Legal Fiction

__________

Adapted from Trainspotting:

INT. RENTON'S PUBLIUS'S FLAT ROOM. DAY

The door opens and Renton Publius enters carrying shopping bags. He empties them on
to a mattress beside three buckets and a television.

RENTONPUBLIUS
(v.o)

Relinquishing junkblog. Stage One: preparation. For this you
will need: one room which you will not leave; one mattress; tomato
soup, ten tins of; mushroom soup, eight tins of, for consumption
cold; ice cream, vanilla, one large tub of; Magnesia, Milk of,
one bottle; paracetamol; mouth wash; vitamins; mineral water;
Lucozade; pornography; one bucket for urine, one for feces, and
one for vomitus; one television; and one bottle of Valium, which
I have already procured, from my mother, who is, in her own
domestic and socially acceptable way, also a drug addict.

Renton swallows several Valium tablets. Voice-over continues.

And now I'm ready. All I need is a final hitpost to soothe the pain
while the Valium takes effect.

__________

I never really wanted to write this post, but the time has come for me to hang it up, at least for a while. I’m certainly not burned out or lacking topics to write about. And I suspect it will be very difficult to stop. It’s just that my work is leaving me with increasingly little free time to read, or do much of anything else for that matter. Blogging is 90% reading, and I simply can’t write consistently good posts (or at least posts that I’m happy with) if I can’t stay on top of the news. I’d rather stop now than sacrifice the quality of the blog. I don’t know if this is the end or not. I hope it’s not. Maybe after a few months (or longer), I’ll be able to return. But this will definitely be the last post for at least a few months – and possibly for good.

More than anything else, I just wanted to say thank you to everyone who kept coming back day after day to visit and to leave comments. I really can’t overstate how much I appreciated the readership, the emails, and all the comments. It was humbling and flattering to see the readership increase over the past year and three months, and I really appreciate every single visit. I’ve learned so much from all of you, and I feel like I even know some of you. It sounds cheesy, but I will sorely miss waking up each morning reading the comments to a new post, or reading the emails that so many of you sent me. It was a highlight of my day, and I just want to say thank you.

I also want to thank some of the bloggers who gave me my “break” early on when no one had ever heard of me - such as Feddie, Nick Confessore of Tapped, and in particular, Kevin Drum. If you are a more well-known blogger, I would encourage you to follow their example and give the lesser-knowns some linkage. They will be eternally grateful. I’d also like to thank Eric Martin and Julie Saltman for stepping in, and to Kevin Hayden for inviting me to TAS. I wish I had had more time to contribute, but I was already feeling the crunch when I signed on and the extra deadline proved too much.

I hate to leave at a time when the news is so thoroughly disgusting and depressing. To sacrifice land unspoiled by man since the creation of the Earth in order to pay off oil buddies is about the most depressing thing I’ve read lately. But still, the most important thing is not to lose hope. You have to keep a positive vision of where you want this country (or your state or city or county or school board) to go. You have to see what could be before you can change what is. As hard as it is not to descend into rage and despair these days, it is imperative not to do so. If you think, as I think, that mankind and the world would be better off living under progressive policies, you have to go out and persuade people why you are right – even people you have little patience or tolerance for.

Take care everyone – I sincerely hope I’ll be talking to you again in the not too distant future.

I’ve got nothin’ but affection for all those who sailed with me - Bob Dylan, “Mississippi”

__________

I'm going out of town for a few days, so I'll be away until Monday. Have a good weekend everyone.

__________

I'm going on a mini-vacation at the end of the week, so I'm trying to get some things finished for work so that I can actually go. I hope to blog some tomorrow, but I can't tonight.

But before I go, I do want to point out a figure that floored me. From the Post:

In the new poll, 56 percent said they think Iraq had weapons of mass destruction before the start of the war.

This number is essentially unchanged from a similar Post poll from February of 2004, when the numbers were 60-33. Today, they are 56-40. That's pretty amazing given that, in the past year, both David Kay and Charlie Duelfer have concluded that Iraq had no WMDs.

I actually did a post nearly a year ago on the question of why so many people have held on to this view about WMDs despite any empirical support for that position. My thoughts haven't changed much, so I'd just urge you to go read that post.

__________

COMPROMISE

by Publius

Characters

Publius, King of Thebes

Man-on-Dog Santorum

Torture Lieberman

Tim Russert

Chorus, of Conventional Wisdom (Broder/Mallaby/Russert/Klein/Matthews/et al)


Act I

Scene - Studio, Meet the Press, Sunday morning

Russert: Thank you all for joining us. Today, we have three distinguished guests from across the political spectrum. First we have Senators Man-on-Dog Santorum and Torture Lieberman. And joining them is Publius, King of Thebes. Today, we’re going to talk about the wart on Publius’s hand.

Publius: It’s a small wart on my pinky finger, and it hurts sometimes.

Santorum: I recognize that pain, and that’s why I have proposed cutting off Publius’s arm at the shoulder. We can’t risk spreading warts. We must deal with the problem today before it is too late.

Publius: I oppose that proposal.

Chorus (with wind blowing and leaves rustling): O bitter Washington! O wicked seas of vile partisanship! Where art thou, o Compromise? Where have thou gone, sweet Bipartisanship? Come Bipartisan Muse, return to this wasteland in this our darkest hour! Prick our hearts with thine reasonable needle so that the sweet nectar of Compromise might again flow!

Santorum: I have offered a plan to remove Publius’s wart. That plan is cutting off his arm at the shoulder. Rather than offer constructive advice, Publius has once again opted for blind opposition and obstruction. Once again, he has offered no plan.

Publius: I don’t fucking want my right arm cut off.

Russert: But you admit that the wart is a problem, do you not? Look back at what you said on June 19, 1998. And I quote, “This wart is a problem.”

Chorus (with wind blowing and leaves rustling): O blind stubborn fool! See how Publius forgetteth his words! O vile Washington! Doth he not realize we are in the Information Age where men have no need for fingers, arms, and social insurance?

Russert: Why haven’t you offered a plan? At least Man-on-Dog has offered a plan. What is your plan? Plan. Plan. Plan.

Chorus: (echoing with reverb): What is your plan? What is your plan? What is your plan? What is your plan? What is your plan? Planplanplanplanplanplanplanplanplanplanplan . . .

Publius: I have had warts before and they’ve always gone away. I think I’ll wait and see if they get better before I cut my arm off.

Lieberman: If I could just butt in. I want to reject the rigid extremes of both sides and find compromise on this important issue.

Chorus: (with Hallelujah chorus singing in background) O sage! O wondrous paragon of bipartisan virtue! Doth thou seest vile Washington? Doth thou see how to avoid the extremes on both sides. How we love the bipartisanship! How we love it!

Lieberman: For instance, what if we only cut off his arm at the elbow, or even at the base of his finger? The big thing to remember, though, is that the wart threatens his entire body. So at this point, we shouldn’t be taking anything off the table.

Publius: I’m not compromising on cutting off my fingers.

Chorus: O lost soul! He sounds so “negative and irresponsible.”

Santorum: Tim, I think it’s pretty clear what’s going on. You’ve got one side offering a real solution to save Publius’s arm from the warts, and you’ve got no proposal from the other side. . .

