Ciceronian Review

Discomforting

The US Supreme Court denied certiorari in Republican Party of Pennsylvania v. Degraffenreid yesterday.  The case was a challenge to the procedures used in the last election in Pennsylvania.  It was, more recently, a vehicle to test the latest Republican theory on how to constraint voting, a sort of state legislative supremacy view of election rules.  With the election over and no likelihood that a decision in the case would have any effect on the electoral outcome, there was a genuine question of mootness, and that is the basis for denial.  There were dissents by Thomas and Alito.  The key point in Thomas' dissent was that the problem raised by the case is not going away, and that it will return at a point hen the briefing and consideration will be quite compressed.  It makes sense for all to address the question about regulation of election now when there is time and quiet to do so. 

I think Thomas and his co-dissenters are more interested in getting a case that will enable them to restrict voting, and see this as a respectable means to achieve that end (because it sounds like a neutral judicial effort), whatever the outcome.  Take away a potential shadow on a next election.  In other words, the dissents seem to me disingenuous.  But, the dissenters have a good point.  It does make more sense to solve the problem now rather than wait for the contested election that makes resolution crucial, and highly political.  It leaves me in the unexpected and somewhat uncomfortable position of reluctantly agreeing with Thomas -- the only reason I see for denial is the thin hope that several justices on the way out right side of the bench will retire or die or be disabled in the next couple of years.  In addition to very poor odds, there is something at best unseemly and perhaps worse, in having such a hope.

Well, then, fall back to the mantra - the Supreme Court is a super legislature, and all courts are reduced politics.  The oath is a lie or we give allegiance to an unjust state. 

Zion Is Silent

The January 6 attack on the Capitol has elicited lots of responses.  There is a statement signed by 157 Law School Deans.  They denounce the attack.  157 is a large portion of accredited law schools -- about 3/4 of the 204 accredited law schools.  The deans of both of the Utah law schools signed.  But the Utah Bar has said nothing.  No statement about the events.  In fact, the Bar leadership has been silent individually.  Neither members of the Bar Commission nor the Bar President (with one exception) will even respond to emails about the subject.  I suppose they will wait until the regularly scheduled meeting in February.  Justice can wait after all, the issues only concern the Constitution and rule of law and such stuff, which is of no special concern to a Bar Association.  Sarcasm is not helpful.. It is a genuine issue of concern, and quite troubling that the Bar is silent now, and that its leadership refuses even to explain its silence.  The Bar has issued plenty of other statements over the last years which really were political -- its promotion of Utah Institute for Legal Inclusion, for example.  I admit that I find impossible, not merely difficult, so understand how the latter activity is proper for the Bar but it should say nothing about January 6.  If the Bar was voluntary, I would leave. I

Distance

The issues of (meaning about and related to) immigration and refugees continues, obviously, to bedevil the EU and USA, and Australia, and so on.  For many, the presence of immigrants and refugees calls for theories of moralitry and politics that extends protection to these groups.  Countries are not the sort of thing which can justifiably exclude newcomers as it chooses, but must find ways to accommodate and protect refugees.  The problems are pressing because the numbers are large.  An common idea is that the only status that really matters is that of being human beings.  It is not only cold or heartless, but immoral or evil not accommodate refugees in whatever numbers, to integrate into society.  Crooked Timber, for example, has posts along these lines with some regularity. It does not really matter where one is from, where born, etc., one's claims on a society, once one is present or sufficiently near, are the same for all within the circle, the physical circle. It is an arena in which the notions of right are to be grounded in being human.  The others, they do not matter as much or not much at all.

Distance is in a curious role in these lines of thought.  One the one hand, place is not important.  That this one has been in a place always gives no moral advantage over that one who has only just come seeking entry.  It is curious that the physical distance of various people governs the moral and political relations. Those near at hand, refugees, have greater call on concern and resources than those far away, those still in the place the others fled.  No claim that latter are better off than the former, or that the former are more virtuous than the latter.  Maybe more deserving, but it seems odd that desert would tie top the distance traveled.  Distance traveled hardly seems a morally compelling category.  But how else to distinguish the former from the latter?  On the other hand, social distance is to be ignored.  That those at hand, have limited social connection to those already present is wholly discounted.

