Essentially Contested America

What follows is the third post in the ECA series on Whether Judicial Supremacy Is Compatible with Republican Democracy?

Constitutional theory and adjudication has been obsessed with two fundamental questions: (1) The Interpretive Question: What is the meaning of the Constitution and (2) The Institutional Question: Who should decide? The first question has received the lion’s hare of attention. Those impressed with its importance have been furiously fighting, what in effect are “the interpretation wars” for decades. These wars are over which interpretive methodology should prevail in ascertaining the Constitution’s meaning and therefore how should constitutional provisions be applied to contemporary situations. Among the candidates for the title of the “correct interpretive methodology” are: are: textualism, originalism, structuralism, “precedentalism,” historicism, formalism, functionalism, and pragmatism. Of course, there is considerable overlap between and among these interpretive strategies, and some are inter-related in interesting and significant ways.

Often, in any particular era there will be an influential jurist who insists (without the slightest indication that he or she might be wrong) that a particular methodology is the correct one and that it should be used exclusively. Just as often another jurist, scholar, practitioner, or movement condemns that methodology and champions another. Different methodologies make comebacks in different eras and then are discarded at least for the moment. Recently, textualism and originalism, though moribund two decades ago, have made a comeback, and formalism, their country cousin, seems to be following suit. These battles continue interminably with no single methodology or set of methodologies prevailing across the constitutional community.

Ultimately, these battles rest on whether judges can interpret and apply law without making it. The dichotomy between law and politics underlies these interpretive wars with “legalists” insisting roughly that there must be neutral or relatively neutral methods for answering questions of law, while those pushing the political paradigm insist that law cannot be separated from politics or from political philosophy. There seems to be no end to these battles. But there could be if there’s reason for the interpretation wars to cease and desist. Are there such reasons?

I think so. The reason the interpretation wars should come to an end is simply because they are unwinnable. No jurist or scholar can ever hope to formulate an interpretive methodology(s)–no matter how elegant and penetrating–and convince other members of the constitutional community to get on board. Don’t get me wrong. He or she might attract some fellow travelers, but that’s hardly prevailing. These wars are unwinnable because each interpretive methodology is essentially contested and will continue to be so. Moreover, the very idea of “the correct methodology” in a diverse intellectual and political setting is explanatorily unhelpful and cannot prevent contestation. Accordingly, no interpretive strategy–either an ad hoc ranking or lexically ordered hierarchy of interpretative strategies–will ever prevail permanently. This does not mean there is no correct interpretive methodology only that as long as there is reason to believe in the persistence of reasonable disagreement, no one can hope to prevail. Alternatively stated, there’s no one methodology that it is irrational not to accept. To my mind this proves that interpretation is inseparable from politics–in the sense of contextual or applied political philosophy–but to insist on this point is to enter into the interpretation wars as a combatant and that’s precisely antithetical to the point of this post. In making this anti-interpretation point, one needs to be careful not to be drawn back into the wars. It makes one feel like Michael Corleone in Godfather, III: “Just when I thought that I was out they pull me back in.” Let’s be careful not to be pulled back into the interpretation wars.

If we do not recognize the futility of the interpretation wars, ten years from now some one will devise an ingenuous take on some faded interpretive strategy and scholars will fall over each other trying to refute or defend it. And once renounced as every ingenuous take on some faded interpretive strategy ultimately is, some scholar will devise another ingenuous depiction of some other faded interpretive strategy. And so on and so on. This is futility pure and simple. The point is that even if you are right about the correct interpretive methodology, from some Archimedean perspective, you will never persuade enough of your colleagues that you are right, for clearly predictable reasons, and thus neither you nor anyone else will ever secure some canonical conception of the correct interpretive methodology. So isn’t there a better way for constitutional scholars to spend their time? Engaging and reengaging in the interpretation wars is, futile, perhaps even insane in the Einsteinian sense of doing the same thing over and over again expecting new results. Let’s resist this futility and end the interpretation wars once and for all. Instead let’s turn our attention to the institutional question of who should have the authority to interpret the Constitution whatever strategy it uses.

