Rebirth of Reason

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Sunday, May 22, 2016 - 9:05amSanction this postReply



About that List

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Sunday, May 22, 2016 - 11:54amSanction this postReply



I'd heard Trump's selection process contained a "Pro-life" litmus test.  And given that many of names came from the Heritage Foundation I wouldn't expect anything else.


That's the problem with this business of attaching a political ideology to the Supreme Court justices: Conservative or Liberal.  What is needed is Originalist, not a conservative.  They should apply the text of the constitution as it was understood by those who wrote and ratified it, and not attempt to use it to suit some ideology. 


My suspicion is that Trump decided that the best way to win over conservatives was to quell their fear of who he would nominate and at the same time play upon the justified fears of who Hillary would appoint.  And therefore his motivation was to make a list of the potential justices that would have the strongest appeal to the audience they were intended for.  Based upon that he chose people who would appeal to the GOP in general, traditional conservatives, Originalists and the religious right.


But I don't think anything about the list is the big problem.  I think the biggest problem is that if he is elected, he still might decide to nominate his sister, or some buddy of his, or someone with progressive leanings.  We have no idea what he'll actually do.  All we know is that he treats life as a pragmatic process of deal-making.  That list is an offer to make a deal, "Join me, support me, and I'll nominate from this list."  But what isn't made public with the offer is something like this: "All offers, or terms and conditions, where not made in writing may be treated as null and void as of the time the deal is consumated."

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Sunday, May 22, 2016 - 2:05pmSanction this postReply


Steve, your characterization of Trump looks right to me. Concerning the various sorts of originalism and its competitors, if you haven't read it already, I imagine you would find the analysis and estimation by Tara Smith helpful in this paper. Further, Smith's 2015 Judicial Review in an Objective Legal System.*


From the publisher of the book:

How should courts interpret the law? While all agree that courts must be objective, people differ sharply over what this demands in practice: fidelity to the text? To the will of the people? To certain moral ideals? In Judicial Review in an Objective Legal System, Tara Smith breaks through the false dichotomies inherent in dominant theories - various forms of Originalism, Living Constitutionalism, and Minimalism - to present a new approach to judicial review. She contends that we cannot assess judicial review in isolation from the larger enterprise of which it is a part. By providing careful clarification of both the function of the legal system as well as of objectivity itself, she produces a compelling, firmly grounded account of genuinely objective judicial review. Smith's innovative approach marks a welcome advance for anyone interested in legal objectivity and individual rights. 
Also from Cambridge, at a general level and in the league with the classics by Hart (The Concept of Law) and Fuller (The Morality of Law): Matthew Kramer's Objectivity and the Rule of Law (2007).*

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Sunday, May 22, 2016 - 7:10pmSanction this postReply


Thanks for the excellent link (Tara Smith's paper).  It is going to take me a while to work through it.  (And I wishlisted her book for later).


Right now my thoughts are fairly broad and simple:


1. There are interpretations, or styles of interpretation that are deceptive.  They are attempts to impliment aspects of progressive or religious right dogma while pretending otherwise.  Those approaches have to be exposed for what they are and shunned so that honest people can work on the remaining problems of interpretation.


2. There was moral/philosophical purpose behind the constitution.  And nearly every clause in the constitution relates to a struggle to protect some freedom.  When the text leaves honest questioners in doubt, the intentions of the founders and ratifiers relative to the broader struggle to protect freedoms should be given interpretive weight.


3. There is a epistemological difference between an attempt to objectively describe an aspect of reality and an attempt to use a mechanism (the constitution) to lock down the structure and function of the government for the purpose of limiting its power.


On that last point - the constitution as a mechanism... I have written computer programs that contain decision tables.  Those are simple grids where the x and y coordinates identify a cell in the grid and the entire table is simply a way to relate a variety of conditions to the action that is needed.  That table does not purport to be symbols that represent concepts that will be part of a thought.  The constitution is a mechanism to suit a purpose and the meaning of its words need to be seen within that immutable context.  The text of the constitution only needs to restrain the powers of the federal government if it is to accomplish its primary purpose.  For example, there is an argument as to what the "commerce clause" permits.  The meaning that most limits the power of the federal government is the one that should be accepted, all else remaining equal - not because of what the text says, not because of the founder's intentions surrounding that clause, but because that is in line with the purpose of the constitution.  When in doubt, side with the purpose of the constitution and require that the constitution be amended to go the other way.


4. There is a nesting of contexts: A word's meaning lies in the context of the sentence.  That sentence was intended to serve a purpose inside of the clause in question. There is the context of the times.  There is the context of the purpose of the constitution itself.  Those contexts go from epistemology to political science and the philosophy of law.  Scalia was right that the text, as written, is the law - if it is out of line with the greater contexts, then the text needs changing, but never "law" be changed by ideologoical judicial interpretation - that would become a case of a decision becoming a precedent and the precedent having more weight that the text of the law itself, despite them being in direct conflict.


5. When the nineth and tenth amendments are held clearly in mind, many arguments become moot.  Put simply, if the constitution doesn't explicitly grant a specific power to the federal government, then the federal government doesn't have it.  But in practical terms, getting the federal government back in proper alignment with the nineth and tenth would amount to a major revolution.


When the founding fathers put an error into the constitution (e.g., the subjective nature of the wording "cruel and unusual" or a conceptual error, like including a post office when a federal government should not include such a function) that is something that should be handled by the amendment process.  The proper functioning of the Supreme Court justices is to rule that a post office is constitutional (and perhaps mention on the side that it would be more consistent with the concept of limited government to eliminate it - by amendment).  The problem comes with the subjective wording.  Can we find an objective meaning for the word "cruel" that is adequate to parse the possible challenges that come up?  If the referent of the word is dependent upon the culture of the time, then do we use the understanding of what was cruel then, or do we go for the more objective understanding of what is cruel now?  I feel somewhat ignorant here and look forward to reading more of what Tara Smith has written.

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