From: Jim Choate <ravage@ssz.com>
Date: Tue, 30 Dec 1997 10:30:36 +0800
To: cypherpunks@ssz.com (Cypherpunks Distributed Remailer)
Subject: thomas.html (fwd)
Message-ID: <199712300247.UAA04526@einstein.ssz.com>
MIME-Version: 1.0
Content-Type: text



Forwarded message:
>From ravage@ssz.com Mon Dec 29 20:38:05 1997
Date: Mon, 29 Dec 1997 20:38:04 -0600
From: Jim Choate <ravage@ssz.com>
Message-Id: <199712300238.UAA04509@einstein.ssz.com>
X-within-URL: http://www.courttv.com/library/rights/thomas.html
To: friends@ssz.com
Subject: thomas.html


    Court TV Library 
   
  Justice Thomas on 'Heroes and Victims'
  
    Legal Times
    
   
   
   Clarence Thomas may keep a lower profile than many of his colleagues
   on the Supreme Court bench. But when he does speak out, he almost
   always makes an impact. That was the case late last month, when Thomas
   made headlines with a speech excoriating what he termed "the modern
   ideology of victimhood."
   
   In his remarks, delivered to the Federalist Society's Ninth Annual
   Lawyers Convention, Thomas criticized contemporary society for
   exalting victims -- in not only the political realm, but in the courts
   as well. He marveled at the breadth and depth of the victim mentality,
   finding irony in the white men today who, "preoccupied with
   oppression," have "fallen prey to the very aspects of the modern
   ideology of victimology that they deplore." And, sounding a classic
   conservative theme, Thomas concluded that "the idea that government
   can be the primary instrument for the elimination of misfortune is a
   fundamental misunderstanding of the human condition."
   
   The full text of Thomas' speech, delivered Sept. 22 in Washington,
   D.C., follows. It is reprinted with permission.
     _________________________________________________________________
   
   
   
   I would like thank my friends here at the Federalist Society for once
   again inviting me to be a part of an important and timely conference.
   And I would like to begin by returning to a topic I touched upon in my
   last speech at a conference co-sponsored by this organization:
   personal responsibility. It says something about the current state of
   affairs in our society that a conference on victims -- that is, a
   conference on the rise of the practice of blaming circumstances for
   one's situation rather than taking responsibility for changing things
   for the better -- is even necessary.
   
   As many of you have heard me say before, the very notion of submitting
   to one's circumstances was unthinkable in the household in which I was
   raised. The mere suggestion that difficult circumstances could prevail
   over individual effort would evoke a response that my brother and I
   could lip-sync on cue: "Old man 'can't' is dead; I helped bury him."
   Or, another favorite response: "Where there is a will, there is a
   way." Under this philosophy -- the essential truth of which we all
   recognize in our hearts -- victims have no refuge.
   
   It may have seemed harsh at the time to be told that failure was one's
   own fault. Indeed, there may have been many circumstances beyond our
   control. But there was much that my family and my community did to
   reinforce this message of self-determination and self-worth, thereby
   inoculating us against the victim plague that was highly contagious in
   the hot, humid climate of segregation.
   
   What has become clear to me over the years, as I have witnessed the
   transformation of our society into one based upon victims rather than
   heroes, is that there is a more positive message to be gained from
   adversity: Success (as well as failure) is the result of one's own
   talents, morals, decisions, and actions. Accepting personal
   responsibility for victory as well as for defeat is as liberating and
   empowering as it is unpopular today. Overcoming adversity not only
   gives us our measure as individuals, but it also reinforces those
   basic principles and rules without which a society based upon freedom
   and liberty cannot function.
   
   In those years of my youth, there was a deep appreciation of heroes
   and heroic virtue. Art, literature, and even popular culture (unlike
   today) often focused on people who demonstrated heroic virtues --
   courage, persistence, discipline, hard work, humility, triumph in the
   face of adversity, just to mention a few. These building blocks of
   self-reliance were replicated and reinforced at home, school, and
   church. The "rags to riches" Horatio Alger stories were powerful
   messages of hope and inspiration to those struggling for a better
   life. And many of us used to read and dream about heroes -- not to
   mention our favorite television heroes, something perhaps unbelievable
   these days. I am certain that many of you who attended grammar school
   in the 1950s or earlier probably remember reading a favorite account
   of the integrity and work ethic of George Washington, or of Abraham
   Lincoln, or of George Washington Carver, or even of some baseball or
   football legend. It seemed that we all had heroes (not role models, a
   term of far more recent vintage). Indeed, it would have been odd for a
   child of several decades ago not to have had a hero.
   
