American Paradox

What a grandiose title! So arrogant, in a way, to purport to be explaining these things, since I know so little. But something must be said since my prior thoughts were so incompletely expressed.

Republican Bobby raised good points in his comments to my "Originalism" post, and I feel like they have helped clarify my thinking. Two points: What Scalia says about Originalism is not cannon, but it's pretty close to what most Originalists believe nowadays, and it does combine textualism as a first commitment with original meaning inquiries as a back-up (when the text is sufficiently unclear).

Methods of Interpreting Written Constitutions
As I have explored constitutional theory and the history of the American Republic, I have been guided by a few sources in this area:

• A Matter of Interpretation by Justice Antonin Scalia


• The Creation of the American Republic: 1776 - 1787 by Gordon S. Wood


• Democracy and Distrust by John Hart Ely


• Freedom's Law by Ronald Dworkin

These books, along with several law review articles have convinced me of a few things. First, Originalism is initially very attractive, because it offers a rather simple and elegant solution to the problem of indeterminacy in the U.S. Constitution. Originalism says, basically, that in interpreting a written document that purports to be the Fundamental Law of a state, one should rely exclusively on the original meaning of its clauses qua isolated clauses. See Ely, Democracy and Distrust. What this also implies is that an interpreter should not pay attention to the history of drafting if the text and its meaning in a given situation are plain (otherwise that would be Original Intent, not Original Meaning), that one should not view the Constitution as a holistic structure and attempt to reason deductively from one takes to be its themes (This is John Hart Ely's philosophy), and finally, one should not view vague or indeterminate clauses as abstract appeals to a higher moral authority such as Natural Law or "discoverable" and objective morality (Ronald Dworkin). Where the text is clear in meaning, nothing should trump the text. Where the text and its application are indeterminate, we go to original meaning.

Given what Originalism is, and what it is not, I think I have to explain why I think both it and its alternatives are incorrect, which is a monumental task that may be divided into multiple posts. For now, let us simply take Originalism and its claims at face value.

Say someone tells you that Originalism is the only valid way to interpret the U.S. Constitution. They have to say this because Originalism is a jealous mistress, and so strict that it does not tolerate deviations into one of the above-mentioned methodologies. A conversation:

Socrates: Why Originalism?
Originalist: It follows from the Constitution's nature as both written text and Fundamental law. First, because it is written, unlike the English Constitution (specifically unlike it, we should note!), the document must have meant to fix certain legal structures and guarantees over time, and not be subject to the varied interpretations of modernity. Second, because it purports to be the Fundamental Law of the land, it intends to fix one conception of natural law and natural rights into written form, so as to exclude from its scope the moral philosophical debates that would make for ever-changing and indeterminate legal interpretation. This is obvious when you think about it, because moral philosophers, political philosophers, and natural law theorists vehemently disagree on what pre-social rights and obligations people have to one another. A written Constitution fixes one possible meaning, and if the people find it to be wrong, they can change it by a supramajoritarian process, which also serves to retard the effects of social change in law, and forces people to make democratic commitments as to fundamental values. Judges should not disturb any of these things, because their job, as much as they can, is to determine the meaning of these isolated clauses and not to redefine the practical effect of their original meaning based on "evolving standards of decency" and other vagueries.
Socrates: That makes sense, given what I know of early American history and the role of judges then and now. It also points out that often liberal theorists do not have a "method" per se and use vague notions like "evolving standards" and "Fundamental Rights" to cover their tracks. It is pretty clear that they don't even know what they are doing when they say these things, and it is very contentious to treat judging in such a flippant manner.
Originalist: Right, I mostly agree with those statements. Why do you still seem unconvinced?
Socrates: Aren't we forgetting some key facts about the role of judges and the view of the judicial branch in 1787? Gordon S. Wood, a conservative historian, wrote both in his Creation of the American Republic as well as in his critique of Justice Scalia in A Matter of Interpretation that between 1776 and 1787 there was substantial change to the public view of the judiciary. Namely, the radical state sovereignty of the Articles of Confederation led a lot of people (perhaps a majority) to fear the raw idea of Legislative Supremacy, which leds a despot be replaced by a despotic body politic, but doesn't change the problem of despotism in government. Part of the Constitution's solution was to give the federal legislature lots of power but to allow checks and balances on its law-making activities by the Executive and Judicial branches. The checks took the form of the veto power, and judicial review, respectfully. Judicial Review is viewed in light of the 1776-1787 history as not simply an outgrowth of fear of despotic legislatures but a strong political check on that problem. Justices of the court of last resort, under this view, are meant to be political actors where the Constitution is vague, and are forced to engage in law-making.
Originalist: I'm not sure I agree with your history, because there was still a lot of fear of judicial power in 1787, and not only in isolated corners. You do not solve the problem of despotism simply by giving the judiciary the last say on the Constitution. In any case, might we infer from the judiciary's relative weaknesses and the documentation of the Framing that the judiciary was not meant to be such a powerful institution? Take as examples its status as the "least dangerous branch" in Hamilton's Federalist Paper #87 as well as its staus as last-discussed in the Constitution (Article III) and its lack of the power of the purse and sword. The judiciary can hardly enforce its rulings against a hostile congress and executive, and therefore it was never meant to be deciding purely political issues, and should resign itself to discovering constitutional law from the text and original meaning (in that order).
Socrates: Fair points. What happens when original meaning is not clear, is vague, or did not address a particular issue or application for a case?
Originalist: That is tough, but mostly original meaning provides guidance for applying the Constitution. If it does not, it is likely that the issues raised delve into political or moral matters not addressed by the Constitution, and should be left to the legislature.