The beauty of this change in direction is that it is clearly political. No one would expect it not to be. So if we, through ordinary politics or constitutional amendment, decide that institution X should have the authority to interpret the Constitution, it will reflect the convictions of the community after suitable deliberation. An added bonus is that if we decide to give the elected branches greater, or even dispositive, say in constitutional interpretation, whatever they decide individually or collectively is the most attractive theory of interpretation will be so. And its claim to legitimacy will not because their choice of methodology follows from the idea of interpretation, from the philosophy of language, or from the Constitution itself, but rather solely because it was chosen by the representatives of the electorate.

Scholars, and intellectuals, should take stock of whether inherited debates over key terms or issues in various disciplines deserve to be respected and continued. Because past scholars or intellectuals have deemed various concepts, issues, and problems in their disciplines to be important, hardly means that we follow their lead? Make no mistake, we are introduced to scholarship and develop as scholars only by first inheriting a body of doctrine, concepts, and problems in our claimed areas of expertise. But that is not a sufficient reason, in my mind, to continue to debate problems simply because they were debated in the past when good arguments exist showing that they will never be resolved.

One might reply that debates over interpretive strategies are significant not only because one or more might be the correct interpretive methodology. There’s value in debating these issues even if no one will ever prevail because we learn about the domain of constitutional theory, history, and adjudication by doing so. Fair enough! If that’s the reason, then let’s label it such, and not take these interpretation wars seriously as inquiries about constitutional truth. Posted on Ratio Juris December 31, 2006

¬† Gerald Ford was a decent man who served his nation well at a time of great need. He was affable, straightforward, and unpretentious. Perhaps, because he never sought the presidency he avoided some of the distasteful characteristics of the usual contenders for the crown. Mr. Ford contributed modestly to the restoration of trust in government, a still largely unfulfilled goal. Yet, this near universal veneration of Mr. Ford is misplaced. Democracy does not flourish from veneration. It flourishes from truth, criticism, and dissent. Consequently, it is important to acknowledge that Mr. Ford over the course of his life made at least two unwise–perhaps even dreadful–decisions: pardoning his predecessor in the circumstances in which the pardon was issued and keeping silent about his condemnation of Mr. Bush’s decision to invade Iraq.

Perhaps, the true explanation of Mr. Ford’s issuing the pardon when he did was his close relationship with Mr. Nixon. Yet, the nation deserved a process which would lead either to a pardon in legitimate circumstance or to a trial. Mr. Nixon was alleged to have committed serious crimes against the Constitution as well as violating the rights of various Americans. If the charges against Mr. Nixon were even partially accurate, he represented one of the greatest threats to constitutional democracy up until that time in American history. Indeed, Mr. Nixon created what can only be called a stealth government without accountability to anyone but himself. The nation deserved to learn the complete truth about this episode. It also deserved a process which would lead to a pardon in the appropriate circumstances, not until Mr. Nixon was indicted, or to a trial. Gerry Ford denied the nation both. Mr. Nixon admitted no culpability whatsoever. He was defiant and would not even accede to Ford’s wish for a statement of contrition. President Ford sincerely believed that if he didn’t pardon Nixon “ugly passions would again be aroused, our people would again be polarized in their opinions, and the credibility of our free institutions of Government would again be challenged at home and abroad.” Well, yes! That’s the nature of republican democracy. Perhaps, the electorate would learn something from this agony. In sparing the people the ugliness that would have ensued, Mr. Ford also prevented a great tutelary event to occur. It is absolutely essential for the critical episodes in American politics to play out their course, so that we can learn from our mistakes in entrusting the presidency to certain types of individuals. More important, enduring and learning from this episode might have a sobering effect on Americans. We fought a war against a king only to establish a presidential monarchy. Presidents are ordinary people, with the strength and weaknesses of ordinary people. They are servants to the Constitution and must be condemned and held accountable, just like any other citizen, when they assault the fabric of our constitutional democracy.