Perhaps there is something to Hume's account. 

 

Impeachment Is Not About Crime

Some law faculty talk about impeachment as requiring the commission of a crime, with the problem being exactly which crimes might serve as the grounds for impeachment.  Blackmon, for example, reject the idea that there should be any basis other than violation of the criminal code (and only some select part of the criminal code) as grounds for impeachment.  His concern is that impeachment based on abuse of power fails to give notice to the President of what might be an impeachable offense, and unduly politicizes impeachment.  The latter argument is, I think, disposed of by Mark Graber.  Graber argues that much of the history of impeachment proceedings (at least for political offices) was long ago fully politicized.  The votes in the House and Senate regarding Jackson, Nixon, Clinton were highly partisan.  That is not changing.  The process, like almost everything about the Constitution has tenuous connection to the conception of the Constitution and its processes when it was adopted.  Politics is there to stay. 

Blackmon's argument is that  impeachment should be grounded in the criminal law so that the President has adequate notice of what conduct may be impeachable misconduct.  That seems to me a somewhat odd approach to impeachment.  Two suggestions:  the criminal law approach advocated by Blackmon means that he thinks that impeachment is improper (and inappropriate to consider) when a President does any of the following sorts of things, none of which are (I think) crimes:  directs the FBI to investigate a political opponent; not to enforce particular laws or not to enforce laws which may benefit or protect some group or person out of favor; redirect funds intended for the welfare or education of a particular state to other uses, depriving the state of those funds, refusing to declare emergencies in states dominated by political opponents; directing the IRS not to investigate or prosecute friends or allies; impound the passports of disfavored persons; refuse to enforce environmental or health standards; directs the Justice Department never to investigate her or himself or family; and so on.  That such conduct might violate some statute does not make it a crime. Why would conduct of this sort not be enough for impeachment?  I see nothing in Blackmon, or Turley, or their colleagues that explains why perjury in a private lawsuit is impeachable but massive abuse such as the preceding is not. Blackmon says that there is not enough or clear enough notice.  I find that deployment a little disingenuous.  I have a test for such arguments.  Is there less here than would satisfy an indictment for distribution of illegal drugs, or less than would satisfy for asset seizures?  No.  What is at work is that as social standing rises, so does the standard for enforcement, a tendency I do not care for.  Or, to engage more directly, the idea that an impeachment based on abuse of authority would strike out of the blue is hard to believe.  That the President would feel inhibited and frightened to act because he or she might be impeached for abuse of authority is, in a word, ridiculous.  There is no evidence at all for such a view. 

Imagine what takes little imagination - an executive fully devoted to a strong unitary executive theory (in which the President controls all executive activities exclusively) along with a strong departmentalism so that the executive may act on its own views of the Constitution along with a particularist theory of standing and remedies so that each remedy in a lawsuit must be for just the individual plaintiff (so no nationwide class actions, no nationwide injunctions).  Blackmon and Turley would leave us with nothing in such circumstances but to wait for the expiration of the tyrant.         

Turlock - Sort of Something

I watched the opening statements of the law professors before the Judiciary Committee.  The oral presentation of Turlock was a bit odd it seemed to me.  I was not sure I understood what his position was.  I thought is a bit too informal for the context (I think Karlan made the same sort of error -- testimony is not a classroom lecture.)  Was he saying that there was no basis in the Intelligence Committee Report for impeachment?  Or was it that the effort now was premature, that further testimony and evidence would make the case better, or that it was all a waste of time? I downloaded the written testimony and have made it about half way through. It looks like he was saying two main things.  That there is a possibility that an abuse of office or abuse of power article could be presented, but not yet, and that the other proposed grounds for impeachment are not adequate for an impeachment because the acts do not clearly and incontrovertibly violate existing criminal law.

