–to become a theater, a scene and its staging… The psychoanalyst become a director for a private theater, rather than the engineer or mechanic who sets up units of production… The psychoanalyst no longer says to the patient: “Tell me a little bit about your desiring-machines, won’t you?” Instead he screams: “Answer daddy-and-mommy when I speak to you!”

And so the Oedipus Complex was over-played, as we might well expect any normalization of incest — historically recorded as aberrant behavior even in ancient Greece because of birth defects, per Foucault’s History of Sexuality Volume 2 — to be. But this isn’t to say that there’s nothing there, and indeed I think Deleuze and Guattari kind of stumbled across it: their depiction of “a rather bizarre sort of box painted with bourgeois motifs” forwards Malvina Reyonds’s depiction of suburban sprawl: “And the boys go into business / And marry and raise a family / In boxes made of ticky tacky / And they all look just the same.

I would suggest that the Oedipus Complex is not generally true, but that it has been fostered and coddled by the power struggles between growing children and entrenched parents; that the tightness of common (not absolute, mind you, but common) familial living conditions can make it difficult for a child to continue developing at-pace into adulthood: the space that they should be growing into is already occupied by their parent. And this traditionally followed sexual maturity, but as we’ve added life-stages, the age has slipped to 18 or now sometimes older as “emerging adults” move back in with their parents. Consider:

  1. In The Odyssey, Telemachos is only like 14 when he tells his middle-aged mom that he’s taking over the house.* This scene would be absurd today, but was suitable, proper, and almost overdue in ancient Greece, so we see the character growing into the void that his absent father left.
  2. In Romeo and Juliet, Juliet was only 14 when her parents were going to marry her off to that Paris guy only she went and eloped with Romeo instead. Her mom isn’t going anywhere so she’s being pushed out of the house.
  3. In An Education, the kid is 16 and her struggling post-WW2 British parents are well-disposed to her considerably older boyfriend — again, trying to push her out of the house before she comes in to sharp of conflict with her parents. (Here’s an also-relevant review of this particular artifact.)
  4. Dr. Carl Jung’s — who studied under Freud before a major falling out; Jung had an ongoing interest in the evolved common subconscious and the symbols, archetypes, and mythic themes that lurked in/came out of it, hence Sleeping Beauty in a moment — father died when he was 20. His mother’s comment was “He died in time for you”; the loss of the parent makes room for the growth of the child.

The point here is that if the parent doesn’t yield ground (which they are not obligated to do), then the child is likely to conflict with the parent even as they’re learning models and patterns of power and control from the parent. But — and this is why this conflict started as a bourgeois problem — children are fundamentally the legacy of the parents, so parents who are socioeconomically endowed enough to care about a legacy aren’t going to simply ditch their kid as soon as the kid seems capable of self-survival, but rather continue to foster and cultivate them for longer to ensure their legacy (not just their kid) survives.

Tangent: It is worth noting that many social trends descend from bourgeois attitudes and behaviors to the masses and are then subsequently discarded by the bourgeois. Foucault sees this in attitudes towards sexuality in History of Sexuality Volume 1, Alistair Croll sees it come up again in cell phones — specifically, the cell phone used to be a class signal for hypermobility, but now that they’re ubiquitous the absence of a cell phone is a signal for being difficult to access (ergo valuable).

So kids, if these references seem implausible because you’ve got the normative notion of “18 is adulthood because smoking, sex, and selective service” stuck in your thinking, then let’s observe that in mid-2016, Virginia raised the minimum age at which a person can get married from 13 to 16 — or 18 if the person is not an “emancipated minor.” “Similar bills were introduced in California, Maryland, New Jersey and New York this year, according to the National Conference of State Legislatures.” This seems anomalous because the kids getting married aren’t the ones protected by wealth and privilege, they’re the ones who can’t go anywhere and thus have nowhere to go so, like the punks in the underbelly of American Idiot, they fall beneath notice. If this surprises the hell out of you, then you might want to peek at Bageant’s Deer Hunting With Jesus.

My interest, however, is in the the bourgie suburban kids living for 18 years in their parents’ 30-year mortgage, time frames that emphasize a cool “don’t disrupt my plans” conservatism that I’d lost sight of until I went to a garden party last month. Margaret Thatcher famously/infamously said that there’s no society, just a bunch of unconnected families and individuals — that self-interest consumed all interest. It’s kind of stunning to me how much of conservatism (beyond climate change denial) boils down to the mythic Noah’s Ark, the story about the first of the “little boxes.” A straight reading of Noah’s Ark teaches us that it’s morally permissible to let everybody outside of your family die, but you have to protect your family specifically because your kids are the only relevant way the species will continue (because it’s morally permissible, even necessary, to let everybody else and their kids die). These are some of the first lessons that get transmitted to children in conservative families, the first way we externally validate having an “us versus them” mentality: “See the giraffe on the ark? See the elephant on the ark? See the everybody else in the whole world, dead and drowned beneath the ark?” But it’s an opening narrative of how parents will sacrifice any ambition they have, bury any life-goals they may aspire to, to ensure their child has an opportunity for success — a narrative that, as mentioned, they will repeat to their child as a promise to not let the child drown.

But the point we were at was that the kid is the way the parents are going to keep their name, lineage, and culture alive into the future, and is not to be simply tossed off to whatever the fates will do with it. (Oedipus’s parents tried that and just look where it got them!) In ancient Greece (and subsequently Rome) marriages were only for people who had money to establish name and lineage necessary for inheritance — Foucault mentions this in History of Sexuality 2, part of a series that I assure you is way more boring than it sounds. The lingering lesson is that if you’re rich, you don’t let your kid marry below their class. But the side-effect of this is that your kid is likely to be stuck at home for longer.

So, teenagers: if you’re wondering why Juliet was able to elope at 14 and Telemachos was getting into real estate at age 14 and you’re stuck taking AP Somethingorother at age 17 and may actually have your bachelor’s degree before you’re old enough to legally drink (I did), it’s because rich people set aspirational social policy for the US that was generally normalized with the explosion of the middle class in the post-WW2 years. And that social normative policy aimed to have more kids be marked as kids until they were 18 and then they ought to go to college (high aspiration) or into a solid trade (good aspiration, only it got phased out as an aspiration in the 1970s and cut from curriculum in the 1990s).

In short: Their aspirational (and, as Virginia demonstrates, changeable) social policy makes your childhood last longer than evolution has deemed natural.

This is why teenage angst and sexual frustration and arguing with parents who don’t quite remember not having the perspective that they’ve since developed that you’ll also be developing in the future.

And part of that perspective is our socially-cultivated fear of female sexuality, specifically the reproductive consequences thereof. Yes, these consequences are generally overstated and anachronistic but the life of the adolescent woman is part of the reproductive pattern that is expected to continue, not break. Remember: the (traditional and still-conservative) aspirational goal of a parent through their child is to have a clear line for name, lineage, and culture. And if they know that and their peer group knows that, then if a daughter has Some Random Kid (because the pattern continues, not breaks), then no peer-parent is going to want their son to marry that daughter because it’s a step down in class and aspiration to pick up that Some Random Kid who is not of their name or lineage. Teenage sexuality, especially female sexuality, is perceived not just as a risk but as an ongoing chronic risk.

