The intellectual corruption of Academic Constitutional Legal Theory

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Murali

Murali did his undergraduate degree in molecular biology with a minor in biophysics from the National University of Singapore (NUS). He then changed direction and did his Masters in Philosophy also at NUS. Now, he is currently pursuing a PhD in Philosophy at the University of Warwick.

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121 Responses

  1. Avatar Rod says:

    Maybe. But the Constitution fairly invites this sort of thing. Some clauses are naturally elastic; the Commerce Clause, Necessary and Proper, General Welfare, etc… And then so much depends on the meaning of sort of vague, relativistic, words and phrases; cruel and unusual, high crimes and misdemeanors, natural born citizen, etc.

    A lot of people like to imagine that there’s always an objectively correct interpretation available to be discovered, but I just really don’t think that can possibly be true. Any interpretation is going to bring prior commitments and preferences to the table.

    That’s one reason that I’m skeptical of the wisdom of judicial review. Nowhere does the Constitution specify that the Supreme Court has the power to overturn laws. That is a power that the Court arrogated to itself in 1803 (to the considerable dismay of TJ at the time). Originally it was just the final court of appeal. FWIW, the founders intended the Legislature to the the “first among equals” in the scheme of separation of powers precisely because they were the closest to the people. The Court is the most distant; unelected, life-terms, appointed by the President (who isn’t popularly elected) and confirmed by the Senate (originally appointed by State Legislatures).

    Everybody knows which justices are (at least generally) liberal and which are conservative. And we shouldn’t. We shouldn’t care either because it wouldn’t matter.Report

    • Avatar Koz in reply to Rod says:

      “Maybe. But the Constitution fairly invites this sort of thing. Some clauses are naturally elastic; the Commerce Clause, Necessary and Proper, General Welfare, etc…”

      Maybe yes and maybe no. I actually think the Constitution is pretty comprehensible, and especially so when you consider what might be its analogs and compare: the Gospels, the code of Hammurabi, the US Tax Code, the Talmud, etc. In any event the real disasters are plainly erroneous readings of the text anyway, eg Roe or Wickard. Whose fault is that? It’s the libs. Like everything else, it’s the libs.

      The cause of the problem is libs. Get rid of the libs, get rid of the problem.Report

      • Avatar MaxL in reply to Koz says:

        clearly.Report

      • Avatar Mike Schilling in reply to Koz says:

        And some people think you’re mindlessly partisan.Report

      • Avatar Patrick Cahalan in reply to Koz says:

        Even supposing your summary is correct, Koz, “the libs” make up about a third of the country. They’re going to vote the way they vote.

        So, given that “getting rid of the libs” in government would require somehow disenfranchising “the libs” in the population, what’s your actual proposed mechanism for instituting your plan to fix the country? Firing squads?

        I submit that if your political philosophy requires you to assume it is possible to ignore a third of the country, you’re doing it wrong.Report

        • That was a far more generous reading of that comment than I gave it. I didn’t read “get rid of all the libs” as meaning “get rid of all the lib politicians.”Report

          • Avatar Stillwater in reply to Tod Kelly says:

            Once I got past the obviously incorrect (I hope) interpretation of Koz advocating genocide, I think he has a point. Liberals are progressives are advocates of change are expanding government to accomodate those changes are stretching constitutional provisions beyond the original intent.

            Conservatives, on the other hand, are happy with things as they are. So from the conservative pov, liberals are the ones interpreting the constitution when it serves their needs.

            I’m not sure I agree with that, acourse. But I think I understand what Koz is saying here. And it doesn’t necessarily involve mass extermination. There may be other, more humane ways to “eliminate” liberals.Report

            • Avatar Tod Kelly in reply to Stillwater says:

              Oh, I don’t actually think Koz was going Hitler on us. I think he meant, basically, that the world would be so much better if everyone agreed with him.

              In believing this he is by no means alone.Report

              • Avatar Patrick Cahalan in reply to Tod Kelly says:

                > In believing this he is by no means alone.

                No.

                It is not, however, a scalable solution.Report

              • Maybe we could just get rid of all of the people who don’t like people who don’t agree with them.

                Not *ELIMINATE*. Re-educate. Because we love them. And want them to be better. Closer to perfect.Report

              • Avatar Will Truman in reply to Jaybird says:

                I think the Texas Republican Party is on to something. Critical Thinking is a blight on society. Makes remolding so much harder.Report

              • Well, Koz has brought the Conservative-bash on himself, but don’t be blind in one eye. Plenty of stupid stuff coming from the left in this mess.Report

              • Avatar Koz in reply to Tod Kelly says:

                Exactly. Of all people, I’ve gotta credit Paul Krugman for that one, probably the only thing he’s written in the last ten years that I agree with.

                Krugman accuses our team of wanting to “eliminate” the libs, and he’s damn right, at least I hope he is. Of course he’s Jewish, and he’s using Holocaust words on purpose. But that’s just more incendiary antagonism from him.

                The reality is actually much more benign and much simpler. “No, we don’t want the 36-month extended warranty for this DVD player at Best Buy.” “No, we don’t want the rustproofing plan for this new car.”

                “No, we don’t want a high-speed train from Tampa to Orlando.” “No, we don’t want PPACA.”

                Libs get to participate in our political culture but that doesn’t mean they are entitled to an operational veto over it.Report

              • Avatar BlaiseP in reply to Koz says:

                Heh. “No, we don’t want market regulation!” yell these so-called Conservatives. So world markets go apeshit as a direct result.

                Yeah, yeah. The quickest route to proving the Conservatives are full of shit is to let them have their way for a few years. The world always goes to hell in a handbasket. Trouble is, they drag the rest of the world down with them.

                Seems to me what this world needs is some real Conservatives, this current lot is just not Conservative enough to recognise the need for consistency and the rule of law.Report

              • Avatar Stillwater in reply to BlaiseP says:

                The quickest route to proving the Conservatives are full of shit is to let them have their way for a few years. The world always goes to hell in a handbasket. Trouble is, they drag the rest of the world down with them.

                This.

                Seems to me what this world needs is some real Conservatives, this current lot is just not Conservative enough to recognise the need for consistency and the rule of law.