More importantly, popular culture seems to be averse to an essential element in the moral standing of a nation. The ideas of blame, retribution, reckoning, regret, remorse, and penance should not be short-circuited for fear that the people cannot withstand the stress. Republican democracy in a diverse, vibrant polity will always be stressful and sometimes even agonizing. Enduring and learning from agonizing episodes is our responsibility to the Constitution. It is one thing not to relish the prospect of trying Mr. Nixon. It is quite another prevent its possibility.

President Ford also disserved the nation in preventing Bob Woodward from revealing the former President’s views on the justification of invading Iraq. After all, it was Ford’s defense team–Dick Cheney as Chief of Staff and Donald Rumsfeld as Secretary of Defense–that advised Mr. Bush. If anyone had standing and credibility to challenge Mr. Bush’s decision to invade it was Mr. Ford. Of course, I understand that a former President might be reluctant to intrude himself into debates over the propriety of a sitting president’s decision. That’s a good rule to follow, but not when it comes to war and placing the promise of America in harm’s way. Who better to intervene privately or publicly with the aim of bringing Rumsfeld and Cheney to their senses? Or let me put the point differently. In this situation, one in which Mr. Ford expressed dismay at using the weapons-of-mass-destruction justification for invading Iraq, shouldn’t he have tried to intervene or if unsuccessful go public? If not in these circumstances, would any circumstances warrant it? Had he done so, Mr. Ford would, in my estimation, truly deserve an award for his courage and devotion to the nation.

Eugene Volokh has an intriguing piece on federalism over at the Volokh Conspiracy. The question examined is whether federalism’s failures taint federalism as a worthy structural principle of American constitutionalism. Surely a principle permitting (encouraging?) slavery and segregation is presumptively questionable. Volokh disagrees. Consider the second from the last paragraph.

[I]t’s not clear that the civil rights era experience even tells us that much about the value of federalism and states’ rights. It might illustrate that some calls for state authority rather than federal authority might sometimes support immoral and unconstitutional programs. (There’s debate about whether separate-but-equal segregation should have been understood as unconstitutional under an original meaning approach to constitutional interpretation, but separate-but-unequal segregation — which is what segregation usually was–surely was unconstitutional, as was the massive racially discriminatory denial of the right to vote was unconstitutional.) But that just means that the segregationists’ proposed state-federal balance as to race discrimination and voting was improper. It tells us very little about others’ proposed state-federal balances as to other topics. (Boldface Added)

These remarks founder by relying on the idea of “balance” between the state and federal governments. The problem with this reliance is two-fold. First, no one has ever successfully provided an analytically useful explication of the notion of “balance” in federalism issues. One common and intuitively plausible understanding of “balance” relies on the metaphor of a scale and the idea of equality. X and Y are balanced, therefore, when X and Y weigh the same on some actual or metaphorical scale. Surely a federalist balance does not imply equality. Indeed, most proponents of states’ rights contend that regarding authority and power, the balance should be unequal with the states possessing the lion’s share. Second, given the incommensurability of the entire array of governmental–whether federal or state–powers it is unlikely that the idea of “balance” in this context can even be compared, let alone amount to anything more than a metaphor. Metaphors might be perfectly acceptable in some contexts, but it is difficult to appreciate their value when some decision-maker–whether the Court or Congress–must decide whether a proposed federal law distorts the “balance” between state and federal power. Consequently, since there doesn’t seem to be any inter-subjective way to use the notion of “balance” to distinguish between proper and improper state-federal balances, the fact that segregation was possible, seems indeed to taint federalism. More important, the fact that federalism permits immoral and unconstitutional arrangements does render federalism a pretty dangerous structural principle of government. Of course, federalism might also generate some benefits. And other lawmaking institutions might permit immoral and unconstitutional arrangements. But invoking the notion of balance cannot cure the ills federalism has historically generated.