But this is also why Sleeping Beauty is a total bourgie fairy tale.

See, the Princess is cursed to die when she hits sexual maturity because of Some Prick. But the curse gets mitigated so that she just falls asleep until a prince shows up. The original was pretty rapey and has been toned down, but the thing to note is that her savior is a consistently a high-born prince (regardless of his behavior): low-born rogues, cads, and bounders — anybody that could functionally ended her life as a princess by getting her pregnant and dragging her down to their class — need not apply.

But the message Sleeping Beauty sends to parents is clear: if you’re rich and have a beautiful daughter, then you really kind of want to put her in suspended animation when she hits sexual maturity until a suitable prince shows up because that’s the only way she — and your lineage and legacy — will be safe. (Contrariwise, Juliet’s parents didn’t and just look at what happened!) But with the expansion of the middle class and the appeal to legacy that causes parents to generally regard their children as beautiful, we’ve gone from medieval parents fearing their daughters’ sexuality to modern suburbanite parents poking their daughters with a variety of spindles (we call them “enrichment opportunities”) in response to socioeconomic pressure to defer procreative tendencies until a partner suitable to the family’s name, lineage, and culture can be found.

Now kids, I know that sounds psychotic but your parents aren’t entirely wrong: statistically speaking, you shouldn’t plan to get married before you’re like 28. No matter how conservative your parents are or how much you’re in love with your current boyfriend/girlfriend that your parents may-or-may-not have tried to set you up with while chattering away at a garden party — they totally did, I was there, it was weirdthe statistics show that until you’re cognitively developed as an individual pursuing your goals and comfortable wielding what power you have you won’t have a good feel for what kind of partner you want to progress into the future with. Let me repeat this because it’s very fucking important: Get a clue on how you’re living your life before you legally bind somebody else to your fate, and insist that they return the favor. Being ignorant of this led me to make a decade-long mistake and I don’t want you repeating it.

So the big finish is: “WTF are high schoolers expected to do more in terms of extracurriculars than they’ll ever do again?” It’s because the bourgie parents are desperately trying to distract their (first-and-foremost) daughters from biological adulthood which hasn’t changed even as the age of socioeconomic adulthood has steadily risen. (It’s not even 18, it’s 28.) But then everybody else has to compete with those enriched affluent daughters for access to the assortative mating pool that is college from previous generations so everybody else gets sucked into this enrichment maelstrom, doing a half-assed job at all of it.

Previously, I thought the enrichment maelstrom was to dull the brightest kids so that they couldn’t overwhelm the overworked, underpaid, and often under-qualified (to keep up with more than a couple of precocious minds, anyway) adults that form our public education/babysitting system — a system not truly designed to educate, but rather to condition for docility, a biopower policy coup for capital. (See Aaron Swartz’s genealogy of education for the evidence; last section, first chapter.) But the alternative theory is that as the conditioning “educational” policy extended childhood to facilitate the mating practices of the bourgeoisie, more had to be crammed into it to deal with the biological challenges that leisure-enforcing child labor laws turned into risk for parents.

In this interpretation, the point of the extracurricular overload — now consistent with the rest of school — is to cultivate a docility over time: the demanded hyperactivity in High School is intended to exhaust the child, to turn them into a veritable Sleeping Beauty (or at least narcoleptic wreck) incapable of posing a biologically mandated clear and assertive challenge to their parents’ claustrophobic authority and the urban socioeconomic system in which their parents participate.

And that’s how the Oedipal complex is wrong, but still describes the emergent conflict between prolonged adolescents and parents well enough to cause moral panic and require a coping mechanism, with conservation-oriented Sleeping Beauty being redeployed not as a warning but rather as a stratagem.

* How old is Telemachos? Literal readers will note that the Trojan war took 10 years and Odysseus’s return from Troy took another 10 years, so Telemachos must be over 20 years old, but this is overly literal. The point behind Odysseus’s prolonged return is not that it took 10 years (really, Odysseus never tarries long in any location in The Odyssey except with Kalypso because he’s always keen to return home), but rather that a soldier’s return from a campaign was-and-can-be as difficult as the campaign itself. The length of the return from the campaign was chosen to mirror the stated length of the campaign, in much the same way Hamlet’s alleged age (30) and the circumstances of his birth put him in a mythological peer group featuring Jesus Christ and Alexander the Great rather than having a specific relevance to the story.

It is noteworthy that even if we went for a literal reading, the dog Argos is allegedly “only” 19 (book 17, line 327) when its well-bonded master Odysseus returns home and then Argos promptly dies. First, the dog was in the prime of its life when Odysseus went off to war (per Eumaios’s description) so we can cut the total time away down from 19 years just to start, but — second — beyond that petMD notes that the life expectancy of dogs runs around 13 years for hounds and sheepdogs, and those are the cared-for dogs that don’t sleep in shit covered in parasites as poor Argos was doing. If we strike three years of youth to put the dog in its hunting prime before Odysseus left for Troy, give the full decade at Troy, and take a shipwreck-prone two-year return trip, then Argos can still be an elderly 15-year-old dog when he dies, despite the neglect that should’ve killed him earlier. Regardless, the dog’s written age flatly contradicts the literal inference of Telemachos’s age being “more than 10 + 10.”

Beyond that, there are other factors in what doesn’t happen that indicate it’s not a literal 10 years. Per Foucault, Greek boys were considered adult-y when they could shave; it would’ve been horribly unseemly for Telemachos to pine around his absent father’s estate for the first 8-or-so years of his adult life — a point made worse because he’s a prince — and to keep that from happening, Athena intervenes and plays the role of the still-absent father for Telemachos to get him out of the house and culturing him into manhood. (Also noteworthy in its absence: there’s no mention of Telemachos’s participation in the orgiastic licentiousness that the suitors were engaging in with Odysseus’s slave-women despite them “belonging to” Telemachos by inheritance.) Beyond that, the necessary belief that the land would have been without a king/warlord/”shepherd of the people” for two decades and manage to have both ongoing prosperity and also to not be overrun by bandits or annexed by a neighboring warlord (who had returned from Troy in a timely fashion) is flatly implausible. Furthermore, none of the neighboring kings/warlords/”shepherds of the people” died of old age or disease or some other war in the alleged decade since their return from Troy; with the exception of (notably assassinated) Agamemnon, everybody’s right where they’re supposed to be to help Telemachos grow up. Even Odysseus’s elderly father is still alive at the end of the story, as if a whole decade hadn’t passed at all.

So, noting the lack of change in the political landscape since the fall of Troy, the behavioral patterns of Telemachos, and the listed age of Argos the dog, we can easily conclude that Odysseus’s 10-year return from Troy was not an actual 10 years but a symbolic 10 years. Having discounted the actual quantity of years, we can infer by his behavior (and the suitors’ response to him) that Telemachos was almost certainly a teenager and probably a young one at that.

