Ciceronian Review

Senate and People as Rome so Command

Solum offers Wu's reminder of Whittington's argument on how orginailism might provide a theory of obligation is a non sequitur.  The idea is that originalism is binding because we expect future generations to apply our understandings to our enactments, and so, by reciprocity, we should apply the understandings of prior generations to their enactments. The issue is obligation, not interpretation. 

While this might provide some support for orginalism as an interpretive theory, it is a non-starter on obligation.  Our desires or preferences do not create obligations on future people to adhere to our enactments.  This sort of approach requires us to accept the idea that the bare fact of of preference by prior persons creates political obligations.  That is a bit too large to swallow. 

It also requires belief that one can stand in a reciprocal relationship with people who do not exist. One might have duties towards those who do not yet exist, but such duties cannot be reciprocal because nothing about human life permits an exchange with the distant future. 

Speak Well of Walls

This story of the FBI engaged in silliness has floated around a few days.  FBI investigations of obviously non-threatening dissent is pretty common (my favorites are still the efforts to infiltrate and spy on pacifist organizations, investigated as terrorists).  The weirdest part is not the FBI investigation but the Corps of Engineers spokesman, Mr. Dooley.  He defends the investigation because the news reports quoted Mr. Bensman as saying he thought the Corps should blow up the dams.   Mr. Dooley never heard Bensman say anything -- he recommended investigation because of the news reports.  From time to time a domestic terrorist has announced an intent to act -- around 1970 some Maoists and other communists would announce thing like "Days of Rage" (which involved about 100 people total), and, of course, far more frequently right-wing fanatics did.  The latter killed people.  Anyway, folks like Bensman have been going to public hearings for years asking for removal of dams.  Did not used to result in FBI visits. 

All the more telling when paired with other news from Friday.  In the big terrorist prosecution in Stockton, which you will recall resulted in one conviction and a hung jury, the judge sentenced the evil dad:

A Pakistani-American accused of lying to the authorities during a terrorism investigation in the Central Valley was released from prison, after a federal judge sentenced him to time served, 36 months supervised release and a fine of $3,600. The man, Umer Hayat, a 48-year-old ice cream truck driver from Lodi, pleaded guilty in May to lying to the Federal Bureau of Investigation and immigration officials about carrying $28,000 to Pakistan from California. Terrorism charges were dropped as part of a plea agreement. The agreement came one month after a federal jury deadlocked on charges that Mr. Hayat lied to investigators about his son’s attendance at a terrorism training camp in Pakistan in 2003.

That is a real terrorist for you -- time served and a small fine.  Another major victory for the FBI and US Attorney.  Why no statement from Attorney General Gonzalez?  On the other hand, a fellow in the Lackawanna paint-ball prosecution received a 15 year sentence.  He was convicted of shipping paintballs to Pakistan. 

Which leads to the real topic -- the British prosecutions.  Lots of commentary shortly after the initial arrests, but hardly any now.  Which is curious in light of the remarkably small amount of information available.  I wonder why the discussions began on the premise that there is fire to smoke of arrests.  Maybe there is, but I don't see any basis for coming to conclusions.  This is the same police force which seems to have killed a Brazilian for, as best one can tell, no reason beyond an wholly unjustified belief that he was a threat.  (The self-investigation report is due out soon.  So maybe there was a reason.  Still, very impressive to prosecute the Police department (and not the shooters) for a health and safety violation).

Abstract Art is Safe Art

I recently came across an argument for abstract art that is both persuasive and may allow conservatives to support returning the study of art to the public schools.  One obstacle to whole-hearted embrace of art int he public schools is that, along with biology and critical thinking, it poses a challenge to the values of various religious fundamentalists.  The history of art cannot be taught without endless displays of pornographic and near pornographic images, nakedness and women in varying states of undress.  Such images, notwithstanding that they are of goddesses, saints, and other religious and mythological figures, are bound to lead to a certain unacceptable level of erotic reaction among youngsters.  After all, boys and breasts are still often connected by erections.  So history of western art is rather a tough go if the religious are not to be offended.  But there is hope, and a road out -- abstract and other non-representational art.  Surely only a very small number of very odd people ever have erotic reactions to Jackson Pollock's Shimmering Substance, at least among those still in school.  Duchamp may be a problem -- the Bride is probably okay but perhaps not the earlier Descending Nude.

