Ciceronian Review

Magic Hands

There is a certain degree of magical thinking in the debates over constitutional theory. ‘What the Founders said’ and its variants is invoked to bring conclusions to a one subject after another. The Founders were Lockean in their thinking, and so we should be too. One reason to talk and think along such lines is that it relieves a good deal of pressure in coming to an understanding of constitutional (and interrelated political) subjects. At least, there is the promise of quiet. I don’t today wish to go into one of these interpretive projects itself. Some other day we can talk about the differences between the intentions of speaker and listeners, etc. What do we assume when we adopt such an approach to understanding the nature and authority of our Constitution? Suppose the Founders were Lockeans. What does that mean for us now, outside historical curiosity? How does their belief (whatever it actually was) provide reasons for us, and, to the point here, found some political obligation? Certainly, if we want to understand what they meant it is a great help to understand what they believed, about political theory and other things. And to the extent we think that the ways to understand a test is delving into the mind of the authors, we should have a concern for their beliefs. Even if what we care about is how their pronouncements were understood at the time, a consideration of their beliefs would help to understand the reception. Those are interesting topics and certainly have fruitful results when investigated. But, it really does not go very far, because the magic of founding is no greater if the Founders are the writers or the readers. Political obligation is not a form of religion. It is not the words of the prophet, or the sacred inalterable word writ. It is silly to suppose that the beliefs of anyone some hundreds of years ago now create an obligation of obedience or loyalty.

One way around this is to see the text as additional to the source, whatever it may be, to the obligation. The text is just the convenient summary of our contract, and, like any contract, it helps to know what was meant by its provision when the parties joined. And we now mean what they then meant whatever that might have been. You see, it goes aground.

Political Commentary

It is curious that the best regular political commentary is a half-hour comedy show. Last night the Daily Show once again had more interesting and intelligent commentary than the papers.

Not Theft

Discussion of the practice of Republican staff on the Judiciary Committee "accessing" files of Democratic staff of the Committee follows the Boston Globe stories. The argument that there was and is nothing wrong about the Republican practice (i.e., rejecting Hatch's take on events) seems to be a mix of statutory interpretation and computerese. It comes to this - the files were not secured so there was nothing wrong about accessing them, and, anyway, no statute was violated. It is no surprise that I find the argument both wrong-headed and, well, dumb. The dumb part first. It is one in the long list of positions that are based on the claim that there is something wholly new and different about electronic stored information. (This is the same dimwittedness that brought us State Bar ethics opinions that email waives privilege.) Access does not determine either privacy or whether review or use is stealing or immoral. There is nothing particularly difficult about monitoring conversations in rooms with windows, and almost no one takes any steps to prevent such monitoring. Does not affect how we do and should evaluate the conduct. I leave files on my desk all the time, and I don't have a guard at the door. An unlocked car is not incapable of being stolen. It is wrong-headed because whether the conduct is acceptable does not turn on whether a particular statute or regulation was intentionally violated.
Back to real topics tomorrow.

One Party State

Utah's legislature is in session, an annual event that is best described as the institutionalization of Artaud's Theater of Cruelty as a form of government. Today a small political side-light (yesterday they passed legislation barring late term abortions, which haven't been performed in this state for years): One legislator wants to increase the power of rural areas (this is a state where the weather maps often fail to include the largest city and capital). The fear that the people of the state might not all kowtow to the rural areas also drove last year's change in the initiative process which now imposes requirements that signatures be gathered statewide. But to today's story -- the second paragraph is a lovely piece of understatement:

$50,000 for the counties through another state fund, some of which has paid legal fees for his son-in-law, a Kane County rancher trying to obtain grazing privileges inside the monument.

The report leaves out that the use of state funds for such purposes is illegal. Also left out was that the funding was procured through fraud. The attorney general will no doubt admonish the Counties to abide by the law in future. Which is what one can also expect from the US Attorney. Mr. Warner still has not acted against County officials who admitted destroying federal property. Their confessions to news organizations being insufficient, we await the deliberations of a grand jury.
Republicans in Utah are a curious bunch.

Interpretation's Second

There is always a good deal of interesting talk about interpreting the Constitution and statutes, and case law. While I am whistling here in this dark corner of the country I expect to talk to myself about it more. But, first, more on a point I was aiming at in this post below on Constitutional Exclusivism. The authority of the Constitution, or maybe a little more accurately, the political authority of the Constitution is, in a number of respects, a prerequisite to questions of interpretation. Interpretive theories, i.e., originalisms, etc., are built on the supposition that the Constitution exerts political authority, i.e., is a or the source of political authority for government in this country. The account of political authority thereby laces limits on the interpretive approaches which might be adequate, but the other way round. If a particular account of political authority is sound and validates the Constitution as a source of authority, that account will create parameters within which debate about the proper interpretive approach should occur. Interpretive accounts inconsistent with the account of authority fail at the outset. The authority of a particular institution applying (and hence interpreting) the Constitution may well be deeply dependant on adoption of some particular interpretive theory, originalism say, but that would remain secondary to the account of the authority of the source establishing the institution. That account would seem to me to be prior, and, which is why I bother to go on so, imposes genuine substantive limits on acceptable interpretive theories.

