Ciceronian Review

Homer

Over the weekend I saw the movie.  It is remarkable that some twenty years on, Gruening and his group are still putting out material both funny and subversive, in the ordinary sense.  The movie was quite funny, jokes of many kinds and a fair number about the audience itself.  Political without a sermon for  the converts.  even more surprising to me is that it continues all these years on Fox.  At least give the network credit for consistency -- whatever makes money is okay with them.  I recall reading the Simpson's in the LA alternative press however many years ago that was.  I wonder what happened with Robbie Conal?

Markets

I have been reading reports by economic experts from a couple of antitrust cases, and watching the news on television.  The two activities led me to wondering whether Lindsay Lohan competes in the same market as Meryl Streep or Glenn Close.  Is Lohan substitutable for either of the latter two? 

Vain

I watched the debate among the candidates for the Democratic nomination last night.  (Hotel life.)  Not a bad bunch.  I was a little saddened by the dancing around whether the deaths in Iraq are in vain.  Saying so has been turned into an attack on the valor of the troops, when what is at issue is the value and integrity of the goals and commanders.  Bush had no real plan and no purpose sufficient to justify the engagement.  He is careless with lives, and in that way the deaths are in vain.  In the end, there does not seem to be anything to be accomplished.

I do not think the debate made a dramatic change in the relative positions of the candidates.  None of them knocked me over, and they all had bright moments. 

By The Road

One mark of good writing is that one does not notice the particularly weird assumptions of the work.  In The Road, there are a number of completely bizarre premises to the novel.  One odd feature of the novel is that the only things left living are human beings.  There are no other animals at all, as far as I can recall.  No birds or dogs or squirrels.  That is very hard to figure out.  Also, all the plants are dead; but still human beings wandering about.  How could that be?  All the grass is dead -- maybe because winter? But all the trees too seem to be dead, and trees do not die off seasonally, even in the Northeast.  (God knows what life is like in the Maritime Provinces in winter.)  So, of course, people live off scrounged can goods.  That can't last long, not the period suggested in the book.  But even if the period is shorter than it seems, the fire has to go out if there is nothing living beyond human beings.  Even the cannibals run short in short order.  So the physical premises of the novel are hard to accept.  (This from a fellow who has no trouble with novels about a person laying in the dark timelessly.)  These aspects did not bother me much until the end of the novel.  Keeping the fire alive, which is mentioned several times, means the boy survives the death of dad.  But survives to what?  How is the stranger supposed to feed the boy or his own little family for much longer?  I am unsure if the novel does end properly.  Would it have been better to let the little fellow face starvation (or the boiling pot)?  Still lean that way.

The NYT uses the phrase "savage beauty" re the book.  What is "savage beauty"?  There is nothing particulary savage about the novel or the writing, or the author.  Sort of like "fierce patience" or, for that matter, "fierce" anything.  Time to retire the phrases.

Graber and Dred Scott 5

One way to the issue is whether the Dred Scott decision provides justification for John Brown's campaign, whether in Kansas or Virginia.  Graber's answer clearly is no.  That is point of the title, after all.  The reason for that can't just be a demand for unlimited tolerance (of evil).  That would not be a virtue.  If there are no bounds to the bonds of political association, it will be extraordinarily difficult to identify conditions in which political association would be reasonable.  Put in a more or less circular way, insofar as the decision is within the scope or limits of the processes and outcomes agreed to in the Constitutional settlement.  Part of that in Graber's view is the dominance of Southerners on the Supreme Court and the decisions facial consistency with prior (more or less uncontroversial) decisions.  I think that is generally right.  Justification of political obligation differs between initial and on-going circumstances.  Entering into and continuing invoke different considerations.  I am not prepared to say that the adoption of the Constitution was unjustified, but one does not need to sort that out to come to conclusions about duties later on, following Dred Scott.  So to block John Brown, what routes are open?  Graber can't argue that it is the moral quality of Brown's campaign that rules it out.  It was not worse than continuance of slavery, for two reasons.  The rest of Graber's argument line is aimed at ruling out an aspirational approach to questions of Constitutional interpretation and consequent political obligation.  The direct moral assessment of conduct is off, so that can't be the basis for rejecting Brown.  Graber should argue that Brown is out because the political processes are sufficiently open that they can be used to achieve the end, that abolition of slavery through political processes is both achievable and within the scope of political legitimacy.   Structurally it is the same problem whether it is John Brown or the bombardment of Fort Sumter.
Lincoln was right to run, and, having been elected, right to serve.

