Monthly Archives: November 2007

Equivocation, Ignoratio Elenchi, Kathleen Parker, Straw Man

I fought the law

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Kathleen Parker, a deeply empathetic person, puts herself in the shoes of the typical illegal immigrant:

>As long as we offer jobs, medical treatment, driver’s licenses and in-state tuition to those who come here illegally, why would any right-thinking, would-be immigrant take a number and wait his or her turn? Why not just throw in the Dallas Cowboys cheerleaders and free tequila while we’re at it?

Indeed, the life of the typical illegal immigrant is full of all sorts of freebies; indeed, the only thing missing is the fulfillment of some kind of alcohol-fueled male adolescent sexual fantasy.

It gets worse:

>Arguments favoring services and privileges for illegal immigrants always point to the broader benefits to society.

God forbid.

>Healthy immigrants mean a healthier America; an educated populace means fewer jobless dependents; legal drivers are more responsible because, allegedly, they’ll also buy insurance and stick around when they have an accident.

>The latter seems unconvincing given that illegal immigrants, by definition, tend not to think legally.

A bachelor, by definition, is an unmarried man. An illegal immigrant, by definition, is someone who does not have legal status; but this actually doesn’t mean that this illegal immigrant has broken the law. The law might have been broken–as it is in numerous cases–when they were children. Besides, it’s not the case that anyone who breaks the law, in any regard, “tends to think illegally.” I’d be interested to find out what the thinking illegally tendency is.

She continues:

>In any case, by the same logic, we might also say that amnesty is good for the country because then everyone would be legal. Rather than fix something, we simply accommodate circumstances. As in: Kids are having sex anyway, so we’ll just give them condoms.

Parker suggests that the response to every problem is the same: stop it. While that might be desirable, as any sociologist could tell you, it’s not going to happen. Denying the reality and complexity of illegal immigration will not achieve much, however much you assert that illegal is as illegal does.

Anne Applebaum, Hasty Generalization

To the Catwalks!

Anne Applebaum has got Hollywood’s number:

>In fact, for the malcontents of Hollywood, academia and the catwalks, Chávez is an ideal ally. Just as the sympathetic foreigners whom Lenin called “useful idiots” once supported Russia abroad, their modern equivalents provide the Venezuelan president with legitimacy, attention and good photographs. He, in turn, helps them overcome the frustration Reed once felt — the frustration of living in an annoyingly unrevolutionary country where people have to change things by law. For all of his brilliance, Reed could not bring socialism to America. For all of his wealth, fame, media access and Hollywood power, Penn cannot oust George W. Bush. But by showing up in the company of Chávez, he can at least get a lot more attention for his opinions.

Take that Sean Penn and Naomi Campbell–the only malcontents of Hollywood and the catwalks (first time I’ve heard that as well) Applebaum bothers to mention.

Stanley Fish, Straw Man

Never knew you cared

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Stanley Fish reads two books on religion–one for, one against–and comes to a stirring, there-are-good-arguments-on-both-sides conclusion:

>Perhaps an individual reader of either will have his or her mind changed, but their chief value is that together they testify to the continuing vitality and significance of their shared subject. Both are serious inquiries into matters that have been discussed and debated by sincere and learned persons for many centuries. The project is an old one, but these authors pursue it with an energy and goodwill that invite further conversation with sympathetic and unsympathetic readers alike.

>In short, these books neither trivialize their subject nor demonize those who have a different view of it, which is more than can be said for the efforts of those fashionable atheist writers whose major form of argument would seem to be ridicule.

The chief value of these books on religion is that they are books on religion.

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?