Ciceronian Review

Reading Randy 7

Chapter 3 of Restoring the Lost Constitution:

We are still in the stage setting of the book. Here, Barnett looks at the conception of rights held by the Founders (a term that always reminds me of Deep Space) and the enactors of the 14th Amendment. First, however, we get in capsule form what should turn out to be the structure of argument for the rest of the book: “If (a) the framers held certain views of rights, (b) their conception of rights was correct, and (c) they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience.” I am unsure that this is in fact the structure of argument which follows. The remainder of the chapter does spend considerable time discussing the general nature of the conception of rights held by the Founders. But there is not much argument here or in the next chapter on the second point, that the conception of rights is correct. I take it that that argument is in the prior book. As a consequence, the extent of comment here is severely limited. What Barnett does tell us is that there are natural and inalienable rights. Natural rights are pre-governmental and are social. Inalienable rights are abstract, and should be thought of as liberty rights. “The inalienable rights can be classified as the rights of several property, freedom of contract, self-defense, first possession, and restitution.” (73) These rights define a region of free action or freedom to make one’s own choices.

Not much doubt that the Framers held views about rights, or that, as a general matter their views of rights were generally Lockean in nature. Barnett has no real argument in this work that such a view of rights is correct. I suppose that is in the prior book, so judgment should be withheld, or rather, for present purposes one should assume that a generally Lockean view of rights is correct. But with that nod, I should note that I doubt very much that a Lockean view of rights is right. Hume’s discussion of contract I think presents serious obstacles to such a view of rights. There are other independent reasons to doubt the viability of Lockean rights, including the tendency of such accounts to rest on circular reasoning. Lockean derivations of rights also run into problems in explaining the normative content or source for the rights, i.e., explaining why what is being provided is a moral right. But this is really a subject for the other book. So assume that there is a Lockean account of rights.

Barnett also describes the natural rights which are to underlie his theory of the Constitution as solutions to social problems. This strikes me as wrong. I think a compelling (but not conclusive) case can be made that law or government arises as solution to social problems, but it is something else to say that rights are a solution. First of all, one would expect that if natural rights are a solution, then there would be some fairly significant stability in the form of the solution, i.e., that the set of rights would not have great variance. That is plainly not so, not unless we take the set and the proposal to be more or less ahistorical. There are a number of problems with that move, including inconsistency with the overall project at hand and that the derivation of natural rights as solution cannot proceed independent of historical investigation because the problem(s) to which they provide solution(s) are themselves historical. Second, the solutions can be provided without invoking anything much in the way of rights. Put another way, there is risk here of taking conventions for rights. I suppose that the talk of ‘abstract’ rights may circumvent this line of attack. The cost is high, however, as talk of ‘abstract’ rights in this sort of context highlights the problems of normative source. A natural right theory cannot succeed if it is grounded in convention, at least not a natural right theory which could do the sort of work Barnett asks of his theory. If rights talk is just effective rhetorical cover, then it will not provide the basis for ‘binding in conscience.’

These thoughts raise a question about how the pieces of the overall argument are to fit together. Is an account fulfilling the three conditions set our by Barnett at 53 necessary for the rest of the argument? I don’t know.

Gerrymander Right

Among the decisions rendered yesterday was a voting case out of Georgia in which the Supreme Court affirmed a District Court finding that partisan gerrymandering may violate the Voting Rights Act. Unlike the cases in which the plaintiffs were Democrats (in which the Court found nothing untoward in gerrymandering), in this case gerrymandered districts going against Republicans offended. I will need to read the previous decisions, but on the surface there is a problem of consistency. Maybe the voting law blogs have comment.

Update:
For some comments by election law folk go here. I still don't see this week's decision as squaring with prior Supreme Court holdings, and I don't see how it gets squared with the recent appellate court decisions on redistricting.