Is this a fair picture of what modern Originalists think and how they would respond to these common objections?

# posted by Vanity @ 10:08 0 comments

In thinking about how human beings age and learn, I am struck not by how much individuals gain from age, but how little. I frequently (solely?) encounter people far older than me who, perhaps despite my expectations, know so little. It is not that their generalized knowledge is lower, their specialized knowledge in fields known to me lower -- I would expect both of these for various reasons when encountering the average person double my age. It is more the case that they simply seem to have learned nothing by virtue of their longer time on this earth. This shocks me.

Why would it shock me? Our culture has a very strong and pervasive identification between age and wisdom. If you seriously dispute this, you are not from any human culture that I know of or you are being a contrarian. You can see it in television, movies, or being around relatives (in my case) for holidays. The old are supposed to have "been there, done that" and thereby attained some level of wisdom that makes their decisions and conclusions about life worth more than the young.

To a certain degree, these prejudices on our part are justified. Up until a point - perhaps adulthood - humans are prone to many cognitive and decisional errors. Perhaps many people never progress beyond such a point where they are so error-prone. Nevertheless, we might say that until adulthood humans are "lower" in their possession of wisdom than those older than they.

But what of distinctions within the class of adults? Why does a thirty-year-old outclass a twenty-five-year-old in wisdom, presumptively? Of course there will be border cases of extravagant wisdom in youth and extravagant foolishness in old age, but our culture expects that on average, the 25-year-old is simply less wise than the 30-year-old.

I don't actually think this heuristic is useful or accurate. It seems to me that the more I age, and the more "wisdom" I supposedly accumulate, the more I realize that people become less wise as they age, in a whole variety of ways. Psychologically, the heuristic bias in favor of the old having wisdom is probably crafted by the old themselves -- they have an undue effect on the creation and influence of culture, after all.

A point for more exploration later.

"Fled" is a bad movie, punctuated by Lawrence Fishburne saying "We have to fled!" every half an hour.

The behavior of suburban adults who have children and are between the ages of 35 and 55 needs to be studied by an anthropologist with a sense of humor. And no -- David Brooks doesn't count. I said anthropologist, meaning the scientific method, meaning rigor. David Brooks probably does his "research" by driving fifty miles outside New York City and pontificating at a gas station. That's not what I'm talking about.

People shopping in affluent suburban strip mall regions are atomistic individuals, and only fleetingly aware that they are surrounded by people such as themselves. They act accordingly, pursuing their narrow goals and blissfully unaware of their social surrounds. Actually, not blissfully.

King Kong was a good remake of a classic, and Peter Jackson is talented in more genres than remakes of fantasy novels. I was more entertained by King Kong than by the Lord of the Rings trilogy -- but that's setting a low bar. I was actually bored by Lord of the Rings, both the books and the well-executed movies.