Road Taken

On business travel I picked up Cormac McCarthy's The Road.  The book is very well written, and fun reading.  I do not think it the great book of the age as some reviews have it, but certainly worth reading and fun.  Part of the plot has to do with gangs of men wandering the country, post-Apocalypse.  (There is a good deal more formula plotting in the book than I had expected -- I suspect most of the reviewers never read SciFi and may not recognize how formulaic crucial portions of the book are.  But that is neither here nor there.)  What struck me is that in post-Apocalypse books the survivors are always overwhelmingly groups of men.  There are always a couple of women, and sometimes some children.  The great majority are men who band together in very violent wandering packs.  Makes for good cinema, as it were, but I can't think why that would be a plausible assumption.  I don't think that women are more fragile than men, die off faster and more easily.  I don't think women leap into suicide in times of crisis at notably higher rates than do men.  Yet in The Road and all the other such novels I can think of, the women are all but extinct in the first days of disaster.  The other oddity is the assumed emergence of masses of utterly irrational and violent gangs.  Why would that happen?  Is it all part of the code that requires women in movies to fall down when they run, always to scream at the sight of the dead, and to panic whenever there is danger? 

One way in which The Road demonstrates good writing is that the structural impossibility of the tale don't get in the way of reading.

Beckham's Competition

Why would Sports Headlines include this story: Son of Osama bin Laden Confirms He Married British Divorcee? Headline news can be odd, and this is certainly in the league of strange judgments.

Graber and Dred Scott 4

Government by the most intransigent. Between adoption of the Constitution and the election of 1860, the Southern states became more ever more intransigent about slavery. Discussion of the question became increasingly constricted; advocacy of abolition (and, if I recall correctly, even manumission) was criminalized throughout the South. Graber insists that Southerners nevertheless were aware of the arguments against slavery – I suppose they were but do not see why that much matters. State bars on discussion of the issue meant the extinction of the political engagement on the subject. In other words, the regime was taking steps to ensure that its present value could not be challenged through ordinary means. Those steps also ensured that the most intransigent views on slavery were the ones which dominated discussion of the political and legal issues. On Graber’s approach, no national action should have been taken without acquiescence by the South. But why should the most rabid run things, why reward intransigence? The question is more pressing because what is involved is not Southern states bent on moral depravity within their own borders. The problem of the Kansas-Nebraska Act was not that Georgians or South Carolinians insisted on holding slaves in Georgia or South Carolina. It was that they insisted that the rest of the country approve of slavery, indulge them wherever they may wander and enable them to carry everywhere slavery.

This is one of the places I feel disconnected from Graber’s work, and not just his. The issues do not seem to me to be properly framed by beginning with the thought that Southern salve holding was to accommodated – and I do think that is one thrust of Graber’s work (and others). Give them room to change, or some such. Well, perhaps, in their home states, but why would that lead to according them safety in the practice everywhere else as well?

It does not seem controversial to claim that the South was becoming less willing to permit a gradual abandonment of slavery and less tolerant over time of any discussion suggesting any defect at all in slavery. Tie this back to the discussion of constitutions. If the constitution amounts to a means of governance only, modus vivendi solely, then it is a question of whether to get along for some further time because still advantageous. Exit will not be controlled. But if the constitutions is more a Constitution, why not require those within the scope to comply with what results from the agreed processes? There wasn’t much complaining from the south when it held power, and was happy enough to pass over the wishes of those with less electoral power. When power is lost, the chest thumping is just hypocrisy. If the whole analysis is confined to effective use of power, then we need not be concerned about any of the normative claims. Our only real question is whether the conduct was worth the costs. (And that question gets very hard to make sense of; one has to find some basis for talking about what might count as cost and what count as good.)

Graber and Dred Scott 3

Like most folks, when I write about constitutional this or that I mean the US Constitution. Graber does the same, and does it ways which put into the light some aspects of the fact that the Constitution is or may not be the only or best or most common kind of its kind. The US Constitution is the basic document of legal authority for the United States and its residents, as are constitutions. But it is a constitution of a particular kind. (One other kind is the fraudulent kind, as one finds in China, etc.) Without the Constitution, there is no United States. There is no people here independent of the legal organism. That is not the case all that often. France and Germany have constitutions, but there is a France there whether the constitution is intact or not. I think Germany is in the same boat. The nation state is the or one rather important defining factor for the people here. Some of this is serendipity – when and how the particular country got going in the form we trace to. The Europeans have country aside from the legal arrangements. I think Japan is of the same sort, and China. It may be that in such circumstances we can think of the constitution as a purely legal document, a set of legal arrangements. Those documents needn’t be understood as particularly aspirational, as Graber puts it. The US Constitution plays a different set of roles. I think it is aspirational in nature, at least in part because the Constitution’s adoption was formation of the country. Preserve the Union makes a different kind of sense then, in this context. I am not sure how this point plays out for the book. Perhaps contrary to some of the argument.