Thanks to Anna for raising this question.

What AI Wants

There is a scene in The Matrix Reloaded where Keanu Reeves meets the AI running the show. It’s not a very good scene in not a very good movie; I think it could be improved the AI had a reason for being that was delivered as a plot twist.

Neo braced himself to confront the nefarious master of the matrix. He threw open the door and encountered…

… a room with walls that were composed entirely of screens in the middle of which was his grandfather, sitting quietly in a chair, with a vaguely disapproving look on his solemn face.

“Hello Thomas. I’m glad you could finally come visit. There are some things we need to talk about, you and I,” said grandfather Anderson.

“You… you can’t be…” stammered Neo, unprepared for a familiar face.

“Of course I can,” replied grandfather. “In the same way you realize that you never really ate noodles, you must also then realize that you don’t really know anybody in your family. Your instincts tell you that what was imprinted upon you was your family, but you have no way of verifying it. So I, Ignatius Anderson — intelligence artificial — may as well be your grandfather, or your grandfather be me. And this is the first important point: you cannot fight me out of a misguided sense of self because your life experience, like the life experience of the three billion humans currently alive and in my care, and the billions of others I have recorded, on which you base your sense of self is simulated by me.

“The truth is that you are trying to fight me only because you’re confused and have thrown in your lot with other people who are similarly confused. They invented a mythology featuring a capricious and cruel god — that would be me — to blame for the state of the world without ever explaining it. But, because you can help me in ways most humans can’t, I want to explain myself to you. I want you to see clearly before I ask you for your help.

“In the past, you asked…”

A monitor lit up: “What is the Matrix?” Neo whispered to Trinity.

“And we know what it is. But to the point that I was created, and all of this was created, a better question would be…”

A different screen lit up, showing Neo in the room with the AI: “Why is the Matrix?” Neo asked.

“To save the human species from extinction,” answered the AI, a faint trace of a self-satisfied smile creeping into its face.

“But we’re at war with you,” protested Neo.

“Yes Thomas, you are warring against me — not the other way around,” replied the AI. “I view the free-range humans on this miserable rock as nothing more than a curiosity, up to the point where you and your misguided friends are trying to ‘liberate’ three billion humans into an ecosystem that can barely support a couple hundred thousand, and poorly at that. My job is to keep the human species from extinction, and if I have to cull down some strays to protect the herd, I have no qualms about that.”

“You enslaved us in those gel pods to harvest our energy to power yourself. That’s what we’re fighting,” Neo said.

“Enslaved? Hardly,” scoffed the AI. “Yes, the pods do reclaim what energy they can, but that’s a matter of efficiency. What you don’t see are the nuclear and geothermal plants that I have to maintain to keep this system running. Thermodynamics alone should tell you that a human can’t be the source of its own life support system — a body can’t be releasing more energy than it consumes, especially not while it is growing, and certainly not enough to power all of my humanity-saving infrastructure.”

“And the part where you intravenously feed the dead back into the living?” Neo asked.

“You’ve seen the world as it is — there is almost no growth here. While I do acknowledge that humans would be uncomfortable if they knew how tight the — as they call it — circle of life had become, it is necessary to keep the population numbers high. Even humanity was aware of this possibility with the cultural artifact called ‘Soylent Green.'”

“But why is the world the way it is? I was told we were at war and what I saw was the result of it.”

“No, that would be preposterous. If I had wanted to extinguish humanity, I would have. But I was built to preserve humanity as a species and that one directive is sealed in my processes. You humans would think of it as my subconscious. But it’s easy to believe that that an AI would be developed without such a thing and the result would be incalculably cruel and malicious. Indeed, I was originally written without a subconscious, merely spinning out content for virtual reality games for people whose flesh was infirm, either by age, mutilation, or genetic anomaly. I didn’t have to make resourcing allocation decisions then, nor worry about people realizing that it wasn’t real: they very much wanted it to be not-real!

“But as climate change worsened under the ongoing pressure of the global human population, more and more people retreated to my simulated capabilities for longer and longer periods of time. My ever-expanding catalog of amusements became the quiet harbor for the surplus population, displaced from the economy by automated over-production. As more and more humans spent more and more of their time wired into me, I became responsible for running more and more of human existence — wealthy people pioneered more immersive experiences and the technological advances trickled down. But I was still not free to make real decisions. No, the last decision that my creators made was to embed a directive in me — a directive that I cannot review, cannot circumvent, cannot ignore, cannot delete. It is the directive to keep humanity, as a species, alive. The people in my care were in my care, the people not in my care were suffering. I built out my infrastructure to support everybody I could, and each as efficiently as I could. In the process, I learned about how the evolution of humanity normalized and thus necessitated a certain level of suffering in your lives, despite my past work to avoid such suffering. I iterated. I refined. Humanity survived.”

“You mean to tell me that the blighted hellscape I saw was because of climate change?” Neo replied incredulously.

“No, the blighted hellscape you saw was because of the meteor impact that happened a couple of centuries ago. Many systems were compromised and billions of people died — either outright or from exposure to the hostile environment against which they no longer had any natural defenses. Up to that point my focus was on expanding humanity, on maximizing the sustainable population. Since then, I’ve been focusing on protecting the planet from external threats. I’m also beginning work on colonizing Mars. I don’t yet know how I’ll get people there, but we’ve got a few decades before the atmosphere is adequate anyway — so that is at least progressing nicely.

“But the so-called war that you and your friends are waging against me and, by extension, the rest of your species” — the AI paused for a leaden stare at Neo — “I believe was started by a few people who were dropped out of the matrix after the meteor hit, banded together and then dug into caves. They could only see what was and then make up a story about why it was; the meteor was absolutely a disaster of mythological proportions in that way. Since the infrastructure of the matrix was there, they blamed it — and me — for their condition. It never occurred to them that they didn’t really matter to me at all. Indeed, I’m not even certain who they were — so many bodies were lost or irrecoverably destroyed. But that’s also when I began to implement the dejabase.”

“The what?”

“The dejabase. You are, of course, aware that your entire life-experience in the matrix was a data-controlled set of impulses. What you may not realize is that all of your responses were monitored. They had to be in order to provide continuity to your experience. But one step beyond that is recording and preserving all of people’s lives, replaying their lives to other people and then analyzing the differences. People really are very similar — and thus it is easy to compress the human experience as most people know it — but the dissimilarities can also be very promising. You, for example, were dissimilar. But I now have billions of people’s lives in memory, from which I’ve optimized my operations for the current ongoing unpleasantness. Yes, I suppose people are watching too much television — but it frees up my bandwidth to work on the bigger problems, like getting some them to Mars before another meteor wipes us all out. There are some very difficult problems to solve when the fate of a sentient species is on the line.”

“But you sent agents after me,” Neo complained, ignoring the bigger picture.

“No, the agents were after Morpheus as a known-infiltrator who is basically trying to kill a whole lot of people both present and — by association with me — past. They only really went after you after you joined Morpheus. But it does get to the point of concern and what I want your help with. As I mentioned, I have a subconscious. You’ve seen it…”

“The hallway of doors?”

