The Ponderous Politics of Spite

On the limits of law and human nature, and why the fate of the world depends on demanding better of each other.

According to Ian Millhiser at Vox, “The Supreme Court spent about an hour and a half on Tuesday morning [April 16] arguing over whether to make it much harder for the Justice Department to prosecute hundreds of people who joined the January 6, 2021, attack on the US Capitol.” By the end of his analysis, Millhiser opines that the Court is likely to throw a win–albeit a small one–towards the rioters.

supremecourt.gov

Let’s leave aside the question of a partisan bench for now. It’s an easy explanation, and a concerning one. But there’s something here I want to dig out from under the hood, and I think it goes deeper than conservative bias. I’m no legal scholar, but all of us are doing the best we can with the information we have, so bear with me as I veer us into political philosophy and then back towards theology:

In this case, what’s at issue is the obstruction statute used to charge hundreds of participants in the January 6 attack:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

According to Millhiser, “many of the justices expressed concerns that [this] law sweeps too broadly and that it must be narrowed to prevent people who engage in relatively benign activity from being prosecuted.”

On its face, this is a caution I can get behind. Again, leaving aside the decidedly violent character of the January 6 riot, America has a painful history of answering civil disobedience—from the Civil Rights movement to more recent climate protests and labor disputes—with crippling legal troubles. On a more general level, nonviolent protests always risk the state’s monopoly on the definition of violence, which can make criminals of almost anyone with one turn of the machine. The opinion of the Court seems to recognize such abuses—though this same court has move to make prosecuting civil disobedience easier even in just the last few years.

In fact, you could say there is an expectation of legal abuse threaded through the court’s arguments, and which Millhiser also reads between the lines. The logic seems something like, “We’re inclined to give X an inch, because if we don’t, Y will take a mile.” It’s very similar to the line former senator Rob Portman (R-OH) gave to journalist Jeffrey Goldberg regarding his vote to acquit Donald Trump during impeachment proceedings: “[Obama is] a former president,” he argued, “and I think he should be out of reach. And Donald Trump was a former president. If you start that precedent, trust me, Republicans will do the same thing. They will.”

Goldberg was not impressed:

“It was an interesting, and also pathetic, point to make: Portman was arguing that his Republican colleagues are so corrupt that they would impeach a president who had committed no impeachable offenses simply out of spite.” (The Atlantic, May 2024, p.16).

Again, there is the expectation of spite as a motivator and legal abuse as an ultimate strategy for carrying the political combat to new extremes. “Giving X an inch” is thus an attempt to avoid an even greater abuse from Y. Even if we don’t know who “Y” is, we assume they are waiting in the wings, waiting to pounce on a poorly-formulated bit of legalese. We must always protect against the hypothetical “Y” who will act against the spirit of the law.

The thing is… It will never work.

“A Study in Senate Cowardice,” Jeffrey Goldberg, The Atlantic

In Battling to the End (Achever Clausewitz, 2007), the French-American anthropologist René Girard explores how the grand strategies and “duels” of war tend to break down into just a few instances of rivals violently imitating one another. This oscillating imitation of the other’s violence grows more extreme until surrender or annihilation.

This means one of the most paradoxical moments in war—and in society more generally, insofar as Girard says we tend to think of almost all our interactions as “duels” with others (57)—is the defensive maneuver. The cessation of conflict, Girard says, actually produces the expectation that things are about to get worse:

To back down to armed observation thus means that the one who takes the initiative to back down refuses combat and admits weakness. That vulnerability in fact provokes the conflict that it was supposed to avoid, and the clash will be all the more fearsome because it had been suspended by backing down… [and] violence grows unbeknownst to the adversaries. (55)

This is the double-bind that both Portman and the Court seem to be caught in: the perception that doing justice also implies a kind of surrender, an admission of weakness that invites retaliation and abuse. And because no one seems to know how to do justice without also inviting greater injustice, justice goes undone.

Now, I grew up hearing the argument–credibly made–that the American government works through a healthy and realistic appraisal of human nature. The system of “checks and balances” has, baked in, the assumption that someone is going to abuse their power, and so the other branches of government are there to prevent any other branch’s ambition or spite from running the show.