The abuse of power claim is not made out because Congress withdrew its subpoenas too quickly and has not pushed the subpoena issues before the courts.  If Congress stays with the subpoenas, the courts may rule for it and then documents and witnesses will be made available.  From them, a case may be made.  I think part of that is right.  I agree that Congress should push its subpoenas, should not have withdrawn the subpoenas for various administration and former administration witnesses to appear, and should have continued the fights for documents.  In some ways, that set of battles is more important than the impeachment because it is the way to get more clarity about the oversight powers and investigative powers of Congress.  I think letting them go is a long-term error, or loss.  Trump's and Barr's views are wrong and dangerous, they embody a contempt for democratic processes and contempt for Congress.  But that is all I can agree with in Turlock.  The rest of his argument, which is by far the greater part, seems wrong and wrong-headed.

The details are not what I want to discuss.  I think he is wrong on what the evidence is and means, but the underlying approach is where he goes awry.  Turlock admits that at the time of the adoption of the impeachment provisions, there was no federal criminal statute, or even yet a federal common law of crime.  English law, which is the general source for the provision was largely common law.  Common law crime is not definitionally sharp.  There are cases, usually not using exactly the same definitions or interpretations.  If the impeachment provision of high crimes and misdemeanors is to be understood relative to criminal law, then, for Turlock, we look to the definitions in the current criminal code.  I don't think that makes sense.  The phrase has no special meaning in the US criminal code.  There is no section High Crimes or High Misdemeanors.  The understandings of that past eera are not precise and do not build on careful definitions.  For example, is there evidence of bribery in Trump's conduct?  Within the understanding of then or of now?  If we look to current federal criminal law, the answer is that it is close and there may not be -- that is what all the talk of quid pro quo is about.  The Supreme Court decided a few years ago that the federal crime requires a specific quid pro quo -- lavish gifts in return for favors is not really enough.  But it was for decades before that decision.  So, if Turlock wants us to care about the history of impeachment processes and cases, and the history of enactment of the provision, why does he want us to abandon the historical work when it comes to understanding what crimes and misdemeanors count?  

As to the 1half of the piopulation1 will be mad if the impeachment proceeds is inane.  No one will be mad if the impeachment process stops now? Or does that half not matter?  Was half the population upset about the proceedings against Nixon?  Well, up to the day he resigned it was pretty close to half who stood with him.

 

 

Hobbesian Laws of Nature

The Laws of Nature look like reasoning norms or rational guidance.  That is, if one considered the circumstances entirely or solely as a rational agent, then the Laws of Nature would be conclusions which guide action.  So maybe norms of practical reason.  But norms so far as they are the inevitable result of reasoning about the circumstances.  They cannot just be good advice or rules of thumb.  Those things are not what one would call laws.  Among other reasons, there is nothing wrong or condemnable in ignoring or not following or even transgressing advice or rules of thumb.  It is not immoral to ignore advice or not weigh it properly, at least absent some pretty special conditions.  The conduct might turn out poorly and in that sense one was wrong, but that is not the right sense of wrong.  It is like betting wrong, not like doing something wrong (immoral).  Whatever it is that may be wrong it is not that not adhering to the advice considered alone was wrong.  Really the only wrong is the outcome, whose status does not change depending on whether preceded by advice followed or not. 

The Laws of Nature also do not look like moral laws.  It may be unwise or imprudent to go contrary to one more of the Laws of Nature, but that would not make the conduct immoral. That might work if there is some kind of moral obligation to live well or to flourish, or more closely to the problem, a moral obligation to follow reason.  But that sort of obligation is obscure.  It cannot be that poor reasoners are by that immoral persons.  I fail statistics so I am evil or vicious? 

The Laws of Nature look much more to me to be rules of reasoning, and if moral laws then moral laws derivative from or based on demands of rationality.  It all looks, again, that poor reasoning is immoral, that failing to see what rationality requires is a moral failing as well as a defect of reasoning. That, I think, cannot be right.  Not being any good at understanding statistics is not a moral failing or a character defect.  Is there some line dividing forms of rationality or forms of reasoning so that some reasoning about circumstances is especially normative or somehow grounds or constitutes moral norms and others are not?

