Ciceronian Review

Start Over

I want to expand a bit on yesterday's post on originalism.  Public meaning is no solution to the problem of interpretive freedom.  There is no reason to think that public meaning then is any narrower than public meaning now.  "Cruel and unusual punishment" is an was subject to a wide range of interpretations.  Similarly for provisions about due process.  Moreover, public meanings are inextricable from what private meaning (or speaker's meaning, or however one labels it).  However language in fact arose, it is plain enough that public and private meaning have to be interdependent (at least for the moderately sane).  The theoretical shift (to public meaning) comes at least in part from the obvious historical fact that drafters did not want their personal views to govern interpretation and that such a view is inconsistent with a constitution for a republic.  The meaning of texts is not a stone carving.  The public meaning of the texts is intertwined with the context of interpretation, and consequent variations in understanding of the same text is not problematic.  (To think otherwise commits one to intractable problems explaining how any communication occurs.)  So we need to attend to the circumstances in which interpretation of the text occurs.  When the Constitution is offered up as the sacrifice for legal interpretation, the circumstance matters.  The presupposition of the activity is political obligation or legitimacy, and hence duties of obedience.  That context makes it harder for originalist theories because they are so odd as sources of legitimacy -- the normative theory precedes the interpretive theory.   

Which I think suggests something more along the lines of Balkin than either Solum or Barnett is a place to start.  On Balkin and Leiter tomorrow.

It is also worth noting a couple of points which are not arguments for or against, but still salient.  Originalism is an odd set of theories for law types to press -- none of those I know who advance one or another of the variants has any training as an historian.  One would have expected at least some of these folk to get that training.  The other is that it pays to consider the historical context of these discussions.  Originalism in its current forms comes out of a particular set of political allegiances, and reactions to legal developments.

Empty Pledge

Mukasy claims he does not yet hae an opinion about whether waterboarding violates the law, but if he decides it does, he will stand up and say so. Quite a pledge. Followed by a pledge to uphold the law. The reason Mukasy does not have an opinon is that he does not know if waterboarding is done by US agents -- a weird explanation. He is nominated for AG, not judge. Lawyers are asked to and form opinions about possible arrangements all the time -- it is a central part of the job. Whether US agents perform waterboarding is not really salient to whether it is legal or not, nor is information about other interrogation techniques. The pledges are empty.

Larry and Brian

Leiter, Barnett, and Solum discuss originalism in a series of interesting posts (although Barnett does not say much in this instance).  It is, of course, a long and complicated set of stories.  I want to note couple of points that are going by the side in the exchange and the comments at the respective sites. 
1.  Solum's exposition of various semantic approaches is interesting but not in the end on point.  Solum stays with his Gricean semantics, which may be enough for conversation or single author writings, but provides little to help address the issues in this context.  There are a number of problems with supposing that the categorization of semantics into speaker and sentence semantics will get us far.  One: Context matters to semantics.  This is not reflected in the sorting Solum does.  One can see this in his beginning with the semantics of the texts as his problem, rather than the circumstances of production.  Consider irony or sarcasm, or satire.  Here, the document -- the text -- has a particular context.  Two: the key (at least a key) aspect of that context is that the text yields some form of political obligation, or, if one prefers, legitimacy.  The semantics of the document, at least as sketched by Solum (and by Barnett) simply cannot accomplish that task.  But that task is why the interpretive effort is so important.  Three:  That in turn is why Leiter is right that the normative question of legitimacy of the Constitution is particularly pressing for originalists of all sorts.  I.e., the account of political obligations provides some guidance for interpretation of the Constitution, and no interpretive approach inconsistent with the political legitimacy of the Constitution can be sound. (I discussed some of these points at length when I read Barnett's Restoring the Constitution a couple of years ago.  See here, here, here and the related posts -- 12 in all.)

End of it All

measure of how odd this round of elections -- Clinton (Bill) will come to Utah to raise funds. Last two go rounds the Demoncrat candidates did not set foot inthe state. All of the top six have been in person at least once, and now we get surrogates. Must the end of times.