Sometimes reading about futuristic science and technology depresses me. I realize that all of these cool devices will not be around until fifty years after I am dead and gone. Psychologically, I realize this is pointless and more than a little humorous. I cannot just enjoy the abundance of new technology and science around me right now -- instead, I am angry because we don't have tricorders yet!

Originalism, the mix of political and legal philsophy holds that the U.S. Constitution should be interpreted where it is vague through a particular method. That method involves ascertaining the "original" (historical) meaning of the words used in the Constitution. The policy goal here is that the people ratifying the Constitution and its amendments thought the words they were ratifying something particular and discoverable through such research, and that this meaning was meant to be fixed permanently by those ratifiers.

There are, needless to say, an enormous number of problems with such a theory. Most law students, after their first-year, could cite the following:

1. Originalism requires a pre-constitutional theory in order for it to mandate itself. That is, there is no authority in the Constitution itself that says that it must be read and interpreted by Originalism only.


2. Originalism will not always provide answers, which means that historians can disagree over what the people of 1787 and 1791 thought they were ratifying. This merely creates wholes in which politics can be pushed -- defeating the political purposes of Originalism.


3. Originalism does not account for what judges and justices have seen as their responsibility and method over our nation's history. Read John Marshall's opinions. How "originalist" was Marshall?

Sadly, the list goes on. Yet the President and his hardcore right-wing supporters insist on appointing purportedly "Originalist" judges to the bench, judges in the mold of Justices Scalia and Thomas. Needless to say, those two justices are not the most faithful originalists. For an example, try this exercise.
Exercise: Disproving Thomas and Scalia's Originalism

1. Find the U.S. Constitution


2. Read the Eleventh Amendment, carefully


3. Write down what you think it means. Specifically, answer the question: "Does the Eleventh Amendment of the U.S. Constitution mean that a citizen of Virginia can sue the government of Virginia?"


4. Read any opinion by Justices Rehnquist, O'Connor, Kennedy, Scalia, Thomas, or any conservative jurist, that involves the Eleventh Amendment.

Actually, I will save you the fourth step. Conservative jurists who call themselves "Originalists" consistently and abundantly rule that the Eleventh Amendment means that a citizen cannot sue his own state. They say that the text of the amendment is important, but that it is trumped by the existence, outside the Constitution, of a preexisting "sovereign immunity" that all states possess and cannot be taken away. Sound a bit like finding the "right to privacy" in the Due Process Clause?

My own view
Actually, I rather like Originalism. I read Justice Scalia's book, A Matter of Principle, and I thought he was witty and an excellent writer as well. And I like the theory, in theory. The problem is that the theory of Originalism forces the American people to go through the exhausting amendment process every time our nation's fundamental laws need to be adjusted in small ways to compensate for the rapid changes that have occurred in our world, especially those technological, societal, and economic in nature (think of the differences in scientific knowledge between 1787 and 2005!).

The theory of Originalism also is, sadly, a political screen for religious and economic conservatives, behind which they can push reactionary and regressive policies upon the nation. Activists, indeed.

If you need proof, simply read this statement from the Intelligent Design proponents from the Washington Post:

"This decision is a poster child for a half-century secularist reign of terror that's coming to a rapid end with Justice Roberts and soon-to-be Justice Alito," said Richard Land, who is president of the Southern Baptist Convention's Ethics & Religious Liberty Commission and is a political ally of White House adviser Karl Rove. "This was an extremely injudicious judge who went way, way beyond his boundaries -- if he had any eyes on advancing up the judicial ladder, he just sawed off the bottom rung."

This guy cracks me up for many reasons. First, Judge Jones, the judge who rendered the recent decision striking down Intelligent Design as a curriculum mandate, is a George W. Bush-appointed federal judge. Second, this guy is basically saying that even as the President tells us Justices Roberts and Alito will not "legislate from the bench" or be "activists," they actually will do both those things. The difference from Judge Jones? Roberts and Alito will be religious conservative activists, not moderate, pro-science activists.

What does the word "activist" connote as a pejorative term, anymore? Nothing.

A few quick notes on the debate over the teaching of evolution by natural selection of fitness-conferring attributes over long periods of time, otherwise known as Darwinian Evolution.

