Let this be my annual reminder / that we could all be something bigger

A hypothetical syllabus for a graduate seminar in constitutionalism (broadly construed). Assuming 14 weekly meetings of 2 hrs. Constructive criticism welcome. It feels very ... busy, but I think there's value in an overview of this sort. (Hence the reliance on survey articles, SEP stuff, and reviews.) I'd definitely like to make it less US-centric. So ... thoughts?

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This class is on constitutionalism. It is not a class on constitutional law, and it is especially not a class on American constitutional law, although American voices will get disproportionate representation in the readings. While we will discuss the legal aspects of constitutionalism, one of the primary themes of the class is just how much more there is to the subject than can be found in the case law of constitutional courts. In addition to constitutions as “higher law,” then, we will be looking at constitutions as institutional settlements that simultaneously empower and limit the organs of the modern nation-state. We will also look at constitutionalism as an aspect of political identity, both for individuals and for states. Keeping these varied perspectives in mind, we will then tackle some of constitutionalism's most vexing problems: the mechanisms and legitimacy of constitutional change; the meaning and enforcement of constitutional rules; conflicts between constitutionalism and democracy; and the morality of constitutional constraint more generally.

In keeping with this pluralist agenda, the readings will draw from political science and philosophy as well as law. You will be required to write five short response papers (800-1000 words) and a research paper (6000-9000 words), and participate in class discussions. While I will prepare some introductory remarks each week to provide additional context for the readings and put my own spin on the material, the bulk of each class will be discussion format; the responses papers and class participation, therefore, count for half of your grade. Each response paper should engage with the current week's reading, although it may draw on previous material; so that we can all have a change to read that week's responses, they must be posted to Blackboard by noon on the previous day. You may pick which weeks to write on, although they must be selected in advance.

Session 1 – Introduction
Brief historical overview and introduction to the central problems of the course.

[38pp] Graham Maddox, “Constitution,” in Ball, Terence, James Farr, and Russell L. Hanson. 1988. Political Innovation and Conceptual Change. New York: Cambridge University Press.
[40pp] McIlwain, Charles Howard. 1947. Constitutionalism Ancient and Modern. Revised. Ithaca: Cornell Univ Press. Ch. 1, 2; at http://www.constitution.org/cmt/mcilw/mcilw.htm
[2pp] Selection from Paine, Thomas. 1998. Rights of Man, Common Sense, and Other Political Writings. Oxford University Press, USA.
[18pp] Waluchow, Wil, "Constitutionalism", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), forthcoming URL = .

Optional: Gordon, Scott. 2002. Controlling the State: Constitutionalism from Ancient Athens to Today. Cambridge: Harvard University Press.

Session 2 – Foundations of legal theory
A whirlwind tour through the debates about the nature of law. What grounds the legality of particular laws or official acts?

[18pp] Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Spring 2003 Edition), Edward N. Zalta (ed.), URL = .
[21pp] Finnis, John, "Natural Law Theories", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), forthcoming URL = .
[28pp] Postema, Gerald J. 1994. “Implicit Law.” Law and Philosophy 13(3):361-387.
[54pp] Shapiro, Scott J. 2007. “The 'Hart-Dworkin' Debate: A Short Guide for the Perplexed.” University of Michigan working paper, available at: http://ssrn.com/abstract=968657

Optional: [70pp] Hart, H. L. A. 1997. The Concept of Law. 2nd ed. New York: Oxford University Press. Especially ch. 5-7.
Optional: [25pp] Green, Leslie. 2005. “General Jurisprudence: A 25th Anniversary Essay.” Oxford J Legal Studies 25(4):565-580.
Optional: [75pp] Greenberg, Mark. No date. “The Standard Picture and its Discontents.” UCLA School of Law Research Paper No. 08-07. Available at: http://ssrn.com/paper=1103569 [Accessed March 21, 2008].


Session 3 – The constitution as law
What do constitutions look like from the perspective of law and legal philosophy?

[8pp] Perry, Michael J. 1998. “What is 'the Constitution'?” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part I only.
[25pp] Raz, Joseph. 1998. “On the Authority and Interpretation of Constitutions: Some Preliminaries.” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part I only.
[26pp] Alexander, Lawrence, and Frederick Schauer. 2008. “Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance.” In The Rule of Recognition and the U.S. Constitution, eds. Matthew Adler and Kenneth Himma. New York: Oxford University Press. Available at: http://ssrn.com/paper=1235202 .
[22pp] Adler, Matthew D. 2006. “Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism.” SSRN eLibrary. Available at: http://ssrn.com/paper=897988 .
[39pp] Dworkin, Ronald. 1997. Freedom's Law: The Moral Reading of the American Constitution. Cambridge: Harvard University Press. Introduction.
[15 pp] Lüth decision of the Federal Constitution Court of Germany, BVerfGE 7, 198.