What would be wrong (!) in leaving the Laws of Nature as rules of reasoning about the human condition, or, as I prefer, circumstances? 
 

War of the Democracies

I recently read The Law of Peoples by Rawls.  I should have read it many years ago but I was busy.  In an aside in the book, Rawls mentions the idea from Kant perpetual peace and democracies, that is, democracies do not go to war against one another and engage only in defensive wars.  I recall the notion from Jeanne Kirkpatrick speeches while she was in the Reagan Administration (Ambassador to the UN I think).  I later learned it is a theme from Kant, so one would expect it in Rawls as well.  But I find it hard to parse.  What does democracy mean in this context, and what does war mean, and also what is a defensive war?  On an ordinary understanding of democracy, it does seem that democracies wage war against one another from time to time.  The US Civil War was between democratic states, democracy just means more or less open elections to a big part of the populace.  Maybe we exclude that because the polis was too small?  Then what portion has to be able to vote for the term to apply?  And skip forward in time.  Is war confined to large scale military operations?  How to keep out of the ledger the attacks by the US on democracies in Central and South America?  The coup in Iran?  Not wars because not enough soldiers involved?  Is that elections or referenda on war are needed?  What about colonies?  How does the retention of colonial lands and peoples fit in?  There are lots of questions, and they are not hard to develop. I understand European nations have not gone to war against one another recently (I suppose the destruction of Yugoslavia can be put to one side because it was not a democracy, but then some of the new states look enough like a democracy to count and they had no trouble warring against one another).

As an empirical claim, it looks in poor health.  But assume it for the moment.  What is it supposed to show?  Democratic peoples are peace-loving?  That people do not vote to go to war?  That sort of talk would be digging a grave.  Pro-war candidates win elections. 

Mr. Fix-It

There is an interview of Justice Gorsuch with the Wall Street Journal, a summary of which is available outside the paywall.  It is mostly one expects: bromides and bland statements that sound good but have no real content.  But that is to be expected.  Justice do not allow themselves (mostly) to talk honestly and frankly about their work or what theories they work with.  I do not quarrel with that diffidence, not today.  But Gorsuch goes on about originalism in constitutional law.  Like so many originalists on the bench, I wonder if he really means any of it.  The talk is always about the meaning being fixed at the time of adoption or ratification.  Like a creature caught in resin, and now available to us as an interesting piece of amber.  It is not, despite my tone, a question of good faith.  I don't see reason to think these folks are dissembling.  It is just that it is very hard to see how it is they get to their conclusions about basic features of the legal order they plainly do support -- equality of race and sex, for example.  Gorsuch says that Dredd Scott was awful because Taney did not find racial status in the Constitution.  The bar on citizenship for free Blacks was just not in the Constitution, and that is why Dredd is wrong.  It is valiant, and Gorsuch is far from alone in agile attempts to get Dredd Scott and Plessy and Brown onto the list of defensible orginalist decisions.  I do not see any of the efforts as getting close to success.  These attmept alwsy end up with some story of meaning in which those who adopted the Constitution (or some amendment to it) have little idea of what they are doing.  They don't understand the Constitution they adopted and whose meaning is fixed at that time by their adoption.  It looks like magic.  I am dubious that the meaning of a document at a time could be independent of the use of the language at the time, and use is application.  Concepts are not so bound I think, but the Constitution is not a concept.  It is not a list of concepts, or if it is, then originalism is pretty thin gruel, or more accurately, pretty dirty water.  I know it is a bit of recurring roundof complaints on the general topic -- the history if poorly done and too often wrong, there is no account of how the entire thing does not change when amended, there is no account of how it is one takes an oath to uphold something the person cannot understand by reading but has to have a special legal history (which is fake history), how it makes nonsense of the Constitution as political foundation, it is a sort of idolatry of law and lawyers, and on goes the list.  It is, in the end, for me, that if the Constitution is not living it really is a relic and the reliquary is in the courthouse.      