1. An excellent discussion of Karl Popper's beliefs regarding evolutionary theory as a scientific theory. It is hilarious that "Intelligent Design" advocates (read: creationists) would attempt to quote Karl Popper, a philosopher of science and reason who opposed pseudoscience and detested the authority of mystery religions. I like Popper's explanation, which is difficult for us to grasp because of our present time-centric perspective, of Darwinian Evolution's contribution to our understanding of biology. His example is the evolution of bacteria resistant to penicillin. How else to explain organisms changing in response to human activities, over time, and after the introduction of medicinal penicillin? You could come up with some, but evolutionary theory does a damn good job.


2. Reason online has a little libertarian-focused explanation of the fallacies of the "Intelligent Design" movement. I link to this because libertarians often ally themselves with religious authoritarians (conservatives) in American politics. They do this to accomplish their economic policies, but sometimes they subvert their ideals in their alliances. At least some of them have remembered that the state should not be subsidizing free advertisements for religious theories of the world anymore than the state already subsidizes those things: the tax-exempt status of churches.

What else to say, after this? Some people oppose evolutionary theory in its present form because they do not understand it; some oppose it because it seems to make God more complicated than the Gospel leads us to believe. Both are silly problems to have with an explanation of natural theory. Others dislike evolutionary theory because they are religious politicos, anti-scientific rationalists, or identify evolutionary theory with social liberalism. All of those sources of opposition are likewise childish, in my mind. I could explain further - but why? If anyone who reads this actually holds an anti-evolutionary belief due to any of my enumerated sources, I would relish the opportunity to explain any particular one.

Just today (or was it yesterday?) a District Judge in Pennsylvania ruled against the Intelligent Design Movement in Dover, Penn. In the opinion, the judge evaluates the IDM arguments and concludes that they are basically the same ones "creationists" and "creation scientists" made in the middle of the 20th Century, and that they are religiously-based. Since compelling education in "intelligent design" necessarily means education in a religious perspective on the development of species in the biological world, it constitutes an unconstitutional "endorsement" forbidden by the Establishment Clause of the First Amendment. The IDM groups are apoplectic at the notion that they might be "religious" in nature. The judge dispensed with their arguments in his opinion as follows:

Although proponents of the IDM occasionally suggest that the designer could be a space alien or a time-traveling cell biologist, no serious alternative to God as the designer has been proposed by members of the IDM, including Defendants' expert witnesses. (20:102-03 (Behe)). In fact, an explicit concession that the intelligent designer works outside the laws of nature and science and a direct reference to religion is Pandas' rhetorical statement, “what kind of intelligent agent was it [the designer]” and answer: “On its own science cannot answer this question. It must leave it to religion and philosophy.” (P-11 at 7; 9:13-14 (Haught)).

Nicely put, because of course these people don't require schoolchildren to learn of The Flying Spaghetti Monster. The website just linked proves an important point beyond being funny: If IDM arguments were actually valid, they would prove too much. We could not teach biological science in the schools because we would have to teach every single "challenging" view to every single scientific theory, as long as they met the extremely low hurdle of IDM. The Church of the Flying Spaghetti Monster, sadly, does meet that standard.

CNN reports today about the apparent controversy over people saying "Happy Holidays" and not "Merry Christmas." This isn't a controversy, this isn't a national debate, a national conversation, or a national anything. This is a bunch of right wing politicians and activists complaining, as usual. If they don't get the Ten Commandments in a courthouse, they complain and send out the lawyers. If they don't get to call a Celebratory Tree a "Christmas Tree," they complain, write op-eds, and send out the lawyers.

Aren't these the same exact people who complain about complainers? Aren't these the same exact people who complain about our overly litigious culture?

I'm not going to call them "hypocrites" here; I'm just going to call them idiots.

