Ciceronian Review

Reading Randy 12

In Chapter 10, Barnett addresses himself to the Ninth Amendment. It is one of the oddities of political chattering about ‘judicial interpretation’ and variously strict and original constructions of the Constitution that those who are most aghast at a right of privacy, etc., have no explanation at all for the Ninth Amendment. It is one thing to be puzzled by and at a loss to explain a clause or phrase, but to draw a blank as to an entire Amendment would seem a good indication of a serious failure in the theory being advanced. To continue the digression, one of the reasons it was not a loss for Bork not to be confirmed is that his theory for interpreting the Constitution was (and remains) brain dead, i.e., disqualified him from the position. By that I do not mean just that he was wrong. Scalia is wrong about many things, but has a theory that can do some work. A theory which supposes large portions of the Constitution are meaningless is not a theory anyone should take seriously. But enough beside the point talk.

The fundamental issue posed by the Ninth Amendment is how to come settlement concerning the unenumerated rights reserved to the people by this Amendment. Barnett canvasses two general approaches. The first is the originalist line – the rights are those one may identify from the historical context of the period and place of adoption. Barnett’s view is that a list could be generated, but that doing so would miss the point of the language of the Amendment, which is quite general. (Although Barnett does not say this, one might ask why the unenumerated rights would be those of that time given that they were not but easily could have been enumerated.) Part of the argument here has to do with levels of generality, and some interesting historical discussions of the nature of rights suggesting that full enumeration would always be beyond reasonable endeavor. That argument also suggests that even general descriptions of rights would not do justice to the situation because one could not reasonably expect to be able to catalog all even fairly general rights because rights arise through social interactions, relations, and arrangements. What Barnett proposes instead is to look to “spheres of moral jurisdiction.”

Within the appropriate sphere, an individual should be left to their own devices, which is to say that there is a presumption in favor of liberty over regulation. So from a legal perspective (what else might apply to a Constitution?), the interpretive theory aims to take seriously the requirements of the “Necessary and Proper” Clause. “In the absence of actual consent, a law must be shown to be necessary and proper for it to bind in conscience. To be proper it must, among other things, not violate the rights retained by the people.” There are two ways laws can restrict freedom of action without violating background natural rights (that define one’s liberty). “First, if a particular action violates the rights of others, then it is not a rightful exercise of freedom.”
“Second, when the rightful exercise of freedom involves more than one person, it can be ‘regulated’ or made regular to facilitate its exercise, and, if necessary to protect the rights of others.”

This raises several questions. One is that of distinguishing rightful and wrongful conduct. Rightful is sphere of liberty interests, as already identified by the courts. These are spheres of private regulation of conduct – torts, contract, secured transactions, etc. Essentially this is common law and legislative action is limited to correction of such. The other question this approach invites is directed at foundational theory (I think it is foundational). What is involved in this talk of “spheres of moral jurisdiction”? It is clear that a good portion of Barnett’s answer lies in other works, in particular his book The Structure of Liberty. But not everything is elsewhere, and it is not entirely the details that matter just now. What does matter just now is that this argument (or series of arguments) directs us back to the initial problem and answer Barnett opens this book with: the obligation to obey the law, in particular the Constitution and laws promulgated pursuant to the Constitution. The structure of the political theory which guides the response to that problem has to play a substantive role here as well. I think that the political theory proffered there must entail substantive views about the nature of general content of rights at issue in understanding the Ninth Amendment. If the first political theory, for example, does not contain (or provide the means for creation) of substantive general rights, recourse here to “spheres of liberty” will amount to nothing. Those “spheres” are the creature of the theory which yields the bonds of conscience by which we adhere to the Constitution. I do not want this entry to get too long, so I note now only that Barnett’s suggestions are happily Lockean.

Journals

The journals I subscribe to and read:

Salt Lake Tribune, New York Times, New York Review of Books, Times Literary Supplement, London Review of Books, Philosophy and Public Affairs, Canadian Journal of Law and Jurisprudence, Sunset, Outside, Adventure, Art in America, Poetry, American Poetry Review, New Yorker, Atlantic Monthly, National Law Journal, National Geographic, Aperture, DoubleTake, Dwell, Antitrust Law Journal, Green Bag (yes, I have the O’Connor bobblehead).