                And this.Report

              • Avatar Kimmi in reply to BlaiseP says:

                most of the real conservatives vote democratic. sad but true.Report

              • Avatar DensityDuck in reply to BlaiseP says:

                “The quickest route to proving the Conservatives are full of shit is to let them have their way for a few years. ”

                I love how illegally relaxing regulation of some banks but not others is now a refutation of the entirety of All Those Things We Don’t Like.Report

              • Avatar Kimmi in reply to DensityDuck says:

                Is summers now a conservative??Report

              • Avatar BlaiseP in reply to DensityDuck says:

                Look, Duck, it’s just this simple. The Liberals are the guys everyone calls when the party’s over and someone has to get the vomit out of the rugs and the broken glass out of the swimming pool after the Champagne Conservatives are done with their partying.

                I would only repeat myself in observing the current crop of “Conservatives” are nothing but Fucked Up Reactionaries, intent upon the restoration of past glories which never were. They’re nothing but a lasting embarrassment to this country.Report

              • Avatar Kimmi in reply to DensityDuck says:

                Where blaise’s everyone is the financial gurus, as you can easily verify with campaign finance statistics.Report

              • Avatar BlaiseP in reply to DensityDuck says:

                When the current GOP presumptive nominee’s sole claim to business expertise is corporate mule skinning, something’s slightly amiss. The Romneybot is the apotheosis of everything skeevy, stupid and reckless in the financial world of the 1980s.

                And these clowns just can’t get enough of him! Look at ’em, praising him to the skies, cheering him as he stops off in front of the shuttered Solyndra plant so’s he can blame Obama for everything that went wrong.

                Got a problem? Doesn’t matter what the problem might be, Romney’s gonna cut taxes. Just like he’s always done for his investors, put money in their pockets. Yeah, folks, make a donation to the Romney Campaign. He’ll skin your mule, too.Report

              • Avatar Murali in reply to Tod Kelly says:

                Stillwater, Tod,

                The thing is, on at least this issue, Koz is the only one in the entire league who is being logically consistent on this issue.

                When you look and see so many people who disagree with you, you have 2 options: either they are your intellectual inferiors or they are at least your intellectual equals if not better.

                If they are your equals, then the fact that so many believe differently from you is evidence that the primary evidence for your belief is not as strong or as complete as you think. Therefore, you have to revise your beliefs. Of course if everyone revised their beliefs, Koz wont be a conservative and Stillwater and Tod wont be liberals.

                If they are not your intellectual equals, then of course you can safely ignore your ideological opponents. The fact that they believe differently from you does not threaten your belief. After all, they don’t know what they’re talking about. But, if that is the case, then your ideological opponents are having a detrimental effect on public policy. Public policy would be better if your political opponents did not have any effect on policy. So, for Koz, its get rid of libs. And conversely, for you, it should be get rid of conservatives.Report

              • Avatar Kimmi in reply to Murali says:

                this assumes that you consider ideology to be so central to your politics that you must disagree with people who do not believe your ideology.
                I’d rather have Thornburgh as governor, even if he doesn’t do exactly what I want all the time.
                Believing differently than me may NOT have a detrimental effect on public policy.
                Particularly if I get my say at some point too…Report

              • Avatar Patrick Cahalan in reply to Murali says:

                > When you look and see so many people who
                > disagree with you, you have 2 options: either
                > they are your intellectual inferiors or they
                > are at least your intellectual equals if not better.

                No, you have at least three options.Report

        • Dekulakization is distasteful but once we complete it we’ll finally be free from having to worry about the Stalin-types taking over.Report

        • I submit that if your political philosophy requires you to assume it is possible to ignore a third of the country, you’re doing it wrong

          Arguably, the PAP government in Singapore does in fact manage to ignore a third of the country most if not all of the time.Report

        • Avatar Koz in reply to Patrick Cahalan says:

          Seems pretty simple to me. Outvote the lib voters, beat the lib politicians, and diminish the relevance the lib political-cultural actors.

          In fact, that last one has particular relevance to yesterday. Over the last 2-3 weeks especially, there was a significant number of the lib punditocracy who worked themselves into a lather, “Oh no, what about the legitimacy of the Supreme Court if they strike down Obamacare,” and for me at least it seems that very panic carried the day. But if so, CJ Roberts miscalculated, because it wasn’t the legitimacy of SCOTUS on trial, it was really the credibility of the lib punditocracy.

          They all fade into a haze, because I don’t remember anything particularly different about any of them. But the reality is, EJ Dionne, Jon Chait, Dahlia Lithwick, Laurence Tribe, James Fallows, and many many more, none of those people matter for their own sake. If they all retired to a Costa Rican fishing village tomorrow nobody would ever miss them. The only reason anybody pays attention to them is their proximity to power. And whatever goes into the laws books, their ability to defend that power is the key holding of the case.

          People look at whether this helps Romney electorally, or helps Obama. Frankly at this moment I don’t even have a guess. Whichever way that goes, America took a big hit. It’s estimated that American corporations have $2 Trillion of cash on the sideline. I don’t even think that counts unrepatriated foreign earnings, and there’s probably at least a trillion or so there. Why is this capital not being deployed? Because libs and their nasty legislative-judicial cholesterol have fubared our economy.

          Frankly, it’s our own fault. We voted lib, we should expect to die in a slum tenement or a debtor’s prison. But sometimes you need to catch a break, and sometimes you do. Well, we didn’t.Report

          • Avatar Kimmi in reply to Koz says:

            … but, but it’s the conservatives who are starting up debtors prisons!
            It almost sounds like you don’t support a conservative idea, koz.
            You’re slipping.Report

          • Avatar Patrick Cahalan in reply to Koz says:

            > Outvote the lib voters, beat the lib
            > politicians, and diminish the relevance
            > the lib political-cultural actors.

            So… pretend that the liberal/conservative/moderate makeup in this country is malleable to the point where you can alter the balance between the three that’s basically been around since about thirty years after the Industrial Revolution?

            Great plan. Good luck with that. Get back to me in thirty years and let me know how it worked out.Report

            • Avatar Koz in reply to Patrick Cahalan says:

              We’re not that far away from it now even. When you look at the makeup of the states and who’s up for election and when, I expect the Senate to be Republican at the end of the 2014 cycle if it’s not now and stay that way for quite a while.