   But today, our culture is far less likely to raise up heroes than it
   is to exalt victims -- individuals who are overcome by the sting of
   oppression, injustice, adversity, neglect, or misfortune. Today,
   victims of discrimination, racism, poverty, sickness, and societal
   neglect abound in the popular press. Today, there are few (if any)
   heroes. Often, it seems that those who have succumbed to their
   circumstances are more likely to be singled out than those who have
   overcome them.
   
   What caused this cultural shift -- from an emphasis on heroes to a
   preoccupation with victims? Why are there more victims and virtually
   no heroes recognized today? Why in years past was there much less of
   an emphasis on victimage?
   
   I think two things contributed to this change in the state of affairs.
   The first is that our political and legal systems now actively
   encourage people to claim victim status and to make demands on society
   for reparations and recompense. The second is that our culture
   actually seeks to denigrate or deconstruct heroes. Why would a
   civilized society travel down two such destructive paths? Why has it
   become no more admirable to rise valiantly above one's circumstances
   than it is to submit to them -- all the while aggressively
   transferring responsibility for one's condition to others?
   
   Let's begin with our political and legal systems -- how have they
   contributed to this state of affairs? The classical conception was
   that government and the law were meant to ensure freedom and equality
   of opportunity by giving people the most room possible for
   self-provision and self-determination. James Madison made this point
   in The Federalist Papers when he observed that the "protection" of the
   "diversity of faculties in men" was the "first object" of government.
   And, in more recent times, the great political economist Friedrich von
   Hayek -- who witnessed totalitarianism first-hand -- made a similar
   point when he observed that "the chief aim of freedom is to provide
   both the opportunity and the inducement to insure the maximum use of
   the knowledge that an individual can acquire."
   
   Between the New Deal and the 1960s, a far different view began to hold
   sway -- namely, that the role of the state was to eliminate want,
   suffering, and adversity. Freedom was no longer simply a right to
   self-provision and self-determination, but was instead a right to make
   demands on government and society for one's well-being and happiness.
   That is the import of Franklin Roosevelt's "Citizen Bill of Rights,"
   which spoke of freedom from want -- rights to minimum income, housing,
   and other "adequate protections from economic fears." And, I think it
   is axiomatic that the call for such new rights (if not claims) became
   ever more prevalent in the 1950s and 1960s.
   
   No doubt, this gradual transformation in ideas took root and
   flourished (at least in part) because of the aggregate growth in
   wealth and resources we were witnessing in this country during the
   course of the 20th century. Against the background of this prosperity,
   poverty stood out in bold relief and in uncomfortably stark contrast
   -- even as the number of people suffering from it shrank. It is not
   surprising that people began to think that, in a world of seemingly
   unlimited resources, adversity could be eliminated, or, at the very
   least, remedied. The ideal of the "benevolent state" took hold. In our
   "enlightened" society, neglect, misfortune, and injustice did not have
   to be accepted as inevitable facts of life. Good government and laws
   could step in when necessary, as many believed they had successfully
   done during two World Wars, the Great Depression, and the civil rights
   movement.
   
   If one assumes that suffering and adversity can be eliminated, but
   sees a number of people continuing to suffer from adversity or
   misfortune, then there must be some forces in society that relegate
   the "have nots" to this fate. Or, at the very least, the less
   fortunate are being ignored. Those facing adversity, hence, are
   victims of a society that is not doing as much as it could (if it so
   desired), and these victims can (and should) stake a legitimate claim
   against the political and legal systems for recompense. In this view,
   neglect or selfishness on the part of society and government is
   responsible for the sting of oppression, injustice, and misfortune
   that the unfortunate and "have nots" feel today.
   