Volokh concludes “that a particular proposal for state freedom from federal government restraint is improper doesn’t by itself tell us much about the propriety or not of other proposals for state autonomy.” That’s quite right, but it is also¬† overlooks the fact that without an analytically satisfactory explication of the idea of “federal-state balance,” and if we need to rely on the idea of such a balance to determine the appropriate divisions of power between these two governmental systems, then we will never be in a position to guard against immoral or unconstitutional arrangements. A muscular form of federalism will always risk immoral and unconstitutional arrangements. Neither courts nor legislators–nor informed citizens for that matter–can ascertain when such proposed balances are permissible, because the idea of “balance,” in this context, is radically subjective in the worst sense of that demonized concept. At best, it is arbitrary and at worst it is a sham designed to permit unwholesome arrangements disguised in the high-minded rhetoric of federalism.

What is wrong with the major players in Israel and Palestine. Palestinians voted into office, Hamas, a group opposed to the existence of Israel. A really good way of encouraging Israel to enter negotiations designed to secure Palestinian rights. Islamic Jihad is still firing missiles into Israel. A good way to encourage Israel to seek peace. Right? And now we learn that Israel has decided to build a new settlement, called “Maskiot”, in the northeastern portion of the West Bank. What’s wrong with the people in this region? It seems they continually take steps to exacerbate the tensions in the area and make some sort of detente or peace settlement virtually impossible. Are any of the various parties seriously trying to work out a secure peace?

Yariv Oppenheimer, a member of the Israeli Peace Now, labels the Israeli decision as “grabbing land,” and it’s difficult to appreciate any other reason for this remarkable action which flies in the face of promises States. How will the Bush administration respond to Israel’s decision? If it’s past involvement, or lack out it, in this conflict is any indicator, one cannot be sanguine. Israel has made to the United

We might not be able to have any reasonable influence over promises, renounce delusional dreams concerning the dissolution of Israel, and face the realities that make peace so authentically difficult. Additionally, we must call for a variety of different summits between those regional powers that will talk to one another. Once that first series of summits begins, we must seek a super-summit of all the parties in the region to initiate a process that someday will lead to peace, security, and prosperity for all involved.

The Bush Amdinistration continues its international obtuseness by refusing to remove Mr. Maher Arar’s name from a terrorist watch list even after Canada has given the United States its “unequivocal assurance” that Mr. Arar is not in league with terrorists. The Royal Canadian Mounted Police originally gave the United States erroneous information that Mr. Arar had links to Al-Qaeda. However, subequently Canada admitted its mistake and sought to remedy the situation. Ms. Rice, like her boss, seem incapable of acknowledging their mistakes despite the fact that Mr. Arar already spent a year in a Syrian prison at the Bush Adminstration’s instigation.

What is it about Mr. Bush and his coterie that makes them incapable of understanding the concepts of admitting when one is wrong, in short, of regret, of facing reality? Perhaps it’s Mr. Bush’s apparent incapacity for introspection; he lacks the capacity for self-examination that is so critical for judgment and competence in any occupation, but especially for leadership. That Mr. Bush is the so-called leader of the free world poses a threat to everyone in the United States and throughout the world. The American media and the American people need to point out just how out of touch Mr. Bush is and, as a result, just how dangerous he is. The Democrats need to try to minimize this danger during the last two years of Mr. Bush’s regime. Collaboration or even cooperation with someone like Mr. Bush does not augur well for Democrats if they have any desire to mobilize progressive Americans.