Sinclair

It now turns out that Sinclair claims it will not air the anti-Kerry film. See this. These boys don't inspire much confidence. It seems pretty plain that Sinclair management is doing a bit of a waltz. The courage of only some conviction? It is also patently a lie.

There are also stories about possible lawsuits against management. Bainbridge is, politics notwithstanding, right about that tactic -- it s dead loser. Sinclair's shareholders, like those of almost every public corporation, have no real leverage over management. They can sell off the stock or mount a challenge at the next meeting, but they will not do anything but waste money by suing. If the Disney shareholders could not affect the nit ruining, or should I say running that show, it would be a miracle if Sinclair's could do anything. A challenge to license renewal, and complaints to local advertisers are the only levers realistically available.

I had he misfortune of watching CNN last night. (I think the spouse was punishing me for something.) Paula Zahn was interviewing the Sinclair fellow who was fired. Her tough important questions were (1) what exactly was he given as the reason for his firing [to whom does this matter? what possible significance is this information/], and (2) did he disclose some business secret by complaining that the film was not news [does anyone really believe that a business secret is anything the business says is a secret? is Zahn that dumb?]. Journalism has another underwhelming day. Well, it reminded me why I do not normally watch news other than the Daily Show, and the Dailly Show is not a news show.

Reading Randy 11

In Chapter Seven, Barnett offers a discussion of the Constitution’s “Necessary and Proper” clause. I am not here concerned to dispute his interpretation of the clauses. I want to focus on something else. In this, and in related chapters, Barnett proffers arguments about the original meaning of particular terms or phrases, and goes about his argument by looking to the notes of the Constitutional Convention or the corresponding State Conventions, and to Dr. Johnson’s Dictionary. (Barnett’s central idea is that the Constitution should be understood now as it was understood when adopted, that one looks to original meaning along the lines of the reasonable reader of the 1790s (or whenever the relevant Amendment was adopted).) The first recourse might seem a bit odd, but is not. The original meaning surely is tied in some ways to use during the drafting and debating. And those are public uses, so I see nothing objectionable there. What is curious – and I cannot say more than that it is curious – is the limited recourse to sources outside the various political conventions. Keep in mind that Barnett’s theory is one of ordinary meaning at the time. One would think then that it would be appropriate to canvass the uses in a range of contexts or from a range of sources to determine the ordinary or usual understanding of the terminology at issue. But beyond the explicit and usual political conventions and theirs notes, he goes only so far as Dr. Johnson’s Dictionary. This is curious, for a couple of reasons. Johnson’s Dictionary is a useful source, without doubt. But it is hardly a dictionary of the kind that would pass muster today. It has too narrow a set of sources for one thing. More directly, one would expect a more proper philological investigation, review of other ordinary sources (e.g., newspapers and other publications). I do not mean that this is a particularly serious defect, nor even that it is a defect. An explanation for the limit on the sources considered would be helpful and interesting, but Barnett does not provide it.

From here onwards the chapters run more quickly, the arguments become less detailed. Chapters 10 and 12 are substantive, but the remainder seems quick, except 9. Chapter 9 concerns the famous Footnote Four. It is a subject I think would shock people outside law – that the center of much Constitutional law and theory is grounded on a single footnote. Why that is so, and what it suggests about the law and legal academy are not what Barnett discusses – but there is at least one rather good book on the peculiar nature of the enterprise. I found Barnett’s discussion of footnote four quite restrained and polite.

Chapter 11, on the Commerce Clause, is nicely constructed. Barnett’s view is that commerce encompasses exchange of goods, not manufacture or agriculture. But I missed the explanation of the role of services in delimiting commerce for purposes of the Constitution. Is provision of service an exchange of goods or not? The material Barnett canvasses does not lend itself to an answer.

I have two more entries on Barnett – some comments on the final substantive chapters (10 and 12), and then some general notes. Tomorrow and the day after.

Warlocks and Witches

Vanity Fair published a piece on Florida and elections, a short portion of which was devoted to the Supreme Court’s decision in Bush v. Gore. The section on the Supreme Court was, overall, a small part f the article. It garnered quite a bit of attention, however. One response was the circulation and publication of an open letter denouncing the clerks who spoke to the reporters about the case’s progress within the Supreme Court. The gist of the letter was that the clerks had breached a duty of confidentiality owed to the Justices.