   In light of this modern ideology, is it any surprise that people
   identify themselves as victims and make demands on the political
   systems for special status and entitlements? Our culture expects (and,
   indeed, encourages) people to do exactly that. Consider, for example,
   the creation and continued expansion of the welfare state and other
   social programs in this country. How often have we heard proponents of
   these programs lull the poor into thinking that they are hopeless
   victims, incapable of triumphing over adversity without "benevolent
   intervention" by the state? How often have we heard these proponents
   encouraging the less fortunate in our society to become indignant
   about their situation in life and more demanding on the political
   system to find solution to their problems?
   
   It is not only in the political system, though, that we see our
   society and its leaders succumbing to the modern ideology of
   victimhood. As with the political system, people today also are
   strongly encouraged to make demands on the legal system by claiming
   victim status. Indeed, the legal system has, in many ways, become a
   significant driving force behind the modern ideology of victimhood.
   Courts are viewed as an effective means of forcing (or at least
   pressuring) political institutions into meeting demands for protected
   status and new rights or entitlements.
   
   Pointing to perceived "victimization" by "the system" or by others in
   society, our legal culture has often told the least fortunate in our
   society that their last hope is to claim special legal rights and
   benefits, or to seek exoneration for the harmful, criminal
   consequences of their acts. The least fortunate are encouraged to turn
   to legal arguments that admit defeat and that challenge the moral
   authority of society. In these ways, courts are called upon to solve
   social problems -- by creating special rules, and by crafting remedies
   that will satisfy the claims and demands of victim groups but that do
   not apply to all of us.
   
   Appealing to the legal system, though, was not as easy a task as
   making demands on the political system. Our legal system has
   traditionally required that redress for grievances only be granted
   after very exacting standards have been met. There had to be, for
   example, very distinct, individualized harm. And, the definition of
   harm was circumscribed by a traditional understanding of adjudication
   under the common law, where narrow disputes regarding traditional
   property rights were resolved among private parties who could not
   settle matters on their own. Very generalized claims of misfortune or
   oppression or neglect -- the kinds of assertions made in the political
   system -- would not easily fit into this common mold of court
   activity. It would not be enough for people to be indignant, angry,
   and demanding about their situation in life. There would have to be an
   assertion of a legal wrong and a persuasive argument that a legal
   remedy was available.
   
   The pressure of victimology "revolutionized" -- and that word does not
   always have positive connotations -- the courts and the law. For those
   in our culture seeking to use the courts as agents of social change,
   poverty, unemployment, social deviancy, and criminal behavior were not
   just unfair conditions in our society that could be eliminated if only
   people or politicians cared. Instead, these abstract problems were
   personified as the direct actions of local schools, churches,
   businesses, and other social institutions so that they could be sued
   for causing individualized harm to the victims. Based on this new kind
   of harm -- a kind of legalistic understanding of "victimage" -- the
   courts were said to be obligated to recognize special rights and
   protected status under the law.
   
   Take, for example, welfare rights and due process. Beginning with
   Goldberg v. Kelly, 397 U.S. 254 (1970), our cases underscored the
   importance of welfare as a means of preventing social malaise,
   promoting the general welfare, and securing the blessings of liberty
   for all Americans. The rights to life, liberty, and property were, in
   effect, transformed from freedom from government interference into a
   right to welfare payments. There are countless other examples in legal
   literature and judicial opinions -- some have argued that inner city
   minorities and the poor should not be held responsible for the
   consequences of their criminal acts because of oppression and
   misfortune; and, of course, there is the debate now raging about
   preferences based on sex, race, and ethnicity.
   
   This change in our political and legal systems has been accompanied by
   the rise of the "victim group." These groups are quite useful to
   public officials for building coalitions for future political support
   and legitimacy, as well. And, for the courts, "victim groups" provide
   useful justification or cover for energizing the legislative process,
   changing the legislative agenda, forcing reconsideration of spending
   priorities, and transforming public debate.
   
   But the rise of victimhood, and its perpetuation by government and the
   law, is only part of the modern tragedy. There is also the dearth of
   heroes in our culture. Significantly, as the number of these "victim
   groups" has escalated, there has been a corresponding decline in the
   amount of attention that our culture has paid to heroes or, even
   worse, a conscious attempt to cheapen their achievements. Today,
   success or a commitment to fighting for noble ideas is attributed to
   self-interest, revenge, self-aggrandizement, insecurity, or some
   psychological idiosyncrasy.
   