So, all those smarty-pants left-wing artists have given us a way safely to return art to the public schools, and to the private religious schools as well -- no heathen images and no sexy anything.  Who'd of thought.

While on the subject, why would all the books about Jesus and Mary and them not elicit the same sort of concern as half-naked mermaids?  Not a lot of people develop an erotic attachment to religious art, or do they?  There is Mishima, but no one suggests he was not an odd bird.  The crucifixion, all the various Madonnas in dishabille, the beautiful saints, catholic church must have been a trial of sin even in attendance at mass.  Is there great Baptist art?  Despite the years in Zion, have not yet come across any good, let alone great, Mormon art. 

How odd -- Kurt Schwitters, friend to the fanatic.

Solum's Defense

A few days back Solum set out an interesting post, part of a series exchanged with Leiter and others on orginalism and constitutional theory.  If you scroll down a ways to come to a section about whether originalists have a a means of explicating or explaining the political authority of the Constitution.  Solum phrases the issue slightly differently, but it is the same:
Solum:

In my post, I suggested that if Brian were making this concession, then it would entail that that it is the "semantic meaning" of the constitution that has a justified claim of authority.
...

Interpretation One: The Two-Step Theory of Justified Authority.  Leiter might be suggesting that a two-step theory of justified authority is required.  In step one, the authority of the constitution is justified.  In step two, the authority of "a particular meaning" of the constitution (or perhaps "a particular meaning of a particular provision" of the constitution) is justified.  But the requirement for the second step is quite odd.  Once we've established the justified authority of the Constitution, the usual thought is that the work of justifying authority is done.  We don't need a separate account to establish the justified authority of particular interpretations, provisions, or meanings.  The authority of the particular meaning derives from the authority of the constitution.

Interpretation Two: Theories of Meaning Must Follow from Theories of Justified Authority.  But perhaps Leiter means something else.  For example, his formulation of the question, "why a particular meaning has a justified claim of authority over us," might have been a bit off.  His real point might be that one's theory of constitutional meaning must fall out from one's theory of justified constitutional authority.  Then the picture would be like this.  First, justify the authority of the constitution. Second, determine what theory of constitutional meaning follows from one's theory of justified constitutional authority.  Interpretation Two seems consistent with the following passage from Leiter's post:

To be committed to constitutionalism is to be committed to be bound by the meaning of the words in a foundational social and political document of some kind.  Constitutionalism itself requires an account of its normative authority, and it is possible such an account would entail originalism.  I am not aware of a compelling account of this kind offered by originalists, but surely if there is one, someone can articulate it or reference it. 

The key is the second sentence: "Constitutionalism itself requires an account of its normative authority, and it is possible such an account would entail originalism." If this is Leiter's position, he hasn't done the necessary work to establish it.  It's true that one' theory of constitutional meaning must be consistent with one's theory of justified constitutional authority, but it does not follow that a theory of meaning will be derived from the theory of justified authority. Indeed, it would be quite odd if it did.  The normative authority of a constitution and the semantic meaning of a constitution are quite distinct.  How could one derive a theory of semantic meaning from a theory of normative authority?

I do not think either one of these is right.  Take them in reverse order.  Leiter does not seem to be saying that the salient theory of meaning "falls out of" the justification of authority.  It may, but it is not necessary that it does.  Solum sees this I think in noting that the interpretive theory must be consistent with the justificatory theory.   It is true that semantics and justificatory theory are distinct, but that tells us nothing at all about the relations between the two sets.  The rhetoric is nice, but it is not more.  For example, no acceptable semantic theory can entail claims inconsistent with the justificatory theory.  So you at least have limits on acceptable semantics.  But that also means the justificatory theory has priority.  That is a point originalists do not contend with.  The first of Solum's interpretations goes off in the other direction.  Authority, as relevant here, would attach to the Constitution, because the notion at work is political authority.  Legal authority may well be (and I think it is) something else.  That separate sense of authority flows out of accounts which presuppose the political authority of the Constitution.  For example, magistrates, or police officers, or ordinances.

I think Leiter is right to claim that originalists fail to address seriously the issue of political authority.  Barnett's work is a good example because he recognizes the issue.  His work, e.g., Recovering the Lost Constitution, is an attempt at a form of originalism and is intended to provide a framework for the Constitution as politically binding.  The unfortunate fact is that Barnett does not ever actually come to grips with that second point -- he has an interesting theory of originalism and an inter sting explanation of how it would work as interpretive guide.  But the book nowhere explains how the Constitution is or could be binding. 

