And Speaking of Leiter and Originalism

In my post the other day on Kelo, I made parenthetical reference to some points raised by Prof. Leiter about originalism here. I'd like to treat them a bit more fully and fairly here. Prof. Leiter professes some befuddlement that concern for original meaning is "dominant" in the legal world today (gosh, I hadn't noticed that myself, to be honest). But his befuddlement is rather befuddling to me. He puts his critique thus:

Why is what the framers thought even relevant? They left us a text, written with words that have meaning, sometimes contestable, sometimes clear. It would take a principled explanation as to why we are bound by anything more than that text and its words. But originalism is the pathology of our current constitutional culture, so deeply embedded that the quasi-liberals and those on the left genuflect before it.

My befuddlement is this: I would have thought it obvious that if one were bound by some prior person's text that the boundaries of one's boundedness should bear some necessary relationship to the meaning the text had at its creation. I would think the burden is on the anti-textualists, anti-originalists to explain why we should be bound by "words" but not by meanings. Leiter wants it the other way round: he'll happily (why?) grant that we might agree to be bound by the written document but he won't admit that that has gotten us very far, since we need a separate agreement to figure out what the markings on the page mean.

I thought perhaps I hadn't recently enough boned up on the philosophy of language, and that my fusty notions of the relationship of the rule of law to written laws were hopelessly outdated. So I consulted a friend of mine who teaches philosophy and has published recently and to some acclaim on the topic of the philosophy of language. He had this to say:

Difficult to know what to make of such. Without meanings, there are no such things as words. There are such things as burps, sighs, guffaws, and such. But sound lacking meaning is just sound signifying nothing. So I find it difficult to affirm his thesis when we reflect upon it for a moment: it is important that we keep the markings on the page of written laws but not the meanings. What does that mean? "markings on the page of written laws." How can we have written laws that consist merely are markings on a page? O.k. Maybe "it is important that we stick to the markings on the pages of things that used to be written documents enunciating laws." I can understand that thesis. But I cannot imagine what legal theory would affirm the importance of keeping to markings on a page.

I think that gets things about right. And it reminds me why I'm happy that we've written laws, and why I'm sad when professors and judges pretend that somehow we need deep accounts of why we write things down. Judging is not easy, and it is not mechanical--we need human judges, not scantron machines, deciding cases. But we shouldn't pretend that the difficulty of judging follows from something more recondite than the ordinary difficulty of bring even the clearest of principles to complex cases; in particular we need not pretend that it follows from some trendy observations about the hopeless incapacity of language to convey meaning, an incapacity that can only be cured by clever professors and liberal judges who will free us from a puerile attachment to what the words somebody bothered to write down might have meant when they were written.

Two other points, in fairness to Prof. Leiter. First, he links to a paper by Andrei Marmor which he claims furthers his argument. The problem is that Marmor's paper is all about the difficulty of figuring out "framer's intentions" which is not what most textualists/originalists purport to be interested in. We purport to be interested in the meanings of written words--it's why they were written. That's not always easy, and even when we have a clear meaning it can be hard to apply it. But that's not because meaning itself is somehow illusory or intractably impossible to fix. If that were so, Profs. Marmor and Leiter would probably not be so optimistic as to write as many things down as they both do!

Secondly, Prof. Leiter attempts to attend to this distinction in an update toward the end of his posting. But while he posits that one can sever "constitutionalism" (it's not clear how one should treat unwritten constitutions, such as the British have, in this analysis) from "originalism," he never explains why one would do so. He then repeats his demand for a "principled" case for being bound by the original meaning. The principle is inherent, though, in writing laws down in the first place--it is the principle that the law (not any given human being, such as a judge or a chancellor or a prince or a Guardian) is the rule. Originalism is all about the rule of law. And it is simply not intelligible to speak of the law ruling when (a) the law is written but (b) the meaning of what was written bears no necessary relationship to its future application. One need not have naive optimism, again, about the ease of interpretation to be committed to the simple notion that in attending to a written text one should attend to what the meanings of the words were when the text was written, in order to understand the thing. And the burden should be on Leiter to explain WHY one would have any commitment to a written Constitution but NOT a commitment to fixed "meanings."