   Just thumb through recently published biographies in the library or
   bookstore -- in many of them, it is not a conscious effort to be
   virtuous or to do good, but instead a series of unforeseeable and
   external forces, that lead to greatness or success. And, in many of
   these biographies, we are introduced to the uncut, "never before seen"
   foibles, mistakes, and transgressions of people our culture idealized
   for centuries. The message: that these so-called heroes are really
   just regular people capable of folly and vice who happened to have a
   few good breaks.
   
   In Democracy in America, Alexis de Tocqueville anticipated this state
   of affairs when he said: "Historians who live in democratic times do
   not only refuse to admit that some citizens may influence the destiny
   of a people, but also take away from the people themselves the faculty
   of modifying their own lot and make them depend on an inflexible
   providence or a kind of blind fatality."
   
   Now, the problem these days is not that there are no people who should
   be singled out as heroes. Rather, as Daniel Boorstin suggests in his
   book, The Image, society is preoccupied with celebrities. And heroism
   and celebrity status are two very different things. The word "hero"
   refers to people of great strength, integrity, or courage who are
   recognized and admired for their accomplishments and achievements. The
   word "celebrity," on the other hand, refers to a condition -- the
   condition of being much talked about. It is a state of notoriety or
   famousness. As Boorstin says, "A celebrity is a person who is known
   for his well-knownness." Thus, while a hero is distinguished by his
   achievement, celebrities are created by the media and are simply a
   trademark. Celebrities are, in short, neither good nor bad -- they are
   just a big name. Publicity is the defining feature of a celebrity's
   existence, and, unlike a hero who will become greater as time passes,
   time destroys celebrities. Over time the glare of publicity, as
   Boorstin notes, melts away the celebrity by shedding light and heat on
   his vices and commonplaceness.
   
   This pattern of ignoring and deconstructing heroes -- and focusing
   instead on the ephemeral celebrity who is known for his well-knownness
   rather than character or individual worth -- stems from the rise of
   radical egalitarianism. In the 1960s, many of the cultural elite saw a
   need to ensure absolute equality. On this view, differences in ability
   and level of achievement are random or uncontrolled; and to permit
   these characteristics to dictate human happiness and well-being would
   therefore be unfair. Celebrity status, in contrast, is not a problem
   for egalitarians, for as Boorstin notes, "anyone can become a
   celebrity, if only he can get into the news and stay there."
   Certainly, real achievement is not necessarily required.
   
   It should surprise no one that our culture now has far less difficulty
   recognizing celebrities than it does those who achieve success as a
   result of personal effort and character traits that we traditionally
   would consider heroic. Denigrating heroic virtue -- in other words,
   chalking heroism up to circumstance -- fits quite well with the notion
   that we must all be the same and that there can be no significant
   differences in our achievement, social standing, or wealth.
   
   Anyone can see what these intellectual currents have done to the
   ideals of human dignity, personal responsibility, and
   self-determination. Preoccupation with victim status has caused people
   to focus covetously on what they do not have in comparison to others,
   or on what has happened to them in the past. Many fail to see the
   freedom they do have and the talents and resources that are at their
   disposal.
   
   Our culture today discourages, and even at times stifles, heroic
   virtues -- fortitude, character, courage, a sense of self-worth. For
   so many, the will, the spirit, and a firm sense of self-respect and
   self-worth have been suffocated. Many in today's society do not expect
   the less fortunate to accept responsibility for (and overcome) their
   present circumstances. Because they are given no chance to overcome
   their circumstances, they will not have the chance to savor the
   triumph over adversity. They are instead given the right to fret and
   complain, and are encouraged to avoid responsibility and self-help.
   This is a poor substitute for the empowering rewards of true victory
   over adversity.
   
   One of my favorite memories of my grandfather is how he would walk
   slowly by the cornfield, admiring the fruits of his labor. I have
   often thought that just the sight of a tall stand of corn must have
   been more nourishing to his spirit than the corn itself was to his
   body.
   
