When Politicians Talk Empathy, Be Suspicious

Plus, thoughts on the difference between justice and social justice.

Dear Reader (Including everybody who left their laptop at the repair shop and then forgot to get it back),

Last night Joe Biden told a story that caused the needle of my B.S. detector to plant itself in the red zone. That’s impressive, because I had to have it recalibrated for the Trump era (It’s not 3 roentgen, it’s 15,000!).

When asked a question about discrimination against transgender people, specifically in the military, he recounted how, when he was a teenager, his dad was dropping him off to apply for a lifeguard job. When they saw two men hugging and kissing, Biden said, “I turn to my dad and my dad says, ‘Joey, it’s simple. They love each other.’” 

It’s a nice, well-intentioned story that he’s told before. But I simply don’t believe it. It’s possible he believes it. Memory is a weird thing. But I just find the idea that this exchange occurred in early 1960s Delaware to be highly implausible. 

But let’s move on. He also said that, if elected, he’d rescind all executive orders discriminating against transgender people in the military: “I will flat out just change the law. Every—eliminate those executive orders, number one.” He then said:

“The idea that an 8-year-old child or a 10-year-old child decides, you know, ‘I decided I want to be transgender. That's what I think I'd like to be. It'd make my life a lot easier.’ There should be zero discrimination.” 

This was an interesting thing to say, just days after the Powers that Be decided to declare the term “sexual preference” verboten. At least sexual preference referred to which sex people are attracted to. Here Biden is saying that what sex you are is a matter of choice, for a 10-year-old child no less. The fact that a child has all of the biological equipment of one sex is irrelevant, and can choose to be another sex, because it would make their life “a lot easier”? Now, I’m sure, if pressed, he’d say his point was that it’s not a choice. Fine. But I just listened to Cory Booker and others explain how words can hurt and chalking such things up to mere preference or choice is outrageous. 

But whatever way he meant it, I still have a problem with the idea that his empathy for transgender people trumps all other considerations. I’ll leave it to others to debate the merits of incorporating transgender people in the military—my gut says it’s not the vital issue combatants on either side want it to be—but I have to believe there are more factors to think about than simply empathy-fueled antipathy for discrimination.

Empathy and demagoguery.

Speaking of empathy, Webster’s Dictionary still has a barely serviceable definition of demagoguery: “A leader who makes use of popular prejudices and false claims and promises in order to gain power.” The problem with this definition is that it leaves out that one can use demagoguery to maintain power, not just gain it. It’s hardly as if Hitler stopped being a demagogue once he became an absolute ruler. 

We all think we know demagoguery when we see it, even if we are often blind to it when we see it in someone we agree with or are rooting for. 

(President Trump’s presidency has been one long case study in demagoguery, even though saying so offends those who refuse to see it. If you don’t believe me, I can write a supplemental 9,000 word “news”letter just full of quotes about Muslims, immigrants, the suburbs, etc. But I don’t see the point, given that the very people who don’t believe me look upon Trump’s Twitter feed and giddily shriek “Statesmanship!”)

For most people, a demagogue is an angry person who hurls insults and vents rage against some demonized other. But there’s another kind of demagoguery. A nice, saccharine, more-in-sorrow-than-in-anger kind of rabble-rousing.

That’s what we saw this week in the Barrett confirmation hearings. Over and over again, Democratic senators waved their own version of the bloody toga, recounting legitimately harrowing stories of people struggling to cope with medical tragedies and the like. They might as well have piped-in Sarah McLachlan’s “Angel” every time they started their questioning (and in some cases “questioning”—since some didn’t actually ask questions).

This was all grotesque (and grotesquely stupid given that it was all predicated on the idea that Barrett would destroy Obamacare in a case pending before the court). The upshot of their perorations was that empathy for the plight of these people demanded that the text of a law be read in a specific way. 

I’ve had my say this morning on originalism. But just to be clear: Policy questions about how best to run health care aside, if the law is an ass, you go through the process of de-assifying it. You don’t read things into the law that aren’t there. Particularly if the “you” in question is a judge.  

I have no idea how else to run a railroad, if by railroad you mean a constitutional democracy. There’s a deep corruption at work when legislators work from the assumption that the judicial branch should be in the business of cleaning up the legislative branch’s messes. Senators and Representatives leave a pile of messy dishes in the sink and then get furious at the judges for not washing them the way they want. 

Antipathy and empathy.

But let’s talk about empathy. The idea behind empathy is very old, if you can call an emotional state grounded in human nature an idea. But as I’ve written before, the word “empathy” is of fairly recent vintage, barely a century old in the English language. It’s a translation of Einfühlungsvermögen or Einfühlung,a concept developed by the German historicist Johann Herder. 

Einfühlung literally means “Feeling one’s way in.” It isn’t a legal doctrine at all, but a romantic idea about how the historian or intellectual should understand a culture or society. And in that context, it has much to recommend it. Putting yourself in someone else’s shoes is an important skill for understanding different worldviews.  

But we should feel our way into what Herder was getting at. As one of the founders of German nationalism, Herder was an opponent of the French Enlightenment, which he saw as a foreign imposition on authentic German culture. Part of his Einfühlung-fueled indictment was that the “mechanistic” abstract rules of the Enlightenment were alien to the Teutonic volk of Germania and should be rejected as such. He flirted with a kind of polylogism—the idea that different kinds of people reason differently and that all such forms of reasoning are valid. A formal system of rights, the rule of law, and other characteristics of the varied Enlightenments of Europe might be fine for the French, but that’s not how we do it here.

I think this is all interesting propeller-beanie stuff, but I can tell I’m losing you. So before you smash my guitar on the Delta House wall, let me get to the point. Elevating empathy to the exclusion of everything else is a form of populist demagoguery. Paul Bloom, in his excellent book Against Empathy: The Case for Rational Compassion, writes "When some people think about empathy, they think about kindness. I think about war."