              In any event, this is pretty cursory but this pov is tied very closely to our current legitimacy crisis. It’s getting more and more difficult for libs or conservatives to accept the legitimacy of the others’ institutions or even the raw power of their offices. Yesterday was major turning point for the worse.Report

              • Avatar Kimmi in reply to Koz says:

                no, koz, it’s not. I only reject GWB’s institutional legitimacy, and that’s on the advice of several Republicans who got kicked out of that government.
                Dole? Bush the Elder? Even Reagan? Legit.Report

              • Avatar Will Truman in reply to Koz says:

                Republicans have an institutional advantage as far as the senate goes, though it’s notable that they’ve not been able to capitalize on it for the most part.

                As for the rest… you’re looking at a quite different country than I am. The GOP is increasingly reliant on a receding portion of the country. Not only are they failing to reach out to some of the growing demographics, but are alienating others that they once had a solid claim on.

                I think claims of Demographic Doom are overwrought, but they still have to be addressed if we’re going to start talking again of perpetual Republican majorities.Report

              • Fortunately, young Democrats grow up. That’s where Republicans come from. 😉Report

              • Avatar Kimmi in reply to Tom Van Dyke says:

                And when most of your republicans speak Spanish, you’ll discover that they’re not the republicans you thought they’d be.Report

              • Avatar Tom Van Dyke in reply to Kimmi says:

                Racial profiling. Cut it out. Race = politics is what won’t—or shouldn’t—last forever.Report

              • Avatar Stillwater in reply to Kimmi says:

                If the GOP wants to stay relevant over the next coupla decades, I’ll go with ‘won’t’.Report

              • Avatar DensityDuck in reply to Kimmi says:

                “when most of your republicans speak Spanish, you’ll discover that they’re not the republicans you thought they’d be.”

                (points to Proposition 8 voter demographics) They won’t be the Democrats you think they’ll be, either.Report

              • Avatar Kimmi in reply to Kimmi says:

                TVD,
                Racial profiling? Ehh… manyana, compadre.Report

              • Avatar Kimmi in reply to Kimmi says:

                DD,
                lol. True, but I’m okay with that.
                If the world’s broken, it just needs more duct tape.Report

              • Avatar Jakop in reply to Kimmi says:

                Oh, come on, that’s not racial profiling Tom Van Dyke.Report

              • Avatar Trumwill Mobile in reply to Tom Van Dyke says:

                One issue is the widening of the river they’ll be needing to cross.Report

              • Avatar Stillwater in reply to Trumwill Mobile says:

                Yeah. The “two camps” seem to be using increasingly idiosyncratic language and hold such contradictory descriptions and accounts of the facts that there’s an ocean separating them.Report

              • Avatar Stillwater in reply to Trumwill Mobile says:

                Maybe this is how new nations are born. Like mitosis or something.Report

              • Avatar BlaiseP in reply to Tom Van Dyke says:

                I’ve seen the exact opposite. It was certainly true for me. You see, Tom, to be a Republican these days, one must give up any pretence of wishing for a better world via progress or learning. The past is the future for the Grand Old Party. Goodness and mercy are beyond such as these: it’s never about what we stand for as a people and a nation. It’s about who and what we despise.

                I’ve been looking at the stats for the primary elections. Young people simply didn’t turn out for GOP candidates. It’s pitiful how little support the GOP has in the 30-and-under crowd. This isn’t to say the Democrats will produce the same outpouring of support for Obama as they did in 2008. It’s to say the GOP message is no longer appeals to young voters if it ever did.

                Democrats are young and live in cities. Republicans are old and don’t. Not a good demographic trend.Report

              • Avatar Tom Van Dyke in reply to BlaiseP says:

                Blaise, any time you drag in your autobiography, I believe the opposite.

                For you are a man among man, a mighty oak, a rare and beautiful flower, a man of powerful intellect and uncommon virtue. When humanity zigs, you zag; when the poor hath cried, Blaise hath wept.Report

              • Avatar Kimmi in reply to BlaiseP says:

                Democrats are female, and live longer than men. 😉Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Ol’ Blaise has laffed.

                “Mama, where do Republicans come from?”Report

              • Avatar Trumwill Mobile in reply to BlaiseP says:

                Tom, tis not just Blaise’s autobiography. At the current trends, I’ll more likely than not be a card-carrying Dem. The Wife currently plans to vote Not Republican for the first time in her life. My brother, from single guy to father-of-two, has gone from Republican to Not Democrat, in the last six years or so.

                I dunno what implications this anecdata has for society-at-large, but I see a lot of cases of people who were made to be Republican starting to seriously eye the Dems. I think somethin’ is going on…Report

              • Avatar Tom Van Dyke in reply to BlaiseP says:

                You never sounded remotely like a True Scotsman to me, no offense, bro. As for the rest, getting older and having kids is a high correlate for GOPism—and for good reason, leftism is fiscally unsustainable. All you need to do is learn to count to a trillion. Saddling the next generations with unimaginable debt is downright immoral.

                And as soon as Obama passes from the scene, the black vote will be back in play, and the fallout from the Great Society [and teachers’ union obstruction of vouchers and reform] has been a disaster for them.

                Things do not remain the same, and I’ll add the next generation of GOP leadership is already far more promising and accomplished as its Dem counterpart. Beyond Cuomo, the Dems got nothing.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                General Tom is Generalizing. Let any contrary evidence be presented and it’s just anecdata or autobiography.

                The black vote? More asinine generalising. People vote their ZIP codes, not their colour. The black vote will not be In Play. People don’t play when they go to the ballot box, they’re making a decision on which candidate they believe will best serve their interests. We might ask why more black people don’t vote for Republicans, Hispanics, too, but these are irrelevant questions to the informed voter.

                People don’t switch sides, the sides switch. I used to think the Democrats were all old racist white guys like Strom Thurmond. Those characters went GOP when their politicians switched sides. Strom Thurmond split from the Democratic Party when he ran for President. Carried four states, too. Then he went Republican.