Griffith/Baird Reconsidered

A friend suggested that my views re Griffith are based on an inappropriate standard, one that allows a judicial nominee no mistakes. It is a good thing for judges to have made errors and mistakes, as Griffith did, because such persons may be more sensitive to the frailities of human nature, etc. The empirical claim is speculative and I don't have any good ideas about how to test it. But the point got me thinking about the sorts of errors, shall we say, that are proper grounds for concern about a judicial nominee. Thinking about it even a little led me to realize I likely have an odd view on the topic. I do not think that, had Griffith been convicted of a crime and served his sentence he would be disqualified. I would object to a tax cheat but not a drunk driver. I have not even attempted an anecdotal survey, so I am speculating about responses. Anyway, the intuitions are not deeply embedded. But is there any even rough pattern to this set of reactions? On first look, one could say that there is a difference between the categories based on something like attitude towards the legal system. Someone engaged in tax fraud treats the legal system itself with contempt. A drunk driver makes a mistake but does not display any attitude towards rule of law. But that falls apart under any pressure at all. The lines can't be drawn in a sensible fashion and there is no principled way to disentangle the language. Which leads back to whether there are mistakes that matter to a nomination and mistakes that don't.

Zoe Baird and Thomas Griffith

Zoe Baird and Thomas Griffith stand and fall together. In 1993 Pres. Clinton nominated Zoe Baird for the position of Attorney General. Ms. Baird withdrew her nomination when it became known that she had failed to pay taxes for her domestic employees (who, in fact, lacked proper work papers). Her initial defense was that the failure to pay employment taxes was an oversight. Properly, that defense was rejected by the public and by the political world. Indeed, the senators from Zion were vocal in their opposition to Ms. Baird’s confirmation. (Kimba Wood’s nomination was derailed for similar reasons.) My view then was that Baird should not be confirmed as Attorney General. It is was inappropriate to have as Attorney General someone who had not only broken the law but had broken a law which would be grounds for dismissal of employees of the DOJ and which would bar employment at lower levels. In other words, the Attorney General ought to follow the law. I did not think that someone willing to cut the line out of convenience should hold that job.
Thomas Griffith, a current nominee to the Court of Appeals for the District of Columbia, practiced law in the District of Columbia for three years (1998 to 2001) without a license. Practicing law without a license is a crime in many states. In the District of Columbia, unauthorized practice of law seems to be governed by the courts rather than statute and so handled through contempt proceedings. See D.C. Ct. App. Rule 49. Griffith violated Rule 11 of the Bar by failing to pay his fees, thereby forfeiting his license to practice law in D.C. Loss of one’s license for failure to timely pay dues is not what I would describe as moral turpitude. Mr. Griffith was not bent on some fraud. But neither was Zoe Baird. His oversight – and it is important to remember that the oversight was his, not some clerk’s – was, in the scheme of things, on the small side. But it was an oversight and it did mean that for three years he was engaged in the unauthorized practice of law.
I think this disqualifies him from a place on the bench for reasons that are parallel to the reasons that disqualified Zoe Baird from the position of Attorney General. As a judge, Griffith would be charged with enforcing the procedural requirements of litigation. A complaint filed a day after the statute of limitations must be dismissed. An appeal filed a day late must be dismissed. If he sits on the bench, he will be called on to enforce those rules, and he will. Lawyers appearing in his court will be held to a standard he could not meet. The failure to timely file is the lawyer’s failure. Ultimately, the lawyer is responsible for the calendar, not a clerk even though it is normally a clerk who calendars due dates. It was Griffith’s responsibility to ensure that he stayed in good graces with the Bar, his responsibility to pay the dues and to attend sufficient Continuing Education courses. He failed. It would be inappropriate for him now to sit on the bench, enforcing rules he could not abide by when in practice.
It is worth noting that Griffith is not a member of the Bar in Zion, although he has been the General Counsel of BYU for some time. His story is that he was too busy to sit for the exam. With a pass rate in the 90’s, and two exams a year, I find this implausible.
Zoe Baird had the good sense to withdraw. Mr. Griffith ought to do the same.

Hampshire

The New York Times finally ran an obituary for Stuart Hampshire. On the same page and of about the same length as the obituary for the guy who, as they put it, "spurned" Charlie the Tuna.

