The Body, Political
What follows are excerpts from my undergraduate political science thesis The Body, Political.
Introduction
The body is our point of departure when encountering reality. The body is first- physical, tangible, and known to each person on earth. Bodily experiences should surely be communal and unifying amongst all human beings. But then, the body also works as a metaphor, and as the basis of our psyche it is politicized. Though we all have one, there is little humanity agrees on regarding its physicality. Beyond the physical reality somehow there is a detachment between the tangible and the theoretical, between the evident and our perception of it. Surely we are all humans, but who are thepeople? The Law defines for us the nature of personhood (What We, 1746). Our existential self-awareness of the human experience is implicit in the rules we’ve created which govern the course of our lives. How we see ourselves can be perceived in the law as a reliable history of self-actualization. Looking into this legal history, there is a ringing dissonance between humans and persons; between the bonds of species and the bonds of something more intellectual (What We, 1745). We all belong to the same category of human creature but there is clearly an uneven distribution of the rights supposedly afforded to the ‘person.’ To understand the uneven implementation of power, law guides us as the rational tool of institutionalized oppression.
Within one collective, there is a constant split between the us and the other. Defining ourselves by implying an ‘other’ is an old and traceable human characteristic. Some scientists argue that tribalism exists as a force within us as powerful today as in early human evolution (Alt, 56). Given the trajectory of governance, of political theory, and of the way these bodies have manifested their reality- how has this pattern of thought progressed with human evolution? If law defines for us the nature of personhood it implies and, in fact, manifests the realm of nonpersonhood. By designating a positive definition of personhood separate from the reality of physical existence, therein lies a portion of human bodies not included in the existential understanding of persons.
Politicized personhood is manifested in legality, resulting in dual personhoods: a physical, and also a legal definition and regard which is selectively and disproportionately applied to bodies (Kantorowicz, 4). Not all physical bodies experience reality the same way, surely, and the same uneven experience can be measured in the legal system. The difference is that the legal system, under liberalism, necessarily claims universal individual application (What We, 1750). Are all men created equal, due the right to life, liberty, and the pursuit of happiness? Can a government that was created by a particular subset of humanity possibly define an inclusive personhood? Is defining personhood at all the first step towards mutuality? The law emotes one perspective on human experience and provides for another. This thesis sets out to examine the ways the law tries to reconcile the dissonance between physical and political personhood.
There is already a body of research recognizing a kind of ‘legal anxiety’- that the law does not do exactly what it says (Schneider, Threadcraft). And further, that certain demographics clearly benefit from the system at hand. This school of thought and its supporting philosophy has not yet been analyzed in relation to the extremis of the United States legal system. Within the long jurisprudential history of U.S. legal personhood is a particular supreme court case that very visibly acknowledges the dissonance between physical and political, and also oversees the capacity to which the State might legally correct that. The following research sets out to analyze Buck v. Bell as an exemplary and paramount record of the laws attempt to reconcile the dissonance in physical/political personhoods.
Research Findings
Given the reflective nature of the law against society, there are implicit discrepancies in laws regard for the multitude of individual persons. The way the law has been written, and by whom, while claiming to govern us all, reveals a structural dissonance. The law proclaims itself to be the governing intelligence, the rational body by which we all abide (What We, 1750). In the U.S., it presumably embodies that democratic system in which we not only abide but do so through consent. By the People, for the people…we, them, those people: who are they? They are the reflection of those that wrote them into existence. When the abstract idea of a limited personhood comes into contact with our individual bodies, the dissonance of the law lies therein.
The human inclination to establish opposing groups amongst ourselves is well-established across many disciplines (Alt, 56). The Other exists, theoretically, throughout time and space. The dissonance of the law indicates a persistence of othering that is institutionally implemented in our lives and the structures under which we navigate them: as Maine refers to Status, so persists inequalities.
On questions of personhood, the physical body that qualifies us is evident. This is the body natural, often not privileged to the same equality or autonomy that the body politic is allowed. Each of us has both, but they do not often align- lest there would be no legal dissonance or anxiety regarding equality under Liberalism. The bodily culmination of theoretical and physical serves to hold a mirror up to the arm of the law and in that to show the cracked reflection of a political person and the physical realities of the unevenly distributed power of personhood. “Subpersons,” Charles Mills has written, are accorded “a different and inferior schedule of rights and liberties” (Ordover, 137).
The Power of the State
In its attempt to reconcile the dissonance between physical and political personhood, the State exercises violence as its means of control (Maxwell, 172). The dissonance between persons is revealed by the inequalities that exist in our society, the visible and implemented prejudices that have real, institutional effects on individual lives.
