Friday, February 28, 2014

The Provocative Rhetorical Power of Slavery in Policy Analysis

-- Posted by Neil H. Buchanan

[Update: In the post below, I discussed the film "12 Years a Slave" at some length.  I did not know as I wrote that post, of course, that the Best Picture Oscar would be awarded to that movie several nights later.  Indeed, I had forgotten all about the Oscars.  In any event, even though the award was not necessary to validate what is one of the most important films of recent years, it was a well deserved recognition of a powerful achievement.]

My new Verdict column, published yesterday, is mostly devoted to an extension of my analysis of the "baseline problem" (which I also discussed in a Dorf on Law post two weeks ago).  On Monday, I will publish a post that summarizes that column, and that further develops the core of my argument.

Today, however, I want to take a bit of a detour.  In yesterday's column, as I will explain below, I struggled with how to use the example of slavery to further my argument.  Based on my difficulty in using that example, I have been thinking about the great potency of references to slavery in modern policy discourse, and why that power is problematic, in ways that merit further scrutiny.

We can, I think, stipulate that there are situations in which the slavery example is directly implicated.  If, for example, one were to note that United States history includes prominent examples of shameful policies, it would be strange indeed if slavery did not lead the list -- and it would be outright suspicious if it were omitted from the list entirely.  Along with internment of Japanese-American citizens during WWII, and other race-related policies and legal decisions (Jim Crow, Plessy), we would add to the list the disenfranchisement of women for over a century of our history, the continuing failure to address gender-, class-, and race-related economic and social inequality, and we might add Lochner as well as the anti-labor policies of the early industrial era.  But slavery is clearly the leading example of national shame, and talking about it in that context would be essential.

The next category might be thought of as conversations in which slavery is one of many pertinent, illustrative examples, but not a necessary one.  For example, earlier this week, in a post about the right's "religious freedom" political strategy, Professor Dorf wrote: "By seeking religious exceptions from laws governing society very broadly, social conservatives are over-playing their hand. Past experience here is a useful guide. Slaveowners often made biblical arguments to justify slavery; yet nobody thought that once slavery was outlawed, there should be exceptions for people who held slaves as a matter of religious obligation."

That is a powerful example, and it explicates Professor Dorf's point well.  One could imagine him choosing a different example (although I cannot think of any), but mentioning slavery there was anything but a reach.  Even so, we are already treading into territory where one starts to become a bit nervous, because once slavery is part of an analogy -- X is "like slavery" in one way or another -- then we must take great care to be sure that slavery is not somehow trivialized.  Again, I think Professor Dorf's use of the analogy easily passes this test.  He uses a powerful example, but not in a way that uses the uniqueness of slavery to exaggerate the power of his actual point.  One could, however, imagine another author being less careful.

In fact, I might be an example of that less-careful kind of author.  In my Verdict column today, I describe the difficulty that I have faced in trying to explain how the notion of economic efficiency is contingent on the laws under which economic activity is carried out.  I have, at various times, made the point that abolishing slavery would be inefficient (under the standard economic analysis), in a world where slavery is legal, while enacting a slavery regime would be inefficient, in a world where slavery was not currently legal.

Although that example is correct and directly pertinent, it is only one of an uncountable number of examples that could be mustered to make the same point.  I have deliberately used the slavery example to convince people that the stakes in economic efficiency analysis are anything but boring or sterile, but rather that human freedom itself can be implicated by the analysis.  Unfortunately, the impact of that example is possibly too great.  As I noted in my column, one smart and well-meaning person has told me that his reaction to my example was: "All right, so slavery is always a special case.  What else ya got?"

As frustrating as that reaction was, I do understand it.  Seen in all of its horrors, slavery is uniquely awful.  During my Tax Policy Seminar last semester, the discussion at one point slipped into some casual (but not ill-spirited) opining about how some policy or another was "like slavery" in some meaningful way.  Finally, one student said, "We need to remember that nothing is like slavery."  He reminded his fellow students (and me) that slavery was far more than forced labor without pay, extending to grotesque violence and the complete dehumanization of the people who were enslaved.

Early in each semester, I discuss in my basic tax law course the "tax protester" arguments against the legality of the federal income tax (and, for that matter, all taxes).  The low/high point of that discussion each term is when I note the protesters' claim that the federal income tax violates the 13th Amendment's abolition of slavery and involuntary servitude.  Part of that argument (if one can call it an argument) is surely based on the idea promulgated by a prominent right-wing anti-tax group, which annually announces the day on which people are "free" from taxes.  The idea is that, if taxes were to add up to, say, 25% of one's gross annual income, then somehow one spends the first three months of the year "working for Uncle Sam," and then after March 31, one is "free" to work for one's own benefit.