Session 4 – The constitution as institution
What picture emerges if we focus on constitutions as defining the set of governmental institutions extant in a polity?

[40pp] Llewellyn, K. N. 1934. “The Constitution as an Institution.” Columbia Law Review 34:1.
[66pp] Young, Ernest. 2007. “The Constitution Outside the Constitution.” Yale Law Journal 117:408-473.
[56pp] Hansen, Mogens Herman. 1999. The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press. Ch. 4, 13.
[10pp] Extract from 2nd Certification Decision, Constitutional Court of S. Africa.
[23pp] Vile, M. J. C. 1998. Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis: Liberty Fund. Ch. 1; ch. 2 is optional.
Extracts from the Constitution of South Africa.

Session 5 – Constitutions and identity
Can a constitution be understood without seeing it as somehow rooted in the society and the people who live under it? What role do constitutions have in shaping national identity?

[5 pp] Loughlin, Martin. 2005. “Constitutional Theory: A 25th Anniversary Essay.” Oxford J Legal Studies 25(2):183-202. Parts C and D.
[16pp] Habermas, Jürgen. 2003. “Toward a Cosmopolitan Europe.” Journal of Democracy 14(4):86-100.
[10pp] Extract from Burke, Edmund. 2002. Reflections on the Revolution in France. Stanford: Stanford University Press.
[37pp] Jacobsohn, Gary Jeffrey. 2006. “Constitutional Identity.” The Review of Politics 68(03):361-397.
[25pp] Barker, Ernest, and Ernest Barker. 1962. The Politics of Aristotle. New York: Oxford University Press. Book 3, esp. parts 3, 6-13.
Extracts from the Constitutions of Turkey, France, South Africa.

Session 6 – Enforcing the constitution: judicial solutions
Can courts guard the constitution? What are the conditions that make it possible?

[43pp] Holmes, Stephen. “Lineages of the Rules of Law,” in Przeworski, Adam, and José María Maravall. 2003. Democracy and the Rule of Law. New York: Cambridge University Press.
[25pp] Hilbink, L., T. Moustafa, and A. W. Pereira. 2007. “Courts and Judges in Authoritarian Regimes.” World Politics 60:122-45.
[5pp] Federalist 78. In Hamilton, Alexander et al. 2003. The Federalist Papers. New York: Signet Classics.
[26pp] Graber, Mark A. 2005. “Constructing Judicial Review.” Annual Review of Political Science 8:425-51.
[14pp] Whittington, Keith. 2005. “'Interpose Your Friendly Hand': Political Supports for the Exercise of Judicial Review by the United States Supreme Court.” American Political Science Review 99(04):583-596.

Session 7 – Enforcing the constitution: beyond judicial review
What other mechanisms besides courts can be used to enforce constitutional rules?

[12pp] Frey, Bruno S. 1997. “A Constitution for Knaves Crowds out Civic Virtues.” The Economic Journal 107(443):1043-1053.
[10pp] Federalist 47-51. In Hamilton, Alexander et al. 2003. The Federalist Papers. New York: Signet Classics.
[21pp] Smulovitz, Catalina. “How Can the Rule of Law Rule? Cost Imposition through
Decentralized Mechanisms” in id.
[46pp] Hansen, Mogens Herman. 1999. The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press. Ch. 8.

Session 8 – Constitutional change
How do constitutions change? How much change is good?

[19pp] Schauer, Frederick. 1995. “Amending the Presuppositions of a Constitution.” In Sanford Levinson, ed., Responding to Imperfection: the Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
[24pp] Balkin, J. M., and R. B. Siegel. 2005. “Principles, Practices, and Social Movements.” University of Pennsylvania Law Review 154:927.
[45pp] Balkin, J. M., and Sanford Levinson. 2006. “The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State.” Fordham Law Review 75(2).
[32pp] Holmes, Stephen, and Cass R. Sunstein. 1995. “The Politics of Constitutional Revision in Eastern Europe.” In Sanford Levinson, ed., Responding to Imperfection: the Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
[2pp] Extract from Burke, Edmund. 2002. Reflections on the Revolution in France. Stanford: Stanford University Press.
[27pp] Jacobsohn, Gary Jeffrey. 2006. “An unconstitutional constitution? A comparative perspective.” Int J Constitutional Law 4(3):460-487.

