Ciceronian Review

Heller's Scalia

The Supreme Court's decision in Heller has elicited the expected torrent of commentary, blogs and editorials.  The decision is eliciting praise and condemnation, mostly on ideological grounds.  I wish I could share in the joy, but, to be honest, I found Scalia's opinion slightly ridiculous.  Barnett sees a masterpiece of opinion writing, and scholarly at that.  I don't.  I see self-parody, indefensible assumptions and intellectual failure.  I think the most accurate and telling discussion is by Levinson at Balkinization (and Tushnet, for that matter).  (The series at Balkinization are quite interesting.)

Start with scholarly.  Having footnotes is not scholarship.  Footnotes which cite scholarship is not scholarly.  The notes have to be honest, cite the sources and fairly represent opposing or differing views.  Scalia does not do that.  The opinion is supported by the sort of biased selection of sources that renders the piece useless.  The sources are considered only to the extent they support his conclusions, both in the sense that only supporting sources are cited and that the sources are cited so as to identify only supporting bits.  That is not how honest intellectual work is done.  It is the sort of thing that would have gotten failing grades in any graduate program.  Honest work engages with the evidence, and with the inconvenient.  None of that here. 

It is bizarre to see Scalia playing at the historian and linguist.  Neither he nor his clerks are anything of the sort.  He has no training, and there is no reason to think him even competent on these issues.  It is ridiculous to suppose that his clerks could cure the deficit.  So either there is no dispute at all about the history and linguistics, or he is adjudicating a dispute he lacks the skills to adjudicate.  It is plain that it is the latter -- the text is hardly so simple or clear that it is beyond dispute then or now what is meant.

The intellectual committments of the decision are foolish in several respects.  Had the case coime up twenty years ago, the scholarship would have weighed overwhelming in a different direction. By Scalia's lights the decision then would go a different direction and the law would be settled now.  Or is it that the law is to be revised by the courts to follow the latest in each little field of scholarship?  Do professors of history count as binding authority?  And if the scholarship shifts again, does that destroy the foundation and force of Heller?

The project Scalia relies on - public meaning originalism - is a chimera.  It is in the opinion itself.  Scalia rejects out of hand the argument that if the Second Amendment is interpreted as the public meaning of the 1790s, then it has no application to any but weapons known in the palce at the time.  But why?  The public meaning could not have encompassed modern pistols or rifles, because such things were not known.  They could not be within the public meaning.  So at the outset, Scalia runs from his own theory.  (To beat the horse, why would people with no training in history or linguistics even want to be bound by a set of meanings they are not competent to discern?  There just is no way around a series of absurd outcomes with this sort of approach.  There is nothing at all wrong with branding or whipping or tarring or draw & quarter on this view.) 

Update:

Jack Rakove has an interesting discussion of the opinion from the perspective of a working historian.

Libertarianism est arrivee

These are the heady days of libertarianism.  It has arrived, and will shortly fill the law reviews.  Green and glorious, the center of all right-thinking people of good faith.  (Well, perhaps faith is not required.)  But here it is.  We know this because Cass Sunstein is writing about it, and Sunstein is an inerrant indicator of high intellectual fashion.  Whatever it is he is writing about, that is at about to be the thing to write about in the legal academy.  No matter the quality, there he is.  Civic republicanism (oh, sadly, a life measured in only a few years), web communities (which he got completely wrong) and so on.  So, exploit it while you can. And, one hopes, more serious thinking will get some attention as well.  Or not -- any reference by Sunstein to Otsuka? 
Whatever Friedman's merits as an economist, in political theory he was almost always out of his depth.   His efforts in philosophy were uniformly failures.  But that should matter greatly as he was an economist and it is that field in which we should judge him.  Like most of Sunstein, this too is about two inches deep.

Neither Vague nor Ambiguous.

Law professors on orginalism and living constitution say odd things.  Solum's brief remarks of a few days ago illustrate the point.  It is not just that the public meaning of the Constitution (when adopted) suffers from being vague in places and ambiguous in places.  It is also completely silent about a great many things which, on any sensible or even defensible account of US law, it must provide guidance.  Simple example -- wiretaps are not within any part of any public meaning of the Fourth (or any other) Amendment.  Or the consider machine-guns.   Nothing  in the public meaning of the Second Amendment on that, and it is not because the Amendment is either vague or ambiguous on the point.
Solum is a careful writer and thinker, and he has certainly added to originalist thinking.  It is just that the line of conversation is fundamentally mistaken.

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.

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.)

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?)

Southwick's Struggle

A couple of days ago on VC, J. Adler put up a post arguing that Demoncrats in the Senate ought to confirm the recent Bush judicial nominations because it would be in the long term interests of the judiciary and of Democrats.  Democrats should confirm because that would set a precedent for confirmations which could be applied when there is a Republican Senate and Democratic President, and it would bring a halt to undue politicization of confirmation proceedings.  The comments - which I gave up at about number 54 - quickly wandered off into who started what in confirmation battles.  Adler has been pretty consistent on this subject, criticizing Republicans too on the topic.  But there was a whole in both the argument and in the comments.  There is a structural problem in the proposal -- there is no mechanism by which the convention could arise.  There are lots of obstacles to Adler's approach (tit for tat, immediate politics, etc.)  There is also a kind of structural problem.  Suppose Democrats adopted Adler's recommendation (essentially, deference to the Executive on nominations and consideration of narrow legal competency primarily).  What is the mechanism that gives some assurance of reciprocity when the roles shift?  There is no enforcement mechanism and there is no reason to think persuasion by example will matter at all.  So the proposal appears to be a call for Democratic Senators to confirm nominations when they have no reason to think Republicans will reciprocate when roles change.  Which results in a judiciary reflecting the political views of one wing of one party. 

Oversight

The brouhaha among Sen. Clinton, the Under-Secretary for Defense, and Vice-President Cheney is, like most politics, without any hint of history.  Clinton wants information about planning for Iraq.  The Under-Secretary and the VP think any disclosure of planning to Congress amounts to treason.  Congressional oversight requires access to such information on a timely basis.  Furthermore, Congress has managed such functions for a very long time without much indication of it impairing security.  There were Congressional oversight activities, including hearings, in every US war I can think of.  Certainly Congress got such information during WWII, a rather more pressing affair than the war in Iraq.  Congress exercised oversight functions during the Civil War.  Go back through the list -- it demonstrates both that Congress has an oversight role, and that it could do so without compromising national security.  None of this really matters to the moment's political battles, of course, because facts have so little to do with politics.

I suppose one could look to law, but that too has little influence on the outcome of this sort of dispute.  The Constitution surely provides for Congressional oversight of the sort Clinton invoked. 

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.

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.)