Although the think-tank that promotes that nonsense does not go so far as to join the tax protesters in their misapprehension of the 13th Amendment, the idea of being free to work for oneself, versus being in the servitude of others, is clearly what animates that annual public relations stunt.  This argument, moreover, has what would generally count as an impressive academic pedigree.  The conservative philosopher Robert Nozick described income taxes as being "on a par with forced labor," because it forces a "person to work n hours for another’s purpose."

When I discuss that argument in class each semester, I generally roll my eyes (because, among other things, most of the students are already laughing in disbelief, even as I describe the protesters' offensive analogy to the 13th Amendment), and then I try to say something substantive by pointing out that no one is forced to work for the government.  That is, if one does not want to pay taxes, one is "free" not to earn an income.  Admittedly, that might sound flippant.  Am I really saying that the choice is to work for the government or to live in a hut?  That is hardly better than forced labor!

The deeper point, however, is that if one does choose to work for an income, one is still not being forced to work for the government rather than oneself.  There is no time during which one is not working for oneself -- "First, I work 3 minutes for you, then I work 9 minutes for me."  The existence of taxes simply changes the terms of the labor exchange, where one ends up not earning as much as one might have thought from looking at the top-line number on the labor contract.  Each minute that one works, one is working for oneself, to receive a wage that is not as high as the gross wage would make it seem.  One can argue at length about whether taxes are too high or low, but they are certainly not involuntary servitude.

Again, however, this argument concedes far too much.  This semester, when we reached that point on the syllabus, I had just seen "12 Years a Slave," a brilliant film that depicted the horrors of slavery in ways that I had never before seen.  That film emphatically makes the point that my student made last Fall: Nothing is like slavery.  In last month's Harper's, J. Hoberman offers a moving review essay discussing "12 Years a Slave" (here, unfortunately behind a paywall), which emphatically made that point as well.  The essay's title, "Here There Is No Why," hauntingly captures the completeness of slavery's dehumanization.  There are no rules, and there need be no explanations.  Things happen, because other people make them happen -- and those people are able to make them happen with the imprimatur of a state that treats slaves as non-people.

About ten years ago, there was a brief flurry of activity among tax policy scholars regarding "endowment taxation."  The idea was that there might be efficiency-based reasons (which end up being too ridiculous to summarize here) to tax people not on their income, but on their potential income.  Under such a system, a person who could be working as a Wall Street lawyer, earning $2 million per year, would be taxed on that amount, even if she had decided to quit her job and live on the beach.  This became known among tax scholars as "enslaving the beachcomber."

One can understand the greater allure of the slavery analogy here.  Unlike Nozick's argument about income taxes, which ultimately relies on a false segregation of working time into "free time" and "forced time," an endowment tax could essentially prevent a person from quitting a high-paying job (unless she had savings from which she could pay her taxes).  The former lawyer might be "forced" by such a tax system to return to lawyering, which would be an impingement on her liberty.

But come on!  She would not be forced to work for a particular law firm, or in a particular city.  In fact, she would not necessarily even have to practice law, if there were non-law jobs that she would prefer that would pay enough to cover her taxes.  She would remain free to marry whom she wished (SSM issues very much acknowledged here), to live where she wished (within the constraints that all of us face, given economic realities in our lives), to travel on vacations, and so on.  She would not be whipped, raped, or separated from her children.

These powerful images are important to bear in mind, no matter how uncomfortable they are, because it is essential to remember what it means to casually call something "like slavery."  Something called "Godwin's Law" holds that "[a]s an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1."  The idea is that, no matter the subject of discussion, at some point someone will become angry or desperate enough to claim that the other side is "a bunch of Nazis," or something similar.

Slavery, too, holds the power to distort rational discussion.  My example, showing how slavery can be efficient or inefficient, depending upon one's viewpoint, does not deny the awful reality of slavery.  If anything, I could argue that as people think more about slavery's horrors, the idea that it can be called economically efficient only strengthens my point.  But I get it.  For good reasons, people respond to the use of slavery as an example with trepidation.  There are too many idiots out there saying too many stupid things about slavery to imagine that this topic can be analogized casually.  It is not off the table, but especially now that millions of people have been educated about what pre-Civil War slavery in the United States actually meant, using slavery as an example must be done with the greatest of care.


