Category Archives: Op-Eds and other opinions

Academics, Begging the Question, General discussion

The original

Many people invoke the “plain text” (or some close variant) of the constitution in order to resolve questions about its meaning. Those people, insofar as they insist on that principle, are originalists. For a more edifying discussion of that topic than one can find here, see Brian Leiter’s law blog. Here’s an excerpt of his argument:

>. . . [O]nce we acknowledge (as Barnett rightly does) that a theory of constitutional interpretation must answer to a theory of constitutional legitimacy, then the constitution (as a written document, or as a document about which framers had some original intention, or as a document which had an original “public” meaning, and so on) drops almost entirely out of the picture: the theory of constitutional legitimacy tells judges how they should decide cases, and the written constitution is, at best, a proxy for what is constitutionally legitimate or is relevant because of its effect on the reasonable expectations of citizens (the latter being a factor bearing on constitutional legitimacy). In other words, Barnett’s theory of constitutional interpretation, because it (unlike most theories–Ackerman’s, Amar’s, etc.) has the correct moral structure is not really a defense of originalism, but a defense of whatever method of interpretation produces “legitimate” (i.e., morally authoritative) outcomes. The writtenness of the constitution, and its original meaing, might, indeed, figure at this point, but only in the way that Raz (who, in an odd way, echoes Posner) suggests: namely, because some moral value (some moral value that bears on authority) attaches to the fact that some understanding of the constitution (original or otherwise) has been stable, relied upon, figures in the public understanding of the society in which people plan their lives, etc.

Aside from the fact that nothing about the Constitution says it should be interpreted one way rather than another, once one adopts an interpretative theory, as Leiter suggests, one has left the text behind. All of this makes the following response mystifying:

>Notice that, while “justice” is the ultimate normative justification for originalism, the intermediate steps are crucial. If a written constitution is valuable for the reasons identified–to define and police the principal-agent relationship–then one cannot simply dispense with it in pursuit of greater justice. More precisely, agent-judges cannot on their own authorize agent-legislatures to exceed their proper powers as defined by the written Constitution in pursuit of greater “justice” than that document provides.

“Simply dispense” and “on their own” beg the question against Leiter, at least it seems so to me. The argument concerns how one ought to read the Constitution, part of that argument involves denying “an original” meaning in isolation from a more basic legal theory. Asserting that one ought to read the Constitution literally just ignores that point.

It turns out that point was made here by Larry Solum:

>Once we have the distinction between semantic and normative originalism in place, it is easy to see that semantic claims are at the heart of the New Originalism or original-meaning originalism. If the semantic claim were false, and the conventional semantic meaning of the text in context at the time of framing and ratification were not the “meaning” of the constitution, then it would be difficult for New Originalists to argue that there are good normative reasons to give this meaning authority. The difficulty is obvious: why should we have a normative commitment to something the Constitution doesn’t mean? If the original meaning is not the actual semantic content of the constitution, but is instead a construction or invention of originalist judges, then many of the normative arguments produced by originalists could be turned against originalism itself.

Good Arguments, Paul Krugman

Character

Paul Krugman asks an important question:

>But here’s what I don’t understand: Why isn’t Mr. Giuliani’s behavior here considered not just a case of bad policy analysis but a character issue?

What’s Giuliani’s behavior? Constructing fallacious arguments against health care reform.

George Will, Straw Man

School rites

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George Will, sometime libertarian, writes:

>In today’s political taxonomy, “progressives” are rebranded liberals dodging the damage they did to their old label. Perhaps their most injurious idea — injurious to themselves and public schools — was the forced busing of (mostly other people’s) children to engineer “racial balance” in public schools. Soon, liberals will need a third label if people notice what “progressives” are up to in Utah.

>There, teachers unions, whose idea of progress is preservation of the status quo, are waging an expensive and meretricious campaign to overturn the right of parents to choose among competing schools, public and private, for the best education for their children.

The “campaign” they’re waging involves a referendum on a school choice law. People can vote for it and people can vote against it. But people can choose private schools right now if they can afford them. But more basically, “meretricious” is not a term Will, what with his perpetual dishonesty about anyone’s view but his own, ought to be using. Of him, one might say:

>Intellectually bankrupt but flush with cash. . .

But that was his line (later in the piece). The idea that there is a right to choose among competing schools (some of them–nay the majority of them–religious) using public money is an astounding one–especially for a simple-minded constitutional minimalist, such as Will is (when it comes to the limiting rights of other people). Indeed, allowing parents to take public tax money to private schools, one might reasonably argue, greatly expands the reach of the government into the private sector: private schools, what with their “competitive” edge, are now public schools. Do they need federal money to compete?