Publius: (interrupting) I have a proposal. . .

Lieberman: It’s true. Too many on my side just blindly reject cutting off any part of Publius’s body without being open-minded about it.

Publius: Just leave it alone.

Russert: How do you respond? What is your proposal?

Publius: I propose that you idiots leave me the hell alone! LEAVE ME ALOOOOONE!! (exiting stage left screaming)

Chorus: O misery! O sorrow! The child is lost in rage and anger. Where have you gone, Sweet Compromise. Our nation turns its vile partisan eyes to you. Woooo-Woooo-Woooo (leaves rustling).

Exeunt.

__________

Once upon a time there lived a beautiful maiden. She was the most beautiful maiden in the entire kingdom. Her name was Original Understanding, and she had long golden locks of hair that were the color of the fields in spring. Knights would gallop by and sigh, “Oh, Original Understanding, thou smiteth me with thine unchanging beauty.”

But the knights’ desires were all in vain. Original Understanding, you see, was the daughter of King Madison and Queen Hamilton. The King and Queen never disagreed about anything – and their understandings of the world were perfectly identical. Although the King and Queen greatly loved their only daughter, they were protective of her. They wanted to shield her from the evils of change and the outside world. Many a summer day Original Understanding watched the galloping knights from the window and longed to rideth with them across the pastures surrounding the castle. But the King and Queen would not allow it.

After a while, the King and Queen felt guilty. “My dear Madison, thine daughter should be allowst to go on walks.” King Madison agreed because the two monarchs’ understanding was always identical about every single issue. The loving parents called their daughter into their chambers.

“Original Understanding, we hath decided to letteth thou walketh through the gardens.”

Original Understanding was overcome with joy. “Oh, thank you daddy! Thank you!”

“But there is one condition – thou must never entereth the Enchanted Liberal Forest. The evil four-headed Liberal Dragon roams those woods, and his powers are quite strong there.”

Original Understanding was puzzled, “Even though there are seven Republican-appointed Justices?”

“Yes, his power grows as he gets weaker. Promise me you will never enter the forest!”

“Oh, I promise daddy! I love you both so much!”

And so each day, Original Understanding would walketh through the gardens and decorateth her flowing hair with the wildflowers along the graveled path. Each day, she would stop at the border of the Enchanted Liberal Forest and peer into the shadowy woods before returning to the castle. But one day, her curiosity got the best of her and she ventured into the Enchanted Liberal Forest – home of the evil four-headed Liberal Dragon.

As she walked into the forest with that familiar childhood thrill of doing the forbidden, she suddenly felt the cold steel of dragon scales against her neck. Unable to withstandth the trauma, she fainted. When she regained consciousness, she opened her eyes and found herself in a cold prison cell high up in the tower of a castle. She realized that she was in the Castle of Atheism, the home of the Liberal Dragon. She was terrified. “Daddy! Mommy! Help! Someone! Please help!”

As she screamed, a hideous creature appeared before her window. Seeing four foul heads before her, she knew she was looking at the Evil Liberal Dragon. She knew the name of each head from childhood. The first head was named Socialism. The second head, Christian Hater. The third, Judicial Tyranny. And the fourth, Terrorist Lover. The depths of their combined evil had no end. Their ear-piercing screams could be heard across the kingdom – “Little Eichmanns! Little Eichmanns!”, “Global test! Global test!”

“Ha ha!” laughed Judicial Tyranny, “At long last, I have Original Understanding with her unchanging beauty.”

“What willst thou do to me, Evil Liberal Dragon?”

“It’s simple. With you locked away, I will be free to ignore the law and impose my pro-terrorist policy preferences upon the kingdom. And as my magic continues, you will . . . change. Your unchanging beauty will be changed to fit modern times. AHHHH HA HA HA HA!!!!!! AHHHH! HA! HA! HA! The world will soon be socialist and Christian-hating!! AHHHHH HA HA HA!!!!!”

“Little Eichmanns! Little Eichmanns!” “Global Test! Global Test!” And the dragons spit fire as they laughed.

Back in the kingdom, the King Madison and Queen Hamilton were distraught – equally distraught because their understandings were perfectly identical at all times. “Oooooo!” the king moaned, “is there no one brave enough in this kingdom to fight the Evil Liberal Dragon and return Original Understanding to her proper place?”

“Here is one,” came a voice from the back of the room. The King and Queen looked back and saw a familiar knight with a funny-looking half-beard – Brave Sir Bork.

“Brave Sir Bork, thou wouldst slay the Evil Liberal Dragon and save my cherished Original Understanding.”

“Yes, I would. But I must go quickly. Already, the Evil Liberal Dragon’s magic is spreading like locusts across the land. The New Deal has been upheld. Environmental statutes are being passed.”

“Dear God. The dark evil magic is even more powerful than I had realizedeth. Go, go now before it is too late.”

With fire blazing in his eyes, Brave Sir Bork charged into the Evil Enchanted Liberal Forest. To reach the Castle of Atheism, Sir Bork had to slay the Freedom Hating Minotaur, cross the Socialist Swamps, and brave Flip-Flopper Rapids with its jagged troop-hating rocks.

At long last, Sir Bork reached the Castle of Atheism. But the Evil Liberal Dragon was nowhere to be found. Gazing up, he saw Original Understanding looking out helplessly from the Dragon’s tower. “Original Understanding,” he cried, “let down thine objectively determinant locks of golden hair so that I may climbeth up to rescue you.”

“NOT SO FAST!” shrieked the Evil Liberal Dragon who suddenly appeared now wearing a peace shirt. Like the Medusa of old, Sir Bork knew he must not look upon the tye-dyed peace symbol directly, lest it tempt to start smoking weed and listening to Modest Mouse.

“I have come for Original Understanding. You, Judicial Tyranny, have locked her away so that you can promote your tax-hiking, government-expanding, latte-drinking, sushi-eating, Volvo-driving, New York Times-reading, Hollywood-loving, left-wing freak show jurisprudence upon the kingdom.”

“AHHH HA HA!!! Yes, soon everyone will be eating sushi! And I won’t stop there. In the new communist order, prayer will be banned. Judges will ignore the law and impose their personal preferences upon the Constitution! Original Understanding’s beauty will be changed to fit modern times! AHHH HA HA!!!!!”

“Little Eichmanns! Little Eichmanns!” “Global Test! Global Test!”

Sir Bork had grown increasingly furious, but the Evil Liberal Dragon’s last sentence was simply too much. The thought that Original Understanding might change threw him into a frenzy. In a rage, he charged the Evil Liberal Dragon. At the same time, a light pierced the clouds of the Enchanted Liberal Forest. The sun came shining through and blinded the Evil Liberal Dragon. With the Dragon distracted, Sir Bork leaped and cut off Judicial Tyranny’s head. “In the name of rule of law, I smiteth thoust foul tyrannous head!” The Evil Liberal Dragon recoiled in pain. But Sir Bork was not done. “And you Socialism! And you Christian-Hater! And you Terrorist-Lover!”

