Home -> Law Blog Directory -> Legal Commentary Blogs -> Discriminations

Legal Commentary

: Discriminations

Talking Through Your Hat, Or: The Democratic Party As A Post-Modern Institution

Watching the Democrats debating whether or not to follow their own ?rules? is like watching post-modernists trying to have a principled argument.

Listen, for example, to Harold Ickes,

a top adviser to Sen. Hillary Rodham Clinton?s campaign who voted for Democratic Party rules that stripped Michigan and Florida of their delegates, now is arguing against the very penalty he helped pass.

.... Ickes explained that his different position essentially is due to the different hats he wears as both a DNC member and a Clinton adviser in charge of delegate counting. Clinton won the primary vote in Michigan and Florida, and now she wants those votes to count.

?There?s been no change,? Ickes said. ?I was not acting as an agent of Mrs. Clinton. We had promulgated rules and those rules said the timing provision ... provides for certain sanctions, automatic sanctions as a matter of fact, if a state such as Michigan or Florida violates those timing provisions.?

?With respect to the stripping, I voted as a member of the Democratic National Committee. Those were our rules and I felt I had an obligation to enforce them,? he said.

Now, wearing his Clinton hat, he feels he has an obligation to argue that the rule he helped pass is unfair, and he feels no obligation to see that it is enforced.

By now long-time readers of DISCRIMINATIONS will have recognized Ickes? argument for what it is: Fish-y. Yes, there is no better philosopher of the modern (make that post-modern) Democratic Party than that prophet of post-modernism, Stanley Fish (discussed, among other places, here, here, here, here, here, here, and here).

For those of you who are not-long time DISCRIMINATIONS readers or who are but have short memories, allow me to repeat what I said here:

in his trademark bad boy manner Fish shamelessly admits, even proclaims, that he proudly will say anything to win an argument, and its opposite to win another argument. Consistency, apparently, is only for those pre-postmodernists who believe in formal universalisms, like honesty.

Re-read Ickes? two-hats argument above, and then note the following examples (quoted here), chosen from many possibilities, where I would say Stanley Fish defends talking through both sides of his hat as a matter of principle ... except that he disdains principle as a matter of principle:

The passion I display when debunking the normative claims of neutral principle ideologues is unrelated to the passion I might display when arguing for affirmative action or minority-enhancing redistricting. To be sure, there might be a contingent relation in a given instance if the outcome I dislike was brought about in part by neutral-principle rhetoric; I might then attack the rhetoric as part of my attack on what it was used to do. But I might turn around tomorrow and use the same rhetoric in the service of a cause I believed in. Nor would there be anything inconsistent or hypocritical about such behavior. The grounding consideration in both instances . . . would be my convictions and commitments; the means used to advance them would be secondary, and it would be no part of my morality to be consistent in my handling of those means. [Fish, The Trouble With Principle (Harvard, 1999), p. 8]

?Free Speech? is just the name we give to verbal behavior that serves the substantive agendas we wish to advance.... Free speech, in short, is not an independent value but a political prize, and if that prize has been captured by a politics opposed to yours, it can no longer be invoked in ways that further your purposes, for it is now an obstacle to those purposes.... [S]o long as so-called free speech principles have been fashioned by your enemy . . . , contest their relevance to the issue at hand; but if you manage to refashion them in line with your purposes, urge them with a vengeance. [Fish, There's No Such Thing as Free Speech...and it's a good thing, too (Oxford, 1994), pp. 102, 114.]

When Fish says that his ?grounding consideration? is his ?convictions and commitments,? he is really saying the same thing that Ickes is saying with his two-hats approach to rules: in both cases their arguments are wholly owned subsidiaries of their interests.

As I have noted before, it?s a waste of time to take these talking through your hat arguments seriously, since the people making them don?t. But now that this post-modernist approach to argumentation has permeated the upper reaches of the Democratic Party, the implications become a bit more ominous. For example, consider: If you were a foreign country, how would you feel about signing a treaty with a country governed by a president and party with this Clintonian attitude toward rules and obligations?

Full post as published by Discriminations on February 17, 2008 (boomark / email).