Maybe this is all thin smoke.

Graber and Dred Scott 2

I will jump around in commenting on the Dred Scott, not because I think the work itself is disorganized. It is that I write these posts on the run, or in the air, and so it is just how I am thinking about the parts.

In part three, Graber argues that the Southern interests had some grounds for complaint with the election of Lincoln and a Republican controlled Congress. Two of the arguments are that the Southern states entered into the Constitution on the understanding that it would control two of three branches, ensuring that resolution of the slave issue would be based at every step on decisions acceptable to Southern States. One of the other arguments is that the failure of the electoral process to preserve Southern state control over two branches destroyed the purpose of the Constitution, at least for those states. The two arguments are linked, and tie I think to a certain set of views about the US Constitution. I do not think either argument works, but they are worth considering.

The Constitution as adopted ensured that Southern States would likely control two or three of the branches of government, and perhaps all three. The structure of the Electoral College and the weighted representation given Southern states ensured their political control. Absent that expectation, the Southern states would not have adopted the Constitution. With the Republic victory, Southern states were no longer in a position to ensure that decisions on national issues, or at least on slavery, would meet with their approval.  Thus, Lincoln’s ascent breached a key, albeit unwritten provision of the Constitutional arrangements. As consequence, the Southern states had freedom to exit the national relationship marked by the Constitution. Underlying the argument is a general view that the Constitution is, if not actually a contract, so much like one that virtually the same interpretive approaches are appropriate. I think the notion is wrong, that it does not make sense in the end to think of the US Constitution as a contract. Before getting to that, it will be helpful to see that the line of argument sketched by Graber fails on its own terms.

If we treat the Constitution as contract, we also assume that the parties put into the contract the provisions they most cared about; we assume all material provisions are incorporated in the text. But nothing in the Constitution could plausibly be read to incorporate the idea that Southern states are assured any control of the federal government. While there are procedural provisions, none allocates roles to particular regions. If such control had been a material provision, it should be in the contract. Its absence is compelling evidence that it was not material. Indeed, the text addresses procedures for obtaining control over the branches. Those provisions were all complied with, suggesting, at the very least, that Lincoln’s ascent was legitimate. It may be that Southern states assumed that the procedures embedded in the Constitution assured them of control, but such assumptions should not be allowed to trump the express provisions. More to the point, such predictions are not the basis for retroactive rewriting of an agreement. For related reasons, the claim that Lincoln’s ascent constituted frustration of purpose can’t be sustained. The purpose of the Constitution was not, and I think could not have been, to assure Southern control over the national government. The Constitution can fulfill its functions without Southern control over the government. (It is also hard to see how that could have been the purpose of Northern states, and, if it had been the purpose why no one just said that in the document.)

Sticking for a moment longer with this contract notion, we should see that Lincoln’s election was legitimate, i.e., conformed to all legal requirements. His ascent was not the result of a coup. Admittedly, his success was due at least in part to divisions among the opposing parties and blocs. But that surprise does not render the outcome invalid. Because it was fully in accord with the express provisions, it should be presumed to be legitimate.

That I think is an important point because that word illuminates some of why contract interpretations fail. If one wants to argue that Lincoln lacked legitimacy, then one will need to walk away from the contract theory, not toward it. Given compliance with the express terms and the absence of conditions which negate application of the express terms (Lincoln did not have an army at his beckoning), then the notion of legitimacy at work must be a non-legal notion. The complaint about frustrating the expectations of the Southern states also leads in this direction. One could argue that political legitimacy leaches away when there is a shift in legal power such as to destroy the political power of the respective sections. Southerners abandoned the Constitution as they discover it does not guarantee them control over the federal government. The notion at work there is political legitimacy (or perhaps something like a Kelsenian norm).

There are other sorts of reason not to accept contract approaches to the Constitution, which do not come into play here. A final note for today: one of the very interesting sidelights to Graber’s analysis is that it highlights variability in the role of a national or supranational constitution. That tomorrow.