A depressing and odd confirmation of Vaneigem.

Bishop

The Imaginary Iceberg

We'd rather have the iceberg than the ship,
although it means the end of travel.
Although it stood stock-still like cloudy rock
and all the sea were moving marble.
We'd rather have the iceberg than the ship;
we'd rather own this breathing plain of snow
though the ship's sails were laid upon the sea
as the snow lies undissolved upon the water.
O solemn, floating field,
are you aware an iceberg takes repose
with you, and when it wakes may pasture on your snows?

This is a scene a sailor'd give his eyes for.
The ship's ignored. The iceberg rises
and sinks again; its glassy pinnacles
correct elliptics in the sky.
This is a scene where he who treads the boards
is artlessly rhetorical. The curtain
is light enough to rise on finest ropes
that airy twists of snow provide.
The wits of these white peaks
spar with the sun. Its weight the iceberg dares
upon a shifting stage and stands and stares.

This iceberg cuts its facets from within.
Like jewelry from a grave
it saves itself perpetually and adorns
only itself, perhaps the snows
which so surprise us lying on the sea.

Good-bye, we say, good-bye, the ship steers off
where waves give in to one another's waves
and clouds run in a warmer sky.
Icebergs behoove the soul
(both being self-made from elements least visible)
to see them so: fleshed, fair, erected indivisible.

Bontecou & Currin

This month’s issue of Art in America has two interesting articles (which is on the high side for that, or almost any, art magazine). Unfortunately, AiA does not post the articles on the web – their site is just a subscription form when you get down to it. The first piece is an essay about Lee Bountcou. After several decades without a show, she has a retrospective organized by the Chicago Museum of Contemporary Art and the Hammer Museum. The show covers parts of her work from the 60’s forward. I, unfortunately, like the skills to accurately and succinctly describe the work. Fortunately, the Hammer Museum has some images. Take a look in particular at this.
The photographic rendition suggests an interesting three-dimensional presentation of a two dimensional idea. I lack the ability to properly describe this material, but it is well worth a digression.

The second article is a review of a show by John Currin. I should say at the outset that I have been mystified by the interest in his paintings. No doubt, he has skills as a draftsman and a painter. But none of his paintings which I have seen have been much good. One gets right away that there is some social commentary or satire at work, but it is rather too reminiscent of Jeff Koons to be of any interest. So, I was looking forward to an explanation of what was causing the interest. The review is quite restrained and quiet. But the message is pretty unmistakable just the same. Currin is not up to much that is good. Go here for another review and images (in Slate).

Reading Randy 6

More on Recovering the Lost Constitution:

After noting that under conditions of unanimous consent, a law-making body has almost unlimited ability to restrict conduct, Barnett turns to a key discussion of the potential scope of legitimate law-making authority. It is worth pausing a moment over the first point. Barnett’s idea is that under conditions of unanimous consent, “legal regulation can cover virtually any subject provided they do not infringe upon inalienable rights or upon the rights of third parties” (43). (One thing which follows is that under conditions of consent, heavy regulation of otherwise right conduct is permissible.) One would want to know what “inalienable rights” are or how they might be identified. It is would not be fair to demand that information from Barnett at this point, as it is really slightly to the side of the real project. But it is worth noticing that ‘inalienable rights’ does do work in the overall scheme as it looks like a key piece of the account of authority under conditions of consent. A quick note on the potential problem: one candidate for inalienable right, I would suppose, is a right not to suffer corporal punishment – which runs aground on lots of voluntary conduct (team sports, e.g.). So whether there is content to ‘inalienable rights’, and how to specify that content, is likely to be difficult.