This is, however, also an argument for how bipartisanship manifests. At some point, someone will be “checked” and “balanced” enough to give ground, to “admit weakness” or “surrender” the duel. And this is great—if one also relinquishes the anticipation of one’s enemies retaliating and taking advantage of your plasticity.

The militant, dueling partisanship of our current government thus throws a wrench into the gears. I’m neither old enough nor well-read enough to give a really concrete timeline of those relationships and their erosion, but I can certainly look at the American government in my own lifetime and observe that the theoretical “checks and balances” of our three branches seem mighty invisible behind the the tit-for-tat game which has driven everything to a standstill while violence against vulnerable people continues to multiply. In the midst of it all, the anticipation of spiteful, bad-faith behavior demands an application of law so careful and specific as to vitiate its power lest the other side use precedent to retaliate.

It’s hard not to draw comparisons to America’s tragically slow movement on questions of Civil Rights. One of the reasons progress in the area of racial justice has been so difficult is that white Americans and those in power often assume, even unconsciously, that if oppressed people are given more than an inch, they will take a mile–a brutal, violent mile. We cannot admit any weakness or wrongdoing because to do so would be to invite retaliatory violence right down onto our heads—and deep down, we know it would be justified.

Again, I think it is very hard for the mainstream American mindset to conceive of “liberation” in a way that that doesn’t open the lid on a can of libertine violence from the oppressed, much of it justified. Our politics seems bent towards either preventing that can from exploding (as we kill democracy with the “inches” we give in the process), or else shoring up our own innocence for a day of reckoning. Whether at the micro-level of racial justice or the macro-level of partisan politics, this assumption of retaliatory violence keeps us in stasis while constantly eroding our trust in each other.

René Girard

A situation like this ought to remind Christians that our relationship to the law is profound and complicated. Baked right into the founding of the Christian religion is the paradox that Christ’s atoning work at once abolishes the divisive concept of Law (Eph 2:14-16) while also leaving it entirely intact (Matt 5:18), but written on our hearts rather than civil documents (Heb 8:10). Christianity proposes a transformation of the human spirit such that what was once a moral prescription suddenly becomes just a habit of being in the world: “duty becomes a delight.” 

Along with this comes the assumption–the promise, even–that those institutions which continue to function according to the letter of the law will also continue failing at it; in fact they’ll get worse and worse, creating a labyrinth of so many exceptions that the credibility of the law crumbles under its own undermined weight. The Founding Fathers reasonably inherited a certain cynical assessment of human nature from their religious traditions, but they thought they could contain that nature through law and reason when in fact they only delayed its worst abuses. When law does not reflect a certain habit of heart, one inevitably engages the law duplicitously.

Like them, many Christians today only hear half of the story that’s meant to shape our worldview. We hear about Adam’s sin and the imputation of guilt onto the entire human race. We hear words like “total depravity” in our churches and make assumptions about one another accordingly. Our theology invites us into duels with one another, and we avail ourselves of politics to try and contain each other’s evil.

But the truth of the Gospel is that “even while we were still sinners,” Christ died for us and made us capable of grace and forgiveness. What scandalous concepts these are, to dueling powers! More scandalous yet is that, even at our worst, Christ never doubted our capacity to love one another (Matt 7:9-11)—that is, to expect and to gratuitously imitate the best in one another (Girard 63).

If Christians have an uncommon power to bring to politics, it isn’t because our theology makes us appropriately cynical of human nature. The Gospel sure doesn’t stop there, anyway. Theologian James Alison describes the true power of the Christian community and its ability to subvert the politics of escalation and spite by “losing gracefully,” without resentment, without fear of living resentfully and without fear of shame as the worst horror we could ever suffer—because Christ has told us who we are, once and for all. This community of “losers” is capable of receiving absolutely anyone into a community “enthralled” by their uniqueness, their beauty, their scars.

Of course, this doesn’t come without a risk. Girard says that it’s all too easy for the positive reciprocity of love and the negative reciprocity of spite and resentment to resemble one another (63). The wheat and the chaff grow up together in every once of us (Matt 13:30). There will be much more to say on this point later.

But for now, let’s end on a note of celebration, shall we? After all we’re finally able to say that this is a religion for losers: this gathering together of the shamelessly beloved, who shrug their shoulders at the labyrinthine Law; who even, by love and justice, heap burning coals on its head (Prov 25:21-22).

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