Contrary to his usual flair for linguistico-historical constitutional originalism on the Scalia model, George Will seems to have taken a step towards coming to terms with the sorts of difficult and at times insoluble interpretative questions responsible readers of texts and traditions face. He writes
>Historians continue to deepen our understanding of how varied and occasionally contradictory were the intentions of the framers and ratifiers. History always informs constitutional deliberations; it rarely is dispositive.

No kidding. But appearances are deceiving. Near the end of a column agreeably rich in such descriptions of the shortcomings of the purely historical and originalist attempts to eliminate liberal discretion (i.e., legislating from the bench) from judging, Will writes,

>In Federalist 78, Alexander Hamilton said that courts have a duty “to declare all acts contrary to the manifest tenor of the Constitution void.” So one of the Constitution’s most distinguished framers thought judges’ discretion must extend to measuring governmental acts against their sense of the document’s “manifest tenor.” The inexpugnable role of judicial discretion demands of judges the virtue Wilkinson calls “modesty.” That is a modest man’s synonym for judiciousness.

And how does one determine which acts are contrary to the “manifest tenor”? Well, judicial discretion demands modesty, which is another word for “judiciousness”. Judicial discretion then demands judiciousness. But what, we are left to wonder, does “judiciousness” demand? My guess is modesty.

Hermeneutics for a Columnist

Krauthammer tries his hand at O’Connor bashing today in “Philosophy for a Judge” (Source: WaPo 5/9/05). O’Connor’s fault is that she lacks a “judicial philosophy:”

>stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social “systems” that either worked or did not.

But, as Krauthammer reminds us, judging social policy is a matter for the legislature and not the courts: The court is only to decide whether the laws that the legislatures passes comform to the constitution. Instead, O’Connor entered into the “empirical world” and sullied the purity of constitutional interpretation with facts.

>That is what made O’Connor so unpredictable. Sure, she was headed for what she judged to be socially a stable settlement. But you could never know what empirical judgments she would make to get there. Would she decide that the long-term stability introduced by returning abortion to the elected branches of government would outweigh the short-term instability it would produce? You could not be sure. What you could be sure of was that she would come up with some ad hoc constitutional principle to justify her empirical judgment.

Continue reading Hermeneutics for a Columnist

Don’t know much about science

One of the worst arguments for the existence of God–consistently and solidly refuted since before the birth of Christ–is the argument from design. The occasion for mentioning this today is yet another intelligent design proponent op-ed contributor to the New York Times, Christoph Schönborn, the Roman Catholic cardinal archbishop of Vienna, and lead editor of the official 1992 Catechism of the Catholic Church. Impressive credentials, for a clergyman.

Like others before him in the intelligent design camp, Cardinal Schönborn confuses science with theology:

Evolution in the sense of common ancestry might be true, but evolution in the neo-Darwinian sense – an unguided, unplanned process of random variation and natural selection – is not. Any system of thought that denies or seeks to explain away the overwhelming evidence for design in biology is ideology, not science.

If the Cardinal’s objection is that scientists sometime confuse philosophy with science–claiming that there evidence shows things that it doesn’t–then we join him; such scientists would be guilty of the very same thing the Cardinal is. For evolution shows nothing either way about the theological design hypothesis. Just as no serious scientist can affirm that evolution demonstrates the existence of God; no serious scientist can claim that it does not.

The devastating problems with the design argument lie elsewhere:

Naturally, the authoritative Catechism of the Catholic Church agrees: “Human intelligence is surely already capable of finding a response to the question of origins. The existence of God the Creator can be known with certainty through his works, by the light of human reason.” It adds: “We believe that God created the world according to his wisdom. It is not the product of any necessity whatever, nor of blind fate or chance.”

This raises two questions. First, if it is the case that the real aim of biology is to learn the design of the intelligent creator, then biology is either a version of art criticism or psychology. Second, how could we presume to understand the wisdom of the creator through his works, when discerning the wisdom of our fellow humans through their works remains an almost insurmountably difficult task. Wherein, for instance, lies the wisdom of the framers of the constitution?

. . . about History

Some time ago we let a George Will piece on the magisterium of History (over philosophy) go by without comment. We were lazy and we regret it. For certainly our decisive critical analysis would have changed the future. But there is still time. We reserve the right to write about any op-ed at any time. In that sense perhaps we too are historians.

And so as historians, we were appalled to read

What is history? The study of it — and the making of it, meaning politics — changed for the worse when, in the 19th century, history became History. When, that is, history stopped being the record of fascinating contingencies — political, intellectual, social, economic — that produced the present. History became instead a realm of necessity. The idea that History is a proper noun, denoting an autonomous process unfolding a predetermined future in accordance with laws mankind cannot amend, is called historicism. That doctrine discounts human agency, reducing even large historical figures to playthings of vast impersonal forces. McCullough knows better.

Nevermind that the making of history is more than politics (in our view there’s a little geology [e.g., tsunami] and biology [e.g., black death] and probably more). Instead, imagine for a moment the position described by Will as “Historicism.” Such a view turns history into “Historywithacapital’H'”; discounts human agency; it’s deterministic; large historical figures are subject to forces stronger than them: Who would hold such a moronic view of history?

Probably nobody. This is has to be the view of Will’s imaginary academic friend Karl–he has more imaginary friends–liberals (Ted), non-strict constructionists (Ruth), and so forth. They stick around to provide him with silly and shallow arguments. And when they’re not actually imaginary, he makes them so by lampooning their arguments. But like all things imaginary, others can’t see them as clearly as you do.

Take for instance this historicism crap. What would show that historicism is a load of bunk? Why a ripping good yarn of course:

Using narrative history to refute historicism, McCullough’s two themes in “1776” are that things could have turned out very differently and that individuals of character can change the destinies of nations. There is a thirst for both themes in this country, which is in a less-than-festive frame of mind on this birthday. It is, therefore, serendipitous that “1776,” with 1.35 million copies already in print, sits atop the New York Times best-seller list on Independence Day.

So a really good narrative–like those so often narrated by McCullough himself on PBS (which, by the way, according to Will is so very unnecessary) shows that great men can change destinies (who believes in destinies?) and things could have turned out otherwise (gee, you mean history is not a deductive science?). But a narrative doesn’t show this–it can’t. And in this case it probably doesn’t even try. Mr.McCullough has done the study of the Past too great a service–both in his writing and his work on Public Television–to receive this kind of praise from George Will.