                Now there’s your Democrat who got older and went Republican, Tom. Not a pretty picture to use as an illustration but it certainly fits your model to a T.Report

              • Avatar Trumwill Mobile in reply to BlaiseP says:

                Tom, ten years ago, I voted straight ticket. I was in my twenties, single, childless, and living in the city. Since then I have gotten married, moved to the country, and have a kid on the way. Maybe I was never a true-true Scotsman, but all pointers should be towards more rather than less Republican. My brother went from being a proud Republican to “who are these people?” (though he’ll vote Romney in the end… this time) despite all of his life pointers should be aiming right (got married to a Born Again, single-income breadwinner and father of two), he’s moving in the opposite direction. I know a lot of people for whom this is the case. Indicative of much? Not sure, but I’m not so sure that the trends you refer to are going to last.

                The respective party benches are at least in part a product of who has the WH. Having the WH seems to kind of clear the bench, so to speak. I noticed this during the Clinton and then Bush years.Report

              • Avatar Tom Van Dyke in reply to BlaiseP says:

                No, Blaise: Anecdata is just that. Pls don’t meta me. To the facts:

                In Ohio, according to exit polls conducted by the National Election Pool,Bush won 16 percent of the black vote, up from 9 percent in 2000.
                David Bositis, an analyst of black politics at the Joint Center for Political and Economic Studies, calculates that if Kerry had won black votes at the same rate as Al Gore, he would have gained 55,000 that instead went to Bush _ a net switch of 110,000.
                Kerry was trailing Bush by 136,000 votes in Ohio when he conceded, having concluded that counting the more than 100,000 provisional ballots couldn’t change the outcome. With those additional 110,000 black votes, Bositis said, the identity of the next president might still be in doubt.

                I trust I don’t have to spell this out for you. Why you think I would waste my time fronting for the GOP in a forum that’s overwhelmingly anti-GOP is beyond me. You know me by now and you know me better than that.

                I’m not going to change a single vote here and I’m no GOP missionary. I’m discussing, seeing if the find minds here have any legitimate counterarguments. So pls, fellas, back off a bit, OK? Were I to lie to score some sophistic debating point, the “victory” would be as hollow as some heads around here.

                Back to this case, even 16% of the black vote for Bush was more “in play” than is possible with Obama as the candidate. It may have swung the whole kaboodle!Report

              • Avatar BlaiseP in reply to BlaiseP says:

                No, Tom. Skin tone is no valid predictor for anything, as I said, people vote their ZIP code. It’s you dragging colour into this debate, all this hognosticating about the Black Vote’s Back in Play.Report

              • Avatar Tom Van Dyke in reply to BlaiseP says:

                Yes, I heard you the first time, Blaise, but Ohio 2004 indicates otherwise.

                BTW, a Dem hasn’t won the white vote [Brother Trumwill’s anecto-demographic] since 1964. Obama looks to be cratering from 2008.

                http://www.realclearpolitics.com/articles/2012/06/22/obamas_white_support_is_too_low_to_win_2012_romney_white_male_gap_white_women_kuhn_114579.html

                Now it’s possible that Obama will match his white vote from 2008, but I don’t see it as likely.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Yanno, Tom, I don’t believe in colour. Black and White are irrelevant to me. Truth is, young and old are the only meaningful distinguishing characteristics here: the young are all idealistic and the old are dancin’ to the greatest hits of the 80s.

                I’ll put my money on the Democrats to pull in young voters. The oldsters are clogging up the system as surely as all those steaks they ate clogged up their own arteries.

                These oldsters aren’t really Conservative. Let Romney threaten their Medicare and they’ll descend on him like a herd of feral hogs and eat him. The GOP isn’t going to do shit about reforming health care or getting people coverage. They’re not going to cut anyone’s goodies and you know it. They never did before and they won’t do it now.

                Romney’s a pussy and so is Boehner. All they’ll do is cut taxes and run up the deficits and young people with a clue aren’t going to stand for it. They know what’s coming. So just you go on about the Black Vote as if that matters. Dancin’ to the 80s.Report

              • Avatar Jakop in reply to BlaiseP says:

                “leftism fiscally unsustainable”? back that assertion up please. please consider the distinction between states and monetarily sovereign governments in your answer please.Report

              • Avatar Koz in reply to Will Truman says:

                Again, there’s a lot I’m leaving out here but part of the premise behind this train of thought is that the Left and the Right are on a collision course and one side or the other is going to win.

                Ie, because of the recession (and PPACA), I think the voters are going to coalesce behind one side or the other or else the basic functioning of our government by extension our civil society will be jeopardy.Report

              • Avatar Stillwater in reply to Koz says:

                But that’s just the problem, Koz. The GOP simply won’t.work. with. Dems. It seems to me the view adopted by conservatives is that the only solution to our current problems is to oppose Dem proposals and policies. So the collision course is primarily a result of GOP politicking. I mean, no one disputes that the ACA is basically lifted right outa the GOP policy book – even down to the mandate – and yet! there was nothing (NOTHING!) but resistance to seeing it passed.

                The only account of this strange phenomenon is that … {shrug} conservatives changed their minds.Report

              • Obama is going down precisely because he ignored the message of 2010. Clinton, by contrast, heard the people loud and clear in 1994 and survived in relative style.

                Clinton worked with Gingrich, Reagan worked with Tip O’Neill. Obama doesn’t even work with his own party, fer crissakes.Report

              • Avatar Kimmi in reply to Stillwater says:

                The same might be said of the “economic terrorists” in congress.
                Now, now, like my esteemed Representative, I am merely quoting a Republican appointee, in this case, a Treasury Secretary.Report

              • Avatar Koz in reply to Stillwater says:

                You may know (or not), our team thinks PPACA is a fundamentally illegitimate piece of legislation that tore the integrity of the polity. Anything we do to get rid of it is kosher. In fact, it wouldn’t surprise me if the GOP pulled a cute day one maneuver to beat a filibuster before it starts.

                In any event, no matter who’s right, I fear that this is not going to be solved by talking with each other, or at least not soon. Maybe I’m wrong, but I have a feeling that one side is going to KO the other and put him on the canvas for a 10-count.

                The swing voters will swing one way or another to make this happen.Report

              • Avatar Stillwater in reply to Stillwater says:

                Obama doesn’t even work with his own party, fer crissakes.

                This is one of those criteria-less statements that pass for factual, the type of claim that makes conservatives look like fools. The Pelosi/Reid Congress passed more legislation than any other Congress since the 60s. The current Boehner/Reid Congress passed the fewest bill since 1947.