   But the culture of victimology -- with its emphasis on the so-called
   benevolent state -- delivers an additional (and perhaps worse) blow to
   dignity and self-worth. When the less fortunate do accomplish
   something, they are often denied the sense of achievement which is so
   very important for strengthening and empowering the human spirit. They
   owe all their achievements to the "anointed" in society who supposedly
   changed the circumstances -- not to their own efforts.
   
   Long hours, hard work, discipline, and sacrifice are all irrelevant.
   In a world where the less fortunate are given special treatment and
   benefits -- and, significantly, where they are told that whatever
   gains or successes they have realized would not be possible without
   protected status and special benefits -- the so-called beneficiaries
   of state-sponsored benevolence are denied the opportunity to derive
   any sense of satisfaction from their hard work and self-help. There is
   not a one among us who views what others do for us the same way we
   view what we do for ourselves. No matter how much we appreciate the
   help, it is still just that -- help, not achievement.
   
   It also bears noting that our culture's preoccupation with grouping
   victims has balkanized society. The "we/they" mentality of calling
   oneself a victim of society breeds social conflict and calls into
   question the moral authority of society. The idea that whole groups or
   classes are victims robs individuals of an independent spirit -- they
   are just moving along with the "herd" of other victims. Such
   individuals also lack any incentive to be independent, because they
   know that as part of an oppressed group they will neither be singled
   out for the life choices they make nor capable of distinguishing
   themselves by their own efforts.
   
   As victim ideology flourishes and people are demoralized by its grip,
   more and more people begin to think that they must claim victim status
   to get anywhere in this world. Indeed, is it any surprise that anyone
   and everyone can claim to be a victim of something these days? In his
   book The Abuse Excuse, Alan Dershowitz criticizes countless examples
   of conditions that "victimize" people and thereby release them from
   responsibility for their actions. Here are just a few examples:
   
   x The "black rage defense," which asserts that blacks who are
   constantly subjected to oppression and racial injustice will become
   uncontrollably violent;
   
   x "Urban survival syndrome," which claims that violent living
   conditions justify acts of aggression in the community;
   
   x "Self-victimization syndrome," which maintains that people become
   less productive and creative, and become severely depressed, as a
   result of societal neglect and discrimination.
   
   Most significantly, there is the backlash against affirmative action
   by "angry white males." I do not question a person's belief that
   affirmative action is unjust because it judges people based on their
   sex or the color of their skin. But something far more insidious is
   afoot. For some white men, preoccupation with oppression has become
   the defining feature of their existence. They have fallen prey to the
   very aspects of the modern ideology of victimology that they deplore.
   
   Some critics of affirmative action, for example, fault today's civil
   rights movement for demanding equality yet supporting policies that
   discriminate based on race. These critics expect the intended
   beneficiaries of the civil rights regime to break away from the
   ideology of victimhood: to cherish freedom, to accept responsibility,
   and, where necessary, to demonstrate fortitude in the face of
   unfairness.
   
   I do not quarrel with this. But these critics should hold themselves
   to the same standards, resisting the temptation to allow resentment
   over what they consider reverse discrimination to take hold of their
   lives and to get the best of them. They must remember that if we are
   to play the victim game, the very people they decry have the better
   claim to victim status.
   
   Of course, de-emphasizing heroism exacerbates all these problems.
   Human beings have always faced the temptation to permit adversity or
   hate to dominate and destroy their lives. To counter this tendency,
   society had heroes -- people capable of overcoming the very adversity
   or injustice that currently affects today's victims. They rose above
   their circumstances and inherent imperfections. Heroes cherished
   freedom, and tried to accomplish much with what little they had.
   Heroes demonstrated perseverance in the face of adversity and used
   hardship as a means to strive for greater virtue. And heroes accepted
   responsibility -- they did what they did despite fear and temptation,
   and tried to do the right thing when presented with a choice between
   good and evil. It is awfully hard for society to inculcate these
   values without some useful models from the past and present.
   
