Tuesday, October 9, 2012

I Rant, Too, But I Don't Get Royalties

There's a terrific short story by Lionel Trilling called "Of this Time, Of That Place."  It's about a young English professor (Howe) who, at one point, is speaking with a student (Blackburn) to whom he's given a richly deserved F on an examination.  They begin with a review on his comments about Coleridge's Rime of the Ancient Mariner.
Blackburn's eyebrows went up. From the height of a great and firm-based idea he looked at his teacher. He clasped the crags for a moment and then pounced, craftily, suavely. "Do you mean, Doctor Howe, that there aren't two opinions possible?"
It was superbly done in its air of putting all of Howe's intellectual life in the balance. Howe remained patient and simple. "Yes, many opinion are possible, but not this one. Whatever anyone believes of The Ancient Mariner, no one can in reason believe that it represents a -- a honey-sweet world in which we can relax."
"But that is what I feel, sir."
Kahlil Gibran, that misty and vacuous prose-poet whose works seem profound to generations of 15-year-olds pining for kumbaya-truths (love, peace, harmony) that ease the pain of actually confronting the complexities of the world, wrote in Sand and Foam
We shall never understand one another until we reduce the language to seven words.
Which, if you think about it, is pretty stupid.

I mean, it sounds good.  Simplify. Clarify. Let's all get on the same page.

The problem isn't agreeing about which words.  Pick any seven you like.

Either we couldn't say anything at all because there's no vocabulary for it - which wouldn't increase understanding a bit. Or we could say anything we'd like but nobody could understand it because each of us would be our own Humpty Dumpty.*those words would have so many possible connotations it would be impossible to do more than guess wildly at meaning.

When I was in law school, I had a professor whose response to every question from a student was to fling both hands up in the air in a gesture of uncertainty and say,
How the hell should I know?
Drove most of the class crazy, but of course, he was right. The correct answer to every legal question is, as I've said before,
It depends.
Unless, of course, you're a true believer. Perhaps Blackburn, say, who finds in Wordsworth
a rebel, a bringer of light to suffering mankind. I see him as a kind of Prothemeus [sic].
Or Gibran or Humpty Dumpty.

So you should immediately be suspicious when Nino (that's Associate Justice of the United States Supreme Court Antonin Scalia) carries on.
U.S. Supreme Court Justice Antonin “Nino” Scalia says it is “easy” to rule on cases involving the death penalty and legalization of abortion, issues which have been cause for soul-searching among other judges at all levels of the court system.
Scalia was recently discoursing before an American Enterprise Institute audience on being a self-described “textualist” who believes the U.S. Constitution should be interpreted exactly as written and intended by the Founders more than 200 years ago.
“The death penalty?  It’s easy.  Give me a break.  It’s easy.  Abortion? Absolutely easy,” Scalia told the AEI faithful.
Scalia, of course, has a putative framework for discovering the simplicity in those issues.  It's his version of originalism. He's referred to it, on occasion, as "faint-hearted."
Scalia, after all, has acknowledged more than once that if originalism leads to a result that offends too deeply, he'll blow it off.  And he admits that he believes in stare decisis (except when he doesn't) so that he'll vote against his originalist views if the alternative has been the law for a long time and he doesn't find it particularly offensive even if it is unconstitutional which he's really really serious about except when he isn't.

I've written about these things before, of course.  Most recently, I did it here. A couple of weeks before that, I wrote this about Scalia.
In other words (and again, Scalia admits this from time to time, though in language less stinging and admitting of less hypocrisy than what I'm about to write), his approach is to rigorously adhere to the original text and meaning of a constitutional provision or statute so that his personal and political preferences will have no effect on his decision.  Except that when his personal and political preferences conflict strongly with his understanding of the original text and meaning, he goes with preferences.
To do otherwise, actually to judge with integrity, he has not quite said, is to be Clarence Thomas.  And unlike Thomas (and this he has said), he's not nuts.
By those standards, Adam Freedman is nuts.
Freedman is the author of a new screed, The Naked Constitution: What the Founders Said and Why It Still MattersThe distributor offered me a copy to review and I foolishly accepted because I'm a sucker for this sort of thing.  But frankly a book that just preaches to its choir, when the memboers of that choir aren't likely my readers, well . . . .

Anyway, here's the thing.  Freedman says what Scalia and all the originalists and textualists, and ballsandstrikesists and justapplythefuckinglawists all say.  The Constitution means only one thing.  What it meant before or what the words mean or what the authors of the Federalist Papers said it means (except when they disagree) or what Ronald Reagan said it means except that we have to rewrite what he said because he was a secret closet radical socialist which we absolutely deny by refusing actually to consider what he said and did but only what his iconography looks like or what your uncle Jake thinks it meant or your local Kleagle or . . . .

And that thing, what they all think it means, is some single, readily identifiable thing.  It's absolutely unambiguous.

The Constitution says that the federal government can do A, B, C, and D.  It can't do anything else because it can't do anything that isn't explicitly authorized.  Or it can do whole shitloads of stuff because it can do anything that isn't explicitly prohibited.  And the people have exactly the rights identified in the Constitution and Bill of Rights and no others.  Except for all those rights which they have regardless of what the Constitution and the Bill of Rights says because the Ninth Amendment says so.  But because it doesn't identify them, they don't exist unless someone identifies them.  And that someone must be the Supreme Court or it cannot be the Supreme Court, depending on just what you believe.

