Ciceronian Review

MHZ Mysteries

For reasons I no longer recall, I set my dvr to record a series titled Wallander, which showed on MHZ.  (MHZ is a foreign cable channel -- has news from India, Russia, Germany, France, and various other things.)  I wish I could recall what prompted the recording -- the three episodes I have so far are in Swedish, English, and then Swedish again.  At least I think it is Swedish -- the story seems set in Sweden.  But the episode in English is set in Denmark.  (My speculations are confirmed by Wikipedia -- of the clever one.)  The English and Swedish versions have different actors, but the plotting and characterization seems very close, if not identical.  Every once in a while a US channel picks up something from UK and tries to redo it.  Some succeed, like The Office (which, at least in the UK versions I saw was far too close to life to be funny) and some fail (miserably in the case of Coupling -- the US version used the identical script and was still absolutely awful).  But, getting back to it, the Wallander stories all seemed to fit together.  I am assuming it was originally Swedish, because there were twice as many, and the English version was not even set in the UK.  Aside from the curiosity of it, it was a nice reminder of parochial thinking and assumptions.  Borrow from the nearby nations?! My god, such a thought!  And for those of in the US (let alone Zion), it is so rare that it is a shock.  It is one (of a number of reasons) I read some British journals.  They have reviews and essays about apparently well-known folk I have never heard of, the obvious whole culture out of my sight.  (The audacity!)  It is a good thing to run into that with some regularity.  It wold be even better if, after these several years, it was al still a bit of a surprise to me.  Perhaps a board to get through the thick wit.

Stump Thinking

I wonder what Hamas' plan is.  The fight with Israel is not one Hamas can win, not even by stalemate.  Its rockets are too inaccurate and small and infrequent to constitute a military danger.  They harass civilians, but cause very little injury or death (12 deaths in a year is not all that serious).  The rocket attacks are not going to drive Israelis out of the area near the border, and do nothing at all of military value.  So the point must lie elsewhere.  One might think that it is symbolic resistance.  As symbol, the attacks also seem ineffective.  Compare to IRA or ETA or ANC attacks.  In part, Hamas lacks the symbolic impact because it is not in Israel, and, I think, maybe because it is using rockets.  (I am not cure about the last -- there is something else that is ineffective as symbolic about what Hamas has been up to.)  The attacks seem designed, or at least better designed, to push Israel into attacking Gaza.  And that seems a foolish aim ultimately.  There is gain to Hamas when Israel attacks.  I don't see reason to think Gazans would be much different than others when it comes to being under attack.  During the attack, people rally round the flag.  (We don't expect Israelis to give up and run from the borders because of Hamas rocket attacks -- isn't the psychology pretty much the same?)  And with high levels of destruction of the infrastructure attributable to the invaders, it seems unlikely that post-war there will be a serious shift away from Hamas.  Anyway, it is unlikely that anyone in opposition would be in a position to do very much.  Weapons would be even more concentrated with Hamas, those who could exit likely would have (and they are the ones most likely I think to be the opposition).  At least, over the foreseeable short future, then, Hamas gets to consolidate rule, but over an increasingly impoverished place.  Maybe there are ideological rewards.  It is a religious movement and they frequently are driven by completely idiotic ideas.  What is clear is that the rocket attacks don't move Gaza closer to a state, and do not move anyone closer to either two state or one state solutions.  They don't make Palestine any more likely.  Seems like a diversion.  And completely without justification.  So immoral, even setting aside the culpability from using indiscriminate weapons aimed at nothing in particular.  Fails as guerrilla war or liberation.  

No Good Believer

The ware in Gaza elicits an array of odd arguments and passionate posturing.  In a recent post, David Kopel advanced in very brief form an argument that shows up elsewhere -- the people in Gaza have no grounds for complaint in this war because they voted for Hamas:

"No nation should have to endure years of terrorist rocket attacks aimed at civilians. Israel has every right to destroy Hamas. The civilians who elected Hamas are the ones who are to blame for the suffering of the people in Gaza, just as the voters who elected the Nazis bore the responsibility for the necessary Allied military invasion of Germany."

This is a claim that deserves at least a little examination.  First, one wonders if "blame" means here something like ultimate responsibility, or means something like solely responsible, or directly responsible, or something else.  Is it that the Gazans who voted for Hamas are thereby permissible targets in war?  So it is okay to kill those who vote wrongly?  And what an odd story to tell about responsibility.  If one is in a group that votes wrong, one is fair game (on the theory that one should have done more to exit?).  How would one carry out this approach to politics and violence.  Does the fact that one has not voted matter?  It is pretty hard to see how the many children living in Gaza come to be responsible because they were born to parents who could have voted.  What about voting in a country with other sorts of objectionable policies or laws -- do we get to shoot them too?  I suppose one might think that only those done wrong get to use violence, but even so, why would one think that merely being in the polity justifies such treatment.  One could go on and on about what a remarkably bad idea Kopel has advanced.  It is an example of collective punishment, and all the stranger from someone who claims libertarian inclinations. 

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.

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?)

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.)

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.