One immediate response is that this is wrong because political authority is senseless absent invocation of an interpretive theory. Authority of the Constitution entail an understanding of the Constitution, and that in turn entails an interpretive theory (or there would be no understanding). Hence, it makes no difference which end one starts with, interpretation always wins. (In law school I think every civil procedure teacher had a line like: if given a choice of controlling procedure or the substance of law, I can always win if I get to decide procedure. Sounds good, except t’sin’t so.) It is a persuasive approach but nevertheless not quite persuasive enough. The interpretive content required for the political theory isn’t the content needed for the interpretive theory of what courts do, which is to say that the conditions for political authority p[recede the interpretive task because the political theory addresses what it is that might be interpreted and legitimately impose obligations.

But that may be talking in circles, which is often good entertainment.

Eleections in Iraq

Iraqi elections and a constitutional convention are back in the news. The NY Times has an essay defending government by current appointees, written by one of their friends and asserting some things I find odd. (Communists are in the government? "the most representative of all governments in the Middle East sits in Baghdad" Huh? Israel is not in the Mideast? "within the governing council and outside, freedom reigns supreme" Unless you are a labor organizer or a Union HQ.)

But the underlying issue is elections. Mr. Bremer and cohort claim that elections are impossible. What they and the Times are failing to include is reference to the decision made in December to prevent the groundwork necessary for a summer election. See here
for an abstract of an earlier news report (garnered from intrepid reporter me here).

There is a very interesting philosophical problem here on whether such pre-arranged incapacities actually defeat duties.

Constitutional Exclusivism

What are the sources of obligation under a legal system? Put the question in another way starting from Solum’s Formalism, or, more accurately, from a relatively recent post on the subject in which he argues that we should reject the following proposition (he calls Constitutional Exclusivism):

It is the constitution (and not judicial decisions) that is a genuine source of normative authority. We are obligated by the Constitution and not by precedent.

Solum rejects the proposition and argues that we ought to accept supplemental sources for normative authority (of law). Solum uses this as a starting point for a series of arguments leading to conclusions about the propriety of stare decisis, i.e., binding precedential authority concerning interpretation of law. (I know that is a slightly odd way to express it, but bear with me.) I do want to discuss Solum’s argument, but there is an important diversion to be taken before that topic is reached: “We are obligated by the Constitution and not by precedent.” An interpretation of the proposition (not Solum’s): the source of legal obligation in the U.S is the Constitution, not precedent (of judicial or executive agencies). Can a formalist believe that? Yes. The proposition is not about the sources for understanding the extent of the demands of law. It is not even about the sources of law. It is about the source for an obligation to obey (the law). A Constitutional Exclusivist in this sense is adhering to a family of political theories, not particularly a family of interpretative theories. Originalism is sort of beside the point here.

What difference would this thesis make? Well, it constrains the account one gives of legitimate state action, or the limits of legal authority. Assume for the moment the Constitution is to be seen as a compact. (I have a suspicion that originalists are stuck with a compact theory. I am not an originalist, and it is not straightforward to connect theories of interpretation of law with political theories. As I recall, e.g., Vashukanis [] had a fairly conservative textualist approach. (It has been al long while since I read that work so may be making it all up.)) A Constitutionalist Exclusivist seems to me to committed to understanding the compact of the Constitution as strongly regulative; the authority of government within the Union lies with and derives from the Constitution, no action outside the boundaries set by the Constitution carries a genuine claim to authority (or obligation, if you prefer). One has an obligation as a citizen to the Constitution (and the arrangements consequent to it) rather than to the state. One can then generate an explanation for the distribution of powers within the governmental framework, including allocation of derivative authority to a judiciary. Having done that, one returns to the topic Solum is addressing, which concerns the interpretative theory. One more side trip before catching up with Prof. Solum, however. I do not think that either Constitutional Exclusivism or a strongly regulative compact entail acceptance of originalism. (Formalist may, but that is for another discussion.) One can be committed to the Constitution as the fundamental source of authority and believe that the participants in the drafting have no special precedence in understanding beyond the most general levels of abstraction. Similarly, a strongly regulative compact view entails commitments concerning the nature of the legitimacy of state action and views about the relationships between state and populations within the effective power of the state. But the compact need not be seen as just a lease agreement writ large. Given that most people will be inclined to link the compact to moral legitimacy, to adoption or acceptance of political and moral principles, historically fixed accounts of the contours of the compact would take on an additional persuasive burden. To put simply, it is compact, not a revelation.