Freedman's version is the cramped one.  The one favored by Scalia (except when he abandons it or blows it off).  The one that says the federal government has those powers specifically given to it by the Constitution.  That those powers are to be read very narrowly, so that if it's possible to understand the Constitution as not having specifically authorized something, you should understand it that way.
The Bill of Rights is absolute, but only prohibits the things it specifically prohibits.  People understood that they had lots more rights, which is why they insisted on the Ninth Amendment, which guarantees all of them.  But since the Ninth doesn't enumerate those rights, they don't exist unless some state chooses to offer them. (I'm only being a little unfair.)
Consider, for instance, the Free Exercise Clause of the First Amendment. It's the second part of the amendment's opening clause.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
Congress can't stop you from practicing your religion, even if it involves something we don't approve of, like taking peyote, say, or engaging in plural marriage.  Except the Supremes said that it can.  First they said that Congress can interfere away as long as it had a compelling reason.  Then they said it can as long as the reason wasn't to single out the religious practice.  The latter was the holding in the peyote case (Employment Division v. Smith).  See, Freedman says, these things are just wrong.  Because "no law" means "no law."  Cannot do it.  No way, no how.  Absolute prohibition.
Had the Smith Court consulted original meaning - as Justice Scalia normally does - it could never have invented a neutrality exemption for infringements of free exercise. Granted,there must be some limits to religious ritual - human sacrifice is probably out of bounds - but the Founders had a strong bias against government-imposed limits.
There are several things to say here.  First, Freedman is right about a claim he almost but doesn't quite make: Smith was wrongly decided.  The neutrality principle is nonsense since it allows Congress to basically prohibit any religious practice as long as it doesn't claim to be doing that.
Second, Freedman wants to have it both ways.  The prohibition on interfering with free exercise is absolute, except that it's OK to interfere with free exercise if the religious exercise is sufficiently problematic because, well, gee, if it's really absolute then people can do anything if their religion tells them to. 
Third, it's not at all clear that the original understanding of the text of the First Amendment (which is what Freedman says you have to look at) would support the view that Congress couldn't prohibit a Native American religious ceremony that included the taking of prohibited anything.  Why?  Because while the original understanding was that Congress couldn't interfere with the exercise of any Christian religion, there was no such understanding about non-Christian ones.  Certainly not about Pagan ones.
The point isn't that Freedman's being hypocritical.  (Though he often is.)  It's not even that his historic understanding is built on finding someone who agrees with the result he wants and quoting and relying.  (Though his history is too often built on the approach too often seen in second-rate high school debate teams. "I have a quotation from an expert, so I've proved it."  You know, there's always an expert. And a quote.)
The problem is that parsing doesn't work the simple-minded way that Freedman insists it does.  Yes, the original understanding of the Free Exercise Clause was that the feds couldn't interfere with the free exercise of religion.  But no, the original understanding of the Free Exercise Clause wasn't that the feds couldn't interfere with the free exercise of religions other than Christian ones.  Maybe.  Maybe not.
But which question are you going to ask?
It's true that the Constitution doesn't explicitly protect privacy, or the right of married couples to use contraception. But why should the Ninth Amendment's guarantee of other rights not include any unless some state decides to adopt it.  Sure, Justice Douglas's airy pronouncement about the "penumbras" of the Bill of Rights was silly.  But it was also exactly right.  When you look at the First, Third, and Fourth Amendments, it's clear that there's an area of private thought and action and place and property that government's supposed to respect.  If you understand the Bill of Rights to protect as little as possible, you probably don't care.  If you understand it to protect as much as is plausible, then there is in fact a zone of privacy and then the question isn't whether some state chooses to declare something within that zone but whether there's a compelling reason for keeping it out.
As I said when last I wrote about originalism,
[E]very exercise in interpretation is an exercise in making it up.
That's as true when interpretation is described as discovery of some sort of originalism as it is when interpretation is free wheeling.  Depending on how you ask the question, and exactly what question you ask, you get the answer you want.
Freedman, like Scalia (and Thomas and Robert Bork and, yes, Earl Warren and Thurgood Marshall and, to tell the truth, John Marshall) asks questions and pursue answers that mostly lead him to answers he likes.  That's generally how it works.  It's not hypocrisy.  But it's delusional to believe that they get there by altogether neutral application of altogether neutral principles and analyses.
There's another point, too. That second part of the subtitle
and Why It Still Matters
Here's why, according to Freedman (and no, he doesn't actually say this, but it's implicit): The interpretation of the constitution Freedman favors, he believes not only to be truer to the vision of the founders than the interpretation he sees liberals favoring (and my god, he has this incredibly expansive view of what "liberals" believe and insists that all liberals buy into all of it).  He also thinks it's better.
Here's the bottom line.  There's a lot to be said against free-floating interpretations of the Constitution.  Rigid insistence that there's a single, proper, originalist interpretation that any determined fool can (and does, by the way) discover isn't it.  There's nothing thoughtful or nuanced or careful about Freedman's book.  It's a rant.  Set up straw man.  Knock straw man down. Declare victory over straw man who's declared to be a liberal who favors socialism and thinks everyone should have abortions.  At government expense.  All the time.
Of course, if you agree with him to begin with, it'll sound very reasonable and logical.
It isn't.

* From, of course, Through the Looking Glass.
`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'

1 comment:

  1. I don't know why anyone tries to figure out Scalia when he has acknowledged on so many occasions that his mind is boggled.

    It's easy to see.