Anyone who knows 1970s music probably has heard the song "Blinded by the Light" by either Bruce Springsteen (original) or Manfred Mann (better-known cover). I like this song a lot for some reason, but the lyrics have never made much sense to me, and I know I'm not alone. So here, for your benefit, is the first chorus and verse of the song, which leads into the second chorus:

Blinded by the light
revved up like a deuce
Another runner in the night
Blinded by the light
revved up like a deuce
Another runner in the night
Blinded by the light
revved up like a deuce
Another runner in the night

Madman drummers bummers
Indians in the summer
with a teenage diplomat

In the dumps with the mumps
as the adolescent pumps
his way in to his hat

With a boulder on my shoulder
feeling kinda' older
I tripped the merry go round
With this very unpleasing
sneezing and wheezing
the calliope crashed to the ground

The calliope crashed to the ground...

and she was blinded by the light,
revved up like a deuce, another runner in the night...

Props to 007 Lyrics for the lyrics that I couldn't make out, although I had to format things to make more sense.

The lyrics do not get more comprehensible as the song continues but it does have a poetic dissonance to it. What I mean is that it is not simply abstract imagery put together for the purpose of being abstract. That is annoying; in art or in music, to my taste. But I think Bruce Springsteen actually had some kind of Bob Dylan-esque story to tell with the song. That doesn't mean I have any clue what that story is supposed to be.

Several websites try to offer meaning for the song, or at least to clarify the often-misheard lyrics. This site purports to offer the "straight dope" on the song, and its lyrics, though the author doesn't even try to explain meanings.

Still, Manfred Mann one-ups Bruce when they end the song by doing a round, with one dude singing verses while the main vocalist sings the chorus in a slightly different fashion.

Charlottesville, Virginia, is a funny place, sandwiched between the blue ridge mountains and the rolling plains and rivers near Richmond, and just two hours south of the outer reaches of the D.C. metro area. There are lots of wannabe authors and artists here, perhaps hinging on the presence of Dave Matthews and John Grisham, among other less notable figures who reside in the area.

One of the coffee shops I frequent in the city plays host to gatherings ranging from Christian groups to paranormal groups. It's a great place, called CVille Coffee, and run by a sole proprietor who really couldn't be a nicer gentleman. I thoroughly recommend it if you're ever bored in Charlottesville (and who among those who reside here isn't, at some point?).

That said, there are old people who come through the coffee house. These aren't the friendly elderly folks you sometimes encounter as neighbors or in craft stores. These are the old people who buy a 20 oz. mug of coffee and sit and stare at people. That's all they do! They just stare at you. You walk in the door, unprepossessing, dressed conservatively, and they just stare at you, as if they are waiting for you to explode or something.

Of course, my philosophy is that this is utterly rude. In polite society, no matter what age you are and what level of respect you think you are entitled to, you look quickly at people who enter a room and then look away -- you get back to your conversation, your book, whatever. But you do not stare at someone for more than five seconds unless you either hate them or love them. What is the old quotation from an anthropologist? If two human beings stare at each other for longer than five seconds they are either going to fight or make love. I think that's it.

Anyway, the subset of old people who stare too much and too often at others have no sense of courtesy. I'd stare back at them but often that would involve more torture for me than I ought to endure. It might be said that they know this, internally; they must know they have the advantage of ugliness, both in appearance and manners.

Logical Fallacies are a favorite subject for my late-night efforts to evade doing real work that I should be doing. For one thing, it is fascinating how many people have heard of these fallacies and still keep on employing them in arguments. Not that humans are always or even often rational, of course.

Some good web collections of logical fallacies can be found here on Wikipedia and here at the Fallacy Files website. One of my favorite is Tu Quoque, which is Latin for "you, too" or "you, also" (or however you want to translate it). As the name implies, this fallacy is when someone, say person B, responds to person A's argument that person B does or believes something wrong or inconsistent (for example) by saying, "yes that is true, but you [person A] do that as well!" This isn't really an argument defending person B, but interestingly, very few humans pick up on that. Most people in person A's position immediately go on the defensive, which is exactly what person B wanted them to do. The example used on the Fallacy Files site is where Osama Bin Laden responds to a CNN interview question (in 1997) about whether he is funding terrorism in Afghanistan by saying that the U.S. engages in terrorism too. Well that obviously doesn't answer the question (indeed, in this case it is an admission!) and it is an irrelevant response to the argument/question.

Another neat list on Wikipedia, somewhat related to Logical Fallacies, is their long list of Cognitive Biases. These biases prevent people from being perfect "rational actors" as many economists seem to assume they are...