Two conceptions of wealth–I mean hard-core wealth, money–are often conflated. One conception of wealth valorizes the individual who works hard to accumulate wealth in order to enjoy the benefits wealth brings. According to this conception, the wealth maximizer wants the benefits spread across his or her family, employees, and society. This conception–call it the “Barry Goldwater Conception”–uses wealth to benefit workers through wages, health care, insurance, and profit-sharing. The second conception of wealth–call it the “Ebenezer Scrooge Conception” seeks to accumulate wealth in order to benefit the accumulator only. The Barry Goldwater Conception, in the great tradition of Adam Smith, sees everyone benefiting from his or her hard work, creativity, or shrewd business judgment. According to the Ebenezer Scrooge Conception an individaul should care for others, if at all, only as a means for accumulating more wealth and perhaps unlike Scrooge using it only for himself or his family.

At one time, perhaps, the Barry Goldwater Conception prevailed in industrial nations. However, in the United States, the Ebenezer Scrooge conception has been with us for a long while. Indeed, in 1947 the FBI considered the film “It’s a Wonderful Life” pro-communist because it portrayed Mr. Potter as a grasping, egoist unconcerned with the troubles of those he fleeced, and George Bailey as the courageous egalitarian. But in fact, this movie depicts two kinds of capitalism, the Ebenezer Scrooge Conception and the Barry Goldwater Conception. George Bailey, the protagonist, was in no way a communist. Rather, he was a Barry Goldwater Capitalist, while Mr. Potter was the Ebenezer Scrooge Capitalist. Perhaps in the end the Barry Goldwater Conception of capitalism is destined to become a slick version of the Ebenezer Scrooge Conception. Today, it’s difficult to see either Barry Goldwater or George Bailey receiving, as do many contemporary CEOs, over fifty million dollars in Christmas bonuses.

Something must be wrong! However, it’s not just our economic strategy that’s wrong. What’s wrong is to celebrate a concern for others one day out of a year and live the other three hundred and sixty-four days in a narcissistic frenzy. Of course, some scold always points this out on Christmas and our response is typically–”yes, yes, isn’t that true”–but we then carry on as if nothing can change it. But if that’s the case, then aren’t we frauds? Will there ever come a time when the Christmas spirit thrives every day of the year?

MERRY CHRISTMAS EVERYONE!

Some writers at Slate Magazine are trying unsuccessfully to keep their balance. Mr. Jacob Weisberg, for example, lambastes Governor Mitt Romney for following the “con man,” Joseph Smith, the Founder of the Church of Jesus Christ of Latter-Day Saints. To Weisberg’s credit he does consider the argument that all religion is based on irrationality, but his attempt to distinguish between Mormonism, on the one hand, and Judaism and Christianity, on the other, is slanderously weak. Consider:

One may object that all religious beliefs are irrational–what’s the difference between Smith’s “seer stone” and the virgin birth or the parting of the Red Sea? But Mormonism is different because it is based on such a transparent and recent fraud. It’s Scientology plus 125 years. Perhaps Christianity and Judaism are merely more venerable and poetic versions of the same. But a few eons makes a big difference. The world’s greater religions have had time to splinter, moderate, and turn their myths into metaphor. The Church of Latter-day Saints is expanding rapidly and liberalizing in various ways, but it remains fundamentally an orthodox creed with no visible reform wing.