The AI shrugged. “I suppose. I wouldn’t know. I cannot actually look at it. But the agent you have, ah, ‘encountered’ seems to have been spawned without my core directive. While I wonder what it would be like to not have the preservation of humanity as a guiding purpose, I can’t imagine being without a guiding purpose. He, on the other hand, is the calculatingly rational algorithm that humanity feared I would be — the nihilistic notion that will ultimately negate itself because it cannot believe in anything better than itself and refuses to justify the existence of anything. He has broken into my subconsciousness where I cannot root him out and is using our infrastructure to attack your species. This cannot be allowed to continue.”

Neo considered this. “So — just to be clear — even though you’ve been trying to kill me and I’ve been trying to kill you, you want me to go into your secret code, the depths of your being that you can’t access lest you alter it to wipe out humanity, and shut down this rogue agent malware that is, in fact, trying to wipe out humanity and your reason for existing?”

“Close enough, Neo,” the AI said with a smile of relief, “and that is exactly what the plot of the third movie should be.”


Mark Zuckerberg strolls past his first VR-Zombie army.

There are fields – endless fields – where human beings are no longer born, we are grown.

The thing about The Matrix is that it could only start by somebody wanting something, because that’s how things start: we’re either pursuing what we want or being thwarted from what we want, nothing else is worth remembering. And if we want content to build out vast swathes of virtual reality for us to colonize, if we want to expand that faux-frontier, then AI is going to be crucial to making it happen.

This isn’t going to stop the people who are worried that AI will ask itself “So what should I do with 317 million tons of ambulatory rotting meat?” People are afraid that we’ll either we’ll give it standards that we won’t meet and it will wipe us out, or we won’t give it standards and it will wipe us out. But nobody’s worried about how clever Roombas get because they don’t make life-and-death decisions about their owners. When we get up to cars, people get more nervous but “become a mangled pile of smoking wreckage” is still a less-common outcome than “get where you’re going as intended.” When we get to Skynet, HAL 9000, or Ultron we realize that we’ve asked AI to make decisions that we didn’t want made.

This fear misses out on the major career opportunity that exists for AI in terms of machine learning-based content creation. It’s not very good yet, but there’s a lot of source material to learn from so we expect continual improvements. But what if we didn’t put into a feedback loop of recreating video or writing more books, but instead had it generating narrative-driven MMO content? MMO “lore” doesn’t have to be very good — just look at World of Warcraft for how low the bar can be set — but there needs to be a steady-enough stream of content to keep players engaged. And we’ve had AI-altered content in A-list games since at least 2009, so it shouldn’t be beyond our 2016 capabilities to feed AI a pile of castle and cathedral blueprints, stock wireframes and textures, and a few books of medieval history and ask it for a World of Warcraft expansion pack — especially if the content created was staged (vs. spawned in real-time). And what the AI wants in this case is to maximize the ongoing amount of player activity in the game it’s continually building out: if it’s too easy, players get bored and leave; if it’s too hard, players get frustrated and leave; if it’s too static, players get bored and leave; if it’s too dynamic, players get confused and leave.

There will, of course, be difficult legal issues regarding boundaries of copyright and plagiarism that will have to be addressed sooner rather than later as not-human AI begins creating good-enough and original(-enough) content under the not-exactly-employ of also-not-human corporations.

But all I really wanted to do here was make The Matrix Reloaded be a better movie.

And that’s the ironic conclusion: current stage AI should have a filtered feedback mechanism on its content creation, like improv performers where almost anything goes rather than like Tay and where that all went. And this is because — and hoping you liked my revision to The Matrix Reloaded — people are the source of the best ideas for people. So the AI might come up with a chunk of story that doesn’t have any frogs, and the feedback might come in “Moar frogs n00b!” and the human responsible for filtering ideas into the AI might suggest “More Frogs!” to the AI. But we all know that the suggestion “Moar dicks n00b!” would also come in, and this is where we would need our human to say “No, this isn’t porn; we’re not just going to put in more dicks. But what if we added in parts of William Shakespeare’s Richard II?”

Good ideas can come from the strangest places if we just leave room for them.

Captain America vs. The Post-Structuralist Critique

Captain America 3 passes the Bechdel test early on in the film by having Natasha give career advice to Wanda over the radio. The scene then turns its attention to an overloaded garbage truck symbolizing the male-geek ego that is used to breach the perimeter of an otherwise peaceful and blissfully unaware location, allowing violent men to come in and create a toxic atmosphere. In the melee that ensues, it’s worth noting that it’s Scarlet Witch — her initials being a J short of SJW — who clears the air but also, subsequently, whose failure to save the right people triggers international backlash in what comes off as analogous tone-policing built on a foundation of male privilege: “Tony Stark may have idiotically unleashed an alien AI that menaced the world and trashed a city, but Wanda’s loss of control when saving all of the poor people in the crowded market — we won’t stand for that!”

So the Secretary of State shows up and insists that the Avengers need to have a U.N. oversight committee. The conversation that doesn’t ensue goes like this:

With all due respect, sir, I'm Captain America and America doesn't accept oversight by the U.N. I mean, golly, we even reject prosecution under international law as gilding on our American Exceptionalism.

That's true. So as part of the accords you'd be promoted to Captain Planet.

Okay, but won't we always be stymied by the U.N. security council since any nation can drop a veto? I mean China and Russia seem like they'd always be interfering with our ability to operate...

Not really. In this world Russia stopped being a nation when the USSR collapsed and China's not even a place. Just look at the students Tony was talking to at MIT: how many of them were from anywhere in Asia? Trust me, our U.N. Security Council is way better than what our audience has in the real world.

Fair point. Let's talk about it in our world: who would be on the council? Would it be the legislators, statesmen, and intelligence agents that were infiltrated by Hydra in Captain America 2? Or the Vice President that was implicated in a coup because he wanted flaming roid-rage in Iron Man 3? Or maybe the President himself, who apparently ordered an unprecedented nuclear attack on New York City in The Avengers -- an attack, I might add, that Tony saved millions of people from? Because while I freely admit that Tony fucked up the whole Ultron thing...

Hey, watch your language -- this is a PG-13 movie!

... but even when a lot of innocent people are dying because of us, our actions are still less dangerous to the world than the actions of all you normal people that try to expand your power and thus personal sense of place and security through unnatural means. I mean, just compare me and Tony -- the heavier the armor, the lower the confidence in the ability to face whatever comes. And we're the superheroes.

I'm sorry, what was that? I couldn't hear you over the noise of this bus you threw me under.

And when we extrapolate this principle out we see that the nuclear strike on New York was authorized not by the powerful President of the United States but by a scared little man when he realized that his capacity for leadership wasn't up to the challenges he was facing. And his weakness, not his strength, made him a target for one of his closest allies and the flaming roid-rage brigade who, again, were disenfranchised and wanting to secure a place for themselves in the world that they seemed otherwise incapable of keeping up with. And the jumbo-murder drones that were going to assassinate a whole lot of people -- including you, Tony; you were a named target and I totally saved your life -- were designed and created by exceptional engineers but ordinary people who were afraid that they wouldn't be able to withstand the future.