   I may not have realized it as a child, but my grandfather was a hero
   who had a tremendous impact on my life. He certainly would not be a
   celebrity by today's standards. Though barely able to read and saddled
   with the burdens of segregation, he worked hard to provide for his
   family. He was a deeply religious man who lived by the Christian
   virtues. He was a man who believed in responsibility and self-help.
   And though this could not bring him freedom in a segregated society,
   it at least gave him independence from its daily demeaning clutches.
   
   In all the years I spent in my grandparents' house, I never heard them
   complain that they were victims. Now, they did not like segregation or
   think that it was right. In fact, there was no question that it was
   immoral and that anyone who promoted it was morally reprehensible. But
   there was work to be done. I assure you that I did not enjoy the
   demands he placed on us. I saw no value in rising with the chicken,
   and, unlike him, I was not obsessed with what I will call the "reverse
   Dracula syndrome": that is, fear that the rising sun would catch me in
   bed.
   
   It would not be until I was exposed to the most fortunate and best
   educated in our society that I would be informed that all this time I
   had been a victim. I am sure you can imagine what it was like when I
   returned home to Savannah, and informed my grandparents that with the
   education I had received because of their tremendous foresight and
   sacrifice, I had discovered our oppressed and victimized status in
   society. Needless to say, relations were quite strained and our
   vacation visits were somewhat difficult. My grandfather was no victim
   and he didn't send me to school to become one.
   
   There are many people like my grandfather alive today. The cultural
   elite does not honor them as the heroes they are, but instead views
   them as people who are sadly ignorant of their victim status or who
   have forgotten where they came from. Our social institutions do not
   train today's young to view such people as heroes and do not urge them
   to emulate their virtues.
   
   In idealizing heroic virtue and criticizing the victim ideology of our
   day, I am not saying that society is free from intractable and very
   saddening injustice and harm. That would not be true. But the idea
   that government can be the primary instrument for the elimination of
   misfortune is a fundamental misunderstanding of the human condition.
   There has always been bad and suffering in the world, and we must
   admit that wrongs have been and will continue to be committed. People
   will always be treated unfairly -- we can never eliminate oppression
   or adversity completely, though we can and should fight injustice as
   best we can.
   
   But keep in mind that all of us are easily tempted to think of
   ourselves as victims and thereby permit adversity to be the defining
   feature of our lives. In so doing, we deny the very attributes that
   are at the core of human dignity -- freedom of will, the capacity to
   choose between good and bad, and the ability to endure adversity and
   to use it for gain. Victimhood destroys the human spirit.
   
   I also am not saying that we should expect everyone to be a hero all
   of the time. We humans are weak by our very nature; all of us at times
   will permit hardship to get the very best of us. But having a set of
   norms to guide us and to push us along -- the stuff of heroes -- can
   be a source of great strength. If we do not have a society that honors
   people who make the right choices in the face of adversity -- and
   reject the bad choices -- far fewer people will make the right
   choices. Ultimately, without a celebration of heroic virtue, we throw
   ourselves into the current state of affairs, where man is a passive
   victim incapable of triumphing over adversity and where aggression,
   resentment, envy, and other vice thwart progress and true happiness.
   
   What I am saying is that it requires the leadership of heroes and the
   best efforts of all to advance civilization and to ensure that its
   people follow the path of virtue. And, because of the role law has
   played in perpetuating victim ideology and because of the influence
   law can have in teaching people about right and wrong, lawyers have a
   special obligation here. We should seek to pare back the victimology
   that pervades our law, and thereby encourage a new generation of
   heroes to flourish.
   
   I am reminded of what Saint Thomas Kempis wrote more than 500 years
   ago about the human spirit. His standard is a useful one for thinking
   about the instruction that our law should be offering: "Take care to
   ensure that in every place, action, and outward occupation you remain
   inwardly free and your own master. Control circumstances, and do not
   allow them to control you. Only so can you be a master and ruler of
   your actions, not their servant or slave; a free man. . . ."
   
   Legal Times is an affiliate publication of Court TV.
   
   Copyright (c) 1995, American Lawyer Media L.P.
     _________________________________________________________________
   
   Copyright 1996 by American Lawyer Media, L.P. All Rights Reserved. No
   parts of this site may be reproduced without permission of American
   Lawyer Media. Nothing in this site is intended to constitute legal
   advice.