And the four heads of the Evil Liberal Dragon fell to the ground, making a loud thump in the mud as they landed. In an instant, the darkness of the Enchanted Forest disappeared. The Castle vanished into the air. As Original Understanding rushed to embrace her knight, other statues from the Castle of Atheism’s courtyard vanished. First, the environmental statutes. Then, the civil rights bill. Then, modern labor protections. Gone – all of them gone.

“Hurray,” cried Original Understanding, “the monuments of the Evil Liberal Dragon are gone.”

“Yes,” replied Sir Bork, “for we have rescued you and returned you to your rightful place.”

“Oh, Sir Bork.”

“Oh, Original Understanding.”

And they lived happily ever after.

_________

For those keeping score at home, Feddie penned a lengthy response to my post earlier this week on the linguistic case against Scalia’s originalism. I can’t possibly respond to every point, so I want to distill the debate and narrow it down to what I think are the two main points of contention: (1) the determinacy of constitutional text; and (2) the role of pragmatism. Before I get to that, I do have a couple of gripes about Feddie’s response.

My Gripes

I enjoy a good debate as much as anyone, especially with Feddie. But at times, I felt like he wasn’t engaging my argument, but someone else’s. It was rather strange at times – my text-based argument mysteriously transformed me into a “penumbra lover,” a supporter of rule by “judicial fiat,” and someone who thinks that “judicial methodology/reasoning only matters to the extent it produces the desired public policy result.” Given that no one on the planet Earth believes in any of these things, it’s not an entirely accurate depiction of anyone’s position. But it’s an especially inaccurate depiction of mine given my oft-repeated advocacy for Hugo Black/Akhil Amar-style textual restraint, along with my opposition to Roe and Lawrence (despite my political leanings) on textualist grounds.

The problem is, at times, I felt Feddie wasn’t responding to me, but to the Great Liberal Straw Man in the Sky. No one I’ve ever met in my life believes in rule by judicial fiat. No one I’ve ever met in my life believes in ignoring the law to impose personal policy preferences. These are imaginary monsters projected on to shadows – simplifications that belong in a fairy tale. I don’t mean to pick on Feddie, it’s a rather common problem and he’s better than most. But too often, rather than debate the merits, many of my conservative friends transform liberals into these fairy-tale simplifications and then argue against the simplification rather than the argument at hand. For instance, Feddie didn’t argue against (or even acknowledge) my limited textually-bounded pragmatism, he transformed it into ignoring all law in favor of policy preferences. That’s not my system. In my system, the text comes first, and any conclusion must be plausibly authorized by the text. But once we are dealing with more than one plausible interpretation within the text (as linguistics teaches us we often must do), I prefer to select between competing plausible interpretations through a pragmatic approach with an eye to the interpretation’s effect in the 21st as opposed to the 18th century.

When he stopped beating down the Great Liberal Straw Man in the Sky, Feddie did make some solid points that need addressing. Below, I think I’ve boiled the debate down to its two fundamental points.

Determinacy of the Text

The more fundamental dispute we have is actually linguistic. It’s about the very nature of words. I believe that the words in the Constitution are like all words – they don’t have one single set meaning, but a finite range of justified meanings. Feddie believes that the words in the Constitution are special in that they have only one meaning – that is, the meaning that was understood at the Framing. I suspect Feddie would agree with me that words like “search” and “cruel” have ranges of meanings, it’s just that he would say that this particular meaning is the one we must always apply. Before I get to the linguistics, there are of course serious problems with Feddie’s assumptions.

For one, it’s not at all clear that there was a particular collective understanding of these words in the first place. For instance, just a few years after ratification, Hamilton and Madison got in a heated debate about the constitutionality of the Bank. You would think that if anyone had a shared collective understanding, it would be the authors of the Federalist Papers. And if two parts of the original Publius trinity (I’ve been waiting to use that phrase) had such fundamental disagreements about one interpretation, should we be more or less confident in the harmony of understanding as we increase both the number of people and the number of phrases in question?

Feddie’s best argument is that we know such an understanding existed because the Framers used terms of art that had a common law history. Now, with respect to some phrases, that has to be right. But Feddie overstates things. For one, a lot of phrases (“unreasonable search”; “commerce”; “equal protection”) had no basis in common law history, so the argument doesn’t work everywhere. But second, just because a phrase was used in history doesn’t necessarily mean that it had a clear determinant meaning. “Cruel and unusual” – like many other phrases in the Bill of Rights – comes from the 1689 English Declaration of Rights, which was the model for our own Bill of Rights. But that only shows that the phrase had a history. It certainly doesn’t follow that "cruel and unusual" was clearly understood to mean X, Y, but not Z. It was in 1689 what it is today – a vague phrase.

But even if such understanding existing, the next obstacle becomes epistemological. If such an understanding existed, how do we come to know that? Given the stakes, how much confidence do we have in our conclusions? Which sources should we use? Should we worry about sources that were lost, or never recorded? How many people does it take to constitute an “understanding”? Are we projecting our own policy preferences upon fragmentary clippings and diary entries? Tough questions.

But put all that aside. Let’s assume Feddie is correct. An understanding existed, and we can know what it was. This is where linguistics come in. Even if the Framers wanted their words to have a single unchanging understanding for all time (which makes vague words like “cruel” and “unreasonable” seem odd), such a thing is impossible as a matter of linguistics. Words only have a meaning against a certain background of facts, history, norms, and shared understanding. In other words, they only have a meaning within a certain context.

Take the word “offer.” The ordinary meaning of the word itself changes if it is being used in the context of a contracts class in law school. “Offer” now has a distinct meaning because of this new context. The same is true if “offer” is being used in the context of seeking employment. The meaning of words depends on how they are used and the context into which they are embedded (I think this was the whole idea of Wittgenstein’s “language games”). Thus, the meaning of words changes when the background context changes. Words in a vacuum without a background context are utterly meaningless.

And Feddie says, “Exactly!” His point is these words were rooted in a background context. More precisely, he’s saying they were grounded in this particular background context. For now, let’s agree. My point is that, even if that’s right, the meaning must necessarily change (linguistically speaking) as the background changes. Take the word “commerce.” The word had a meaning against the backdrop of the more localized agrarian 18th century economy. But “commerce” means something very different in the age of industrial nationalized markets, or even post-industrial, globalized markets. The background changed, so the meaning (or more precisely, the range of plausible meanings) changes along with it. That doesn’t mean that everything suddenly becomes plausible. “Offer” can’t possibly mean “apple.” But you get the point.

Same deal for “search” or “speech.” Technology has permanently altered the background in which these words must be understood. The original understanding of “search” did not contemplate surveillance technology that could penetrate the walls of one’s home. Thus, the background changed. Should we recognize that change? I think so.

What’s actually going on is not so much that originalists favor a particular meaning, but that they favor a particular background context – which is the Framing. [On an aside, sometimes originalists use a technique called “translation” to re-interpret the original understanding to these new situations. In reality, that’s merely changing the word to fit modern times – which apparently makes one a “judicial lefty.”]

The Role of Pragmatism

The one word that freaks originalists more than any other is “pragmatism.” Again, to a large extent, I share their concern. Judges have no business deciding questions that are better left to the ballot box. Judges have no business ignoring law to impose their personal preferences even if the they think the country would be better because of it (see Bush v. Gore). Judges must be restrained by text. But I do believe pragmatism – or looking to real-world consequences – should play at least a limited role when deciding between competing alternatives that are both textually plausible. In other words, “pragmatic textualism” includes a healthy mix of restraint and limited pragmatism.