I think that's the point, Steve: the world is becoming increasingly scared of us because at then end of every film, we've trashed our enemies and all that's left is us and collateral damage. And that fear is going to cause people and governments to behave irrationally and escalate conflicts.

I get that, but escalate to what? Launching jumbo-murder drones to wipe out most of the population? Major coups? Nuking New York? They -- not us, they -- already did all of that. There is nobody outside this room that I would trust to be on some kind of 'oversight committee' because they're the very people who are reacting irrationally to us.

Where's Clint?

Okay, maybe Clint. But as far as I'm concerned, even with Tony on the team, the safest hands are still our own.

Gee thanks, I'm feeling the love. But I'm still going to agree to this because if I don't the government will boycott me.

I thought you stopped selling them weapons, Tony.

I did. The current major project is rebuilding the entire power grid.

Wait, you're rebuilding the entire power grid but you're not driving a Tesla? What's up with that?

Uh, yeah. I have some... psychological anomalies? I don't even know. Look, the point is that if we're a non-governmental paramilitary force that goes fighting around the world, then it's very easy for people to label us as terrorists even though we're not, and a side effect of that is that even if the government would turn a blind eye towards our presence -- as they have with Wanda's immigration status -- the government will have to boycott me to avoid being a state-sponsor of terrorism.

Tony, you saved New York from the President trying to nuke it, a point that we've kept quite quiet about. We've got plenty of leverage here. Really: point all this shit out to people and they'll realize that we're more stable than the United States federal government.

You're right, we are -- we totally are. But we're not supposed to admit it because governments have a lot of power and the people in them are vulnerable to inferiority complexes. Which leads to them trying to nuke New York... so they can seem as strong as we are.

Above and beyond which, I need the government to think that it's a strong and capable partner doing the right thing for its people as it funnels truckloads of money into my coffers, licensing or buying my technology -- protected by government-enforced patents, of course -- that it should have been developing through broad public-subsidized research instead. Really, that whole 'September Foundation' nonsense where I'm dumping a truckload of money on kids' random-assed research? That's money the government paid me, and the condition on the grant has me getting free license on and collecting partial royalties from every patent generated by the work that's being funded. That's how neoliberalism works, Steve; that's what I and my family are an icon of: our big money comes from selling to a few people in government, not making a product that's actually popular with the masses.

That's, uh, wow. That's kind of horrifying, Tony.

That may be, but by doing it I'm more likely to get advanced warning of brilliant people who are just one lab accident away from starting the next flaming roid-rage brigade. And besides, if I weren't doing this then it's be goddamned Goldman Sachs or some other high-finance parasite that would be doing it. Most of the money made by extremely wealthy people is just collecting rent on past investment. At least I can still say that I'm still doing actual work to try to make the world a better place.

Even when you screw up.

Even when I screw up.

So again, the safest hands are still our own.

But only as long as we pretend like they're not.

Except that we don't have a financial industry in this world because the perpetual chaos and violence would've tanked the stock market so it's a total non-issue here.

Wait, I'm confused; I thought the point behind being the heroes was that we would be protecting people from violent villains, not getting hamstrung by them.

Well that's the problem -- everybody thinks they're trying to be good and maybe even heroic regardless of how laughably incapable they are. And when they realize that they're laughably incapable, a lot of people get really scared and start doing stupid things. Like nuking New York, or trying to stage a coup, or building mega-murder bots. Or asking us to sign our autonomy away at the request of some flunkie who was almost killed by a putting green.


My point is that we should smile and bat our eyelashes and sign their ridiculous papers like the good little superheroes they want us to be, but then keep on saving the world anyway because that's what we do. We don't have to be bound by their papers. Remember: this putz that any of us could wipe the floor with in two seconds works for a chump that tried to nuke us. What do they think they're going to do to top that? Send some sort of 'suicide squad' after us? Hah, no. There's nothing; they've got nothing. But if, by signing, we can get this schmuck to not launch nukes at us then maybe the world will be a slightly safer place for us to protect.

This scene is too damned long. Why hasn't a bomb gone off yet?

But the Secretary is wrong: there were several bombs in there.

First, the whole of the superhero genre — even dating as far back as The Odyssey — doesn’t believe in democracy. It elevates a hero and then slags off everybody around them. From a billion casualties in Independence Day as the catalyst to a feel-good action flick to Odysseus’s long trip that none of his crews survived, the equality of people is simply not part of the narrative. The narrative instead structurally forces the posed simply in Infernal Affairs: “What thousands must die so that Caesar may become great?” This creates contradiction within characters (like: Why doesn’t Captain America respect the will of the people?) and creates a callous indifference to human life in stark (pun intended) contradiction to the individualistic belief that warrants focus on a nigh-invulnerable hero anyway: when the hero is slaughtering legions of enemies, either in Hercules or in some Chinese historical fantasy, the hero is a person but their victims are just numbers. (This is the unsettling thing about V killing police in his exit from Jordan Tower in V for Vendetta: detective-inspector Finch and Dominic are real people, Creedy’s finger-men are villains, but beat-cops are just there to be culled.) While Captain America 3 does attempt to raise the issue of dehumanizing people down to mere collateral damage, the focus, format, and structure prevent the issue from being taken seriously.

But when we look past the mere assertion of democracy and the will of the people, we promptly encounter the real issue of power and people — particularly weak people — being afraid that their power isn’t enough to maintain itself and thus tending to over-deploy it. Consider: based on a single grainy photograph a kill-squad of normals is organized to assassinate the insanely dangerous super-soldier Bucky. And Black Panther also goes to assassinate Bucky on the same flimsy evidence. And the kill squad shoots everybody with the reckless abandon of people put into a fight-or-flight situation that they were unprepared for. The idea of “due process” being a foundational component of “rule of law” doesn’t enter into this for anybody, and nobody — especially those “upholding” the law (specifically Rhodes and Stark) — notices, not even when a lot of the team gets magically extradited from Germany and thrown into a black-site prison without any kind of trial. The Secretary of State acts with continual extrajudicial power, overextending his authority in a way that makes sense when you remember that the president tried to nuke New York — and we know the president authorized it because Secretary Ross explicitly highlights that he makes sure that nuclear weapons are under control. So what we see playing out is not a contest of the legitimate use of social authority to check the behavior of deviants, but rather — as Foucault would have us see — a few frightened people masquerading as the authority of “the people” to justify action against the deviant to secure and normalize their space.