The next move is to argue that “[f]or consent to matter in the first instance, we must assume (and there is good reason to conclude) that ‘first comes rights, then comes law’ or ‘first come rights, then comes government.’” (44) This is a way of phrasing the claim of human rights. What he is committed to is the existence of non-legal rights or, if you prefer, pre-legal rights. The right to be free of wanton infliction of torture would be an example. The idea is just that there is a set of moral constraints on the formation and scope of government and governmental action. Barnett favors expressing the point in terms of rights, but I doubt that is in fact necessary. It should turn out as effective if phrased in terms of duty or some other moral constraint. What should be noted is that these constraints are not a-social or pre-social. They are dependent on the existence of social relations. I think there are at least three kinds of reasons for this. First, there is no sense to talking about moral constraints or claims concerning human beings in a pre-social world because it makes no sense. Human beings don’t and largely cannot persist in the absence of social life. Second, it is quite doubtful that there would be any sense to talking about moral constraints in a pre-social world for persons because it would be hard to identify any point to such analysis. Where there is no social relation, the constraints would be left to exclusively self-directed behavior or to conduct directed at objects. One can construct moral or other normative theories about such situations, but there does not appear to be any route from that set of contexts to the world with government. Third, if there is moral order, it must arise out of social relations and constrain not only those relations but also the formal manifestations of the social relations and control of interactions if it is to function as moral.

So, for Barnett, one gets the following” “For a law is just, and therefore binding in conscience, if its restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the pre-existing rights of the persons on whom they are imposed.” The second clause is directed at obviating the necessity of consent to the law while the first clause purports to create the obligation to abide by the law. The standard applies to laws, i.e., to particular enactments, or, at least, is phrased to apply to individual enactments. This poses a number of very serious problems, which may or may not be why Barnett quickly moves to discussing law-making processes. On the next page (45), we get this: “In the absence of consent, a legitimate law-making process is one that provides adequate assurances that the laws it validates are just.” If the process meets this requirement, then a consequent law binds “until its injustice is somehow established,” i.e., laws “are binding in conscience unless shown to be unjust.” These terms require the development of a notion of justice and a notion of validity, but the notion of legitimacy is general.

But return for a moment to the two clauses determining legitimacy of law: “For a law is just, and therefore binding in conscience, if its restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the pre-existing rights of the persons on whom they are imposed.” As noted above, this is a standard applicable to a particular enactment (although an enactment could be a process), and that presents a number of serious concerns. First, there is the immediate issue of individuation of laws. Both in philosophy and legal practice we talk about individual laws in ways which suppose that there is some fairly direct means of individuating laws and there is some sense to “a law” or “this law.” In fact, I don’t see any way around such language, but I also don’t see how to sustain the claim in the face of even quick analysis. Is the Constitution a law? Is each amendment a law? Is each clause of each amendment a law? Let’s skip this issue, assume we either have a method for resolving the individuation or that the talk is sufficient for the purposes at hand. The next issue is that we have to be able to individuate the ‘justness’ of particular individual laws. A law is unjust, that is the standard, not a legal system is unjust. Barnett’s concern is obedience to particular law, not obedience to a legal system. (Set aside that we are then driven back to the first problem.) How would that assessment proceed? Is there any sense to leaving to the side the conception of justice to be employed? For example, do we assess the justness of a law based on the effects of enforcement in a given instance or do we assess it on some general application of the law? Differing conceptions of justice, obviously, drive us to different answers to his question, and, as important, the different conceptions force us to assess different things, that is, to see the object of evaluation as different. In other words, is the law the general practice or an instance under a rule? (Which in turn suggests that the conflation of rule-making and law-making discussed a day or two ago is not so innocuous after all.)

One response is that we can leave that discussion to another time and focus here on a structure for determining whether law binds in conscience. It is often productive to focus on structural issues where they are common across a number of normative theories, but one needs some assurance that the structural issues are in fact structural in a sense not tied to particulars of the competing normative conceptions. That is not obviously the case here.

Another difficulty, which I have already alluded to, is that of assessment within a system. Does the evaluation of a property scheme alter depending on the surrounding system of law and practice? Does the law get assessed aside from the surrounding system of law? Suppose the issue is a part of a land regime of control over land (exclusion of trespassers) – does it matter that there is a related set of laws limiting land ownership by race or sex? Once again one may be tempted to lay this off to the conception of justice and ask that we stay with the structural point. But the issue is not (merely) application of a conception of justice. The structure of analysis is at issue. If this is left to the local conception of justice, it is increasingly difficult to see what the structure is that is to be assessed or applied.