Optional: [26pp] Vernon Bogdanor. 2005. “Constitutional Reform in Britain: The Quiet Revolution.” Annual Review of Political Science 8:73-98.
Optional: [40pp] Kersch, Kenneth I. “How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech.” Princeton Law and Public Affairs Working Paper No. 06-003. Available at: http://ssrn.com/paper=908322 .

Session 9 – Constitutionalism and democracy
[8pp] Habermas, Jürgen. 2003. “On Law and Disagreement. Some Comments on 'Interpretative Pluralism'.” Ratio Juris 16(2):187-194.
[43pp] Freeman. 1990. “Constitutional democracy and the legitimacy of judicial review.” Law and Philosophy 9(4):327-370.
[61pp] Waldron, J. 2006. “The Core of the Case Against Judicial Review.” Yale Law Journal 115.
[20pp] Devins, Neal. 2006. “The D'Oh! Of Popular Constitutionalism.” Michigan Law Review 105:1333.

Session 10 – Constitutional meaning
How can we figure out what the constitution means? Does the very existence of disagreement imply something about meaning?

[33pp] Paulsen, M. S. 2006. “How To Interpret the Constitution (and How Not To).” Yale Law Journal 115(2037).
[19pp] Perry, Michael J. 1998. “What is 'the Constitution'?” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part 2.
[20pp] Raz, Joseph. 1998. “On the Authority and Interpretation of Constitutions: Some Preliminaries.” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part 2.
[47pp] Scalia, Antonin. 1998. “Common-Law Courts in a Civil-Law System.” In A Matter of Interpretation: Federal Courts and the Law, ed. Amy Guttman. Princeton: Princeton University Press.
[51pp] Berman, Mitchell N. 2007. “Originalism is Bunk.” SSRN eLibrary. Available at: http://ssrn.com/paper=1078933 [Accessed August 22, 2008].

Optional: chapters on India, Germany, and Canada in Goldsworthy, Jeffrey. 2007. Interpreting Constitutions: A Comparative Study. New York: Oxford University Press.
Optional: Samaha, A. 2008. “Dead Hand Arguments and Constitutional Interpretation.” Columbia Law Review 108.

Session 11 – Constitutionalism and administrative discretion
From either an institutional/functional or aspirational perspective, much of what is considered “administrative rule-making” has a constitutional dimension. Can the vast discretion vested in most states' administrative agencies be squared with constitutional theory?

[21pp] Luban, David. 2002. “The Publicity of Law and the Regulatory State.” Journal of Political Philosophy 10(3):296-316.
[19pp] “Introduction,” in Dyzenhaus, D. 2004. The Unity of Public Law. Hart Publishing.
[22pp] Shapiro, Sidney A., and Richard W. Murphy. “Eight Things Americans Can't Figure Out About Controlling Administrative Power.” Administrative Law Review, Vol. 60, 2008. Available at: http://ssrn.com/paper=1162872 [Accessed August 8, 2008].
[41pp] Vermeule, Adrian. “Our Schmittian Administrative Law.” Harvard Law Review, 2009. Available at: http://ssrn.com/paper=1126726 [Accessed August 19, 2008].
Optional: [51pp] Dyzenhaus, David, and Evan Fox-Decent. 2001. “Rethinking the Process/Substance Distinction: Baker V. Canada.” The University of Toronto Law Journal, Vol. 51, No. 3, pp. 193-242. Available at: http://ssrn.com/paper=1090260 .
Optional: [67pp] Rubin, E. 2004. “The Myth of Accountability and the Anti-Administrative Impulse.” Michigan Law Review 103:2073.

Session 12 – Executive constraint and war
Is there something about war that makes it inapt for constitutional control, or any sort of rule-governance? Can emergency powers be constitutionalized? If so, should they be?

[30pp] Ferejohn, John, and Pasquale Pasquino. 2004. “The law of the exception: A typology of emergency powers.” Int J Constitutional Law 2(2):210-239.
[3pp] Elster, Jon. 2004. “Comments on the paper by Ferejohn and Pasquino.” Int J Constitutional Law 2(2):240-243.
[28pp] Dyzenhaus, David. 2004. “Intimations of legality amid the clash of arms.” Int J Constitutional Law 2(2):244-271.
[23pp] Coomaraswamy, Radhika, and Charmaine de los Reyes. 2004. “Rule by emergency: Sri Lanka's postcolonial constitutional experience.” Int J Constitutional Law 2(2):272-295.

Session 13 – Constitutional morality for officials
Should officials treat constitutional restraints as morally obligatory? If so, which ones? Can a conscientious official ever be a good person?