Contrast this to the rigidity of originalism, which taken to its logical conclusion, rejects any and all consideration of consequences. If you take originalism seriously (which judges fortunately never do), the outside world becomes irrelevant. All that matters is what the original understanding is. It doesn’t matter if that understanding – like it almost did during the New Deal – would cause the economy or even nation to collapse. Originalists would continue blindly grasping the hull as the ship sank to the bottom.

And so, given all the hemming and hawing about looking at “results”, I have a question for Feddie. If the original understanding is clear, are you willing to accept the logical implications of your jurisprudence and ignore all consequences? Are you really willing to take your philosophy to its logical end? Almost no originalist would, and for good reason. In a world of pure originalism, the Bill of Rights would not apply to the states. Thus, states would be free to shut down presses and establish tax-supported religion. The administrative state would be abolished, and all federal agencies along with it. Our nation’s environmental statutes would be unconstitutional, as would civil rights legislation that governs private behavior. Segregated schools would be OK, as would bans on interracial marriage. Poll taxes and literacy tests would constitutional (Bork himself admitted this in his book). Numerous labor and economic regulations (minimum wage, minimum hour laws) would be unconstitutional. The commerce clause power would be returned to a pre-New Deal scope. Pleasant world, no?

It’s a tough choice – originalists must remain wedded to their abstract principles, or they must accept the modern realities of the industrialized and post-industrialized world (which Feddie ridiculed me for). The thing about originalism is that, if you're serious about it, you have to take it all or leave it all. Once you stray from the clear understanding to make an exception for the regulatory state or civil rights bills, you have included pragmatism in your jurisprudence. Fortunately, no one this side of Bork is actually willing to destroy the fabric of the nation’s economy, environment, and civil rights regime in name of their abstract visions of what may have been understood in 1789.

One last note – remember too that “pragmatism” doesn’t necessarily – or even usually – refer to political preferences. It often refers to politically neutral considerations such as promoting judicial economy, or promoting the goals of some statute. It happens all the time. Courts are faced with two different statutory interpretations and lawyers (rightly) introduce “policy arguments” to support their position. The word “pragmatism” need not refer only to politically-charged criteria.

__________

From the WP:

The House, facing new controversy about the travel of Majority Leader Tom DeLay and other lawmakers, was left last night with no mechanism for investigating improper behavior by its members when Democrats shut down the ethics committee by refusing to accept Republican rules changes that restrict the panel's power.

. . .

Dennis Hastert (R-Ill.), said it was unclear last night how the logjam could be broken. "Democrats have chosen to shut down the ethics process," he said. "It's up to the House Democrats to put the ethics process above partisan politics."

__________

I'm taking the night off, but I'll definitely be writing some this weekend in between SEC Tourney basketball games. I think Kentucky will still get a #1 seed if it can win the tournament, but it would help if Wake got beat tomorrow. That's right people, get ready. I'll be doing some Cat-Bloggin' for March Madness.

___________

For those interested in my Scalia post earlier this week, Feddie has offered a defense of Scalia and a response to my watertight argument from earlier in the week. I'll have to put off my reply for now, as it's time for the Daily Show.

__________

I was having my typically pleasant experience reading the news today – you know, reading about UN haters appointed to represent us at the UN; the endorsement of peonage to credit card companies; and the bribes and corruption of our top House leaders. Just your typical day, really. I’m sort of immune now, so it didn’t really bother me. But then I moseyed over to Kos and saw a list of the Democratic Senators who voted for the Peonage Bill and a cold shiver went down my spine. In one of those Frodo-peers-into-the-fountain moments, I had a vision of how we might lose the Social Security battle.

Via Kos, here’s the list:

Biden (DE)
Byrd (WV)
Carper (DE)
Conrad (ND)
Johnson (SD)
Kohl (WI)
Landrieu (LA)
Lieberman (CT)
Lincoln (AR)
Nelson (FL)
Nelson (NE)
Pryor (AR)
Salazar (CO)
Stabenow (MI)

The big question on everyone’s mind is why so many of these Senators were supportive of a bill that is nothing more than a handout to the credit card industry, which is a politically unpopular industry that hits middle-class Americans hard. Not to mention that it’s a terrible bill. As the LA Times pointed out (citing a study from HLS Professor Warren - who along with her excellent student assistants has been doing heavy lifting over at Talking Points), half of Americans’ bankruptcy filings result from the financial consequences of medical problems. Oh yeah – and there’s a loophole for millionaires. It’s just insane. It seems absolutely crazy that Democrats (and Republicans for that matter) from poorer, more rural states would support a bill that not only punishes people for bad luck (statistically speaking – I’m sure there are many bad apples too), but also discourages risk and entrepreneurship. Hell, even Glenn Reynolds opposed this bill.

So why? Why would Red State Democrats support this montrosity? Yglesias wants to know:

Meanwhile, I'd be fascinated to hear, say, Kent Conrad explain why it is that he needs to vote for this crap to stay viable in North Dakota but it's possible to survive in Indiana without doing so. Are farmers of the Northern Plains really crying out for someone -- anyone -- to increase their debt burdens?

As does Kevin Drum:

I'm missing something here. Not only is this bill pretty crappy on a policy level, but it doesn't seem like much of a winner on a political level either. Does the credit card industry really contribute such vast sums of money that even many Democrats feel like they have to vote for this thing? What other reason is there?

To be honest, I don’t know either. But I’ll throw out one possible answer that I’ve been kicking around. And if that is indeed the answer, then I fear Social Security may be in big trouble. And that answer is simply blind party loyalty. Or more precisely, blind personal loyalty to Bush in socially conservative states. For reasons that escape me, a lot of people in these states love the President. They just love the guy. I suspect it’s a mix of both a post-9/11 emotional attachment and an extreme dislike of liberal views on cultural issues. But whatever the reason might be, my fear is that too many people in these states will support whatever Bush supports for no other reason than Bush supports it. They’ll rationalize it as necessary to prevent the cognitive dissonance, but that won’t stop them from being loyal to the man for whom they feel an emotional attachment. Admittedly, liberals are often blindly anti-Bush on everything, but they are not as knee-jerk pro-Democrat as many conservatives are (pro-Republican that is).

Drum and Yglesias are assuming that the voters will approach an issue like the bankruptcy bill from a rational perspective, weighing the relevant costs and benefits and what not. But as this insightful but terrifying New Yorker article explained, people’s political loyalties often stem from non-rational sources. It’s hard for hyper-informed people to grasp this, but it’s true. A lot of people support Bush in these states because they like him. Period. A lot of these same people are hostile to the national Democrats right now because they despise them personally (largely for cultural reasons and the GOP’s successful exploitation of 9/11 - see, e.g., Frank Luntz).

