Friday, April 09, 2010

Originalism and post-modernism

I posted this to my status at Facebook but decided it deserved a wider audience. At the same time, I really don't want to deal too much with the liberal commentators at W4, so I'm compromising by posting it here. Which probably means it won't actually have a wider audience. Anyway, this is what I said:

Does it ever occur to the people who teach in U.S. law schools that there is great moral hazard in teaching, even requiring, the most intelligent young people in the country, its future leaders, to regard the reality governing all the citizens of the most powerful nation in the world as literally created by the will of nine human beings?

Further ruminations on the subject: I see people talking about whether the individual mandate in Obamacare is constitutional, and what I realize is that when lawyers talk about this, they are simply making a prediction. What will SCOTUS rule? Ultimately, that's going to be the question. Lawyers are taught that the Constitution means what the Supreme Court says it means. The Supreme Court, in other words, creates the meaning of the Constitution in an on-going act of pure will and power. So if the Supreme Court rules that the federal government has all powers not expressly forbidden to it in the Constitution (which is directly contrary to the 10th amendment as well as to the entire assumption of enumerated powers that makes the Constitution necessary in the first place and that governs its structure of laying out the powers of the different branches of the federal government), why, then, that's what the Constitution means. If they somehow descry this grant of plenary power over every individual in the country to make that individual do what Congress wishes hidden somewhere in the 16th amendment (that's the income tax amendment), why, then, that's what the 16th amendment means.

Now, if that doesn't bother you, as an American, it should. Yet that's what the law schools have been teaching for decades. The Constitution has no external meaning. It means what the courts rule.

I don't care if you regard yourself as a natural law theorist on con-law. I don't care if you think Antonin Scalia is a "positivist" and this is a bad thing. I ask you to think: Isn't there something very, very wrong with a purely postmodern view of the very constituting document of our country according to which it has no stable meaning? Isn't there something very, very wrong with a situation where the question, "Is it true that the individual mandate is constitutional?" has nothing to do with a stable meaning of the Constitution but is merely a question of prediction about what nine black-robed rulers will say in a few months?


William Luse said...

"Isn't there something very, very wrong..?"


Justice Stevens is retiring, btw.

Robert Kunda said...

I wrote about a longer reply, but deleted it. I'll echo William. Yes, something is wrong.

Lydia McGrew said...

Sorry you deleted it!

Jeff said...

Lydia, my views are "evolving" on this question. By that I mean to say that rule by Document - whether it's the Bible in religion or the Constitution in politics - seems to be an inherently unstable proposition. I don't think we can ever get away from the actual rule and authority of men. We can have the rule of men honestly, as in a traditional society, or we can have it dishonestly, as when powerful men interpret and/or circumvent The Document, but either way that's what we'll end up with. Which is not to say that governing documents have no value - on the contrary, I believe they are necessary - but that they are never the last word.

Lydia McGrew said...

Well, Jeff, say what you will: It is contrary to the professional honor and to the general honor of federal judges to pretend that the Constitution means things that it manifestly does not mean. The entire Living Constitution document is a transparent ruse which scarcely covers the raw will to power, but it _is_ a ruse. What would have become of Roe v. Wade if the authors of the opinion had eschewed the talk of penumbras and said, "We have absolutely no authority granted to us by the constitution or by our role as interpreters thereof to say this, but we _want_ women to be allowed to abort, so we're going to say by fiat decree that women _have_ a right to abort. It's not a 'constitutional' right, because anyone who can read knows that no such thing is in the Constitution of the United States, but it's a right in the abstract rights-world that we wish to rule you by"? What would have happened? Would everyone have kow-towed to it?

The real problem here is lying and pretense of interpretation when no such interpretation is going on. And by that means we have been subject to tyranny under the sickening guise of the rule of law. And everyone goes along with the pretense. The Constitution cannot really mean whatever the court says it means, but now we're told overtly that that is the case. It should make every red-blooded Americans' blood boil.

Jeff said...

"It is contrary to the professional honor and to the general honor of federal judges to pretend that the Constitution means things that it manifestly does not mean."

Absolutely, I agree and share your anger and disgust. My point is only this: a Good Document is not going to stop the designs of Evil Rulers; and with Good Rulers, a Good Document is redundant.

Lydia McGrew said...