Anonymous said...

An excellent post Neil. In fact, I might go so far as to say that it is better to abandon analogies all together. Two reasons.

First, analogies have a nasty habit of distraction. By definition an analogy is not an identity and so precisely how comparable two different things are is a matter of degree. This matter of degree then becomes a subject of debate in and of itself. As an example, just how comparable are same sex marriage and interracial marriage? Are they more alike than different and more different than alike? Are they alike enough to make the analogy meaningful? Does the same sex marriage side of the analogy pull the interracial side down into the mud or does the interracial side pull the same sex side into the grand tradition of equality? Thus the debate over the "fittingness" of the comparison becomes a proxy debate for the main debate generating heat and no light and wasting energy. A distraction.

Second, even when there is a general sense that the analogy is intellectually appropriate (your example of Professor Dorf's analogy is excellent) analogies come with all sorts of other psychological baggage. Whenever I read a comparison to slavery or to the Holocaust or something similar my initial reaction is to wonder whether the author is appealing to my intellect or to my sentiment. It's difficult to read or hear the word slavery without having an emotional reaction and its easy for the emotional reaction to cloud the readers thinking. In fact, I am of the opinion that many obviously inapposite analogies are thrown about precisely for their emotional affect rather than their intellectual effect. The result is a kind of emotional analogy--"Slavery made the slaves feel bad and so since I feel bad what you are doing to me must be like slavery."

A suppose in the grand scheme of things I do not oppose analogies 100% but I think that all analogies--not just slavery--should be viewed with healthy skepticism by both the reader and the writer. They often cause far more rhetorical problems than they solve.

Shag from Brookline said...

What is the extent of the knowledge of the user of the slavery analogy of slavery? What is the extent of the knowledge of the user's audience of slavery? What is the extent of the alleged deprivation of freedom/liberty that concerns the user of the analogy? Perhaps a side-by-side comparison could be set up of such current alleged deprivation and deprivations of slavery over hundreds of years, including the aftermaths of slavery. This would provide perspective for the slavery analogy. I'd venture to say that that the current alleged deprivation giving rise to the use of the slavery analogy would be comparatively insignificant in most, if not all, instances.

While many today recognize the evils of slavery, we are too distant in time to fully understand its evils. Yes, the 13th Amendment was great, and so were the 14th and 15th Amendments; and Brown v. Bd. Od Educ. was great. And the movie "Twelve years a Slave" moved many. But there was much more to slavery. In this regard, check-out Drew Gilpin Faust's New York Review of Books recent essay "The Scholar Who Shaped History" review of David Brion Davis' "The Problem of Slavery in the Age of Emancipation."

The use of the slavery analogy is lazy and/or deceptive rhetoric in most, if not all, situations.

Shag from Brookline said...

What about the power of Nazi Germany? Consider Dr. Ben Carson's complaint that the US of A today is like Nazi Germany. By the way, at the recent CPAC convention Dr. Carson polled third for presidential choice for 2016 (behind Rand Paul and Ted Cruz).

Unknown said...

In fact, I am of the opinion that many obviously inapposite analogies are thrown about precisely for their emotional affect rather than their intellectual effect. The result is a kind of emotional analogy--"Slavery made the slaves feel bad and so since I feel bad what you are doing to me must be like slavery."Fifa 14 Ultimate Team Coins
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Anonymous said...
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Anonymous said...

The distinction between actually slavery and wage slavery might be relevant here. Among other differences, there is a very important distinction of direct brutality and the psychological impact on both the owners and the owned. But under a situation of true wage slavery there is an aspect of similarity to actual that critically does not extend to the faux-wage slavery decried under efficiency arguments made by the Right.

The power asymmetry that exists between capital and labor is the crux of the difference between real wage slavery and faux-wage slavery that is lost if the analogy collapses all the way to actual slavery. That is the rhetorical trick that an analogy to slavery plays, because it lumps all labor into the same pool, when not all labor is equivalent in its political economics.

Power, control, and the ability to have countervailing power are key indicators of whether a system is akin to wage slavery or a healthy labor market. Determining whether taxation can or does push the balance, either by deepening disfunction or contributing to a solution, is a legitimate question.

Collapsing the interests of the powerful and the powerless is a common rhetorical rule on the right, and it should be countermanded. Think of other examples like corporate agriculture hiding behind the shield of small farms, or hedge funds hiding behind a political shield of either institutional or other investors. Delinking those inappropriate associations allows the interests of the weaker party in those definitional categories to be separately heard and addressed.

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