Red State Democratic Senators know this. And as a matter of politics, they simply can’t be seen as being too hostile to a popular President. That’s why people like Frost and Daschle had to run ads showing them supporting Bush on this or that issue. Daschle even ran an ad showing him hugging Bush if that tells you anything. To see another example, just look at the list of Democrats who voted for Gonzales. You’ll see a lot of the same names popping up – and for similar reasons:

Landrieu (LA)
Nelson (FL)
Nelson (NE)
Pryor (AR)
Salazar (CO)
Lieberman (CT) (which one of these is not like the other one, which one of these just doesn't belong. . .)

Again, let me stress that there are thoughtful, independent conservatives out there. And liberals can be just as knee-jerk about things. But there are simply a lot of people who will support Bush no matter what because, as the anonymous Suskind source explained, they like the way he talks and they like the way he walks and they like the way he flew in on that aircraft carrier. I hope I’m wrong, but I can’t for the life of me think of any other reason why these Senators would support this bill. This seems like a no-brainer – and one that doesn’t implicate the sort of cultural or tax-cut issues that give Red State Dems political heebie-jeebies.

Anyway, as bad as losing (or temporarily losing) the bankruptcy battle was, losing Social Security would be a million times worse. As I explained before, I thought Bush’s tour to pressure Democrats in Red States didn’t make any sense because so many people in poorer Red States depend on Social Security. It didn’t seem like this was a good wedge issue in the sense that guns, God, and gays are. But now I’m wondering if Bush and Rove had a different plan all along. What if they were simply betting on blind devotion to Bush himself? What if that was the point of the tour? If so, the merits of the Social Security debate become irrelevant and the real political battle is simply whether Bush can make this a referendum on his popularity versus that of national Democrats. The anti-AARP ad was, in this respect, a perfect fit with this sort of strategy. The goal would be to avoid the actual merits and link the proposal to Bush, and link opposition to despised groups like anti-war types and gays. Perhaps that’s why GOP legislators were so insistent that Bush be out in front selling this plan. They know how popular he is in the socially conservative states that will make or break Social Security “reform.”

For now, the Democrats in these states have felt secure enough to maintain their opposition. In fact, the Republicans are far more afraid right now than the Dems – which is a good sign in that it suggests that the New Yorker writer might be wrong, and that people don’t support candidates out of blind emotional loyalty and do pay attention to the merits. But if you lose a Lieberman here, or a Nelson there, things could change quickly. That’s why it is so vital for Torture Lieberman to keep his dumb ass on the correct side of the aisle on this one. Snatching a few Democrats would give cautious GOP legislators bipartisan cover. And a united GOP caucus would in turn put pressure on the Senators in the list above, who already have to be apologetic about being Democrats.

I hope I’m wrong, and if anyone has a better explanation for why these particular Dems (excluding the Delaware duo and Non Grata Lieberman) would support such a bill, I’m all ears. [And yes, I realize that Byrd probably doesn’t care what anyone thinks of him anymore – so that doesn’t work for him.]

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In order to help raise awareness, and to raise money for Save The Children, I have joined the Coalition for Darfur. I would encourage everyone to go check out the site by clicking on the image to the right. The site itself was the creation of conservative Feddie of Southern Appeal and liberal Eugene Oregon of Demagogue. Stopping genocide is something that everyone across the spectrum can get behind. So I'd encourage you to do what you can - even if it's just keeping up with what's going on. And a big thanks to Feddie and Eugene for their efforts thus far.

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I have a confession – I’m sick of the word “progressive.” I always feel wishy-washy when I write it because I feel like it's an admission of defeat. I’m “liberal,” and it’s time to stop being apologetic about it. Politically, this is a bad idea. But in the world of blogger-pundits whose primary goals are to inspire the ideas that lead to long-term change, it is high time to start rehabilitating the word. And I want to try to do that today by fusing it with the older, classical usage of the word “liberal.” I also want to stay focused on one of the themes I wrote about last night – this idea of recognition and human dignity. I believe that these latter ideas, even though they were offered by Fukuyama, represent the theoretical foundation and justification for modern-day “liberalism.”

For my conservative friends, I’d like you to step out of your preconceptions for just a moment and hear me out today with a blank slate. Consider it as a thought experiment that tests your mental flexibility. What you’re going to hear today is an intellectual justification of why we liberals think the way we do. And once you hear it, you may realize that we all have more in common than you might think. I actually tried to do this a few months ago, when I argued that empathy was the common theoretical thread running through support for “social liberalism.” I want to refine that based on what we talked about yesterday. It’s not so much empathy, as it is recognition and respect for human dignity. That’s what liberalism is all about.

The history of liberalism is in many ways the history of the West itself. “Liberal” itself comes from the Latin word liber, which means "free." At it essence, liberalism is about protecting personal freedom. People like Locke argued that humans, by nature of being human, possess certain natural rights that the government cannot legitimately deprive them of. The idea was that a sphere of freedom enveloped the individual that should not be intruded upon by government authority. Within this sphere, people should be allowed to exercise their rights freely and without interference by the government. Locke justified this sphere of freedom by arguing – like Bush – that all humans have an innate dignity. When you understand these ideas, the following provision from the Declaration of Independence (which draws heavily from Locke) makes a lot more sense:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

This is a perfect example of classical Locke-style liberalism (as is our Bill of Rights, which also sets limits on what government can do with respect to individual rights). Notice also Jefferson’s reference to “consent” – this too relates to the idea of human dignity and legitimacy, and represents the theoretical justification for democracy. Governments are legitimate when humans – who, again, possess innate dignity – consent to them.

Many of the rights we hold dear – or don’t even think about – were once radical notions espoused by crazy “liberals” who advocated for a sphere of freedom. Within this sphere, they argued, people had a right to think what they want, say what they want, worship what they want (or not at all), vote how they want, use their property as they want, and enter into economic arrangements as they want. You can begin to see why “liberal” used to be more associated with what people would now call “conservative” free-market types – or libertarian conservatives. It’s all related to this notion of the “freedom sphere.” Liberalism’s (in this classical sense) sphere of freedom was the theoretical justification for protecting freedom of contract and other economic freedoms. That’s why Marx hated liberalism – he saw it as a amoral philosophy that cared about nothing more than individual well-being. Modern-day evangelicals are very close to Marx in this sense because they share the view that individualism is morally bankrupt. That’s what people mean when they call people like Dobson and bin Laden “il-liberal.”

For a long time, liberalism was essentially about protecting negative freedom – or freedom from something. Protecting individual rights meanT preventing government intrusion, or intrusions by majorities upon one’s personal freedoms. Over time, however, “negative” liberalism proved insufficient. Simply creating a sphere of pure (or relatively pure) economic freedom resulted in a horrible, wretched existence for too many people. Children worked 12-hour days, people barely kept themselves fed. For a good part of the Industrial Age, it looked Marx was right and that liberalism was morally bankrupt.

But liberalism – in the economic arena – transformed to respond to these challenges. And the current rift between modern conservatives and modern liberals in the economic sphere traces back to this transformation. Before I get to that, though, remember that the whole point of classical liberalism is about recognizing, respecting, and protecting human dignity. That’s why, for example, we don’t allow state-funded school prayer – it’s not about Christianity-hating, it’s about forcing the state to respect everyone’s freedom of choice by remaining neutral. The state should never force religion on anyone – to do so would be illiberal.