A related logical fallacy to Tu Quoque that I encounter a lot is the "illusion of double standards" argument. This is where someone argues that the other person is being hypocritical by applying one rule or standard to themselves and another to other people. The tricky part of this fallacy is that sometimes the allegation is true -- there do exist, unsurprisingly, examples of pepople acting hypocritically or inconsistently applying rules when it is convenient, et cetera. However, this is not always the case, and jumping to that conclusion is a sign of poor reasoning in some situations. The key thing to remember is that double standards only exist where the rule to be applied, as properly stated, actually applies to both situations. Let me put it this way -- if you accuse someone of hypocritically violating a rule that they criticize other people for violating, you must first ensure that the rule actually applies to the alleged hypocrite, because sometimes it won't. Maybe other rules apply to them. This is not as disingenuous a rationale as it at first seems, and many people also have a knee-jerk response to this explanation!

Here is a simple example that illustrates the problems of telling when the rule is being applied consistently or not. If a vegan argues with a typical American omnivore that the latter's dietary choices are hypocritical, what is he claiming? The vegan is arguing that the omnivore treats animals and humans differently, and perhaps he throws in the fact, "and you own a dog too! Would you eat your own dog? How are cows and pigs any different?!?" The omnivore has a simple explanation, however. To the omnivore, there are hierarchies of moral worth, and some animals do not have moral status whereby a standard that says, "do not eat creatures that have high moral value similar to humans" (an expansion on the old human taboo against cannibalism) would apply to them. Apparently pigs and cows are out of luck. Now, the vegan can object ferociously to what he would view as the illogical line-drawing between animals of comparable intelligence, et cetera - or however he puts it. But that is an entirely separate debate! All I am saying in this case is that you cannot argue that the omnivore is pursuing a "double standard" by owning a dog and also eating beef and pork.

Wow, that got over-long...

I've just recently discovered how important Pharrell Williams was to my musical taste. Virtually all the pop music I've enjoyed in the past five years can be traced to the Neptunes (Pharrell's production crew) and often, to Pharrell's voice on the singles. I never used to listen to a lot of pop, but as I got more and more into vocal timbres and enjoying different harmonies when they were sung by the human voice, I've definitely broadened my musical tastes beyond my previous, limited range of classic rock, blues, bebop, and limited electronic music. But this is an unnecessary aside - what I mostly like about Pharrell is his awesome falsetto, which you can hear on Snoop Dogg's "Beautiful" or Pharrell's first personal single (where he wasn't guesting for a change) "Frontin'."

Speaking of which, "Frontin'" was also covered by Jamie Cullum, an artist who I'd really love to see in concert. He's essentially a modern jazz singer-songwriter, but far less pretentious than most jazz musicians I've seen (it can be nauseating how full of themselves many jazz folks are... especially the connoisseurs). In any case, he also has a great voice, though it shines in the lower registers and has a rolling, soothing quality to it that makes his songs really unique.

So then I'm thinking: Of all the electronic/mixing groups I enjoy listening to, I like Zero 7 the most. Kid Loco is pretty neat too but too obviously obscure, whereas I always find Zero 7 to be meditative, and I really like their frequent vocal contributor, whose name I either forget or never knew. In any case, I was thinking to myself today what it would sound like for Zero 7 and Pharrell Williams to get together and write something. I think it could turn out awesome, but they come from totally different angles. Zero 7 is focused on creating a soundscape, whereas Pharrell and the Neptunes are all about minimalist electronic pop. What I like about both of them is that they create excellent sonic backgrounds on which their unique vocal artists can play, highlighting the vocal textures and dynamics that distinguish them. I never thought Justin Timberlake was anything special, but I had to admit that "Senorita" is a catchy song, and you can hear Pharrell's production techniques at work in that tune, as well as his voice providing back-up (if I'm not mistaken).

Anyway, go over to http://www.radioblogclub.com/ and do a search for these tunes and you'll hear what I mean. Just don't click on Britney Spears' "Boys." Yes, Pharrell produced/wrote it and has a bridge part in the song, but it is so wretched that I can barely contain my urge to spit upon it -- and the video is worse!

That's all for this first entry. Veteran anonymous bloggers with no audience need waste no time on introductory remarks. :)