Continue Reading "And Speaking of Leiter and Originalism" . . .

Balkin, Leiter, and Responsible Analysis

Well, my blood pressure this morning got more than just its usual caffeine jolt, since yesterday's 10 Commandments opinions gave the calm and responsible Profs. Balkin and Leiter a chance to bash Justice Scalia as a bigot once again. It's so easy to bash people when you get quote them selectively and hope nobody will bother to check the source.

For instance, Prof. Leiter characterizes yesterday's opinion thus: "Scalia to Atheists: Drop Dead!"--which overheats the already unjustifiably overheated rhetoric he links to over at Balkinization. Of course, it would be less sexy to quote Scalia accurately, and it would fail to show him to be a religious bigot or fanatic, so quotation in such matters, accurate quotation, just won't do for Prof. Leiter.

But let's move from Texas to the Yale Law school, where the noted Prof. Balkin gets all huffy about Scalia's mysteriously lumping together Judaism and Islam with Christianity in positing that the original meaning of the Establishment Clause permitted invocations of God consistent with monotheism in general but not invocations consistent only with Chrsitianity in particular. Prof. Balkin professes to be quite perplexed by this, and seems to suggest that Justice Scalia just gives us no help at all in understanding the problem. Well, perhaps the printers were clogged up at Yale, or they are saving paper and printing only every other page of opinions by the textualist Justices or something. Because surely if Prof. Balkin had read this argument, for instance, he would not pretend it did not exist:

Justice Stevens also appeals to the undoubted fact that some in the founding generation thought that the Religion Clauses of the First Amendment should have a narrower meaning, protecting only the Christian religion or perhaps only Protestantism. See Van Orden, ante, at 20—22. I am at a loss to see how this helps his case, except by providing a cloud of obfuscating smoke. (Since most thought the Clause permitted government invocation of monotheism, and some others thought it permitted government invocation of Christianity, he proposes that it be construed not to permit any government invocation of religion at all.) At any rate, those narrower views of the Establishment Clause were as clearly rejected as the more expansive ones. Washington’s First Thanksgiving Proclamation is merely an example. All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history,5 and all the other examples of our Government’s favoring religion that I have cited, have invoked God, but not Jesus Christ.6 Rather than relying upon Justice Stevens’ assurance that “[t]he original understanding of the type of ‘religion’ that qualified for constitutional protection under the First amendment certainly did not include . . . followers of Judaism and Islam,” Van Orden, ante, at 22; see also ante, at 32—33, I would prefer to take the word of George Washington, who, in his famous Letter to the Hebrew Congregation of Newport, Rhode Island, wrote that,

“All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” 6 The Papers of George Washington, Presidential Series 285 (D. Twohig et al. eds. 1996).

The letter concluded, by the way, with an invocation of the one God:

“May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.” Ibid.

There is nothing at all mysterious about Justice Scalia's position: it is clear from the historical record that the Framers simultaneously (1) rejected establishment of religion; (2) rejected official associations of the government with Christianity; and (3) embraced official expressions reflecting belief in a single God. Now, so far as I can see, Professor Balkin nowhere challenges the facts as adduced by Justice Scalia. What he does do is omit some of them. Then he tells us that Justice Scalia's opinion amounts to this:

And there you have it. If you aren't a monotheist who believes in a personal God, the government may disregard you. You don't count. We won't persecute you, of course, that would violate the Free Exercise of Religion. But we can disregard you. You are insignificant. You are not us, or perhaps more correctly, we count you as part of us when government acknowledges God, and disregard your protestations to the contrary that you have been left out.