                I think Obama works with Democrats just fine.Report

              • Avatar Stillwater in reply to Stillwater says:

                our team thinks PPACA is a fundamentally illegitimate piece of legislation that tore the integrity of the polity.

                I don’t know how to keep rephrasing the same content in fresh and scintillating ways, but what you wrote here is disingenuous. The PPACA is what the GOP has been proposing for quite a while as the “market friendly” alternative to single-payer. That begs the question of why you think it’s “fundamentally illegitimate”. And the fact that you think it tore the integrity of the polity is way off base: you’re team created the fundamental tear in the policy when you rejected your own teams brainchild.

                Why? Why did these things happen? It cannot be because of a principled opposition to the ACA. That’s incoherent, given your teams support for it until ’09. It must be something else, something created and sustained by the GOP and conservatives themselves.

                I wonder what? That you guys just happened to collectively change your minds over night?

                Maybe. I guess.Report

              • Avatar Koz in reply to Stillwater says:

                “It must be something else, something created and sustained by the GOP and conservatives themselves.”

                First of all, your team woefully exaggerates the buy-in our team ever had for that.

                As far as what changed in 2009, that’s pretty clear too. The plausible sustainability of the industrial state went away. I gotta say, pretty much everybody got the memo on that one except your team.

                Finally, no matter who agreed to what, it was clearly long gone off the table by the time PPACA came around.

                In any event, I think this is going to be the center of American politics until it goes away.Report

              • Just because you’re unaware of something doesn’t mean it doesn’t exist, Stillwater. My source was Chris Matthews’ sources on Capitol Hill, that obama doesn’t reach out to his own party. Now, Crissy might be a fool, but he’s a Democrat [ex-Tip O’Neill staffer] and there’s no reason to dismiss him out of hand.

                So I’ll thank you to keep a civil tongue, sir, for those occasions where it might be you who are unaware of the facts. I have no wish to war with you or return fire, and flareups like this make neither one of us look good.Report

              • Avatar Stillwater in reply to Stillwater says:

                Tom, if I ever (EVER!) confuse Chris Matthew’s opinion with a fact, feel free to tear into me…Report

              • Well poisoning. As a former aide to the Speaker of the House, Chris Matthews is well-qualified to report inside the Beltway baseball.

                Just because he has stupid opinions doesn’t mean his sources are bad. What is it with you guys? You have more people on your epistemological death list than your live list.Report

              • Avatar Mike Schilling in reply to Stillwater says:

                The PPACA is what the GOP has been proposing for quite a while as the “market friendly” alternative to single-payer.

                But completely disingenuously. (Not snark. This is what I conclude from conversations about this with Mark Thompson.) It was purely a tactic to derail single-payer, not a serious suggestion. Now that push comes to shove, they think it’s not only a bad idea, but another nail in the coffin of the Constitution, even more oppressive than Social Security and the Civil Rights Act, exactly what Thomas Sowell meant when he compared Obama to Hitler. And this time, they’re being completely honest. (You can tell by the color of the froth.)Report

              • Avatar Mike Schilling in reply to Stillwater says:

                The plausible sustainability of the industrial state went away. I gotta say, pretty much everybody got the memo on that one except your team.

                Odd that I haven’t heard the “Sorry, dudes, your jobs are never coming back. And people like me are the reason why!” ads yet.Report

              • Avatar Stillwater in reply to Stillwater says:

                But completely disingenuously. … It was purely a tactic to derail single-payer, not a serious suggestion.

                I have no doubt that’s true. But it’s a bill they proposed publicly, at the highest levels of government, and said they fully supported. So if we’re ever to take Republicans at their word, then we take them at their word here.

                Either they were honestly expressing their positions regarding healthcare reform up until 2009, or they weren’t. And either way it goes, it looks bad for them.Report

              • Avatar Mike Schilling in reply to Stillwater says:

                So if we’re ever to take Republicans at their word,

                That’s crazy talk.Report

              • Avatar Trumwill Mobile in reply to Stillwater says:

                I may add more later when I’m at a puter, but movement against it was well underway by 2007.Report

              • Avatar BlaiseP in reply to Stillwater says:

                The GOP meant it when they proposed Individual Mandate. What’s changed between then and now? The rise of the Tea Parties. That’s the only reason the GOP no longer backs such a proposal.Report

              • Avatar Stillwater in reply to Stillwater says:

                That’s crazy talk.

                Lulz. What I find interesting is that endemic lying offers a refudation of itsownself. That’s what I was trying to point out. I think of it as a public service, in honor of the truth. A small one, but still …Report

              • Avatar Stillwater in reply to Stillwater says:

                What’s changed between then and now? The rise of the Tea Parties. That’s the only reason the GOP no longer backs such a proposal.

                Do you mean the “keep the government outa my Medicare” crowd? Then I completely agree.Report

              • Okay, at a computer now. The Republican support for the Heritage model is often overstated. It was there (particularly, obviously, within Heritage), the idea was tossed around, there was even some movement to make it happen nationall, and of course it happened in Massachusetts. There was also, however, a fair amount of opposition to it dating back a ways. There was also some support. In broad political parties, these sorts of things happen.

                When Romney passed it in Massachusetts, it was hardly popular across-the-board with conservatives and Republicans. I was a Republican that thought it was an intriguing idea* and I found more of the Republicans I knew opposed it than supported it (I actually can’t think of any Republican I knew that was with me on it).

                As time wore on, though, it was viewed less and less favorably. When the National Review endorsed Romney, they conspicuously mentioned that they didn’t want some of the things from his health care plan to be implemented on a national level.

                None of this is to condone the GOP’s conduct during the negotiations and the screeching opposition to it when Obama proposed it. The whole thing left, and leaves, an extremely bad taste in my mouth.

                * – What changed? Well, in one way I only really supported it as a pilot program. I wanted to see how well it would work. I wasn’t sold on the results enough to support rolling it out nationally. I also became less opposing of the alternatives (including single-payer), and it stopped looking to me like “At least it’s not this other thing!” I don’t think that there’s anything wrong or dishonest about supporting a compromise that you wouldn’t accept if compromise wasn’t necessary. That being said, it does significantly undermine the moral indignation at the plan.Report

              • Avatar Koz in reply to Stillwater says:

                “I don’t think that there’s anything wrong or dishonest about supporting a compromise that you wouldn’t accept if compromise wasn’t necessary.”

