Sunday, November 29, 2009
Somewhat more precisely, this "moral lbow room" is possible under an originalist theory given the unavoidable practical need--duty, really--for judges to judge the application of a (given, set) concept contained in the authoritative text to a particular case. And that is where I would locate that elbow room, since I do think that the authoritative text needs to be viewed as set and given, with static, non-ambiguous concepts. "Needs to be viewed," because the opposite view of the text as containing fundamentally ambiguous concepts robs the text of legitimacy. To the extent that language is ambiguous and might mean anything, we are being ruled by men--in particular, the men who get to say what the language means. Or, where the ambiguity is nevertheless constrained (we might think of two or three inconsistent theories of what the First or Second Amendment means, for example), there is still a problem: what principle is to determine the resolution of the ambiguity? If no principle at all, if just the subjective judgment of the judge, then, again, we are being ruled by men and not by law. And to the extent that the ambiguity is resolvable under adequate principles, why not say instead that the language has a fixed meaning--but it just takes some work to figure out what that meaning is?
Friday, November 20, 2009
Thursday, November 19, 2009
Justice Scalia, like most jurists, accepts stare decisis. Asked about this at Tuesday's conference, Justice Scalia contrasted his acceptance of the doctrine to Justice Thomas's rejection or skepticism. In particular, Scalia expressed the view that "life is too short" to constantly be re-opening and re-deciding old cases. (This line drew a laugh from the audience.) The thought is that, if anything is to get done in the law, some prior legal propositions must be taken as settled.
This view is pretty conventional, and it is probably the part of Scalia's talk that engendered the most agreement from the assembled legal crowd.
I think, however, that there is a potential problem with this view. If our only reason for respecting the past case is that it would be a lot of trouble to reconsider it, then, in my view, we haven't really got a principled reason for accepting stare decisis. What if the old case is both wrong (as a legal matter) and unjust (as a moral matter)? Ought we treat such a case as good authority simply because it is more convenient to do so? Really?! As between legal correctness and justice on the one hand and convenience on the other we choose convenience?
Of course, many judges, faced with such a hard case, would be willing to forgo the application of stare decisis, as they clearly ought to do in such a situation. But what then to make of stare decisis as a doctrine?
By way of answer, how about this:
Maybe there is a proper presumption that decided cases are decided correctly, both as a legal matter and as a matter of substantive justice. If so, this presumption then legitimates the ordinary practice of treating, as authoritative, the legal propositions those cases stand for. (We can even call this practice "stare decisis.") Perhaps this presumption is a very strong one. If so, then it would not be surprising if, in the vast majority of instances, the decided case was left untouched. But, if the presumption is anything less than an absolute and irrebuttable presumption, then there will be some cases in which the old cases properly may be re-examined (as is, in fact, the practice).
Anyway, there's the principled story we can tell about stare decisis that let's us think of the law as something more than merely an exercise in doing what is convenient.
Tuesday, November 17, 2009
I managed to ask questions of Justice Scalia both times, and got into a minor argument with Justice Scalia at the coffee. I say "minor," because I limited myself to a single brief rejoinder before shutting up out of respect for his time. And, also, because the Editor-in-Chief (a decent, able, and hardworking captain) probably would never have forgiven me if I had pushed much farther; the format was a Q&A, after all, not a free-wheeling, no-holds-barred roundtable discussion.
Incidentally, Justice Scalia pretty much confirmed for me something I have supposed about his thought for a while: namely, that in theorizing about constitutional interpretation, he is centrally concerned to maintain an idea of the law as something given or discovered (as opposed to something constructed or created), because (he thinks) the legitimacy of the law depends upon its having these features. (I asked him the leading question in pretty much those words,* and the answer was "Yes, we're saying the same thing, I think," and "I agree that it has to do with legitimacy.") Of course, this is hardly a revelation to anyone who has followed Scalia's theorizing, but making this implicit premise explicit helps one to understand Scalia's underlying motivation and theoretical framework.
In fact, on this broad point, I happen to think Scalia is exactly correct: the legitimacy of the law does depend upon its being a given that constrains the discretion of judges in deciding cases. Certainly, to the extent that we think judges are creating or inventing rules in an unconstrained way, it's reasonable to think that we are under the rule of man, as opposed to the rule of law. (And we want to avoid being ruled by man as opposed to by law!) And thus similarly to the extent that we think judges are substituting their own viewpoints for the viewpoints embodied in the given, authoritative text. Particularly, if we thought that judges were substituting concepts given in the text for some other concept not given in the text, we should view the exercise as illegitimate.
