Law and the Modern Mind – Frankly

Jerome Frank, New Deal chairman of the Securities and Exchange Commission, renowned Yale Law School scholar, and a judge on the Federal Court of Appeals for the Second Circuit, wrote a study of how unruly psychological forces were at play in law.  Law and the Modern Mind (1930) countered claims that law routinely operated in the sphere of rational rules and external behavior.  According to Frank, consciousness—both the judge’s and those standing before the court in cases—intrudes upon our sense that shared, often unexamined behavioral norms might be unfailingly applied through the mechanism of legal justice.

I have returned to Frank and his work because Susanna Blumenthal’s superb study of contested mental capacity in the long nineteenth-century, Law and the Modern Mind: Consciousness and Responsibility in American Culture, readily borrows Frank’s title.  For Frank, the unrestrained—a potent mixture of emotions and cognition—always lurks just around the bend.  Yale University’s manuscript collection contains an unfinished novel by Frank that even more than Law and the Modern Mind reflects his commitment to the subconscious.  The phrase “scribbled on train” serves as the author’s headnote—which suggests that he began the draft when commuting between New Haven and his position on the federal appellate bench in Manhattan.  The notes for Show me an Angel, as Frank titled the novel, might be described as a maddening, Cortzar hopscotch between characters and plot lines.  It is almost impossible to follow where the novel is heading   Nevertheless, it is intriguing to juxtapose the ordered realm of Frank’s lengthy, sharply crafted judicial opinions with this submerged fictional and psychoanalytic imaginary drafted on the New Haven line.

Show me an Angel tells the story of a ménage a trois.  At the center of this complicated threesome—a married couple and another man–is Ann whose “double existence” fuels desire.  But the real theme is not the emotional tug of different parts of the relationship.  Instead, it is the tension between a fraught internal world and an outwardly directed world of action.  Chicago represents the unexamined life.  In language reminiscent of Carl Sandburg’s poems, Frank begins: “Chicago! Crude, rudimental, sprawling, dirty.  It turned its back contemptuously on what it deemed the effeminacies of the East.”  He evokes an epic invocation reminiscent of the Aeneid’s opening lines in the city’s virile call to labor:  “Its miles of uneven wooden sidewalks, its acres of vacant lots . . . the great railroad that waded an entrance into the city on stilts built In the very waters of Lake Michigan—this rawness, this truculence . . . . . “   ”Chicago is an undignified city, a bustling city, a new city.  Here men engaged in money-making, not as a routine task but as a buoyant adventure, audaciously, impudently.”

If Chicago is filled with “un-introspective men in shirt-sleeves,” Ann’s husband is timid and afraid of thunderstorms (“the orgies of heaven”).  He envisions Chicago as a respite “from a life of vague legal dialectics in a well-ordered, self-restrained New York.”  But what happen as the secret of the ménage a trois begins to leak out and is used by a shadowy figure to manipulate the married couple?  The barriers between private and public begin to erode.  “The fear that someone might enter his secret world obsessed him.  He must keep that inviolate.  Why he could not have told.  Like the natives of Australia who feared that if you learned their names you could destroy them.  He felt that to be thoroughly exposed to the gaze of another would work his destruction.  Worse, an inexplicable dissolution.  A sort of eternal disintegration.”

Frank’s hidden landscape of untrammeled sexual desire, afflicted self-consciousness, and betrayal remained unpublished—a magistrate’s private imaginaire kept hidden from the gaze of others.  Did Frank fear that if his own boundaries bordering internal passions were to crumble, he, too, might face dissolution?  Frank’s conceit was that only in a post-Freudian world could we be self-conscious about consciousness.  Psychoanalysis put the modern in the modern mind.  But as Blumenthal so artfully shows, nineteenth-century judges regularly encountered issues of capacity and responsibility.  In torts, contracts, trusts and estates, and criminal law, questions of temperament, cognitive ability, and behavioral norms were core to nineteenth-century jurisprudence.  Blumenthal’s book, then, is a sort of pre-history for Frank’s work with the same title.

For several decades, historians have been unravelling the intellectual genealogy of the early republic.  They have found strands grounded in Commonwealth outsider politics emerging out of the ruins of the English Civil War, Lockean social contracts, Puritan sectarian millenarianism, common law legal thinking, ancient classical and early modern republican notions of virtue, and the stirrings of eighteenth-century enlightenment discourse.  The idea of this historical cottage industry was to identify the intellectual wellspring for an architecture of societal governance.  Blumenthal neatly shifts the terrain from the regulation of external behavior to the ordering of minds.  For this approach, Scottish common sense philosophers with their focus on moral agency are critical to defining what she calls the default legal person.  Such personhood requires self-cultivation, discipline, and the governance of internal, often selfish passions.  A less hierarchical new republic must rely on the self—an innate moral sense–to govern rather than the power rather than ascribed legal power in the hands of the few.