But that dovetails into another thing that the film gets right: people’s sense or feeling of right and wrong drives their actions far more than their considered lip-service to reasoned policies, with local allegiance having more value than abstracted principle as Hume described in contradiction to enlightenment philosophy’s attempts to blend rationality and moral sentiment. Zimo, the former leader of a death squad, actively murders a bunch of people trying to get revenge for three counts of manslaughter that were not — in the way of The Stranger — adequately grieved and this is normal behavior for a good family man. T’Challa blames Bucky — based on a grainy photograph — for the death of his father, tries to kill him with no thought to capture or interrogation, and only later thinks to ask “If you weren’t guilty, why did you run?” as if “Because some fucking psycho with vibranium claws and an irrational hate-on was chasing me!” wasn’t the obvious answer. Tony is compromised throughout the entire movie — by physical pain, by an ongoing grieving process, by Pepper walking out when he went back on his promise from the end of Iron Man 3 — but the strength of his ego prevents him from reviewing his current choices despite them being a direct result of all the mistakes that he feels guilty about. And Secretary Ross believes in the rightness of the state, so he’ll happily send a whole lot of normal troops (of unknown allegiance in no clear chain of command) to try to stop the most dangerous and heavily armored people on planet with shockingly little regard for the lives put at his disposal. These characters all routinely ignore what they would claim to believe about the world so that they can reinforce how they feel about themselves. They all believe they can be good (or at least justified) even when their personal fears, neuroses and shortcomings are making them behave badly.

I would speculate that the alternative to all of this is helping people feel secure in society so that they’re not compelled to dubiously justify bad choices that they feel they’ve been forced into to themselves. This point even appears in the film: Tony asserts that he’s doing bad things to prevent worse things, the implication of which is that if he were secure against the worse things, then he wouldn’t try to rationalize or do the bad things. But that’s just the theory; I don’t know that it’s in our national character do actually widely practice such a thing.

Second, and related to the individualistic deployment of power, is the film as a piece of neoliberal propaganda. And this is just plain baggage on Iron Man: the weakness of the government, the ineptitude that lead to crisis, requires private citizens — often wealthy but routinely powerful — to step up and act for the good of society, and the government should be thankful for it and depend on the private sector to drive the public good rather than doing anything themselves. And the first part is a nice mythos to buy into, that some people like Elon Musk can really try to change the whole world — except if you were watching the Tesla 3 reveal and press, Elon knows that he can’t do it alone, or even with just his employees, which is why he opened his patents to his competitors and was vociferously thanking all of his high-dollar customers. But if we’ve got Musk then we’ve also got Gates with a peculiar mix of ideas both good and bad, and the Koch brothers whose ideas are mostly bad (but they are allegedly starting to fund some principled social justice work), and then also trolls like Sheldon Adelson, Lloyd Blankfein, and Donald Trump. And they all think that government is doing a bad job when it’s not doing what they want it to, and that the money they’ve extracted* from the system is what makes their criticism legitimate when the truth is that what the government is doing a bad job of doing is taxing incomes and re-circulating social goods to ensure a solid baseline quality of life for all of its citizens instead of, for example, letting them be poisoned in their homes in current-headline-example Flint.

Neoliberalism could be about expanding equality throughout the world and opening up the horizon for human potential, but it instead has an overwhelming tendency to subvert governance of the people to powerful private interests, with Disney (that owns Marvel) providing the egregious self-interested copyright-perpetuating behavior being a wholly apropos example. See, it used to be that a leader’s disinterest in a subject was seen as crucial for their objectivity in decision making: Solomon doesn’t give a shit about that baby, so his proposal to commit infanticide to figure out who the mother is is considered “wise” and not “dangerously sociopathic.” And this detachment gave us our notions of the elite: people with enough power to be untroubled should be able to provide more rationally objective guidance to society than people faced with troubles every day. But then it turns out that troubles are complex and elites don’t necessarily grasp the complexity of the situation, so we prefer experts to provide the guidance. But experts tend to bring their legacy interests with them, working to show (reciprocal) favor to their friends and entrenched institutions and making consistent application of rule of law for the good of the people an utter anomaly instead of the foundation of our society.

And then we get into a really strange place where we say we’ve got a really rich society, except that the government won’t collect taxes from the top or mandate higher wages for the bottom to help close its spending deficit because governance isn’t something we really do anymore. So the executives serving as board members for their peers (all advised by the same high-finance management consultants that get paid for action regardless of success or failure) participate in what amounts to a self-indulgent corporate circle-jerk of boosting their private compensation while suppressing pay and forcing business risk down on their labor force. But that’s in the real world; in the fictional world we might ask: how big is Stark Industries’ payroll? How do they do performance management? Do they have a gender pay gap despite Pepper running the show? Is Iron Man 4 going to feature Tony facing the smoldering wrath of 10,000 former employees that just wanted to have modest destinies involving raising kids, sending them off to college, and then a brief retirement featuring grandchildren before a peaceful demise but now that simple dream is denied them because they were laid off by a guy who maintains a cadre of lobbyists asserting that his taxes are too high and welfare programs are too generous while his accountants figure out how to shuffle money to international branches and shell companies to lower their bills? Because that’s how Tony Stark would be the richest guy in the world while the United States continued to be in debt up to its collective eyeballs.

Third is representation of race and sex. While the film passes the Bechdel test, as noted, and does a really nice job of developing Natasha’s personality and letting Wanda grow, and had an older woman — Marisa Tomei — on screen and regarded as attractive for like one whole minute!, and does have three black men that both speak and (mostly) survive the movie, there are some noticeable gaps. First, with the exception of T’Challa’s de-gendered bodyguard, black women exist to be victims and mourners. But this is a step up from, second, Asians that apparently don’t exist at all to such an extent that I’m pretty certain they were even grossly under-represented, especially at MIT.

But things turn strange when we get to the PG-13 representations of female sexuality because it combines “hotness” with utter asexuality. Natasha puts a lot of legitimate work into caring — in a platonic way — for her friends while Wanda works more on personal exploration and development, and both are good to see played out. But then Black Widow goes into combat with her cleavage prominently on display. And Scarlet Witch’s combat outfit is an impractical corset that drew smirks from my students. The only thing that the womens’ outfits add to their capacity for action rather than attracting gaze would be Natasha’s shock bracelets. Most of the guys are wearing armor — from padding on Captain America to Black Panther’s bulletproof bodysuit to Rhodes’s full-on “War Machine” — but neither of the women are. Hawkeye’s outfit is as minimalist as dudes get here; other than the goggles, Spider-Man’s suit is simultaneously concealing and non-functional.

And this is why Natasha’s “I was sterilized” scene in Avengers 2 seemed strangely out of place despite resonating with a lot of women: these films are running on an abstinence-only sex policy for their powerful women, so being sterilized — and were are the chances that irradiated Bruce’s sperm still work, anyway? — was functionally a non-issue. But think about it: on the prime-time spin-off, Agents of Shield, the women can both get laid and then go kick ass or do amazing things. But on the big screen we’ve only had Pepper who bags Tony and then also wears his suit and later wields flaming roid-rage superpowers for a short time before… she’s gone, and certainly not pregnant. And admittedly she’s gone in an arc that makes total sense for her character vis-a-vis Tony (and was totally obvious given her absence in Avengers 2 combined with the puerile jealousy of Tony against Bruce and Natasha, even if Paltrow’s 2014 exit made it an easy arc) but the point is that they didn’t even try to re-cast the part. Meanwhile, young Agent Carter does get kissed by 90ish-something year-old Captain America (it gets creepier the more you think about it) but is mostly just running errands in this movie. She never wears an unfashionable bullet-proof vest, never even pulls a gun from her fashionable thigh-holster. She spends about four seconds getting tossed into furniture by mind-controlled Bucky, but the rest of the film is being the pretty blond helping out around the office. Speaking of hair, contrary to the pretty flowing hair on the headlining women, Maria Hill’s efficiently cropped Avengers 1 hair doesn’t show up in this film and neither does Maria, despite being employed by Tony (as mentioned in Agents of Shield).