Another point of classical liberalism to keep in mind is that it was about allowing humans to pursue happiness, and to have the freedom to reach their innate potential. Repressive regimes prevent humans from reaching their potential because they put irrational restraints on them if they are of a certain ethnicity, or religion, or gender, or sexual orientation. But getting back to the transformation, at some point unfettered economic freedom began doing the same things that repressive regimes did – it denied individual humans the freedom to pursue happiness and reach their potential because of accidents of birth and inequalities of wealth and power. People born into an Irish shantytown in 1900, for instance, could never realize their potential. They lacked the freedom necessary to do so given their material deprivations.

Liberalism transformed when people began to understand that the government needed to take affirmative steps to help humans reach their potential. Protecting human dignity now required government intrusions in the economic sphere. I’m not arguing for socialism here, or even that all government intrusions are therefore justified. What I’m saying is that certain types of intrusion are justified – and consistent with liberal values – because they increase the ability of people themselves to pursue happiness and reach their potential. Forced labor would not qualify as a justified intrusion. But measures like the eight-hour workday would because they give people more freedom to enjoy their lives and spend time with their children. Similarly, the forty-hour workweek creates a sphere of leisure in which people can exercise their rights.

This is where old liberalism meets new liberalism – the realization that the old goals of protecting human dignity required targeted government intervention. And this gets to the very heart of why I’m a liberal. I believe that government can be – and has been – a force for good. I don’t believe in handouts for nothing, or even programs like pre-1996 welfare. But I do believe in government intervention where it supports the liberal goal of either increasing freedom or providing people the opportunity to fulfill their potential in spite of the accidents of their birth. The GI bill, for instance, was an intervention that allowed those who were willing to work to obtain an education, despite their income level. Federal education spending does the same thing. Another liberal program, Social Security, affirms human dignity by easing the fear of risk and poverty in old age when one’s physical abilities fade. And national health care would ensure that no person would be denied the opportunity to pursue happiness just because they are too poor to afford health care. These are all interventions that give people the opportunity to better themselves, or which promote a material freedom (Social Security) which gives people the luxury of pursuing happiness in old age (visiting family, not working, etc.).

If liberals really want a majority coalition, they must rehabilitate the image of government and the government programs that have been a net good in people’s lives. We have to be proud of what our ideas have achieved. But we must also understand why we support what we do. It’s not that we favor government programs per se. We favor that which allows people to better themselves, we favor that which reaffirms human dignity in spite of old age or disability. That’s why liberalism is also quite consistent with the tenets of many major world religions – it recognizes something of value in each human.

In the social realm, the “new” liberalism is not much different at all from the “old” liberalism (which is similar to modern libertarianism). As I’ve explained before, many liberals can offer a laundry list of their political preferences, but it’s rare that you hear them tie them together with a coherent theoretical justification. Here’s how I explained it in my post on empathy:

I think that the underlying theme is that social progressives display a greater empathy for their fellow human beings. In other words, empathy is the theoretical foundation for social liberalism.

I’d like to revise that a bit. What I should say is that social liberals – like classical liberals – recognize other humans’ innate dignity and shared humanity. In one sense, we merely prefer what the old liberals prefer – protecting a zone of freedom where humans can make the choices they should be free to make without government interference. This means protecting children from being forced to participate in religious practices at schools. It means protecting the rights of gay people. It means protecting civil rights.

But I’d also like to think that one of the ideals of liberalism is recognizing that when you strip away all the contingencies and accidents of birth, we are all essentially human and that we should promote the rights and freedoms that all humans deserve to enjoy. It’s like the old saying, “There, but for the grace of God, go I.” Recognition of our shared humanness ties together many socially liberal views. This is why liberals are less hostile to the world and international institutions. Even though we are Americans, we are all human too – people lose sight of that sometimes. Liberals also recognize the innate dignity of those who are mistreated in today’s society because of an accident of birth. For instance, I see the immigrant struggling to make a living, and I realize that I am different only by an accident of birth. I see a gay person struggling with discrimination and I realize that I am different only because of an accident of birth.

This is what being a liberal is all about. It’s about recognizing human dignity. In the economic realm, that means protecting rights and intervening in ways that allows people to better themselves and reach their own potential. In the social realm, it’s about protecting personal choice and recognizing the common humanity we all share. In this sense, it is very similar to Christianity (or at least my interpretation of it).

But the thread that ties it all together is the same one that Fukuyama discussed – recognition of human dignity.

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Regardless of what I think of Bush, I am genuinely excited about recent events in the Middle East. For the first time in a very long time, there is some reason for hope that change will come. And I'm a sucker for pictures like these (via Economist):



But that said, I am still not very optimistic about Iraq. And I would urge a little humility on those who want to declare that Bush has been vindicated. Despite our recent successes, two fundamental problems remain unaddressed. The first is structural and has been there from the beginning. And that problem is that Iraq is an artificial country consisting of three ethnic groups with mutually exclusive interests. There is simply no good plan for convincing the Sunnis to buy into the new government, and there may not be one. Similarly, I'm not sure there is a way to convince the Kurds to support anything that reduces their current autonomy.

The second problem is at least possible to remedy and that is security. You can't have a democracy where there is no security. Right now, the insurgency is still raging, and there's no reason to think the country would remain stable if we left.

I don't mean to sound too pessimistic. I think there is a lot of good happening right now. But we just need to keep things in perspective - there are some major long-term issues that have not been addressed. And success depends upon these issues being resolved.

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To me, the recent inspiring outbursts of democracy in the Middle East show the power of the concept of legitimacy. As long as they exist, the regimes of Syria and Egypt will always feel under siege because they are fundamentally illegitimate. Francis Fukuyama – an early neocon who has soured on Iraq – has offered some interesting thoughts about why legitimacy is so important. If his theory is correct, though, it would suggest that the forces of History may be slowly turning against American hegemony. If so, it would certainly be ironic if American supremacy was toppled by the neocon's failure to respect one of the central intellectual justifications of their foreign policy. I suspect that doesn’t make much sense to most people, so let me back up.

When I talk about “capital-H” History, I am conceptualizing History not as a random collection of events in the past, but as a unified stream of events that flows – like a radio wave – from the past up through the present. Like any stream or river, History shifts course and reacts to external events. Two of the world’s most influential philosophers – Hegel and Marx – both conceptualized History in this way, and they both believed that certain types of conflicts drove History forward. Despite these similarities, however, the two also viewed History in very different ways. To Marx, economic conflict – or class struggle – drove History forward. Class struggle was the “motor” of History. Let’s look at slave-owning societies, or even feudal societies. Slaves and serfs were both deprived of the fruits of their labor and were exploited by the powerful. To Marx, this material depravation led to class conflict. The eventual toppling of the slave-holding or feudal regime by the oppressed represented forward motion in History. For Marx, the conflicts that move History forward are rooted in tangible – or material – economic conflict. Thus, when you hear people offer a “Marxist” interpretation of something, they are generally analyzing the underlying economic or class relations of whatever they’re interpreting.