In Discipline and Punish, Michel Foucault examines that “Neo-liberalism places the power to make law in the hands of the judges and at the mercy of political economy, turning citizens into a population governed through administrative orders” (167). The secular all-knowing entity maintains power over a world that is not that. We trust the State to limit our individual experience with violence, and it does so with the impending threat of violence over ‘all’ of our heads. Foucault asserts that the State reached this monopolistic legal conclusion after first having license to implement torture- a legacy of violence implemented on bodies for broader political agendas. Punishment shifts from physical pain towards the death of juridical, political personhood. Today, the “trace of torture (is) enveloped by the non-corporeal penal system” (Discipline, 8).
Foucault employs the metaphor of the Guillotine as a device of ultimate violence removed from the physicality of prolonged torture. Its development marks a point in the progression from the rudimentary punishment of the physical to more complex intellectual form of discipline. “It is intended to apply the law not so much to a real body capable of feeling pain as to a juridical subject, the possessor, among other rights, of the right to exist” (12). Violence and its relationship to life and death is necessarily physical. The state’s means of control is directly linked to physical personhood, as it is the physical person that experiences death. It would make sense, then, that the state would move to legislate the physical person when faced with the infrastructural paradox of personhoods.
Modern law, being written by a particular group for the purposes of governing and being upheld all, is implicitly an extension of human othering. It enforces the dissonance between humans and persons with violence as the ultimate tool against physical bodies reliant on their place between life and death. Violence seeps from the governing body, existing as its own intersection of the theoretical and the physical. “The murder that is depicted as a horrible crime is repeated in cold blood, remorselessly” In Unburied bodies: The Subversive Power of the Corpse and the Authority of the Dead James R. Martel poignantly observes the repercussions of the state’s monopoly on violence:
To hold life as being so precious and irreplaceable that no risk of any kind is allowed that life means forfeiting all political power to the state, letting it utterly determine its citizens—as well as determining who is and is not a full citizen, who can live and who must die-- in order to preserve life (for those who are favored) at any costs. (5)
If it is violence through which the state maintains its control, it is also the essential operative underlying Foucault’s societal disciplines. The disciplines of society are inflicted on docile bodies in order to preserve the liberal ideal within the state. So then, does violence occur as a force of friction in response to disruption within the liberal ideal? If the devices used to maintain a system negate the system itself, then it is not a question of maintenance, but consequence. This paradox is made tangible when legal dehumanization is needed to preserve the liberal equality of humans. The state’s monopoly on, and enforcement of violence has thus existed continuously as a response to enforced liberalism.
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Court Opinion
In the 8-to-1 decision, the U.S. Supreme Court upheld the state’s right to sterilize, ruling that Buck “was the probable potential parent of socially inadequate offspring” and that “it is for the best interests of the patients and of society that an inmate under his (this institutions) care should be sexually sterilized” (Buck). Justice Oliver Wendell Holmes famously concluded that:
…the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough. (Buck)
The manifestly unfit, as such, are not entitled to the privileges of legal personhood, and in its absence are physically vulnerable to the state’s violence. The threat of their unsatisfactory existence alone entitles the state to legislate the body, but most especially if their inferior status can somehow be contained in the process. For the betterment of society and Carrie buck herself, the state has a right and obligation to alter her body.
Holmes also concluded that:
The law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow. Of course so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached. (Buck)
The ruling affirms the positive aspirations of forced sterilization. Equality and individual liberty for all are the manifest destiny of this case; the decision marks the extent the law is willing to go to in order to address the dissonance between physical and legal personhoods. Simultaneously, Holmes attempts to subvert the broad philosophical implications of his ruling by claiming that Buck v. Bell represents a singular policy evaluation and nothing more. This tendency to circumvent a kind of ideological responsibility is not uncommon in Supreme Court rulings (Cullen, 1746). However, given the significance of legal personhood and the individual under liberalism, any regulation and commentary on that speaks deeply to foundational ideas at the core of our modern political perspective.
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The Secondary Female Body
The ultimate justification of Buck v. Bell was that Carrie Buck may be graciously returned to society by the state so long as she no longer possessed the means of bodily reproduction. Her ‘immorality’, under the eyes of the state, called for a subjugation of her physical personhood in attempt to reach legal personhood. It was within the subjectivity of immorality that the nature of her procedure, and thus this court case, were decided upon. Setting morals as the logical framework for legalizing forced sterilization inserts a theoretical agenda and paradox. Whose morals? Whose body? Who was Carrie Buck, as physical and political character, that made her the key to unlocking forced sterilization as a legal tool for the uniformity of a society? If the physicality of inferiority has been proven untrue, Buck represents an entire realm of moral ‘subhuman’ under the law.