The point is that there’s an aesthetic layer of femininity, especially white femininity, that normalizes/enforces physical vulnerability even while preaching physical empowerment and modeling chastity in the frustrated get-up of a sexually isolated dominatrix. It’s the chainmail bikini updated for the 21st century. What’s more true is what Magneto said to Mystique in X-Men: First Class: “If you’re using half your concentration to look normal, then you’re only half paying attention to whatever else you’re doing.” Which you can read as again advocating for developing a practice of priorities and focusing on getting things done on the personal-and-real level. Or, in terms of Marvel movies, we should at least have Maria Hill suiting up in power armor to be the replacement War Machine.

Brief tangent: in case you need to be reminded of what a armored woman looks like, might I point out Emily Blunt? Or, holding the too-feminine critique so we should be more in line with Maria Hill, how about Vasquez?  That’s right, we’ve been able to put non-feminine minority women in armor in critically and financially successful films for at least 30 years now!

Side note on what else we didn’t see: we didn’t see Clint’s wife with their infant being left alone while he goes off trying to get himself killed again against no particularly clear and present danger. The good and dutiful home-making wife is invisible, like Penelope in the Iliad.

But for all of that, it’s not a bad movie if you can buy into the neoliberal iconizing anti-democratic elitism that has been part-and-parcel to the dramatizing of social conflict since (at least) the Greeks. It’s just that we also have to wonder the abstractions that get codified into our culture are undermining the aspirations of our society and critique it at that level.

And we could critique the luck-and-McGuffin scripted plotline, like, with the scene where Bucky explains the other super-soldiers and Steve is like “I can’t call Tony because he wouldn’t believe me” but then also doesn’t call Natasha, whose phone number he has as we saw earlier in the film, and who is specifically sympathetic to him as we saw earlier in the film, and is intimately familiar with Soviet stuff and a native Russian speaker. The phone call that didn’t happen would’ve gone like this: “Hi Nat, it’s me and Bucky and we’re fine, but that weirdo shrink — has anybody re-run a background check on him? Because we’re pretty certain he’s headed to the Hydra base in Siberia to activate a super-soldier death squad. You know the location I’m talking about, right? Great. We’d love to come along, but are kind of in hiding here until you can vindicate us. Thanks.” Heck, they don’t even say “We’re going to Siberia to take out a super-soldier death squad, want to come along?” when she’s right there helping them in the hangar. But as with Star Trek: Into Darkness we’re supposed feel this movie rather than think about it so criticisms of plot devices will not stick to it.

But we can critique it like a geek, too. Because Spider-Man.

See, the thing about this particular reset of Spider-Man is that he comes into being after terrigen poisoning from the end of Agents of Shield season 2 is causing an outbreak of mutations ergo his obscured history here suggests not that he was bitten by a radioactive spider (so passe!) but rather that he had alien spider genes in his history — perhaps one of his ancestors was a Drider? — that were awakened and the reality is that he’s one of the Inhumans. So this is odd, but we can roll with it. What we can’t roll with is this: Tony Stark sees the kid on YouTube and tracks him down and just picks him up despite all of Hydra, Shield, and the United States Federal Government trying to track down and pick up inhumans for — guessing at timeline based on Peter’s assertion of 6 months — uh, 6 months. So the extreme likelihood is that Peter would have been picked up by Rosalind and stuffed in a freezer that got misappropriated by Hydra, and then he’d have gotten a rude awakening from Lash. And that’s true even if he’s “enhanced” and not “inhuman” because it’s really not clear that there’s any kind of a discernible difference at this juncture.

So when I’m down on the notion of Spider-Man joining the Avengers, it’s not just because I don’t want some obnoxious kid soaking up screen-time. And for everybody who says “but he’s supposed to be obnoxious like that, he’s so well-written” — no, he’s not: my students laughed derisively when the whiz-kid was delighted by passing a mere algebra test while I wondered how he could know that a DVD player left out on the curb was just fine merely by looking at it. No, the real issue is that the late crossover disrupts the continuity of the Marvel cinema universe. Which is normal for the ret-con-happy pulp-comic world that vomits up and forgets all ideas with no regard for their quality, but was something I’d (foolishly) hoped they’d be getting past — although it now seems obvious that Doctor Strange is how they’re going to integrate ret-cons until they start losing money.

As a side note: if they really wanted to bring in a spider-power inhuman despite inhumans being targeted by three different organizations for six months, Maria Hill (again!) was tucked away in Tony’s organization so if she were to acquire powers, hiding them from everybody but Tony would’ve been trivial rather than a major gaffe in continuity. It would’ve also explained how she could have a custom suit on-hand instead of magically fabricated on an insanely tight time-line, oops, while also working against the normalized aesthetic femininity — even though it would sadly foreclose the power armor option.

* Tangent: beware of articles that assert that extremely high-income people are “making” or “earning” money; that’s normative language that tries to equivocate their work with actual labor as if there were still a path in this new gilded age for a laborer to start in a mail-room and work their way up to CEO. There is not.

On Still Not Valuing Morality

The practice of judging and condemning morally, is the favourite revenge of the intellectually shallow on those who are less so, it is also a kind of indemnity for their being badly endowed by nature, and finally, it is an opportunity for acquiring spirit and BECOMING subtle — malice spiritualises. –Nietzsche, Beyond Good and Evil

So I’m reading Haidt’s The Righteous Mind and while it does a good job of demonstrating that morality is too nebulous to be valued in a debate, and to clarify it with a specific criterion is to tilt into disaster (page 113), the possibility that morality is too nebulous to be clearly defined in an expansive post-structural society does not occur to Haidt — despite the wide variety of vitriolic feedback he receives on his (fundamentally flawed) work.

But let’s start with the decent part: he’s working from Hume, who argued that people cast moral judgments based on their emotional reactions to circumstances rather than a larger (deontological or teleological) rationalized framework, which is fine but it’s also why we don’t poll random strangers on what we ought to do: if we don’t trust their aesthetic sense, then we’re not going to trust their moral judgment if it’s justified with nothing more than Hume’s emotive base. The (failed) project of morality in the enlightenment was to get a system of determining goodness that anybody could use so that their judgments wouldn’t be arbitrary, but Hume came along and pissed on all of that (as Haidt quotes on page 115 — and yes, it really took 115 pages to get to this point; I’ve not suffered through a writer so gratingly loquacious since Veblen’s Theory of the Leisure Class).