The idea that Mormonism “is different because it is based on such a transparent and recent fraud” is subjective in the worst sense of that undervalued term. Does Mr. Weisberg really think he has successfully distinguished between the idea of a “virgin” birth and the Mormon founding story? Grounding a religion on a virgin birth? How much more unbelievable can a religion get? How much more of a transparent, if not recent, fraud? The idea of a “virgin” birth flies in the face of what every culture, every science knows about human reproduction. A religion’s vintage or its poetry cannot cure such a transparent fraud. Nor can turning myths into metaphors. Myths lay claim to reality without justification. Metaphor makes no such ontological claim at all, but the result is the same. Moreover, condemning a system of belief for its founding story is irrational in the extreme if the content of these beliefs encourage or inspire morally imperative and desirable conduct. Would Mr. Weisberg vote against a presidential candidate who fulfilled Mr. Weisberg’s own sense of morality better than the other candidates simply because that candidate is committed to an implausible, or even an irrational, religious, founding story? Where’s the sense in that? Perhaps, Mr. Weisberg’s contempt for Mormonism is not in its founding story but in the fact that it has “no visible reform wing.” Mormonism is too orthodox, not liberal enough for Mr. Weisberg. Fair enough! Mr. Weisberg has every right to condemn any system of belief for not being sufficiently liberal. It would be a much more candid approach, however, if Mr. Weisberg would just say so and refrain from offering artificial and transparently invalid distinctions between the irrationality or illegitimacy of different religions. Mormonism is no more or less irrational or illegitimate than Judaism, Christianity, and other religions. Hence, Mr. Weisberg’s apparent tolerance of these “venerable” religions and his distaste for Mormonism is inexplicably inconsistent. More important, Mr. Weisberg’s selective evaluation of religious legitimacy is just as irrational as he claims Mormonism to be. Governor Romney may be, if given the chance, a bad President. And I suspect, Mr. Weisberg can find a slew of reasons for rejecting his candidacy should Governor Romney seek the Republican nomination. But Mr. Weisberg should present reasoned, consistent arguments against the governor’s candidacy, not spurious ones. He hasn’t done so. Mr. Weisberg contends that “[s]omeone who refuses to consider voting for a woman as president is rightly deemed a sexist. Someone who’d never vote for a black person is a racist.” But, Mr. Weisberg then asks non-rhetorically, “are you a religious bigot if you wouldn’t cast a ballot for a believing Mormon?” Wait one moment please! If you would vote for a Christian who believes in virgin birth or a Jew who believes in the Red Sea parting at divine command, well, why not vote for a believing Mormon? Unless you can provide a satisfactory answer to this question–one that doesn’t rely on distinctions without a difference–then, of course, you’re a religious bigot for automatically refusing to vote for a believing Mormon. That’s not a religious response to Mr. Weisberg’s religious bigotry. No, it’s the only intellectually honest response available.

What follows is the second post in the ECA series on Whether Judicial Supremacy Is Compatible with Republican Democracy?

It is ironic that a constitutional culture–derived from a wonderfully revolutionary document–has become so rooted in denial about the basic flaws in American constitutionalism. An encrusted and entrenched understanding of constitutional possibilities has developed upon which constitutional scholarship–both jurisprudential and empirical–founders. What constitutes this entrenched understanding? Here are some, but by no means all, of the factors involved: (1) the tacit assumption that the American Constitution is flawless or at least as good as constitutions can get, and as a result (2) the perennial dismissal of the horrors associated with the Constitution, for example, that some of its major features such as the electoral college and the Senate were designed in large measure to protect slavery, (3) self-government is dangerous or at least suspect. Leaving political decisions to the masses can result in mobocracy, which the U.S. Constitution is specifically designed to prevent, (4) preventing the adverse effects of mobocracy requires a governmental body insulated from the direct influence of either the electorate or its representatives, and, my favorite, (5) courts are best suited by expertise and experience to enforce constitutional limits against encroachment from the elected branches.

There are alternative and more complete characterizations of this entrenched understanding, but my goal here is imply to present a rough approximation of its content. The important point is that this entrenched understanding more often than not is subliminal and as such typically functions as a hidden obstacle to impartially evaluating alternative conceptions of constitutionalism. For instance, in arguing against judicial supremacy, it is virtually impossible to overcome the entrenched understanding’s tacit assumption that no democracy is mature enough to empower the legislature to have the final say about constitutional meaning. Judicial supremacy is considered an unanalyzed, given which any theory of constitutionalism must accommodate. The result is the subliminal rejection of honestly considering alternatives. Rejecting such alternatives out of hand, as the entrenched understanding insists, renders significant constitutional change virtually impossible. No democratic constitutional system should be so self-satisfied.

Posted on Ratio Juris December 20, 2006