Buck v. Bell was part of a deliberate effort to position and subjugate women as the primary candidates for sterilization (Ordover, 135). Ordover summarizes the data:
According to data from the Human Betterment Foundation, established in 1929 by sociologist and Journal of Heredity editor Paul Popenoe, there was a radical gender shift in surgical sterilizations between 1928 and 1932. At the end of 1927, 53 percent of all people who had been legally sterilized in the United States were male but during the next five years this percentage dropped to 33 percent. In institutions, where the procedure was almost never performed with rational consent, the percentage of women and girls receiving forced sterilization climbed from 47 percent to 67 percent. (136)
These numbers represent the “corporeal fulfillment of eugenic constructions of women up to that point.” (136) As those responsible for the actual production of the feebleminded, de facto regulators of the national gene pool, women in institutions were hostages to their reproductive organs (Ordover, 137). Henry Laughlin, the congressional Eugenic authority, said:
It is contended without being confuted that the degenerate blood of the country is controlled largely by the number of degenerate women; that in the lower strains of humanity the degenerate women reproduce to full natural capacity; that if reproduction were made impossible for degenerate members of this sex, eugenical requirements of the situation would be met (Ordover 138).
In Building a Better Race: Gender, Sexuality and Eugenics from the Turn of the Century to the Baby Boom, Wendy Kline connects the ideas of Eugenics as a popular American movement to “the center of modem reevaluations of female sexuality and morality" (Beets, 107). The moral disorder of women and their historical their secondary position was a foundational layer in Buck’s representational trial.
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Conclusion
The first act of existential realization is perception of the body. Not of the self, but of the physical as the vessel through which we navigate the world. To be human is to be physical, and to have the awareness that the psyche and the body coexist- that there is a both a relationship and a separation between the two. Over the course of time we’ve come to embrace that more and more, and built a kind of volition out of our bodily autonomy. In the modern liberal ideal, our physical individuality validates our intellectual individuality, and this is a source of power. Would that this were the case for all of humanity.
In the pursuit of understanding dehumanization, I discovered degrees of personhood. The existential experience of personhood is a privilege and not a given with our physical birth. This is visible in the law as the theoretical means by which we supposedly self-govern. The Declaration of Independence is an oft used means of satire, of evidence that the law, state, and society do not do what they say they do. We do not all possess the right to life, liberty, and the pursuit of happiness. Even amongst legal citizens, the degrees of access to the fantasy of legal personhood are varied. What Carrie Buck’s trial represents is an example of the law reconciling that dissonance with what means it must use to enact equality as it exists within liberalism. Here is a moment where the the law was forced to double back on itself and address a paradoxical yet accepted dilemma.
What is inequality? It’s a degree of access to the splendors of legal personhood. Engendering an expected hypocrisy with terms like humanization and personhood reveal a kind of darkness. When people are institutionally recognized as unequal they are also recognized as subhuman. Indeed, the court noted this, and in an effort to restore Buck’s legal personhood granted itself access to her body- dehumanizing her with inflicted violence. If she does not occupy legal personhood, the validity of her physical personhood is in question and up for debate. She became a biological object of the state, violated in pursuit of equality.
Equality is something different than it seems. As a foundational tenet of the dream liberalism relational to individualism, its sound evokes a dream and a promise. To have equality is to have equal right and privileges. Equal to who? Equality in the United States is not a realm of inclusion, where we might all meet and establish an equilibrium of legal personhood. In fact, the law was written by and for a kind of person. They are reflected and protected by the law. All one has to do is examine society and see, generally, who actually enjoys the full capacity of the rights and privileges associated with legal recognition of personhood. American equality is not an equilibrium, but a standard to be held to. The dream is to embody the person reflected and protected by the law. To be equal in someone’s image, equal to who? To what extent is the state willing to go to enforce its true ideal, conformity?
Physical violence and infiltration of humans in this state illustrates just how much the definition of personhood is steeped in ideological suppositions. Personhood has become depersonalized. It is as separate as it can be from its physical reality yet, like the Guillotine, remains inescapably biological and rooted in violence. The concept of privileged personhood is necessarily violent in its need to enforce separation between the evident universality of human experience.
Buck v. Bell has never been overturned, and it never will be. Though the court attempted to frame its decision as policy approval, any step in the definition of persons is deeply philosophical and the dilemmas it approached have impossible solutions. The philosophical problems Buck v. Bellsought to physically repair remain broken and unsolved today.
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