Over the years I have come to place less and less stock in arguments favoring secrecy in judicial processes. The basic idea behind the complaining letter seems to be that public disclosure of the processes by which Justices reach conclusions (and issue opinions) will interfere with that process and degrade it. There is also lurking in the complaint a view that public disclosure will lower the prestige of the Supreme Court. There is remarkably little in the way of evidence on these points however. At least, as far as I know, no one has done any empirical research to test the claims that disclosures have any actual effect on the internal processes of decision-making at the Supreme Court. Oh sure, there is plenty of speculation, but the claim is, in the end, a pretty ordinary empirical claim which could be tested. Have the Justices changed their internal processes since publication of The Brethren? I’ve seen no evidence to that effect. Moreover, there is something in this line of complaint that is disparaging to the Court and to the Justices. Would they change their opinions and votes if the public knew more about the processes and the considerations which actually swayed the Justices? That suggestion, which I think an ineluctable implication of the complaint, is, to me anyway, shocking. First of all, they have lifetime appointments. It would be extremely difficult for any of them to be forced from office, so surely they would not hide their views out of a concern for job security. Exposure to public ridicule? But anyone reading law review articles would know that the opinions (and personal qualities) of the Justices are already subjected to ridicule. Surely, if those who devote their lives to commentary on the opinions are open in their mockery, it would be at least surprising that ridicule from those only casually concerned would change the conduct of the Justices. One would not suppose there is any very important interest in protecting improper conduct – Justices basing their opinions on matters other than law. Is that the interest to be protected? Doubtful. Indeed, analysis of the factors concerning when confidentiality may be breached are not hard to find. The courts, including the Supreme Court, have often discussed the limits of confidentiality in deliberative processes, both in the public and the private sectors. There is no reason not to hold the Supreme Court to the same kinds of standards. Indeed, there may be less reasons to be concerned with confidentiality within the Supreme Court than elsewhere. The grounds for their decisions are rather more restricted than those open to others. The Supreme Court has no claim to respect for decisions based on payments to the Justices, nor for decisions based on extra-legal political concerns. And surely those who are most insistent upon the notion that the courts, including the Supreme Court, are to limit themselves to law, or original meanings or original intents, should not be heard to argue that the Supreme Court should be permitted to hide its own misconduct (should that occur).
I think, in fact, the motivations are not those set out in the letter. I think, instead, that the issue is that the public comes to a better understanding of the workings of the Court, and that leads to less mystery. Clerks of the Supreme Court are a blessed bunch. They see Oz behind the curtain, and like all the special clubs, do not like to share nor to acknowledge the ordinariness of what they have done.

The scandal of the article is not the disclosure of the Supreme Court’s conduct in connection with the 200 election. The scandal is the continuing failure to fix fundamental problems in the electoral process in Florida (and elsewhere). And it is shameful that so many of the highly placed lawyers care so little for the integrity of the basic electoral process and so much for protecting a magical curtain.

Forensic Evidence

As noted at Blog 702, the Chicago Tribune is running a series of articles on forensic evidence. Free registration is required. Blog 702, by the by, is an excellent resource, and includes coverage of a number of states, including Zion.

Lilla, Strauss, and the God in Love With Crustaceans

But as the nineteenth century progressed it became abundantly clear that one problem, the “Jewish question,” could not be dissolved. Not because of Christian prejudice, which was real enough, or Jewish stubbornness, but because of the existence of the Jews as a people constituted by divine revelation was a challenge to the Enlightenment’s hope that politics could be isolated from supra-political claims. The principle leading to emancipation – that, to quote from the debate in the French National Assembly of 1789, “the Jews should be denied everything as a nation, but granted everything as individuals” – proved untenable; the call of revelation could not be extinguished from thought or politics. And that, for Strauss, meant that philosophy needed to reconsider the original “theological-political problem” afresh.
[59]
…
What is unfortunate is that controversy over this subject [exoteric and exoteric teachings] has obscured Strauss’s larger aim, which was to reread older works in order to challenge the way we conceive of ourselves today. His interpretations try to suggest that the truly radical nature of Socratic questioning had been domesticated and routinized by modern Enlightenment philosophy, and that this was a loss, not a gain. Through the new philosophy of the Enlightenment we have learned to master nature and partially master our political destinies, but in the process we have lost the genuine freedom of philosophy as a way of life. In the process of Enlightenment, we have forgotten ourselves.
[60]