I don't agree with the redundancy point. Nor, for what it's worth, did the founders of the U.S. Their idea, which makes sense to me, is that good rulers can profit from ruling within the structure of a wisely constructed document which limits their powers and balances powers of different types and levels of ruler against each other. I think it's not correct to say that if someone is a good ruler he should have unlimited power or that there is no point to limiting his power. I think that even then there is a point to having the structure of the government and the general powers of the rulers laid out ahead of time in orderly fashion--powers enumerated and granted, not plenary.

Jeff said...

" ... and with Good Rulers, a Good Document is redundant."

That was sloppy late-night thinking on my part, Lydia. Sheesh, I can't get away with anything around here. :-)

I'm having a hard time putting into words what I want to say here (probably because I haven't thought it all through), but what the heck.

Breaking this down, there are many components to "good" in a Good Ruler - virtue, prudence, technical competence, experience, intelligence, a sound governing philosophy, etc. - and we seldom find them all in one package. So, you're right, even the best magistrates should not have unlimited powers, since all are likely to be defective in one arena or another.

The difficulty is that rule by document tends to shift responsibility from persons to processes, and in so doing it guarantees mediocrity in statecraft. Our republic was established on the idea of being "a government of laws and not of men" - indeed it was a very deliberate flight from the rule and authority of men in the old world. But even in a republic men are still required to write the laws, to uphold (or not) the laws, to enforce (or ignore) the laws, to revise the laws, and to persuade (or dissuade) others of the law's goodness and justice.

And yet, due to our system's inherent biases, we are either left with honest mediocrity or dishonest genius. America's best men do not, and cannot, participate in the political process without compromising their principles.

We now have a "good system" (as many good Americans are convinced) with bad rulers. But now we need to ask ourselves why our system is functionally closed to good rulers, and whether this "good system" contains the seeds of its own demise.

Lamont said...

I agree with you, but I am surprised that you think the postmodern view of the constitution is wrong. Legal positivism and nominalism are the natural result of atomism. If you accept atomism, why not everything else?
Our language and laws reflect our view of reality. If the world is nothing more than a constantly evolving flux of particles. Why should our language and laws be any different?

Lydia McGrew said...

Jeff, I'm having trouble wrapping my mind around the concern about guaranteeing mediocrity in statecraft. I can imagine criticizing someone for being a mediocre ruler--for example, being naive about certain dangers, being ill-informed, being unwise in choosing his advisers--but all of those things could be avoided while working within a government not of men but of laws, or at any rate a government far _more_ of laws than of men.

To my mind the executive branch needs wisdom in statecraft most in the area of foreign policy, where its powers are relatively less limited and where there are so many dangers to avoid. The power of the legislative branch is very great in a government of laws (obviously, since the legislature writes the laws, albeit within the framework of the constitution), and there I think there is enormous room for brilliance, foolishness, creativity, etc., etc.--in other words for both mediocrity and greatness.

Even within our government of laws and not of men, there are whole areas of law that remain far more "of men"--which is to say, areas of common law that are based on precedents more than on written law, or for which the written law has mostly been a matter of making precedent-law official. Within these areas, judges often have wide latitude of action. One area of this sort is family law. I have to say that I think family law is mostly a mess, and I'm not at all sure that the common law approach has worked out that well, though I'm open to the possibility that things would have been just as bad or worse with a more statutory approach. But if (God forbid) you should have to deal extensively with the family courts, you will see the judge acting very much as a direct ruler, just like a "wise man of the village," as it were, making direct orders on only his personal authority regarding the tiniest details of people's lives, ostensibly in order to insure the "best interests of the child," and I'm not at all sure that you will like what you see. But you may say, with some justice, that that's just because in specific cases you think the judge is making bad decisions.

One other interesting point, on which I'm sure we will agree: Had the strong limitations on federal power assumed by the Constitution been maintained, there would have been much more room for different types of ruling at the state level. As you know, some states even had established churches until the 19th century, and these were not struck down by the federal courts, either. You probably think those establishments in principle a good thing while I'm not very happy with them, but the point is that the limits on federal power, whether or not they "guarantee mediocrity" in your sense, leave more room for variety and, perhaps, a form of government you would think preferable at the state level.

Lamont, I can only imagine what makes you think that my "mechanism" in biology means that "the world is nothing more than a constantly evolving flux of particles." For the record, I certainly do not think that, nor anything remotely like it. I'm sorry to say that your inference there seems to me a classic case of the wrong kind of "slippery slope" thinking and also of "lumping" where "splitting" would make more sense.