                Not just that, but for me at least it’s kind of hard to grok the mind of the lib who asks that question anyway. How can someone really not understand that the world of 2009 and since is fundamentally different than what was before, especially wrt the viability of various arms of government to fund the welfare state? You gotta wonder what would have to happen before the libs get that memo.Report

              • Avatar Mike Schilling in reply to Stillwater says:

                You mean eight years of Bush ruined the economy for good an ever? Yeah, good luck running on that.Report

              • Avatar Koz in reply to Stillwater says:

                No Mike, _your_ team is going to run on that if you choose to. Frankly I doubt they will, that didn’t fare very well as a campaign strategy in 2010.

                But whether it’s Bush’s fault or not, the world in 2009 was not a place where the economy could huge new entitlements. But that didn’t stop the Demo’s from trying.Report

              • Avatar Mike Schilling in reply to Stillwater says:

                How about “Mitt can’t get America back to work either”?Report

              • Avatar Koz in reply to Stillwater says:

                Sure. Go try that if you think it’ll work. But let’s get clear, that’s a different subject that the cause of Stillwater’s exasperation immediately upthread. And for that there’s a very easy, comprehensible, heck obvious answer.Report

              • Avatar BlaiseP in reply to Koz says:

                (rolls eyes to heaven) They’ve not on a collision course. The GOP doesn’t even talk to the Left. They talk about the Left. They’re shadow boxing. Maybe if they convince enough people that making everyone get health care is tantamount to 9/11, they can garner a few votes. No shortage of stupid people out there, folks. If that’s what it takes to win, then whip ’em up with tales of the collapse of civil society.Report

              • Avatar Jaybird in reply to BlaiseP says:

                They’re shadow boxing. Maybe if they convince enough people that making everyone get health care is tantamount to 9/11, they can garner a few votes.

                Health care *COVERAGE*.

                The bill doesn’t provide health care. It merely provides coverage.Report

              • Avatar Stillwater in reply to BlaiseP says:

                That’s not true, except on a very narrow reading. The Act also increases medicaid funding to cover an additional 18 million(?) people I think.Report

  2. Avatar E.C. Gach says:

    I for one am all in support of a stricter interpretation of the Constitution. And, on such issues where it is hopelessly vague and indeterminate, deffering to Congress, or the states.

    For instance, I’m very much in favor of strong protections for all forms of expression. At the same time, I take a very limited view of what kind of expression the Constitution actually protects, which is speech (verbal sounds), and written communication (press).Report

  3. Avatar MaxL says:

    Justice Souter made some very cogent remarks just after he retired from the bench regarding the idea that there is no way to define the Justice as simply “umpire”. I tend to think that those who do define the job of Justice as umpire provide an excellent example of “he doth protest too much.” Simple formulations and obvious misrepresentations are the last refuge of cognitive dissonance, after all.

    I can’t recommend this essay by Justice Souter more highly, at least for my fellow non-lawyers:Report

  4. The BHL essay took a lot of words to say little more than nanny nanny poo poo.

    Read the Ginsburg decision in the Obamacare thing and you’ll see a constitutional theory limited only by the amount of paper available to legislate on. I think she’s VERY principled. 😉Report

    • Avatar Murali in reply to Tom Van Dyke says:

      The BHL essay took a lot of words to say little more than nanny nanny poo poo.

      I dont see how you get that. Brennan, a libertarian probably doesnt like PPACA and explicitly said that he explicitly did not care whether it was constitutional or not.Report

      • Avatar Tom Van Dyke in reply to Murali says:

        “A pox on both houses” is lazy thinking. That we use “principles” to rationalize is of course true, but it’s not always true. It’s those occasions we must focus upon, and they do exist.

        Otherwise, he wasted too many words on the banality of a blanket cynicism.Report

  5. Avatar Tod Kelly says:

    It will come as a surprise to no one that I agree with Brennan.

    I think of the case last month where Jason and Tim used first principles to discuss the subject of the legitimacy of gay marriage. Not surprisingly, they each used sound first-principle Constitutional arguments to get to the exact place they wanted to get to before they started. And let’s face it, neither of those guys is an intellectual lightweight.

    I firmly believe that 90+% of all constitutional arguments are an intellectual way of backing into a previously held belief.

    I should also note that I think this is part of what makes our constitution a great thing. It is a framework made for humans, frustratingly complex and flawed as we are.Report

    • Avatar Mike Schilling in reply to Tod Kelly says:

      You mean the people who insist that Citizens United was a completely principled decision and PPACA was filthily political aren’t simply sharing the results of pure reasoning from neutral principles? You shock me.Report

    • Avatar DensityDuck in reply to Tod Kelly says:

      The problem is when someone says that The Constitution Means Exactly What It SAYS It Means About (amendment/clause) But It Must Be Interpreted In Light Of Modern Times When It Comes To (amendment/clause). That is, when people try to have it both ways, claiming the Moral Authority Of Originality when they need it and claiming the Inellectual Superiority Of Interpretation when it suits them.Report

      • Avatar DensityDuck in reply to DensityDuck says:

        …and no, I don’t know what “Inellectual” is supposed to mean, either 😛Report

      • Avatar Tod Kelly in reply to DensityDuck says:

        I agree with this.

        I would add that usually when I see this done I am not sure this is intentionally done in bad faith.Report

        • Avatar Koz in reply to Tod Kelly says:

          That’s true, and the point goes back to my other comments. I don’t think the Constituion isn’t trivial to interpret, but I don’t think it’s that difficult either.

          The problem is that once libs have won a round on an obviously erroneous textual interpretation it stays as precendent and gums up that and a hundred other things too. (This applies either side really but in practice this applies to libs.) After 2+ centuries of this there are a lot of things which are at least prima facie plausible.Report

  6. Avatar Citizen says:

    Basically the citizen base is the parents, with the three kids. The Constitution sets guidelines and rules so the kids respect each other and they don’t completely run over each other. There are some other obvious rules, don’t jump on the couch. Always ask before raiding the fridge. Wash your hands after specific tasks. Record new rules as they are decided and implemented by the parents.

    Eventually the kids come of age and decide the parents don’t know a damn thing and start writing their own rules, and not following the original ones. Sly kids even find ways to set the parents debating each other about every damn thing.