I wonder what a ‘people constituted by divine revelation’ is intended to mean, and what the ‘call of revelation’ is intended to mean. I understand well enough that people believe in divine revelation, and believe that God cares more about some people than others. But it is not merely belief that operates here (people believe and believed in witches, but that hardly means that philosophy should be reconceived). There is something meaningful about a people constituted by divine revelation, but I have difficulty discerning what it might be. If one thought that ‘divine revelation’ had any robust content, I suppose it would be less puzzling. But one part of Enlightenment thought was increasing acceptance of and understanding that ‘divine revelation’ and the like have little genuine content, and, more particularly, that civil affairs cannot be ordered on the basis of such delusionary imaginings. ‘A people’ is unlikely to be “constituted” by anything. It is the wrong sort of relationship. Attention to the historical processes by which people come to see themselves as ‘a people’ pretty well assures that. In other words, there is no causal content to the phrase, and its meaning, to the extent it has one, calls for causal content. Similarly, in the second excerpt there is a notable blindness. We have forgotten ourselves by better grasping the world, by better understanding of ourselves and the interacting world around us. I do not see how this could be anything other than confusion. There is no enduring “us” to be forgotten. Relationships change, most certainly. But it is error to think that there was some core we have lost touch with. We do not, at least those reading this or the NYRB, have much sense of how to hunt large game on foot with stone tools, or the seasonal influence of such subsistence hunting. Maybe that is a loss, but more likely it is just a change. And it would be well to try to recall more than the pleasantries of such pasts – the difficulty of the life, the bloodiness of it, the dim hardness. A sort of romanticism lurks here. It as well fails to take seriously the difficulty of the thinking going on now around us, the remarkable intelligence of the exploration of the world, which is a consequence of the Enlightenment projects. It was not Socratic thought or Socratic questioning that led (in any meaningful sense) to science as we have now (what, I take it, is being referred to by “master nature and partially master our political destinies”). So we lose religion and are the worse for it? Sorry, no.

Esoterica

The NYRB has an essay on Strauss, yes, the curiously famous deceased professor. It is part one. The second part will review soem fo the performances of former students and those under the influence in the public realm. Part one is about some collections of Strauss's works (mostly in German translation). Unfortunately, the essay is not available on-line, and I forgot to bring my copy with me. I therefore cannot quote the passage of interest. I will do so tomorrow, because I get to do what I want here. But a coupel of remarks now. One of the thinkers both Strauss and the reviewer wrote about is Spinoza. A slightly odd figure to suppose engaged in esoteric doctrines. First, he was ex-communicated by the rabbis in Holland, and, insofar as he was known, rather controversial at the time. INdeed, he was seen as an atheist, whcih could have been a capital offense. It is not clear what an esoteric doctrine would have gotten him. What he said was fairly wild for the time. Second, his apparent doctrines are very hard to grasp. Just figuring out what he meant by what he said, taking him at his word, is awfully hard work. One might see that as a plus, that such difficulty suggests a secret doctrine. Not so, because there is nothing on the surface to distract one from a secret doctrine. It is not like one could pull off a line like: this is Spinoza for the masses, but we intiates know the secret Spinoza. There is no Spinoza for the masses. Oh, and there is a complete absence of evidence that Spinoza did not mean just what he said, at least not from his works or words or what is known of his life.

Tarot cards.

The NFL and Gay Marriage

During the Denver football game last night, the NFL ran an advertisement for its apparel and gear store. The advert was done as a mock run of the Newlywed Game, called NFL Newlywed Game. The contestant couples consisted of an active NFL player and a partner, or, in the context of the game, a player and the player's spouse (they are newlyweds, after all).

I was a bit surprised because all of the spouses, like the players, were men. The only conclusion one can draw is that the NFL endorses gay marriage, and, perhaps, that at least four players have husbands.

Who knew?

Aside on Debate

When Dredd Scott was decided slavery was permitted by the Constitution. As most people who get through high school learn, it took a war and a Constitutional Amendment to end slavery.