Idols of Economics

If one reads blogs or columns by economists, one finds that, over time, there is a kind of economic celebrity offered up for admiration, people whose words should be attended to with special care.  I don't mean paying attention to the ideas of Warren Buffet about investing, or attending to the words of the Federal Reserve Board about what they do.  I mean the attention paid to discussions by folks like Peter Thiel about social and political issues, or Andreesson or Elon Musk and so on.  Sometimes expressed, and sometimes not, is the idea that these people have special  insight in virtue of their accomplishments.  It is a bit odd for economists to take such a view.  What have they done?  Become quite rich, of course.  They have done other things, like go to college, sometimes an advanced degree, but nothing much that would lead one to think they have any particular insight into social or political matters.  It should be needless to say, but isn't, that they have the same right to engage with social and political topics in the ways they think appropriate.  That is beside my point.  My point, as I asked, is that special weight is given to their views, in particular by public economists because they are so wealthy.  Wealth stands in for, or rather is, qualification for expertise, for acuity. 

Consider this: raise with the economist the issue of just wages, or fair wages, or what wage is deserved.  The standard answer is that such a question has no answer because it makes no sense in the end.  There is no desert in an economy. no account of justice sets wages, there is no moral claim to a particular wage.  Wages are left to a market. the right wage is whatever it is that the participants end up with.  Value is not based on desert, is not based on merit.  In fact, one of the prized features of markets is that they do away with the questions of merit.  

If that is so, then the idolatry of people like Thiel is foolish.  Economists, i.e., Cowan and his colleagues, are being silly in paying special attention to the views of folks like Thiel, unless all that motivates is the thought that the very rich have large influence and it is wise to attend to the influential no matter what the views.  But that is not what is going on.  What is going on is that attention is paid on the view that Thiel et al. have more insight, are wiser, deserve more attention.  They merit the attention.  But that cannot be squared with the fact that markets are not based on and do not reflect merit.  

Common Property

I read the symposium on Shmuel Nili's "Public Property" along with the article itself.  The aim, as I understood it, was to offer an account of common ownership of public property by citizens of a polity.  The effort is not a revision of Lockean property rights.  It is not an effort to generate an account of common ownership of  property in a state of nature, or pre-political common ownership.  It is an effort to explain common ownership by a polity of its place.  It is not limited to ownership of real property, land, but is intended to include all sorts of things, like common ownership of assets of the state.The article and the commentary are interesting, but also left me wondering.  For example, why is there a need to explain common ownership by a polity -- which in this context comes to ownership by the government?  Is it an inclination among philosophers to generate structural explanatory and justificatory theories?  The theory here is directed at explaining why we talk of theft of public assets by government officials, public ownership of land, and so on.  In her precis and comments, Fried suggests that this is resolved, in effect, by looking at the constitutional structure involved, that there is no special deep political theory needed -- a view I agree with.  The theory is aimed at post-political arrangements, i.e., the allocation after formation and instantiation of a state (which is very far post-political in my view).  The analysis and argument mostly seems directed at the current world; nothing in the way of history shows up.  For example, the theory is aimed at explaining the talk of X stealing money from the people in transferring assets from government accounts to personal account.  Maybe there is such a need in some circumstances.  But when Roger II used tax funds for his own benefit, was he stealing from the public?  Is the idea that there is only common ownership when the polity is appropriately democratic or republican in form?  Maybe there is some built-in limitation to more or less just states -- a state without some more or less robust account of common ownership will not count as a reasonably just state?  That is certainly not the argument of the paper, and what is offered there could not fill that role. 

It is possible that the difficulty I am having comes from not seeing property rights as fundamentally individualistic while Nili and his interlocutors do.  In other words, there may be common property, there may be extensive private ownership, or maybe not.  Depends on the history.  Or, along the lines of Fried, it is in the constitution.  That attitude is supported by the agreement that the objects (so to speak) of the theory are the exiting national boundaries: common ownership of Canada for Canadian, of Ghana by Ghanians.  But then, it is Hobbes or Hume, not Locke, that matter.