Yet the very recognition of such passions requires an investigation into consciousness—what eighteenth-century legal scholar James Wilson call the “philosophy of the human mind.”  It is not Freud, then, who uncorks a preoccupation with consciousness.  Blumenthal argues with particular insight that this preoccupation emerges from the very sinews of our political and legal enterprise.  Yet what can we know about another’s mind?  Blumenthal masterfully shows how such interrogations quickly become contested, destabilized, and uncertain.  Contests of capacity were deployed readily, perhaps too readily, when challenging testamentary capacity.  And mental defenses were not always used even in cases when some sort of mental defect suggested diminished moral responsibility.

Identifying the connection between the importance of consciousness and political architecture is the first of Blumenthal’s major contributions.  A second contribution is showing how indeterminate determinations of legal capacity might arise in a variety of settings.  In Moi Pierre Rivière, Michel Foucault underscores the professional bond between medicine and law—a medico-legal technology—in constructing a psychiatric classification system to impose norms of social control over those at the margins of society.  Blumenthal’s more nuanced approach suggests that medical and legal definitions of such categories as moral insanity were often at odds with each other.  Indeed, both medical and legal analysis of cognition were cultural constructs which depended upon deeply contextualized professional norms. Frank wrote of “constructive doubt”—punctuating legal debates with question marks—as a hallmark of a modern psychologically inflected jurisprudence.  For Blumenthal, the very nature of the investigation into mental responsibility leads lawyers and doctors to question each other in a strongly inflected interrogative voice.

Blumenthal’s reliance on the importance of inherent structures—political architecture, contestation in the midst of litigation, and professional rivalries, differs from Thomas Green’s recent analysis in Freedom and Criminal Responsibility in American Legal Thought.  As Green shows, the emergence of the behavioral sciences led to a probing not simply of capacity—but also the validity of retributivist punishment when hardwired mental structures might play a critical role in determining criminal behavior.  Blumenthal is a gifted historian, and such a question lies outside of the scope of her extended nineteenth-century study.  Yet how—we might ask—can we envision a longue durée historical account of capacity from the end of the eighteenth-century to Green’s post-Roscoe Pound debates over freedom, will, and determinism in criminal law to Frank’s psychoanalytic turn to the current struggle over whether moral capacity might be imposed?  Are such shifts as an historical arc emerging out of baked-in conceptual fluidity (as Blumenthal often suggests) or the result of shifting broader intellectual trends within the behavioral sciences?  And what might be considered in a normative sense the potential role of consciousness in the legal, and especially, criminal law process?

Modern psychiatry’s turn from its psychoanalytic origins and its use of the talking cure to an increasingly reliance on anti-psychotropic pharmaceuticals has made the normative question a task that a historian of mental responsibility should not ignore.  In Hall v. Florida, the Supreme Court decided that there can be no bright line rule for determining the degree of cognitive functioning (such as IQ) needed to identify the mental capacity required when criminal penalties are imposed.  Grounded in the notion that the link between crime and punishment must be understood by a convicted offender in order not to be cruel and unusual, the Court found there must be a minimum threshold for moral awareness and cognition.  But if there is indeterminacy about determining that threshold for mental capacity, then could not the line be moved?  Perhaps by shifting standards in different states?  Or, perhaps, even by the administration of drugs?

The Supreme Court recently rejected a cert petition dealing with a circuit split over this very issue.  While the 4th Circuit, forbade forced medication for the purposes of rendering a death-row inmate sufficiently competent to be executed since it imposed an extra-punitive indignity and there was an inherent conflict of interest for state appointed medical guardians, the 8th Circuit has permitted the compelled taking of anti-psychotropic drugs because these would enable the condemned felon to understand the connection between the crime and punishment.  Mental capacity, in such instances, is not the complex, unstable category we have come to recognize in Blumethal’s writings.  Instead, it is a blunt determination—and one that can be imposed through a chemical cocktail.  Are issues of capacity always subject to multifaceted interrogation by legal actors or have we come to a juncture where passions, delusions, cognitive slipperiness are seen as so opaque as to be inaccessible by courts?   In short, what is the significance of Blumethal’s modern mind in the Risperdal age?

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