Hegel took a much different view – he adopted an Idealist (or non-material) view of History. To him, the conflict that drove History forward related to ideas. One of the key elements of Hegel’s view of History deals with the desire for recognition, or dignity. It’s the “you betta reckanize” theory of History. Hegel argued that people desire to be seen as equals – they desire to be “recognized.” As Fukuyama has explained, the Greeks called this concept “thymos,” which is roughly analogous to pride. To see what I mean, let’s return to the slave example above. To Hegel, the key is not so much the material economic conflict between slave and master, but the failure of the master to “recognize” the slave’s dignity and humanity. It is the non-material insult to the slave’s pride and dignity that drives the slave to revolt and thus moves History forward.

For Fukuyama, who is firmly in the Hegel camp, legitimacy is intricately connected to this idea of “recognition.” Liberal democracy is successful because the idea of individual rights and one-person/one-vote recognizes all people as equal. Because it recognizes everyone’s inherent dignity, it is eminently legitimate. That’s why Fukuyama named his book “The End of History” – he didn’t mean that historical events would stop happening. He meant that because liberal democracy recognizes all, it would not generate the type of conflicts that move History forward toward greater recognition and legitimacy. With liberal democracy, “History” had stopped.

Fukuyama’s theory is certainly controversial, and it triggered a widespread reaction when he first published the idea in 1989 (when Communism was falling). But hopefully you can begin to see how Fukuyama laid some of the intellectual groundwork for the neo-conservative foreign policy of democracy promotion. For right or wrong, the neocons believe their gamble will work because they are betting on the power of legitimacy and recognition. They believe that when Muslims see greater legitimacy in other places, they too will demand to be recognized in the Hegelian sense. They also believe that the recognition that comes from democracy would offset the structural obstacles to democracy in places like Iraq. In short, they’re betting the farm that Hegel is right and Marx is wrong.

A Marxist would laugh at the whole enterprise. To the Marxist, no change will come until the underlying economic circumstances are changed – democracy is merely a reflection of a more equitable distribution of resources. Distribute the resources more equitably, and democracy will emerge. That’s why Iran – with its prosperous middle class – is a much better candidate for democracy to a Marxist. Iraq – not so much. We’ll see, I guess.

But for now, let’s say that Fukuyama is right – let's say that legitimacy is important because of this idea of recognition. If he is right, then the neocons’ unilateral march into Iraq may trigger a new wave of History so to speak. That’s because, regardless of how Iraq turns out or what you think of the war, it was essentially an illegitimate operation in the most literal sense of the word. I suppose you could try to squeeze the invasion into some hazy language from a past UN resolution. But everyone knows that the US withdrew the final resolution that actually would have authorized force because it couldn’t get enough votes.

Whether the invasion was right or wrong, the world views the American action as illegitimate. And to be honest, I don’t see any way to justify the war’s legitimacy, which is a different question from whether the war was "good." America ignored the wishes of the world. And in doing so, it failed to “recognize” the world’s common humanity. We trampled on the people of the world’s dignity because we did what we wanted to do because we could, despite what they wanted. That is how Hegelian History gets moving – those who feel wronged align against the force that wronged them. In failing to get UN approval, or the approval of any legitimacy-conferring coalition or international body, the neocons forgot one of their most basic principles – legitimacy matters.

According to the Fukuyama school of thought, the Syrian regime has gone wobbly because it does not recognize its citizens as equals. It will eventually fall because it lacks legitimacy. The Islamic laws against women will fall for the same reason, just as the laws here at home discriminating against gays and lesbians will also fall. But I fear that we are also about to see American hegemony fall, and for similar reasons. Our current hegemony is now illegitimate. During the Cold War, we had to appeal to the dignity of others – we had to persuade them why we were better. And they consented and joined our side. We don’t do that anymore – we just assume we’re right and do what we want - and then appoint UN-haters to the UN. Our hegemony has now become illegitimate. That’s not the same as saying we’re bad – it’s saying that we fail to treat humanity as equals. We fail to afford the people of the world the dignity of having a say in the actions that affect their world. Even if Iraq turns out well, I fear the tide will turn against us. World opinion of us has never been lower, and that’s a result not so much of Iraq, but of the way we arrogantly charged into Iraq.

History is littered with regimes that failed to recognize the humanity of those who were ruled. I don’t suspect that we’re going to collapse anytime soon. But with the rise of India, China, and the EU, I fear the Pax Americana is nearing an end. And for those who, like me, believe that American hegemony has (pre-Bush) been a net positive, this is a sad and tragic development.

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I must say that I’ve been rather amused at all the outrage this week about Roper. There have of course been thoughtful critiques from both sides of the proverbial aisle about why the opinion was wrong. But what’s amusing is how the opinion – like other Kennedy opinions – caused much of the right-wing legal-blogosphere to lapse into collective insanity. Apparently, banning the barbaric practice of executing juveniles was not merely an incorrect decision, but “imperialism”; “the legitimation of the lynch mob”; “judical usurpation”; an imposition of “blue state mores” (as opposed to Pakistani mores); and “lawless . . . despotism” that justifies ignoring the Court’s authority.

I suppose I’m being a bit unfair. After all, the outragees would argue that the point is not the merits of executing juveniles but the methodology that was adopted to ban the practice. Fine – that may well be true. But if your preferred methodology leads you to conclude that executing children is a-ok, maybe you need to re-examine your methodology. And that’s what I want to do today. In particular, I want to review the methodology favored by Scalia to illustrate both its intellectual strengths and weaknesses.

Before I do, let me throw in my two cents on Roper. I’m not going to pretend like Kennedy was clearly right. Scalia raised some strong arguments. But Kennedy had some strong arguments of his own. The case was a close call, and there were good arguments on both sides. Like so many other issues in constitutional law, there was no one right answer, but merely a range of plausible answers. And that’s the big point. Kennedy might have been wrong, but he wasn’t soooo wrong that it justified the apocalyptic rhetoric we’ve been hearing about tyranny and despotism destroying the Constitution. It was, at the least, plausible. And in my opinion, correct.

The entire question turned on how one defines the words “cruel and unusual” in the Eighth Amendment. Unlike some other doctrines, the Eighth Amendment analysis has at least some element of objectivity. For example, one of the primary methods the Court uses to determine whether a criminal punishment is “cruel and unusual” is by looking at what it calls “objective indicia of national consensus.” In practice, this means that if a large majority of states have banned a certain type of punishment, or if that punishment has become exceedingly rare even though it’s legal, the Court will conclude that a national consensus exists against that type of punishment. And if a national consensus exists, the punishment is “cruel and unusual.”

In Roper, Kennedy and Scalia were essentially arguing over numbers. Kennedy pointed out that 30 states ban executing minors, the practice is rare, and that five of these states recently opted to ban juvenile execution while no states have done the reverse. Scalia says that this is not enough to establish a “national consensus,” and relies heavily on the rather strange argument that states that ban the death penalty altogether don’t count. Is 30 states a national consensus? Maybe, maybe not. Maybe it is when you consider the trends and how rare the practice is. But then again, 60% doesn’t exactly seem like a strong national consensus. That’s my point – either conclusion is at least plausible and neither is so wrong that it transgresses the bounds of the plausible.

There’s obviously a lot more to say about Roper, but I’d rather use it as an introduction to Scalia’s jurisprudence, and why I both respect it and disagree with it. Even though Scalia was arguing about numbers in Roper, he actually rejects the methodology of “objective indicia” altogether. If he had his way, “cruel and unusual” would mean “that which was cruel and unusual in 1789” and nothing else. Thus, hanging and public flogging would not be “cruel” under his methodology, even though such practices would clearly be banned under the current “objective indicia” test.

