The University of San Francisco USF Scholarship: a digital repository @ Gleeson Library | Geschke Center 2019 USF Faculty and Staff Books USF Faculty and Staff Authored Books 2007 Punishment and Political Order Keally D. McBride Follow this and additional works at: https://repository.usfca.edu/faculty_books_2019 Part of the Legal Studies Commons, and the Political Science Commons Punishment and Political Order Law, Meaning, and Violence The scope of Law, Meaning, and Violence is defined by the wide-ranging scholarly de­ bates signaled by each of the words in the title. Those debates have taken place among and between lawyers, anthropologists, political theorists, sociologists, and historians, as well as literary and cultural critics. This series is intended to recognize the importance of such ongoing conversations about law, meaning, and violence as well as to encourage and further them. Series Editors: Martha Minow, Harvard Law School Austin Sarat, Amherst College RECENT TITLES IN THE SERIES Strangers to the Law: Gay People on Trial, by Lisa Keen and Suzanne B. Goldberg The Polittcs of Community Policing: Rearrangmg the Power to Punish, by William Lyons Laws of the Postcolonial, edited by Eve Darian-Smith and Peter Fitzpatrick Whispered Consolations: Law and Narrative in African Amerzcan Life, by Jon-Christian Suggs Bad Boys: Public Schools in the Making of Black Masculinity, by Ann Arnett Ferguson Pain, Death, and the Law, edited by Austin Sarat The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights, by Jonathan Goldberg-Hiller From Noose to Needle: Capital Punishment and the Late Liberal State, by Timothy V. Kaufman-Osborn Communities and Law: Politics and Cultures of Legal Identities, by Gad Barzilai The Jurisprudence of Emergency: Colonialzsm and the Rule of Law, by Nasser Hussain Jurors' Stories of Death: How America's Death Penalty Invests in Inequality, by Benjamin Fleury-Steiner TransformatlVe Justice: Israeli Identity on Trial, by Leora Bilsky Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts, edited by Timothy D. Lytton Punishing Schools: Fear and Citizenship in American Public Education, by William Lyons and Julie Drew Among the Lowest of the Dead: The Culture of Capital Punishment, by David Von Drehle Lives of Lawyers Revisited: TransformatIOn and Resilience in the Organizations of Practice, by Michael J. Kelly Punzshment and Political Order, by Keally McBride Punishment and Political Order KEALLY McBRIDE THE UNIVERSITY OF MICHIGAN PRESS Ann Arbor Copyright © by the University of Michigan 2007 All rights reserved Published in the United States of America by The University of Michigan Press Manufactured in the United States of America @i Printed on acid-free paper 2010 2009 2008 43 2 No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, or otherwise, without the written permission of the publisher. A ClP catalog record for this book IS available from the BritIsh Library. Library of Congress Cataloging-in-Publication Data McBride, Keally D. Punishment and political order / Keally McBride. p. cm. - (Law, meaning, and violence) Includes bibliographical reference and index. ISBN-13: 9f'8-0-472-o9982-5 (cloth: alk. paper) ISBN-lO: 0-472-09982-5 (cloth: alk. paper) ISBN-I3: 978-0-472-06982-8 (pbk. : alk. paper) ISBN-lO: 0-472-06982-9 (pbk. : alk. paper) 1. Punishment-Philosophy. 2. Punishment-Govemment policy. 3. Social control. 4. Sovereignty. 5. Punishment-Govemment policy-United States. 1. Title. HV7419.M398 2007 364· 601 -dC22 2006029795 ISBN-13 978-0-472-02317-2 (electronic) To John Contents Acknowledgments ix Introduction Strange Brew-Punishment and Political Ideals 1 CHAPTER 1. The Whip of Utopia On Punishment and Political Vision CHAPTER 2. "Man's Life Is but a Prison" Human Reason, Secular Political Order, and the Punishments of God 37 CHAPTER 3. Earthly Divinity Punishment and the Requirements of Sovereignty 59 CHAPTER 4. Severing the Sanguinary Empire Punishment and Early American Democratic Idealism 81 CHAPTER 5. Punishment in Liberal Regimes 103 CHAPTER 6. Hitched to the Post Prison Labor, Choice, and Citizenship 127 CHAPTER 7. Punishment and the Spiral of Disorder 147 Notes 165 References 179 Index 189 Acknowledgments This project began while I was working with Mary Katzenstein at Cor­ nell University on a John S. McKnight Postdoctoral Fellowship and I became interested in the phenomenon of prison labor. It developed even more at a National Endowment for the Humanities Summer Institute at Amherst College, led by Austin Sarat in the summer of 2002. He was most enthusiastic when I developed the idea for this book, and Jim Reische at the University of Michigan Press also carried me along through the writing process, encouraging me to write plainly whenever possible, having faith that a book can be both smart and pleasurable to read-even one on punishment. The other participants in the punish­ ment seminar were stellar colleagues in every sense