Queen Ann

Althouse's essay in the NYT includes this:

And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

Is it a serious argument, and does what she says make sense?  No and no.  The government's position is that the President has unlimited power as a result of his position as Commander in chief.  Without limits there is no content to the claim that the government s acting within the law or acting "under law". If the conclusion of the argument is that there are no limits, what is the sense of "within the law"?  Sounds a good deal like Augustus' rule to me.  The analogy to kings is not so bad.

Althouse also has this to say:

It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program,

For someone complaining about sloppy writing, this is a bit of a surprise.  What Althouse is saying is that the Sixth Circuit either does not know their job or, for some reason, will not fulfill its duty.  The Circuit is supposed to review the District Court's decision for correctness.  It does not pass on the quality of the lower court opinion, at least not directly.  It is, as one assumes Ms, Althouse knows, a long-established doctrine that the Circuit is not limited to the arguments and analysis of the court below but is may (in fact may be required to) affirm on any grounds.  That is the effect of independent, new review.  But then, maybe she knows the Sixth Circuit.

Stranger

When the White House earlier this week disclosed that W's summer vacation reading included Camus' Stranger, there were some good jokes on the Daily Show, and I was quite surprised.  George is not the sort of person one expects to be interested in  existentialist anything.  He is clearly the least intellectual president since Reagan, who seems to have favored Louis L'Amour.  But back to George -- The Stranger is not a hard read at all.  It is, as I recall it, written in a very plain style.  Existentialism brings to mind heavy going, convoluted expression, all very French philosophy.  Sartre is, I suppose.  But not Camus.  None of his work (that I recall now) fits that image.  He wrote rather more simply and clearly.  In short, The Stranger is not tough read on any level. 

But why would George be reading the book?  (I don't believe he is reading any books about Lincoln, and the disclosure is calculated to some end or other.)  An appearance of intellectual occupation without any big effort?  Maybe George really is a devotee of murder stories -- which is all The Stranger is, a sort of flattened Killer Inside Me.

Analgesic Television

The headline says it all. 

I guess every lawyer should have a tv in the office and on.

Another Chance

With a truce in place and at least some movement to fulfill the terms, attention turns to reconstruction.  According to an article in the WSJ on aid to Lebanon, the US has delivered almost nothing.  That seems to me a strategic mistake.  The US could earn some good will and provide some counterbalance to Hezbollah by a program o fairly public aid efforts, if not cash then equipment.  It would demonstrate that the various pronouncements during the recent war were genuine. 

I think practical obstacles may prevent entirely, but Israel could gain a great deal by offering significant aid to the reconstruction of Lebanon.  If the war was not on Lebanon, then that would be confirmed by aid.  More importantly, like US aid, it would provide a means of countering a portion at least of the propaganda.  For the moment, it looks like Hizbollah has the field to itself.  Not a good thing.

Not King

Over the weekend I finished the collection of the unrecognized master of American poetry.  Oh, sorry, the collection of works by Mr. Menashe.  In the end, quite like Dorothy Parker's poetry.  Whether that is praise or not, decide for ourself.  I quite like Mrs. Parker's poems, but I would hesitate at the sort of accolades accorded Mr. Menashe for such work.  Or perhaps it is just too much of it, even spread over three or four months.  The pieces are all short, quite short.  Often clever and all well-wrought.  But I did not find sufficient reward in the end.  Still, not lost time.

TV Time

The new security standards for air travel suggest that Homeland Security and TSA are a bit thoughtless.  Now one cannot take liquids on board a plane (or through security).  This is because the UK government has uncovered and made arrests in a conspiracy to blow up airplanes using liquid explosives.  So the new security requirements.  Which is good evidence that security standards are all set after-the-fact, and are not premised on much in the way of consideration of how one would go about destroying aircraft in flight.  It cannot possibly have been news or surprising that folks like al Queda, or any other terrorist organization involving moderately educated people could put together explosives of the kind at issue.  Liquid medicines are okay, with a prescription, because prescriptions cannot be forged and no one could mislead a physician or alter the contents of a dispensed medicine.  To me, it still appears largely a show, which is the more optimistic of the options.