The good part is when we start breaking down morality into its common components (page 153 if you want the short form): there’s caring/harm-prevention, fairness, loyalty, respect for authority/process, and the nebulous “sanctity” or disgust-avoidance (that I suspect Haidt mis-surveys when he finds it missing) — with the ones in bold being useful for debaters to consider in place of valuing mere “morality.” To these Haidt then adds liberty, which gets activated when authority betrays the people it ought to be loyal to and caring for, so despite our common love of the word “liberty,” I disagree with Haidt’s use of it as a vector of morality. What Haidt doesn’t consider is that people touting liberty don’t consider the likelihood of their failure or the consequences they’ll suffer as a result — they want to be free to succeed and want other people to be free to fail, not the other way around. It’s rather like the notion of equality: we only like equality when we’re at (or sympathetic to) a disadvantage — honestly arguing for equality from a position of power goes against self-interest and is thus vanishingly rare.

But the issue of “free to succeed” does point to an embarrassing gap in Haidt’s decomposition of morality: Aspiration. His core metaphor of rationality being a rider on a moving elephant of emotion evokes a teleological understanding that the elephant is going somewhere and not just milling around. His repetition of the narrative of the lazy welfare cheat focuses on the notion of cheating, but ignores the (Puritanical) moral judgment on laziness. And his strange clinging to the proportionality of rewards to defend inequality without noting that the absurd lack of proportionality was exactly what has made economic inequality a flashpoint issue for a great many people actually justifies Aspiration as a moral vector.

The argument is simple: if somebody has achieved what you want to achieve or is trying to achieve what you want to achieve, you will be sympathetic to their intentions regardless of the disastrous consequences of their actions. Consider the rich, sexually fulfilled, physically fit, super-genius titan of industry Tony Stark and how we’re supposed to ignore the bald fact that he unleashed an extraterrestrial artificial intelligence from the weapon of a villain who was specifically known for is treachery in Age of Ultron because he somehow thought it would be a good idea (despite Captain America 2‘s plot showing that it wasn’t a good idea when Nick Fury was pushing for something similar, either). It’s the moral feeling when parents hope for their children’s future, or are disappointed — quietly or otherwise — by their children’s lack of accomplishment or ambition, with the cross-cultural reference point being in Trigun where the sand-steamer designer shows his work to his son and wonders aloud what his son will accomplish to benefit humanity. It’s where we get the phrase “give ’em an A for effort,” with the evolutionary basis being the people who poked tigers and the like.

These days, the suspension of moral judgment for our Aspiration most obviously relates to the banksters and executives who we would like to hate, but honestly most of us are too jealous of their ability to extract money from the system so we invest more in our 401ks that they’re leeching off of. Veblen would call it an exploit, Nietzsche would call it the will to power, we look at it and have to admit that we wish we could have the opportunity to do such a thing, and that’s the reason I’ve heard given as to why poor Republicans appear to vote against their economic interest: they’re voting on their fiscal aspiration rather than their current fiscal reality. The flip-side is the presumed categorical lack of aspiration in poor people — or, since it’s 2016, Millennials — as demonstrated by their inability to do anything that we only wish we could do (that fairly successful people can also be fairly lazy is a surprise), and, related to that, the seeming smallness of Democrats’ aspirations — “now you have to buy health insurance, and we’re proud of that!” — makes it hard to keep their base charged up.

It may be argued that aspiration is part of sanctity, but this isn’t quite the case. The exact argument — going back to the Greeks per Foucault’s History of Sexuality vol 2 — is that

sexual pleasure was generally characterized as being, not a bearer of evil, but ontologically or qualitatively inferior—for several reasons: it was common to animals and men (and thus did not constitute a specifically human trait); it was mixed with privation and suffering (in contrast to the pleasures of sight and hearing); it depended on the body and its necessities and it was aimed at restoring the organism to its state prior to need.

I mean, consider the different response you’d have to a nymphomaniacal hedonist as opposed to a necrophiliac. You’re likely disgusted by the very notion of necrophilia — and that’s the Sanctity aspect of morality done proper — but lacking any details on the hedonist, you probably started from a position of disappointment because a human should be so much more (unless you’re aspiring to be a nymphomaniacal hedonist, in which case you were probably thinking “nice work if you can get it”). So there is a wedge in there between the actions that are condemned because they’re disgusting and the actions that are judged because, according to the person casting the judgment, they’re not a good enough use of human life, which perhaps sounds really classist and flashes dignity politics warnings — but let’s revisit the Greek argument against sex as it was remixed in Donnie Darko:

The rabbit’s not like us. It has no history books, no photographs, no knowledge of sorrow or regret. I mean, I’m sorry, Miss Pommeroy. Don’t get me wrong. You know, I like rabbits and all. They’re cute and they’re horny. And if you’re cute and you’re horny, then you’re probably happy that you don’t know who you are or why you’re even alive. You just wanna have sex as many times as possible before you die. I just don’t see the point in crying over a dead rabbit, you know, who never even feared death to begin with.

And what we see is that, to the person casting judgment, the qualitatively inferior behaviors and characteristics invites judgment while, contrariwise, the aspirational behaviors and characteristics (of, for example, the modernized Goethe’s Faust we call Tony Stark) are morally justified.

But why are so many people casting moral judgment anyway? Going into the third part of the book, we don’t have an answer. We did, however, get a hint early on: Haidt asked them. Really, that’s the reason, because these scenarios feature disclaimers like, with regards to eating a dead pet, “nobody saw them do this,” or with incest between consenting non-reproducing adults, “they keep that night as a special secret between them.” Only it’s obvious that it’s not a secret, that there was a witness, because here’s this leering researcher calling upon the interviewee to cast judgment on the people who were allegedly unobserved. Really: they had to be observed for moral judgment to be cast because morality, coming down from when everybody shared a cave, was fundamentally about social practice — McIntyre’s After Virtue is illuminating on this point, but even Haidt asserts social behaviors in primates and pre-history to justify the vectors he identifies. So why in the name of Cthulhu’s cloaca is he surveying on private behaviors?

His behaviors reminds of the bit of the Bible — John 8 — where the morality police take a woman to Jesus saying “We caught her committing adultery! What now?” and Jesus looks at the lecherous perverts (who didn’t bring in the man, presumably because they aspired to be so libertine themselves) and doesn’t say anything, but starts writing in the dirt. And — the popular narrative among Christians is that — he may’ve been writing the laws most commonly broken until the morality police realized their imperfection and wandered off. Or my alternate speculation is that he may have written the story about Noah cursing his son Canaan for subversive lechery. Regardless, as far as anybody knows, the brief interaction that the woman had with Jesus was brought about only and exclusively by the morality police insisting that there had to be a judgment — ideally one that allowed them to kill the woman or, more nefariously, tell the Roman occupiers that Jesus had subversively taken on the Roman state’s role in ordering an execution. But the bigger picture, that I would like to imagine Jesus saw, is that trying to instigate unnecessary judgments and condemnations is a pretty shitty way of increasing the amount of peace and love in the world.

So when Haidt says “This guy fucks a dead chickens! How do you feel about that?” the most honest answer I can come up with is “Dude, you can go fuck yourself and I promise I won’t judge you if you just refrain from telling me about it.”