of the word, and I would like to thank Valerie Karno, Robert Gordon, Karl Shoemaker, Ted Sasoon, Alysa Rosenthal, Bill Lyons, and Christopher Sturr in particular for helping me begin to think about punishment and political theory and to write the first section of this book. I would also like to thank Law, Politics, and Society for permission to reprint "Hitched to the Post" here, and the reviewers who helped me to develop that argument. John Zarobell, Kevin Bundy, Carl Cheeseman, Marie Gottschalk, Nancy Hirschmann, Betsy and Richard McBride, and the anonymous reviewers for the University of Michigan Press read parts of the manu­ script and gave me excellent advice and conversation. Marie Gottschalk, The Prison and the Gallows, and Bruce Western, Punishment and Inequality, shared copies of their manuscripts (which have now been released), making it possible for me to benefit from their illumi­ nating work on the American penal system today. Ruth Ost let me teach a seminar on punishment in the Temple University Honors Pro­ gram, giving me a captive audience that helped immeasurably. My seminars on punishment at the University of Pennsylvania were also lively, helping me to reconceptualize the manuscript significantly. x ACKNOWLEDGMENTS My reading group-Jeremy Elkins, Steve Salkever, and Christina Beltran-helped me to tackle sovereignty, and Roger Berkowitz staged a well-timed intervention in my thoughts on the subject as well. Andrew Norris assisted my thinking about political order. Rogers Smith welcomed me at the University of Pennsylvania into the intellec­ tual life of a wonderful department and provided the structural sup­ port to finish the project, while Valerie Ross encouraged me to think about academic writing very differently. Though the professional support was crucial for this project, the per­ sonal encouragement was tremendous. Telling people that you are writing a book on punishment seems to bring out the nascent comedian in many folks. This good cheer helped counterbalance the at times weighty content of the project, and I am grateful for the love and sup­ port provided by my friends and neighbors: Katy, David, Michael, Karen, Steve, Sheila, David, Christine, Meg, Ken, Jane, David, Ben, Car­ ola, Sandra, Gerry, Anne, Casey, Andrea, Mamatha, and Marvin. You picked up my spirits and children, gave me dinner and drinks, and without all of you I couldn't have survived my years dwelling upon punishment. Celeste and Theo asked more questions about it than I really wanted to answer, and they continue to demonstrate that you are never too young to be a philosopher or question the inherent justice of a punishment decreed. John, as always, maintained the quintessential balance between interest in my project and encouragement to think about something else, and he gave me support during my trials and provided the pushes needed to overcome them. Introduction Strange Brew-Punishment and Political Ideals Though I didn't know it yet, I started writing this book when I moved to Philadelphia, into an apartment that was two blocks away from what appeared to be a medieval castle. The stone walls are dizzyingly high­ three or four stories at least-and the front gate, complete with menac­ ing spikes, is flanked by little breaks in the fortress walls that appear to allow shots to be fired from within. The building was Eastern State Pen­ itentiary, the first full-fledged penitentiary in the United States and the object of study by foreign visitors such as Alexis de Tocqueville and Charles Dickens. It was one of the largest and most expensive buildings built in the United States at the time of its completion in 1829, and it takes up eleven acres in the midst of what soon became a lively urban neighborhood. The stone walls are so thick that the expense of tearing it down was enough to deter even the most avid redevelopers. Today, community groups help provide attractive landscaping around the building, farmer's markets are held in the parking lot, and I even buy my Christmas tree there every year. The colossus is inte­ grated into everyday life. I am reminded of the building's strangeness only by visitors who are both awestruck and confused by the incom­ prehensible architecture. Were there medieval settlements-in Philadelphia? The expanse of stone was designed to intimidate, and it still succeeds in the task. Yet the fortress has become a familiar part of the landscape, and even its neighbors overlook the intrusive aspect of it. The building personifies state punishment, though in a different way than was intended. The initial recognition may be shocking-remem­ ber the first time you understood that some people are put in jail, for­ ever-but then we become accustomed to it. That is, we forget about 2 PUNISHMENT AND POLITICAL ORDER the awesome power until we are forced to confront it through a shock­ ing revelation, its direct intrusion in our lives, or the perspective of out­ siders.