I’ve often wondered why so many highly intelligent people – including Scalia – are so enamored of a legal philosophy that often seems anachronistic and ill-suited to the realities of post-industrial modernity. I’ve even written before about how originalism seems eerily related to a form of religious fundamentalism where the religion’s founders are deified and the high priests urge the people to return to the values of the past, lost golden age. My views have evolved somewhat, but I still believe that a big part of the passionate attachment many feel for Bork, Scalia, and originalism is essentially religious in nature, and is one of the many manifestations of the wider backlash against Enlightenment secularism that includes people like James Dobson and Osama bin Laden.

But viewed from another perspective, Scalia’s originalism is an ideal of Enlightenment values. The beauty of Scalia’s jurisprudence is that it is so logically coherent – and it is this perfect coherence that emits the gravitational pull on so many young impressionable legal minds. With Scalia, like Freud, there is an answer to all questions. Or more precisely, there is always an answer to that most fundamental of questions – “What does the Constitution mean?” To Scalia and his disciples, this question is no different from a mathematical proof. You merely need to work through the steps to answer a question about what phrases like “cruel and unusual” mean. It’s all fairly simple. Just work back to whatever meaning became frozen in 1789 and apply that meaning today. “Cruel” means “that which was cruel in 1789.” It’s a perfectly coherent system that is eminently logical and fully consistent with Enlightenment values.

But if the 20th Century taught us nothing else, it taught to us to beware of systems that have answers to all questions. Like most universal models, Scalia’s error is foundational.

There are of course numerous objections to raise against originalism – (1) that collective “understanding” is conceptually barren and did not exist; (2) that the human mind in the 21st century is incapable of discovering it and properly applying it even if it did exist; and (3) that even if it did exist and we could know it and apply it that we should do so given that women and slaves were excluded from the process that froze the Constitution in place for all eternity. But putting those aside, I want to focus on the textualist objection to Scalia’s originalism because I think it shatters the very foundation of his jurisprudence. After all, that’s what I am – a non-originalist textualist.

To me, the Constitution consists of words and nothing else. Text is the essence of what it is. But as any linguist would tell you, a word never has a single determinant meaning. Instead, it has a range of plausible meanings. The word “cool” can mean very different things, even though the actual text of the word itself remains the same. Words also change through time, and changes in background context can also change the meaning of the word. The text of the Constitution is no different. Words like “cruel,” “unreasonable,” “speech,” “commerce,” “cruel and unusual,” and “search” lack a clear determinant meaning. That’s not to say they are wholly indeterminate, but rather that there is a range of plausible meanings.

Here’s what I’m getting at. Scalia looks at the Constitution and sees “understandings” – I look at the Constitution and see words. Scalia’s entire legal edifice is built not upon words, but upon a single understanding of a word. In other words, it’s built not on the meaning of the text, but upon the selection of a single subset of the word’s total possible meanings – one that is contingent and arbitrary. I see no reason – and more critically, no justification in the text – to favor one “understanding” over another. I look at the word “cruel” and see that it could have a number of different meanings – not an infinite number, but a range of them. Scalia arbitrarily selects one of these meanings, ties into the rhetorically pleasing image of the framing, and builds an entire jurisprudence upon it.

To me, the Framers ratified words. They did not ratify floating penumbras of understandings that surround and envelop the words. The words we have. The understandings we don’t. Even assuming such a thing as “collective understanding” actually exists – it exists in fragmentary clippings of newspapers and speeches from the 1700s. The nation should not be bound by the conclusions of Randy Barnett’s historical research.

When you get away from this idea that we cannot stray from the brooding omnipresence in the sky that is the “original understanding,” you can begin to inject more pragmatism and more democratic deliberation into matters that effect hundreds of millions of American lives. Obviously, we cannot stray from the text. “Cruel” can never mean something that only one state outlaws. But once we are within the bounds of the plausible, we can engage in policy analysis and other pragmatic inquiries to determine what the meaning should be. If “cruel” could plausibly mean “A”, “B” or “C”, then is it so wrong to ask what the right answer should be, when the answer could be any of the three? This is pragmatic textualism – constitutional interpretation’s Third Way. Its motto is:

When choosing among textually justified outcomes, it is emphatically the province and duty of the judiciary to say what the law should be, not what it is.

It’s a serious point. The judiciary can't say "what the law is," because there "is" no one meaning. Whenever any court interprets a boundedly indeterminate word, it is essentially saying what the law "should be."

When Scalia sees uncertainty, he tries to impose a single understanding of a word on to the public (one that uncannily meshes with modern day conservative economic and cultural preferences). When I see uncertainty, I want a pragmatic, democratic give-and-take about which understanding – or meaning – to adopt (assuming of course we’re within the bounds of the text).

That's why Scalia's jurisprudence is both consistent and antithetical to the Enlightenment. Getting away from the religious aspects of originalism, it is a tightly constructed narrative that is logically coherent. However, the system is so rigid and backwards-looking that, taken to its logical implication, the practical effect of the interpretation upon the millions of people who must live with it is completely irrelevant. This one particular understanding is all that matters.

Fortunately, the Framers were smart enough to give us more freedom than that.

The earth belongs to the living, not to the dead. Thomas Jefferson

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Ok - things should be back to normal starting tonight. If anyone can give me a bullet-pointed executive summary of what's been going in the world this week, it would be much appreciated.

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I've got quite a bit to say about the Supremes' opinion regarding the death penalty and minors. It really is the perfect case to introduce some of the major fault lines in modern American jurisprudence. If I were a constitutional law professor, I would have my students read this case as an introduction into competing schools of constitutional interpretation.

It's simply a great case study for both lawyers and non-lawyers. It shows Scalia's jurisprudence at both its best and worst. It also gives me an opportunity to justify the reference to international norms. Hysteria aside, the practice is perfect justifiable once you better understand how it's being used (and more importantly, how it's not being used).

Scalia-style conservatives (or formalists) can make some strong arguments against today's outcome. Even though I disagree, I admit that it's a challenge to present a competing constitutional narrative that justifies today's case. That's because progressives have done a, well, shitty job articulating their legal philosophies. The world of law and constitutional interpretation is one area where conservatives have done a much better job of developing, debating, and communicating their jurisprudential theories. One reason I started this blog is because I didn't know of a single progressive legal blog that got any traffic, much less articulated a progressive narrative. Anyway, this case provides a perfect opportunity for me to do just that - which is to re-articulate my own narrative which I call "pragmatic textualism."

Anyway, I'm still swamped so I can't write it tonight. But my very next post will be on this case, and how the case provides a window into the major jurisprudential disputes of the era. Your "homework" assignment is to go back and read my old post (linked above) to get prepared for the next post.

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After today's Supreme Court decision, the following countries are now the only ones in the world that execute minors:

United States
Congo
Iran
China
Pakistan

Before today's ruling the following states allowed minors to be executed:

Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Utah, Texas and Virginia.

Number of Red States - 16
Number of Blue States - 3