Happy Feet Go To Court

Larry Craig will argue that his conduct at the Minneapolis Airport was protected under the First Amendment -- hand gestures and foot tapping, without more, are not sexual conduct subject to criminalization.  The ACLU joins him on that argument.  (Yet another fair weather (or should it be foul weather?) friend of the ACLU.  Like North and Limbaugh, happy to have the help when it is personal, but the ACLU is still all evil.)  And, oh, by the way, will also argue that he is entitled to appeal because the judge failed to sign any paper accepting the guilty plea.  The last seems to me to get at the key issue -- Craig pled guilty.  He seems to have done so knowingly and with plenty of opportunity for counsel.  What basis for withdrawing the plea?  That should be the decisive issue.  It should not matter whether the statute is constitutionally infirm because he waives such arguments when he pled guilty.  (I take it from the absence of any mention that the plea was not subject to a right to appeal some aspect of the arrest and prosecution.)  So far I have not seen mention of any argument justifying relief from the plea.

The great Alan Paige is on the Minnesota Supreme Court I think.  From purple to black.

The Lynn Cheney Show

Lynn Cheney was on the Daily Show this week, promoting her memoirs about life in Wyoming.  She came out with a Darth Vadar doll for Jon Stewart, which was a funny and nice touch.  But she nevertheless got asked questions she clearly did not like being asked, e.g., why was it so bad that Edwards mentioned her daughter in the debates about gay marriage.  Her answer was that there should be a zone of privacy around children, as there was around Chelsea.  A reasonable answer save that her daughter was regularly campaigning for Bush and Cheney, quite a political activist.   She did not do so well on the questions about the run-up to Iraq war.  Stewart asked if Dick ever admitted making mistakes at home.  No smile in the answer.

It was pretty clear that all Lynn wanted to talk about was the idylls of youth.  Stuff like how the old west was good because you knew everyone and looked them in the eye -- not like terrible NYC where no one looks anyone in the eye -- and so measured the person not the appearance. Bad city slickers.

Stewart did not ask the question whether she got pregnant as a way to keep Dick out of war -- which shows tat Stewart does respect limits of decorum.  Odd for a person as political as Lynn to think that she be on the show and keep things to chit chat.  Does no one in her office watch the show? 

The Party Above All

The Bush administration is weak on national security issues.  I wonder if the Republicant candidates will have anything to say about destroying intelligence sources re al Queda.

Federalista

Most of the time I think about federalism in terms of the relations between the national and state governments (vertical).  Every once in a while it occurs to me that there is also state to state relations that matter (horizontal).  (In fact I think about it every time I go to the state liquor store.  Utah claims the right to bar its residents from purchasing alcoholic beverages elsewhere and bringing the drinks home.)  So does a state in the United States of America have the authority to bar either its citizens or its residents from leaving the state and elsewhere engaging in conduct which is there legal?  Curious little problem about legal authority and political relations.  The illustrative cases are easy to formulate.  May Utah now bar its citizens from purchasing alcohol in other states?  Or bar them from purchasing elsewhere and returning with their otherwise legal goods?  If you think the 19th and 21st Amendments are an issue, then suppose Roe v. Wade is overturned, may Utah then bar its citizens from traveling to somewhere less benighted to obtain an abortion?  And does it make a difference if we frame this in terms of citizens or residents?  (And what does it take to be a citizen of a state?)

Craig Listed

The court in Minnesota declined Mr. Craig's request that his guilty plea and conviction be withdrawn, a decision that I can see no grounds for dissenting from.  I wonder if Craig now should be added to the various sex offender list.  I suppose the charge is wrong.

de Menezes Travesty

In London, the Metropolitan Police are on trial (sort of) for the killing of Mr. de Menezes.  Authorities decided long ago that none of the individuals directly involved in the murder should be disciplined.  That the Metropolitan Police lied about the event also is not a problem.  Perhaps later the supervisory staff will be disciplined (how many years later?).  But that won't even be considered until after the current trial is completed.  The point of the current trial is a bit hard to make out. The charge is 'serious breaches of health and safety laws' (viz., murdering someone) conviction of which would subject the Police to a fine.  But it is serious because the fine is "unlimited."  So the government might be required to pay itself  fine.  Oh, well yes, there was an apology -- sorry we murdered the man, won't happen again.   
For its part, the Police admit the slaying was an error but denies misconduct.    More here.

Update:

From September, a comment by the head of the Met Police:

Sir Ian said he wished he had known earlier that the wrong man had been shot. The questioning led him to admit: "We got it appallingly wrong, but we are not guilty of complete idiocy. My feeling is if this happened again the information would flow very differently."

Appallingly wrong, but not culpably.  Appallingly wrong, but not complete idiocy -- obvious implication is that they are guilty of something short of complete idiocy.