Begging the Question, Michael Gerson

Principle limitation

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This claim strikes me as a fairly disingenuous interpretation of “Catholic Social Thought”:

>The difference between these visions is considerable. Various forms of libertarianism and anti-government conservatism share a belief that justice is defined by the imposition of impartial rules — free markets and the rule of law. If everyone is treated fairly and equally, the state has done its job. But Catholic social thought takes a large step beyond that view. While it affirms the principle of limited government — asserting the existence of a world of families, congregations and community institutions where government should rarely tread — it also asserts that the justice of society is measured by its treatment of the helpless and poor. And this creates a positive obligation to order society in a way that protects and benefits the powerless and suffering.

It will all depend, of course, on what one means by “limited” or even perhaps, “principle.” Both liberals and conservatives want “limited” government “in principle”. Pointing out that principle in defense of this or that merely demonstrates the degree to which one fails to understand that reference to ambiguous principles resolves nothing.

Ad Hominem Abusive, False Dichotomy, Sebastian Mallaby, Straw Man

As if it were yesterday

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Sometimes it seems like so long ago that we marched off to war in Iraq. For some, that distance has blurred their memory of events. Writing the "grown-ups" or, as it has become known in the blogosphere, the "very serious persons," foreign policy piece, Sebastian Mallaby, professional contrarian, illustrates that very smart looking people can make some really silly arguments:

Clinton's rivals are contemplating history and deriving only a narrow lesson about Bush: Don't trust him when he confronts a Muslim country. But the larger, more durable lesson from Iraq is that wars can be caused by a lack of confrontation. The Iraq invasion happened partly because the world had lost the stomach to confront Saddam Hussein by other means. By 2002, the sanctions on Hussein's regime had been diluted, and there was pressure to weaken them further. Hussein was no longer "in his box," to use the language of the time: If you believed that a resurgent Saddam Hussein presented an intolerable threat, it was worth taking the risk of unseating him by force, sooner rather than later.

Alone among the Democratic candidates, Clinton has the honesty to insist that the case for war was reasonable at the time — even if, with the benefit of hindsight, the invasion has proved disastrous. In sticking to that politically difficult position, Clinton is saying that, despite its awful risks, war can sometimes be the least bad choice. She is not running away from military power, even in a political climate that makes running attractive.

That's not how I remember it. Nonetheless, more annoying that Mallaby's ignorant contextualizing of history ("at the time") is his pointless hypothetical ("If. . . "). The point of history is not to relive it, but to learn from it: one can learn from history because we know what happened. And you can't forget that all of the things said by Bush, et alia, about a resurgent Saddam were false–false in the sense of not being true.

If you believed that they were true, indeed, then you believed that Saddam posed a threat. But you had a false belief. And more than that. Bush's false belief about Saddam was rather less justified than Joe Citizen's: Bush and his war making party had access to facts that made the case for war against Saddam even less justified than it otherwise appeared. Mallaby writes all of this on the manifestly silly premise that any opposition to Bush's policies–foreign or domestic–can only be explained by the silly ad hominem of Bush derangement syndrome.

I suppose it's "deranged" and "immature" to have been right.

Bad Explanations, David Brooks

Dawn of time

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David Brooks writes a piece entitled: “The Outsourced Brain.” Finally, one might think, a confession.

Nope.

Instead:

>Since the dawn of humanity, people have had to worry about how to get from here to there. Precious brainpower has been used storing directions, and memorizing turns. I myself have been trapped at dinner parties at which conversation was devoted exclusively to the topic of commuter routes.

Later:

>Now, you may wonder if in the process of outsourcing my thinking I am losing my individuality. Not so. My preferences are more narrow and individualistic than ever. It’s merely my autonomy that I’m losing.

Right. “Losing.”

For the rest of us, the availability of information seems to suggest that we are responsible for knowing more, not less–with great knowledge, after all, comes great responsibility.

Accident, George Will, Straw Man

Big boss man

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Commenters on the Washingtonpost.com website make all of the good points about George Will’s latest failure to understand that general rules of human behavior have obvious limitations while the imagination of those who would like to cheat does not.

>Restrictions on freedoms, and especially freedoms as fundamental as those of the First Amendment, require serious justifications. So the question is: To what pressing problem did the university’s $100 limit respond? Or is it merely another manifestation of the regnant liberalism common on most campuses — the itch to boss people around?

The reason for this? Some kid broke the universities rules regarding spending for a school election. Are the rules fair? Maybe not. But that’s got nothing to do with the McCain-Feingold campaign law:

>Thus do the grossly anti-constitutional premises of McCain-Feingold seep through society, poisoning the practice of democracy at all levels

Nor is “you’re not the boss of me” the proper response to rules you don’t agree with.