So now, Solum is at the point of arguing that the Supreme Court ought to be bound by its own precedents and that such a commitment is the best expression of formalist (and originalist?) theory accepting the modified exclusivist position.

Solum argues then that formalism is a good road “back” to originalism, and that it counsels that precedent bind by the consistency with which the earlier court decision’s reasoning is a good faith effort to adhere to originalism with respect to Constitution (and legislation). Could well be. I don’t think originalism is very good goal, but set that to the side. Does formalism inevitably lead us to originalism? Takes more thought than I have yet given it to decide that question, but I am happy to offer some preliminary suggestions on the topic. I think the piece that may turn out to be central is Solum’s ordering of the interpretive rules of his formulation of formalism. As he puts it:

Principle One, Precedent: Judges in constitutional cases should follow an adequate and articulated doctrine of stare decisis. Among the features of such a doctrine is that even courts of last resort (i.e. the United States Supreme Court) should regard their own decisions as binding, unless there is a compelling reason to do otherwise.

Principle Two, Plain Meaning: When the precedents run out, judges should look to the plain meaning of the salient provisions of the constitutional text.

Principle Three, Intratextualism and Structure: When the text of a particular provision(s) is ambiguous, judges should construe that provision so as to be consistent with other related provisions and with the the structure of the Constitution as a whole.

Principle Four, Original Meaning: If ambiguity still persists, judges should make a good faith effort to determine the original meaning, where original meaning is understood to be the meaning that (i) the framers would have reasonably expected (ii) the audience to whom the Constitution is addressed (ratifiers, contemporary interpreters), (iii) to attribute to the framers, (iv) based on the evidence (public record) that was publicly available. (Adapting Grice's formulation of speaker's meaning.)

Principle Five, Default Rules: And when ambiguity persists after all of that, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law. (And in this post, I will only offer a promissory note with repsect to the content of such principles.)

Principle Six, Lexicality and Holism The first five principles are to be understood as lexically ordered in the following sense. Judges should order their deliberations by the first five principles--attempting to structure their conscious deliberations by attending to the features highlighted by each each principle in order before proceeding to the next principle. But this requirement does not entail that judges either will not or should not recognize that the considerations thematized by one principle may be relevant to deliberations explicitly organized by another principle. Thus, the interpretation of a precedent will sometimes (perhaps always) require consideration of the text, structure, and original meaning, and so forth. (Lexical ordering is a guideline for structuring deliberation, and is not inconsistent with the observation that interpretation involves what Gadamer called the hermeneutic circle.) These are principles not rules, and lexical ordering operates a methodological heuristic and not as a rigid rule.

Because they are lexically ordered, it is a real question whether anything will ever remain for Principle 4 to determine. I think it would be rather rarer than an originalist could tolerate. But that does tell us whether the Principle is inevitably there. In one sense, absolutely must be because it is Larry’s theory and he says it is part of the theory. In another sense, I think the issue is whether speaker’s meanings is what we should or do care about, even in the instances when there is something for Principle 4 to address. I think not, but I can’t yet tell if any of my reasons for that answer are reasons someone like Solum should care about.

Pickering

There will be a good deal of commentary, and already has been, on the Pickering recess appointment. Larry Solum has commented on the appointment and, not surprisingly, has interesting things to say. The NY Times casts the appointment as an affront and great blow to the Democrats, and suggests that the appointment will be a big help to Republicans in the South. White voters will rally to the battle flag. Of course, there is also talk about what the Democrats should and will do, including whether they should block all confirmations until after the fall elections. I doubt this will sway anyone, but it is my log so I will say it anyway.

First, the Democrats in the Senate should say whatever they have to say about the recess appointment now and then forget about it. Pickering’s recess appointment is not really of any great import – absent submission and confirmation, he will be off the bench in a year, and very likely retired. Second, there is o practical or political gain from a blockade of confirmations. There are good nominations and they should, and I think will, proceed to confirmation. Second, the recess appointment will be of little or no political gain to anyone. Pickering on the bench may help consolidate votes which were Bush’s anyway. He gains no new votes and this will not motivate people to go to the polls. It is short term, horse-race thinking to describe as anything more. Third, it is in fact, no matter how cast by the White House, an admission of failure. Pickering is not getting on the bench through confirmation, not without a new election. Estrada has withdrawn, Pickering is not up for confirmation. This is evidence that none of that lot will get confirmed, at least not until the election re-sorts Congress.