Reading Randy 5

The next couple of days I expect to return to discussing Randy Barnett's Restoring the Lost Constitution. There are a number of points made in Chapter II I think worth commenting on. To keep this readable, let me do them in pieces.

At 42 Barnett claims that jurisdiction of lawmakers over individuals need not be allocated on the basis of geography. The idea is that one can join organizations whose membership is organized on other principles, for example, professional affiliations or civic or artistic interests, etc. Barnett traces this thought to Fuller (or, more accurately, says that he is following Fuller in this regard.)
There is a sense in which this idea trades on ambiguity. There is no reason to doubt that a variety of rule-making organizations exist and exercise their authority (whatever that may turn out to be) over constituencies which are not identified primarily by geographic delimitation. One can be a member of an international organization (PEN, say) or an organization based on professional activities or personal interests. Such organizations can institute and enforce rules. If the sense of ‘lawmakers” is limited in that way, meaning someone authorized to issue or enforce rules, then Barnett’s point surely is uncontroversial. It is also not very helpful to the topic of the book, and, at least as important, not accurate about law making. Professional organizations do not normally institute or enforce the law. As far as I can tell, the North American Kai Association is not a law-making body. It has rules, to be sure, but rules are not laws. It can and does enforce its rules, but that is not law enforcement. Similarly, FIFA has rules and enforces its rules, as does the NBA. It is a rather surprising suggestion that breaking the rules of the NBA (by calling the referee a jackass when talking to a reporter) is a violation of law. Or, to be more direct, the suggestion is unworkable and seriously misguided. One of the reasons there are so many organizations of these kinds is that what they enforce are not laws.

It is true, I think, that they are rule-making bodies and rule-enforcing bodies. Rules are not tied in any strong way to geography. I would also be inclined to accept the idea that examination of and attention to the variety of rule-making bodies and associated practices can be and has been informative concerning philosophical analysis of law. But families have rules as well, and it would not be helpful to suppose that disobedience to a parent is illegal.

To be sure, Barnett’s underlying point seems to be that these voluntary associations are in contrast to actual law-making in the sense expressed by this new appellation, namely, they are voluntary, i.e., consensual. As a general matter, that is a point worth attending to, and a useful way of describing the associations. But, returning to the close of the preceding paragraph, voluntary associations and governments do not exhaust the rule-making taxonomy. There are other non-voluntary institutions which do make and enforce rules. Families are one example. There are a host of other activities, including relatively well-developed and formal institutions which qualify as rule-making in this sense which are not voluntary and are not governmental. Many involve minors, who have little in the way of consent as to their participation in and subordination to the institutions, for example, schools, but they are still rule-making institutions. For adults, the horizon between membership in NAKA and citizenship is not as easily divisible in non-arbitrary segments as seems supposed by the contrast between government and dining club. (The latter point I am confident Barnett would accede to.)

Szirtes

LIKE A BLACK BIRD

Like a black bird against the snow, he flapped
Over the path, his overcoat billowing
In the cold wind, as if he had trapped

The whole sky in it. We watched trees swing
Behind him, lurching drunkenly, blurred
Bare twigs and branches, scrawny bits of string,

And as we gazed ahead the snowflakes purred
In our ears, whispering the afternoon
Which grew steadily darker and more furred.

His face was in shadow, but we'd see it soon.
As he approached it slowly gathered shape:
His nose, in profile, was a broken moon,

His hat a soft black hill bound round with tape,
His raised lapels held his enormous eyes
Between them. The winter seemd to drape

Itself about him as if to apologize
For its own fierceness, hoping to grow warm
Through physical contact, and we, likewise,

Ran towards him, against a grainy storm
Of light and damp. It was long ago
And life was then in quite another form,

When there were blacker days and thicker snow.

George Szirtes