Michael Gerson, Things that are false

Blind them with values

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Michael Gerson, former Presidential wordsmith, delights readers of the Washington Post’s editorial page twice a week. Why the Post or anyone would hire a former administration official (of the current administration) to hold forth on its op-ed page is an ever deepening mystery, especially since, though a speech writer, or perhaps propter hoc, Gerson so frequently doesn’t rise above the intellectual level of Jonah Goldberg-style “liberals are fascists” name calling. Today Gerson writes:

>This creates an inevitable tension within liberalism. The left in America positions itself as both the defender of egalitarianism and of unrestricted science. In the last presidential election, Sen. John Kerry pledged to “tear down every wall” that inhibited medical research. But what happens when certain scientific views lead to an erosion of the ideal of equality? Yuval Levin of the Ethics and Public Policy Center, a rising academic analyst of these trends, argues: “Watson is anti-egalitarian in the extreme. Science looks at human beings in their animal aspects. As animals, we are not always equal. It is precisely in the ways we are not simply animals that we are equal. So science, left to itself, poses a serious challenge to egalitarianism.”

The tension between the factual or factual-type assertions of scientists and the values of fraternity, sorority, liberty and equality follow from the very nature of the two different enterprises, as any twelve-year old knows. Anyone who has ever noticed the difference between an “is” and an “ought” knows that this is the case. It’s not peculiar to “liberalism,” unless (and perhaps this is the case), Gerson’s conservatism is ludditism.

Stanley Fish, Unclassifiable

. . . like the pilot of a ship

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Another puzzling piece from the nearly always puzzling Stanley Fish. He takes the usual line that “everyone advocates a point of view,” so everyone is a partisan, but then fails to understand the difference between principle and strategy. He writes:

>But the report gets off to a bad start when its authors allow the charge by conservative critics that left-wing instructors indoctrinate rather than teach to dictate their strategy. By taking it as their task to respond to what they consider a partisan attack, they set themselves up to perform as partisans in return, and that is exactly what they end up doing.

He then goes on to criticize the strategy of the American Association of University Professors. They set themselves up as “partisans” in the minds of those who can’t read very well. A few paragraphs later, Fish writes:

>My point is made for me by the subcommittee when it proposes a hypothetical as a counterexample to the stricture laid down by the Students for Academic Freedom: “Might not a teacher of nineteenth-century American literature, taking up ‘Moby Dick,’ a subject having nothing to do with the presidency, ask the class to consider whether any parallel between President George W. Bush and Captain Ahab could be pursued for insight into Melville’s novel?”

>But with what motive would the teacher initiate such a discussion? If you look at commentaries on “Moby Dick,” you will find Ahab characterized as inflexible, monomaniacal, demonic, rigid, obsessed and dictatorial. What you don’t find are words like generous, kind, caring, cosmopolitan, tolerant, far-seeing and wise. Thus the invitation to consider parallels between Ahab and Bush is really an invitation to introduce into the classroom (and by the back door) the negative views of George Bush held by many academics.

>If the intention were, as claimed, to produce insight into Melville’s character, there are plenty of candidates in literature for possible parallels – Milton’s Satan, Marlowe’s Faust, Byron’s Cain, Bram Stoker’s Dracula, Shakespeare’s Iago, Jack London’s Wolf Larsen, to name a few. Nor would it have been any better if an instructor had invited students to find parallels between George Bush and Aeneas, or Henry the Fifth, or Atticus Finch, for then the effect would have been to politicize teaching from the other (pro-Bush) direction.

>By offering this example, the report’s authors validate the very accusation they are trying to fend off, the accusation that the academy’s leftward tilt spills over into the classroom. No longer writing for the American Association of University Professors, the subcommittee is instead writing for the American Association of University Professors Who Hate George Bush (admittedly a large group). Why do its members not see that? Because once again they reason from an abstract theoretical formulation to a conclusion about what instructors can properly do.

Bush is the President. The president is kind of a like a captain of a ship, insofar as he is a leader of people. Leaders of people can lead well or badly. Is Bush like the one who leads badly, or not.

The more obviously silly point of Fish’s argument is that he seems to think literature can only refer to other literature. So, if it’s parallels you’re looking for, don’t look at real people. Literature has nothing to say about that. Besides, easily offended Bush lovers might be offended.

David Broder, Ignoratio Elenchi

Armed with information

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A PBS show about a successful but financially strained state run health care program for the poor in Tennessee featured someone–a state representative dead set against the program–who said: not all problems can be solved with money. Fair enough. But all money problems can be solved with money, and that was a money problem. David Broder isn’t far away from that when he writes:

>What I learned about Leavitt in his years as governor is that he is blessed with vision that sees future policy challenges and developments more clearly than most politicians. In this case, he is visualizing a radically different kind of medical marketplace, in which families armed with specific information about the treatment success and prices of hospitals and doctors can shop at will for the best quality and most affordable care.

There’s no shortage of information about health care success. Here’s one that even I know: seeing a doctor for basic health care needs increases one’s healthness quotient. The primary shortage, as anyone can tell you, is access to affordable health care for millions of employed as well as unemployed people.