    When the cold war eased and a few Russians final came over to look around, they were surprised. They expected to see fighting of the parents, thats a common occurance. What amazed them was that the parents were debating at length on whether the kids should be allowed to jump 1 foot high on the couch or 2 foot high.Report

  7. Avatar Christopher Carr says:

    Egads! Perverting a sacred text to exploit as a means to an end!? Say it ain’t so!Report

  8. Avatar Murali says:

    It seems that a lot of people are missing the point. The question is not whether we should be originalists, or strict constructionists or whatever. Brennan is asking why it is the case that for most people (Academic scholars included) the proper way to interpret the constitution very coincidentally ends up saying that the constitution, when properly interpreted, agrees with their ideology.

    3 questions for the league:

    1. What is your ideological affiliation? Libertarian, liberal, conservative, socialist etc etc

    2. What is the proper way to interpret the constitution?

    3. Is the constitution, when proeperly interpreted, a libertarian, liberal, conservative, socialist or other document?

    Christopher Carr hints at what could be the problem: People treat the constitution like a sacred text rather than a legal document. If it is a sacred text, then when properly interpreted, it has to turn out to be morally right. But as brennan says, this is intellectually corrupt. The constitution is a legal document. Theories on how to interpret the constitution should not depend on what the constitution ought to be.Report

    • Avatar Mark Thompson in reply to Murali says:

      I think this gets it about exactly right, at least with respect to the main body of the Constitution. Especially this: ” The constitution is a legal document.”

      We’re trying to interpret a negotiated contract, the original parties to which have long ago passed away. If there was a common, uncontroversial understanding of the document, that understanding passed away with them. What we are left with instead is a record of disputes about what the document’s consequences would be, in the form of the Federalist and anti-Federalist papers (to name the most prominent examples). Which interpretation is correct? We don’t know; and more importantly, neither did the disputants. So we pretend that the disputants whose arguments most closely align with our normative preferences are the only ones whose opinions matter. In reality, though, we’re just the current participants in a 225-year old argument.Report

      • Avatar Mike Schilling in reply to Mark Thompson says:

        Assuming the Founders were people and not plaster saints, they had at least N different understandings of the constitutions, where N is the number of Founders, and making sure those understandings weren’t discussed in too much detail was crucial to getting the thing ratified (“Of course slavery has only a few decades left, that’s why we didn’t push back too hard on it. We certainly don’t expect that idiot three-fifths rule to over-franchise them forever.”)Report

    • Avatar Stillwater in reply to Murali says:

      Brennan is asking why it is the case that for most people (Academic scholars included) the proper way to interpret the constitution very coincidentally ends up saying that the constitution, when properly interpreted, agrees with their ideology.

      I’m not sure I understand the question. People hold both a descriptive account of the way the world is, and a normative account of the way the world should be. Part of the description includes what laws and policies are constitutionally permitted or justified. People often disagree about what is in fact the case; and people who agree what’s the case can still disagree about whether that ought to be the case. I’d say most of the time, that disagreement isn’t strictly ideological. That is, the disagreement isn’t based on presupposing a preferred policy in isolation and working backwards linearly to an interpretation of the constitution that supports it. Rather, the preferred policy (or whatever) is informed by rulings and interpretations of the text and other relevant evidence (eg., the effects policies have) already in play.

      So I don’t understand the question. People aren’t proposing a radical interpretation out of whole cloth to support they’re preferred policies. People are arguing that a legitimate, defensible interpretation of the constitution does support them.

      Does that make sense?Report

      • Avatar Stillwater in reply to Stillwater says:

        Here, maybe this will clarify what I’m getting at: a specific policy proposal is not linearly derived from an ad-hoc and question-begging interpretation of the constitution. Both are part of a web of belief with no fixed starting point.Report

        • Avatar Murali in reply to Stillwater says:

          Both are part of a web of belief with no fixed starting point.

          i.e. the lines of inference flow both ways. But the objection is to the fact that lines of inference are flowing in a particular illegitimate direction. Having a web of belief with no fixed starting point is intellectually corrupt especially when you present your view as one that starts from first principles.Report

          • Avatar Stillwater in reply to Murali says:

            That assumes the first principles are immutable and univocal. Are they? Why should they be?Report

            • Avatar Murali in reply to Stillwater says:

              Because they are first principles?

              Alright tha was semi-serious. More seriously, let’s consider any 2 statements X and Y such that X and Y could possibly stand in some inferential relationship with each other. i.e. either one or both of the following is true. X being true makes Y more likely to be true. If, however, we have no independent reasons to think X and Y to be true, then wehave no reason to thing X and Y are true and therefore we must be agnostic. In this case, we would suppose that X is the belief that the US constitution is a (possibly perfectly?) good constitution and Y is the belief that it allows a particular policy that constitutions should allow. Let us add a further Z which says that the constitution should be interpreted in such and such a way. Again, if there was no independent evidence for X, Y and Z, or no other beliefs for which we have independent evidence for which imply X, Y or Z, then there is no reason to believe X, Y or Z.

              Now, let us ask ourselves, what would provide evidence for the goodness of the constitution? The only way we could do this is by induction. We look and see whether it forbids the things that should be forbidden and allows the things that should be allowed. i.e. the only way in which we can move to X is to move inductively from Y and other Y-like facts. When Y-like facts are in dispute, since there is no other way to infer X, X must also be in dispute. Given that X is in dispute, and we are trying to find the truth of Y-like statements, what kinds of facts would provide evidence for Y-like statements? Statements about whether the constitution indeed forbids a particular policy would therefore rely solely on Z-like sentences. (i.e. facts about the proper methods of interpretation) No other kinds of facts other than Z-like facts could independently tell us anything about Y-like sentences. So, we can only infer unidirectionally: from Z-like facts to Y-like facts to X. i.e. it is intellectually corrupt to reason from X to Y to Z.Report

  9. Avatar BlaiseP says:

    Jason Brennan wants us to believe generations of Constitutional Law expertise is corrupt. It would be helpful if he were able to point to a single instance of such corruption. Moreover, having mentioned Kant and the Metaphysics of Morals, he could do worse than to cite a bit of it, or a few choice morsels from these bizarre and corrupt legal theorists. The entire essay is a muddle of bad thinking, weasel words and specious accusations.