Now, I challenge anyone to read fairly the two paragraphs quoted by Balkin immediately prior for anything like support for that characterization of Scalia's position; you won't find it anywhere in the opinion, in fact. The "disregard" Scalia writes of is simply that it was clearly seen as permissible by the Framers to reflect belief rather than non-belief despite the lack of unanimity. That's not "drop dead" and it's not "you are insigificant." It's, "we can't reflect all views all the time, and so long as we don't establish a religion, we will not eschew all religious talk." But that accurate portrayal of Scalia's views would be far less exciting, and hardly worth bashing.

Nor will you find Prof. Balkin explaining how it is that when the government reflects in some official way a generally theistic worldview it either makes "second class" those citizens who disagree, or how it in any way amounts to an "establishment" of religion. Now perhaps it would be a better world if the sensitivities of non-believers were catered to by never making an official utterance that reflected that most people disagree with them. But that's not what was supposed to be at issue yesterday. What was supposed to be at issue was whether the First Amendment itself insists upon such a world.

If the two Professors have any arguments to that end I'm all ears. But to the extent that they have to mischaracterize and demonize what was written yesterday in the fashion seen in these posts, I think I shall be waiting in blessed silence for a long while before I hear such arguments.

Continue Reading "Balkin, Leiter, and Responsible Analysis" . . .

Stare Decisis & Persuasion

I finally had a chance to read Justice Stevens's very persuasive opinion in Kelo. It is persuasive in a couple of refreshing ways: it is honest enough to admit that the meaning applied in this case to a 200 year old clause is but "100" years old. Who would not admit that, once we converted "use" to "purpose" (without changing that pesky text, which, as Brian Leiter recently noted in a bizarre rant on originalism, is just there so we have "words"--not so we have "meanings"; thus, when we make those stubborn old words take on new meanings, we get the constitution we want and a nice piece of harmlessly antique verbiage...everyone's a winner!) it does not make sense to read the "words" as written? Heck, for all you know, these little "words" you are reading are actually a paean to non-originalist jurisprudence! (Or do you think you espy meaning here, you dogged originalist!)

It is persuasive, therefore, that you if you are willing to give up on the original meaning then you can find your way to the novel meaning; further, if the novel meaning is very broad, then it can even be broad enough to encompass this "Sam's Club"-sized version.

But this raises for me a curiosity. The majority opinion goes to great pains to note that it is not for courts to do the sort of policy analysis that underlies the legislative judgments involved in seizures of this sort. Yet both to account for the original shift from the "narrow" view of "use" as "use" to the "more natural" view of "use" as "purpose" (!!!--you can't make this stuff up, folks) and to account for its inexorable widening over the years, Justice Stevens (perhaps to satisfy the niggling qualms of those, like my stubborn self, who don't "naturally" read "use" and understand "purpose") shares with us that the "evolving" nature of society has rendered this less "narrow" "reading" necessary.

Hmmm. That sounds less in the nature of interpretation, and more in the nature of a policy judgment. Indeed, as I have written elsewhere on this blog, the doctrine of stare decisis seems to me essentially pragmatic (and therefore ineluctably policy-oriented). Stare decisis needs to be invoked when nothing else justifies a particular reading of the constitution. But we know from, say, Lawrence v. Texas, that certain members of this majority (all of them) don't think of stare decisis as always applying. Therefore they need some reason, it seems to me, for sticking with the original error. And if the reason is some sort of "evolving" necessity, then saying that courts can't judge of the practical details beyond a mere "rational basis" (or there's the "rational basis plus not-a-sham" test of Kennedy's concurrence) standard strikes me as an utterly question-begging approach.

So we have the Court acknowledging that (a) its reading of the text, though "natural" has only been so for 100 years; and (b) that that reading is supported by practical judgments about "evolving" needs; and (c) the constitution, whose "words" do not constrain these evolving needs (nor, it appears, evolving meanings) does constrain judges from thinking too hard about them. It would seem that the court is permitted to think only superficially about whether changing needs have changed the meaning of the Constitution, and then defer to a minimally rational legislative judgment. But, fusty ol' me, I thought it was "emphatically" the "province and duty of the Judicial Department to say what the law is"...