This need to avoid concept-substitution naturally gives rise to "original meaning" as the guiding principle of constitutional construction. In holding that constitutional concepts must be taken to have their "original meaning," the point is simply to avoid judges substituting concepts provided in the given authoritative text with something else; such substitution does violence to the text. And since the text is authoritative, this would be regrettable. Perhaps another way to make the same point: ambiguity has no place within legitimate law (a point made more concretely in this prior post); but if we can never be sure what concepts are reflected in the given text (because judges may substitute whatever concept they prefer when it suits them), then the law is ambiguous.
But I think Scalia is wrong--and hence my minor argument with the Justice--on his sub-theory of just what gives the original meaning of a constitutional concept. Justice Scalia thinks that the original meaning is determined by the particular way in which that concept was applied at the time, regarding society broadly. To put the point negatively, he refuses to distinguish between a concept and its application in this respect: the concept is the application. This view, in turn, requires denying the sensibility of having any idea that a concept could possibly have been (widely) mis- applied at the time of enactment. To me, there is no conclusive good ground to deny this possibility. It was on this conceptual point that I pushed the Justice.
As I framed it, why was it not open to an originalist in the year 2009 to suppose that the enacters of the 8th amendment (say) may possibly have improperly applied a moral constitutional concept (say, 'cruel')? After all, I said, people do sometimes mis-judge the application of moral concepts; and this doesn't necessarily mean (does it?) that the idea or concept isn't the same. This 2009 originalist jurist, I pointed out, could then take himself to think that his concept of 'cruel' (say) was the very same concept as that used by the 8th amend. framers; it was only the application of that (same) concept that changed in the year 2009, to correct for the mis-application of an earlier age, or maybe to apply the concept to a new circumstance or practice.
In response, Scalia basically made the move his theory demanded: he denied the very sensibility of thinking that a constitutional concept could have been widely misapplied at the time of its introduction into the text. And then he accused me of effectively sanctioning the arbitrary injection of a judge's personal, subjective, idiosyncratic moral viewpoint into judicial decision-making (in a way, no doubt, that would do violence to the requirement that the judge be constrained by the given authoritative text).
It was at this accusation that I reacted in defense of the view I was suggesting. "No," I said, "the point is just to be open to a certain possibility-- namely, the possibility that the framers could have gotten the application of their own moral/constitutional concepts wrong." Scalia answered that they would have had to be idiots to apply their own concepts wrong (as with regard to the death penalty, say).
I shut up at this point, as I said.
Scalia's parting shot is sort-of fair, I think. The presumption should be that people will properly apply their concepts. On the other hand, the presumption clearly can be rebutted: we can think of cases where people and cultures failed to live up to their own (moral) demands. And, incidentally, we don't need to necessarily think that everyone who fails to live up to their own moral demands is necessarily an idiot or blameworthy; they may have lacked moral vision, or have had indigestion (as the case may be--the point is that lots of non-idiot-making stuff can interfere with judgment about the particular application of (moral) concepts). The denial of the rebuttability of the presumption--the denial of the possibility (as a possibility) that the framers could have misapplied their own constitutional concepts--seems to me here simply dogmatic, and not principled.
Of course, if we allow the possibility I am after, this still leaves open the question of just how judges then should go about making determinations as to the proper application of a given constitutional concept. And Scalia may be right to say that there is no good way to cabin the discretion of judges here in a way that preserves the essential requirements of the legitimacy of the law. Certainly, if this was the underlying nature of Scalia's concern, as I suspect it is, then it is easy to understand why he would be motivated to deny the possibility I want to open up, dogmatic or not. (And let's be generous and say that in a short answer format, it would be unfair to expect any very grand theoretical response; but let's suppose here that Scalia could make a fully principled reply, or maybe has already and I have forgotten.) Scalia's concern is basically noble: to preserve the legitimacy of the law by keeping stuff out of it (the subjective, idiosyncratic, moral values of judges) that (he thinks) will tend to make it illegitimate.
My view here, for what it is worth, is that in fact the law is (thankfully!) not necessarily made illegitimate (or pushed in that direction) by the impact of a judge's particular substantive moral views on his decision-making. I am not sure, but I think this view of mine (and the difference between Scalia and myself here) may have to do with my view of moral value as something objective and constrained by reason (or within the realm of reason), and not merely a matter of (as Scalia seems to think) purely subjective, idiosyncratic, and essentially arbitrary taste. I do not feel the problem in the same way Scalia does, then.
* - My specific question was: "Do you think that the legitimacy of the law depends upon its being given or discovered? If so, then is it fair to say that this principle motivates and grounds your theory of interpretation?"