    The Constitution is not a given. No scholar ever thought it was. The Constitution provides for its own amending and even provisions for a Constitutional Convention for a complete redrafting.

    The Constitution is what SCOTUS says it is. If there’s any reverse engineering going on, it’s in Brennan’s Straw Man Factory. Yes, Conservatives have their own view of the Constitution, guided entirely by their own principles of justice. Liberals have another, Libertarians yet another. This is not reverse engineering, it is simply Weber’s Machtpolitik, where elections have the same ultimate consequences as wars.

    A constitution, by definition, is not law. It is only a framework for law, a statement of principles. We cannot get past a phrase such as “Congress shall make no law” and come to any other conclusion. The Constitution is only guidance to lawmakers and lawgivers.

    Heaven forbid we should differ on the basis of principles, or that principles should be given voice through the political process. This process is not a facade, it’s the nuts and bolts of democracy in action. Any sincere legal positivist will not rely on some googly-moogly transcendental view of law, he will take the empirical stance of a rational bureaucracy guided by the underlying social nature of law itself.Report

    • Avatar Murali in reply to BlaiseP says:

      Any sincere legal positivist will not rely on some googly-moogly transcendental view of law, he will take the empirical stance of a rational bureaucracy guided by the underlying social nature of law itself.

      Why? i.e. what do you think legal positivism means such that sincere legal positivists would take the empirical stance of a rational bureacracy guided by the undrlying social nature of the law itself?Report

      • Avatar BlaiseP in reply to Murali says:

        Because, if my definition of legal positivism is correct (and it may not be) the legal positivist views law as a fundamentally social framework, cutting any ties to the vagaries of political currents which serve to tie him to the legal realism community.

        Law cannot be anything but social. Federalist 10: men are not angels, factions will arise, etc. I’ve made this point so many times before. It’s like that old joke about the new guy in prison. The lights go out, a voice is heard in the darkness “Twenty-seven!” A few man laugh. Another guy yells out “Fifteen!” Quite a few guys laugh.

        “What’s going on here?” asks the new guy. “Oh”, says his cell mate, “We’ve all been in here so long we have the jokes numbered.”

        So the new guy yells out “Twenty-one!” Complete silence. A voice is heard “Some guys just can’t tell a joke.”

        It seems to me, if the legal positivists are to make their case, they must explain away the social nature of law itself to the exclusion of political influence, for good or evil. I can understand the elementary criticisms of the legal positivists but I really cannot excuse their naivete about the foundations of law itself. Those laws arise from duly elected legislatures, themselves the product of political will. The entire premise of legal positivism is bunk: there is nothing we can point to and say “This is law” independent of legislatures or monarchical decree.

        At this moment the King, who had been for some time busily writing in his note-book, cackled out ‘Silence!’ and read out from his book, ‘Rule Forty-two. All persons more than a mile high to leave the court.’

        Everybody looked at Alice.

        ‘I’m not a mile high,’ said Alice.

        ‘You are,’ said the King.

        ‘Nearly two miles high,’ added the Queen.

        ‘Well, I shan’t go, at any rate,’ said Alice: ‘besides, that’s not a regular rule: you invented it just now.’

        ‘It’s the oldest rule in the book,’ said the King.

        ‘Then it ought to be Number One,’ said Alice.Report

        • Avatar Murali in reply to BlaiseP says:

          Law cannot be anything but social.

          That is basically the strong positivist thesis. The weak positivist thesis is that it is possible that in some jurisdictions, Law is only a social thing with no connection to morality.

          Positivists do not deny that laws are a product of political processes and thus, the product of people exercising their moral judgement. Rather, legal positivism denies that something being morally bad disqualifies it from being law. John Austin, one of the most famous positivists said that law was just the command of a sovereign

          Legal realism is the view that judges discover law and not make it. This doesn’t necessarily mean that law is some transcendental platonic thing. It could mean that thre is a fact of the matter as to what acts were passed by parliament, which interpretations have institutional support etc etc. So, with all this in place, it is possible that a judge could misread what the proper interpretation is, or get things wrong in some way or another. (Note: it is possible to state legal realism too crudely. Legal realsim does not deny that the pronouncements of previous judges can provide the kind of appropriate institutional support for certain legal principles) What legal realism does deny is that what the judge says is the law in virtue of the judge just saying it. So, when a supreme court judge says some law is unconstitutional, the legal realist is saying that insofar as it is really unconsitutional, it was so before the judge said it was. The doctrine of stare decisis complicates things such that evene judges’ decision was invented out of whole cloth, the fact that the judges have now said it binds future judges unless future supreme court judges challenge the ruling. The longer the ruling goes unchallenged, the more institutional support it is deemed to have. But we cannot make sense of institutional support and the role it plays without at the same time thinking that a judge makes a kind of mistake when his judgement fails to acknowledge such support. i.e. the law has to exist prior to the current judgment in order for the principles that underly one judgment to hav emore institutional support than the principles that underly another.Report

    • Avatar Mike Schilling in reply to BlaiseP says:

      Yes, Conservatives have their own view of the Constitution, guided entirely by their own principles of justice.

      Yeah, the fact that conservatives represent monied interests and think money in politics should be totally unregulated is, like, a total coincidence.Report

  10. To be clear, he is not talking about lawyers who have to use whatever arguments bolster their case, but academics who are supposed to be more disinterested

    I do think part of what’s at issue here is that legal scholarship seems, to me at least, to be to a large degree predicated on how much one’s scholarship can influence policy. I imagine that law scholars, or at least the ones at prestigious institutions, are just hoping their articles will be cited in legal briefs for such and such a case.

    In other words, maybe academics are *supposed* to be more disinterested, but they have several incentives (citation counts, for example, might at least make them more marketable than not) not to be.

    I haven’t read the linked-to article, so I might be misapprehending some of what you and Brennan are trying to say.Report

  11. Avatar Brandon Berg says:

    Agreed wholeheartedly, even in cases where I actually like the policy implications of bad rulings. For example, I think that abortion should be legal, always, no questions asked. But let’s be honest—vigorous hand-waving did all the heavy lifting in Roe v. Wade. The federal government can’t ban or regulate abortion because it doesn’t fall under any of the enumerated powers, but there’s nothing in the Constitution that says that state governments can’t ban it.Report