Are you persuaded?

P.S. I had some thoughts about how this hundred-year old novel reading of "use" as "purpose" has the air of collectivism about it. But that might suggest that such a reading partakes of a kind of domestic "socialist revolution." And that would put me in league with the likes of D.C. Circuit Judge Janice Rogers Brown, and I eschew such radicalism. So I'll keep those thoughts to myself.

Continue Reading "Stare Decisis & Persuasion" . . .

Paging Penumbras

Quick food for thought

--- If you are engaged in sodomy in your house, the government can't come in and do anything about it, because the private bedroom is sacred, and we want to keep the state out (or so the logic goes). But, if you are just watching TV in the sacred marital bedroom, the government can kick you out and demolish your house (marital bedroom and all).

--- The government can't quarter soliders in your house during peace time. But, if they are adamant, they can take your house away and put anyone there who they want.

The difficulty of this decision is not its deferential view of public use. The traditional conservative view of state legislatures demands deference. After all, those who advocate for a more robust, judicial policing of the public use clause seem to call on judges to step in and rule that a use deemed public by a legislature (or at least claimed to be public by the time the legislature's graft is haled into court), is really not in the public interest at all.

A hallmark of the recent conservative/liberal divide, though, has been over deference to state legislatures on grounds not easily provable under standard social and natural sciences. For example: Everyone is comfortable deferring to the legislature where the entire environmental community is on board. Everyone is happy rubber stamping economic legislation based on Nobel prize winning economics.

But we don't need legislatures for that type of work. If all we wanted out of life was deference to aristocratic experts, we wouldn't need to gather democratically elected representatives in state houses across the country.

Democratic governance is a tricky business. Millenia ago, Plato pointed to the foolishness of letting expert decisions be made by non experts. But we, at least in the part of the country which still values elected democracy (which includes Lord Coke when he returns home from New York to Ohio), are willing to give up expert leadership in favor of leadership by majority will.

There are too many values embodied in this principle to fully explore here. But one is particularly relevant for the Kelo decision. One set of experts may say that demolishing the Kelos' home in favor of private industrial development is bad for the economy. Others may see it as beneficial for the local economy. Others may see it as harmful for the environment, while still others may see it as improving the psyche of the neighborhood by showing corporate interest in the area. The point is that there is no single set of expert opinions which can police a "public use" requirement, since the public interest cannot be defined by any finite set of knowledge now at are disposal. Thus, there are no standards available to courts to evaluate the public nature of a taking. But rather, we have no choice but to assume that the public is interested in any project which a majority of legislators (whether by hook, by crook, or by legitimate interest in the public good) agree is in the public interest. In the chaos of a legislative vote, all of the various interests in land described above (and many more) can be voiced, shaken out, and driven to compromise. This process of compromise is the only method available to government now to balance competing conceptions of "public use."

Inconsistency arises more in other jurisprudential areas than in this one. After all, the same reasons which demand we trust legislative assessments of "public use" for takings demand we trust legislative assessments of "public interest" in criminal law, housing law, family law, etc. All of those cases present myriads of experts and theories demanding a place at the policy table. Only by trusting legislatures and removing the temptation to interfere judicially can any reasonable balancing of competing interests and ideals occur.

But the Supreme Court has not truly allowed this deference in other areas. Any interest which cannot be neatly cabined into an ivy league academic department is classified as "moral," a term used by recent federal jurisdprudence to refer to justification for an interest not based in the generally accepted social and natural sciences. But while it is tempting to enforce some rigor on legislative ideologies, the principled reasons we have majoritarian rule in the first place is violated if we demand such explanations.

So, while I understand why the court refused to honor the liberty interest of privacy in the property context in the face of contrary legislative intent, I can only hope that this same logic will be extended to other areas of judicial supervision of majoritarian politics.

Continue Reading "Paging Penumbras" . . .