Thursday, November 12, 2009
The above is the speech I gave in class today. I wanted you to read the speech first without qualification so that, maybe, it would have more visceral punch.
As part of a class exercise today, everyone was supposed to imagine themselves as the plenary head of a state criminal justice system facing a prison shortage, with enough resources to either expand or reform the prison system, as desired. To get the discussion going, the professor suggested four initial options: a) build more prisons, b) establish more in-prison drug-treatment programs (prisoners who go through these programs have significantly lower recidivism rates than the general population), c) encourage "restorative justice" programs (non-violent offenders would have to face their victims and the victims and offenders could mutually agree on a punishment, which usually will not involve jail), d) institute a system of corporal punishment. Unsurprisingly, perhaps, nobody chose d. This chagrined the professor, and, being the caring person that I am, I volunteered to defend corporal punishment as an aid to the discussion. I spoke last in the class, and gave the above speech.
On reflection, though, I'm not completely sure what makes the pro-electroshock position wrong. Everybody in the class, including myself, had the intuition that there was something wrong with corporal punishment, but the discussion afterwards didn't reveal any moral objection aiming at the heart of the argument except the existence of the contrary intuition that electroshock would be inappropriate. (An objection was made that defendants with unknown heart problems may be harmed by the electroshock, but I think this is as much an argument for good science and careful administration as it is for a 'no-electroshock' rule.) Perhaps an objection might have been raised getting to human dignity, but there are two answers to this: a) first, any kind of punishment (or forced participation in a patronizing program of therapy) threatens human dignity; being locked up, for example, is not particularly dignified, so tu quoque at least, and b) the administration of electroshock need not be violent; there is no call, for example, for sadistic guards. So it's not obvious--is it?--that there is something about electroshock therapy which necessarily involves any more loss of dignity than we are anyway prepared to impose.
Saturday, November 7, 2009
When I fail that exam, I will blame Röyksopp.
Friday, November 6, 2009
- Because the phenomenology fits. Reasoning feels like a practice of discovery and of searching; it doesn't feel like creation. (Although there are cases where feelings of discovery and creation combine, as in playing chess: you see or find reasons for one line of play as opposed to another, but there is, even for expert players, still a range of unconstrained options that won't be wrong.) But this is potentially a highly idiosyncratic consideration, so I move on.
- Because the language fits. We speak of "grasping" reasons, of "getting" the reasons for ___, sometimes of "seeing" reasons (or of seeing a course of action which recommends itself), of understanding something. This language suggests that there is something objective to be grasped, or something to "get," or a thing that recommends itself whatever our opinion of the matter. We do not ordinarily speak of "creating" reasons. (I've never done so.) We may "have" reasons, but "having" is (it seems to me) ambiguous between whether the thing had is mind-dependent or mind-independent, so no help there. (We might similarly "have" feelings or concrete things.)
- Because the authoritativeness of reason is better explained. Reasons have the feature of being authoritative, of constituting unconditional recommendations to us. This authority is, it seems to me, better explained if reasons connect with (or are) something objective and real as opposed to something subjective and purely mind-dependent.
- Because there is no other way to make sense of the constraints on reasoning processes. Mental reasoning processes (or functions or practices) can sometimes go wrong and produce non-reasons as output. But if reasons just are necessarily the output of a reasoning process in the way that creations are always just whatever results from the creative (creationing?) process, then we can't make sense of a reasoning process producing a non-reason output.
Like I said, it's all pretty half-baked stuff. I throw it out there with no expectations of convincing anyone.
Thursday, November 5, 2009
I like Dennett's viewpoint here, and I like the view of reasons as mind-independent things such that reasons exist independently of whether they are "grasped" by a mind.
And, by the way, notice something that Dennett is doing in general here: he is offering a higher-level interpretation of Darwin's theory of natural selection; he is telling us what the theory means in ways that Darwin himself might have never explicitly grasped. Those who think that philosophy is nothing but hot air in relation to hard science should keep these sorts of contributions in mind. The project of interpretation is a conceptual, not empirical, project. As such, I think it is basically philosophical in nature. This is not to say that philosophers are especially privileged here; non-professional philosophers may certainly engage in the project of interpretation (e.g.- imaginative mere scientists). But the basically philosophical nature of such large interpretive projects bears noticing.
New research apparently suggests that modern-day psychologically healthy people can become broken and exhibit extreme behavior given the right circumstances. (More particularly, this study apparently suggests that YOU--yes, normal, psychologically-healthy you!--could become a celebrity stalker under the right conditions.)
I think that this is another empirical data point in favor of the view that psychological brokenness, even extreme kinds, does not necessarily depend upon having a pre-existing hard-wired abnormality.