When Hitler railed about the plight of Sudeten Germans, he was marshalling empathy. When Arab, Turkish, and Persian demagogues arouse popular passions for the Palestinians, they are using empathy to foment antipathy for Israelis.   

The antonym of empathy is antipathy, but in the political context they are not simply opposites. One goes hand in hand with the other. Politicians and culture warriors use empathy to arouse antipathy. Conservatives felt empathy for the Covington High School kids, but that empathy was weaponized to stir up antipathy. The Democrats used pictures of secular martyrs to arouse empathy they hoped to translate into antipathy for Amy Coney Barrett. 

The wages of social justice.

I understand that this dynamic is inherent to partisan politics, and it’s one thing to play this game in the electoral realm. It’s quite another to apply it to the Constitution and the rule of law. It’s the difference between justice and social justice. 

Every Supreme Court Justice must take the following oath:

“I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God.”

Without respect to persons” may be a clunky phrase, but it is at the heart of what justices are supposed to. A poor person doesn’t get extra points for being poor in a dispute with a rich person. Everyone has the same rights. Everyone has access to the same constitutional protections. That’s how justice works. 

Social justice, a concept with deep roots in the Einfühlung tradition, is very different. It rejects neutral and universal rules in favor of a more holistic and wholly subjective, culturally rooted concept of right and wrong, power and powerlessness. Billionaires are assumed to be wrong because it’s unfair that there are billionaires in the first place. Systems that produce unequal results are wrong—or racist—and should be ignored or torn down. The Oxford English Dictionary lists “distributive justice” as a synonym for “social justice,” and it is. The believer in social justice—on the left and the right—looks with contempt at the abstract rules of property rights, free speech, and meritocracy that go such a long way to defining liberal democracy.

The new social justice of the right is being worked out right before our eyes these days, as various intellectuals rummage the through the attic of the past for religious and nationalistic arguments to slap fresh coats of paint on. It remains to be seen how that project will play out.  But the left’s version is very old. In Herder’s day it was decidedly romantic. In the 19th century, it was alternatively religious or socialist. But in America, it took on a highly technocratic veneer. Here’s one of my favorite quotes from Herbert Croly, the founder of modern progressivism, written just a few years after “empathy” entered our lexicon. 

“In the past, common-law justice has been appropriately symbolized as a statuesque lady with a bandage over her eyes and a scale in her fair hands. The figurative representation of social justice would be a different kind of woman equipped with a different collection of instruments. Instead of having her eyes blindfolded, she would wear perched upon her nose a most searching and forbidding pair of spectacles, one which combined the vision of a microscope, a telescope, and a photographic camera. Instead of holding scales in her hand, she might perhaps be figured as possessing a much more homely and serviceable set of tools. She would have a hoe with which to cultivate the social garden, a watering-pot with which to refresh it, a barometer with which to measure the pressure of the social air, and the indispensable typewriter and filing cabinet with which to record the behavior of society. … [H]aving within her the heart of a mother and the passion for taking sides, she has disliked the inhuman and mechanical task of holding a balance between verbal weights and measures.”

Out with impartial justice! Off with her blindfold! Lady Justice is now a glorified Inspector Gadget with the “heart of a mother” and an empathetic passion for taking sides. 

I know I’m a broken record on this but I’ll say it again: Our Enlightenment-based liberal democracy is unnatural, and every generation people will fight it because they subscribe to a naturalistic fallacy that says living fully in compliance with human nature is preferable to living in an open and free society governed by neutral rules. The soldiers in the fight repeatedly don new modern uniforms convinced that this time they represent the future, not the past. But each time they use the shield and sword of empathy and antipathy to wage their battle. 

Various & Sundry

The pandemic messed up a lot of things. One of them was our plan at The Dispatch to launch a whole series of events, both here in D.C. and around the country. We’re still looking forward to getting on the road, busting out the cooler and the grill, and meeting folks around the country. For obvious reasons that has to wait a bit longer. But we are pressing ahead with our first big event all the same. On November 9 and 10, we’ll be holding a two-day virtual conference on what the post-election landscape will look like for Washington, the country, and the right. What’s Next: Election 2020 and Beyond will have panels and interviews with leading thinkers, politicians and journalists. We think it will be an important touchstone in the debates to come. Check your email for your invitation and ticketing details, or learn more by heading to WhatsNextEvent.com.  

Canine update: Zoë’s strange nightly ritual of grabbing one leaf and keeping it company continues. We still have no idea why she does it. She’s utterly uninterested in these leaves during the day. One popular theory is that she wants a puppy. I’m not sure that’s right, but if it is it makes me kind of sad. Meanwhile, Pippa remains Pippa. Her waggle isn’t on full display every morning the way it used to be. But she still brings it when required. She did help me discover that I probably wiped my hands on my pants one time too many. And never let it be said I am entirely indifferent to the populist demands of the masses. This morning I gave Gracie her treats first

ICYMI

Last week’s G-File

Last weekend’s Ruminant

The week’s first Remnant, with Will Saletan of Slate

Biden could give a better answer on court-packing

The members-only Midweek Epistle, on memory and forgetting

The week’s second Remnant, with the oft-requested Ilya Shapiro

The left is twisting what “originalism” means

The newest installment of GLoP

And now, the weird stuff.

Couple finds Prohibition-era booze inside their walls

Just in case you need more ridiculously specific info about Star Wars

Kid on pogo stick briefly joins a jazz trio

What’s with those plague doctor outfits?

What happens to scotch aged in Texas?

Photograph by Stefani Reynolds/Getty Images.