I also note that I do not believe that Pickering belongs on the appellate bench. It is dismaying, to put it politely, that Republicans continue to nominate, and the Senate confirms, people with the kind of past Pickering has. Senators are happy to forgive participation in White Citizens Councils, happy to forgive open racists, happy to forgive men who ran from the Constitution when they were needed. That is Tom Pickering. Those folks, the Senators happy to forgive his past, would never accept a nominee who had an analogous past on the other side. A member of the National Lawyers Guild is never going to get nominated, although the National Lawyers Guild, unlike the White Citizens Council, never killed anyone and never burned people’s homes. (Which is a round about way of saying that the analogue to Pickering’s past would require membership in SYL, or at least the Weather Underground.)

Yes, Pickering is not just what he was 30 or 40 years ago. True. People change, and he seems to have changed. Good for him. But he was an open racist, and there is no reason why part of his amends for his past should not include not being confirmed to the Court of Appeals. In fact, it is an awfully small price to pay for that association.

Rationality in Advertising

An article in Nature reports a study showing that men become less rational when looking at a beautiful woman. Here's a summary:
Researchers showed men photos of attractive and plain women, and then asked them whether they would perfer to get $19 the next day or $25 the following week. After viewing the attractive woman photos, men were more likely to want the immediate reward. Women shown photos of handsome men were not affected.
I assume there were controls for sexual orientation -- I wonder if gay men or lesbians as groups display the response patterns for photos of attractive women or photos of attractive men. Anyway, I find these studies entertaining and, as a category, of some interest for moral philosophy. Dorris' Lack of Character is one example of empirical pyschology productively brought face to face with ethical theory.

I once tried to talk an editor of Philosophy & Public Affairs into the idea that the book reviews ought to cover books about, e.g., concentration camp experiences with an eye to what that might hold for philosophy, rather than tomes of theory. I did not get very far.

Political Community and Aliens

In a post below (Verdugo-Urquidez Returns), I began a discussion of the recent decision by Judge Cassell, Esparza-Mendoza, 265 F.Supp.2d 1254, in particular on the question of whether previously removed alien could have appropriate connections to the political community to support a claim under the Fourth Amendment, which is the central question of the decision (whether or not it is the right question). I said that I thought the question surely could not be decided on formal grounds: “While one might treat it as a formal question of political affiliation, that seems extraordinarily implausible and, worse in my view, completely otiose; it would be definitionally duplicative of legal status.” I have thought about that some more and decided that I need to revise that statement.
Political connections can be a function of legal status and in that sense formal. For example, a citizen abroad should still have sufficient connection to the political community to satisfy the standard set by Judge Cassell. Certainly, an American tourist in Roma still has claims on the United States as a (or the? Dual and triple citizenship is a curious thing in my mind) political community in which they participate. So such persons would have interests which might be protected by the Fourth Amendment (and the rest of the Constitution). Similarly, one might suppose that the comatose or the minor would have such claims in virtue of citizenship. And citizenship is largely a formal legal status, not a participatory act. But this does not retrieve Cassell’s analysis, for it is inconsistent with his suggestion that a foreign tourist may have greater connection to the political community than a previously removed alien who refused to stay removed. I think it makes the tourist remark close to senseless. A tourist is a foreigner, present only for a short time and intentionally without adherence or allegiance to this community. In some respects the previously removed felon shows greater adherence – a greater persistence in his effort to involve himself in the community (but likely not the political community, if that line is drawn). At the same time, we should note the attenuated sense in which political community is being used in this context. Relatively few, and every year a lower portion, of the general population can be said to participate in the political community. What that suggests is that participation, or even adherence to the political community, is a misplaced standard.
That in turn does lead back toward connection to the political community as a formal relationship rather than a substantive one. So to make the best of Cassell, perhaps we jettison the off-hand remark and stick with the notion of a connection to a political community. That, however, would not be true to the realities, or to according protections to those who are not citizens, either currently or historically. Less cryptically, one of the problems raised by the Cassell’s analysis is that he relies on a kind of originalism about the scope of the Fourth Amendment’s protection. Based on his reading of history, he sees a distinction between “people” and “persons,” with the former referring to the citizenry, those who formed the compact constituting the Constitution. He notes that of course that would not include women who were not then voters (and so not directly participants). But women living in families would have protection by an extension of common interest. See 1266 (“the Founders likely would have understood the term ‘the People’ as extending beyond those who were formally part of the nation’s political community to include those who were closely connected with such persons.”) I have my doubts about this as an historical claim. The Framers surely would not have considered non-whites -- whether Indian, African, Black, African-American, etc., -- as part of or “closely connected” to the political community. These varied groups get under the protection through later amendment and some rather non-originalist court decisions? And what to make of the long interval between the Reconstruction Amendments and actual effective enfranchisement – what were the boundaries of the political community? Well, citizens at least (but don’t look closely at the facts).
I think there is a very deep split, and consequent strong tension, between seeing connection to political community as a formal relationship and seeing connection to political community as function of conduct. That is a problem for compact accounts of constitutions. I think I do need that glass of wine.