[18pp] Goldman, Alan H. 2006. “The Rationality of Complying with Rules: Paradox Resolved.” Ethics 116(3):453-470.
[21pp] Walzer, Michael. 1973. “Political Action: The Problem of Dirty Hands.” Philosophy and Public Affairs 2(2):160-180.
[17pp] Kleinerman, B. A. 2005. “Lincoln's Example: Executive Power and the Survival of Constitutionalism.” Perspectives on Politics 3(04):801-816.
[30pp] Extract from Graber, M. A. 2006. Dred Scott and the Problem of Constitutional Evil. New York: Cambridge University Press.
[52pp] Fox-Decent, Evan. 2005. “The Fiduciary Nature of State Legal Authority.” Queen's Law Journal, Vol. 31. Available at: http://ssrn.com/paper=1090292 [Accessed February 13, 2008].

Optional: [140pp] Barak, A. 2002. “A Judge on Judging: The Role of a Supreme Court in a Democracy.” Harvard Law Review 116:19.

Session 14 – Constitutional morality for citizens and subjects
What moral status should ordinary citizens accord constitutional rules and institutions? And to what extent do the answers to all these questions depend on whether the state properly encompasses the an appropriate group of people?

[16pp] Green, Leslie. "Legal Obligation and Authority", The Stanford Encyclopedia of Philosophy (Spring 2004 Edition), Edward N. Zalta (ed.), URL = .
[29pp] Waldron, Jeremy. 1993. “Special Ties and Natural Duties.” Philosophy and Public Affairs 22(1):3-30.
[15pp] Mandela, Nelson. Opening statement of the defense case in the Rivonia Trial, Pretoria Supreme Court, 20 April 1964. Available at http://www.anc.org.za/ancdocs/history/rivonia.html.
[30 pp] Trapnel, X. N.d. “Consequentialist Constitutional Duties.”
[36 pp] Nasstrom, Sofia. 2007. “The Legitimacy of the People.” Political Theory 35(5):624-658.

Optional: [44pp] Jones, Benjamin F., and Benjamin A. Olken. 2007. “Hit or Miss? The Effect of Assassinations on Institutions and War.” SSRN eLibrary. Available at: http://ssrn.com/paper=986952 [Accessed March 24, 2008].
Optional: [12pp] Thoreau, H.D. 2003. “Civil Disobedience,” in Thoreau, H. D. Walden and Civil Disobedience. Barnes & Noble Classics. Available at http://theinfovault.net/vault/documentsbillslegis_files/Duty%20of%20Civil%20Disobedience.pdf
Optional: [210pp] Edmundson, William A. 1998. Three Anarchical Fallacies: An Essay on Political Authority. New York: Cambridge University Press.

Calling me all the time / like Blondie ...

Okay, what? No. Just, no.

I'm the last to deny the value of art, literature, and cinema in enlarging our moral sensibilities, etc., etc., but look: the idea that one filmmaker's take on a man who transitions out of love and suffers for it is going to reveal a deep and universal truth about gender expression or identity is simply nuts.

The claim seems to be that this story (man falls for straight man, man becomes woman, man is still rejected by his beloved) is an example of the purported fact that our gender identity is primarily about gender presentation, and how we wish others to respond to this presentation. And I'd be a fool to deny that having others respond to one as an X is a big part of--a psychologically necessary component of, I'd say--identifying oneself as an X. But this just doesn't get Helen anywhere near what she wants (I'm assuming that What Helen Wants is to be warranted in saying "one ought not take up deviant gender identities; others are right to shame those who do; social institutions ought to discourage their creation, proliferation, and persistence").

I have to say, I'm not even sure I see where her argument is supposed to be going. It looks something like this:

1. The value in performing a certain gender role is in others' social validation of it, rather than in its congruence with your inner self;
2. And men want femmes;
3. And so does God, for that matter;
3. So strap on those stilettos, laydeez; that you prefer steel-toes is irrelevant.

Well, I would say that at least this makes more sense than the Underpants Gnomes' business plan, (Step 1: Collect underpants. Step 2: ? Step 3: Profit!) but I'm actually not sure about that. Remember that the whole dialectic (see here, here, and especially here) is Helen's attempt to give an internal critique of subversive gender roles--one that doesn't rely on their supposed Harm to Society (inevitably based on shoddy social science). So what she needs to show is that pursuing deviant gender identities is somehow self-defeating, and this she fails to do. After all, it is simply not the case that validation from social/sexual interaction is a monotonically decreasing function of distance-from-conventionality. Even if all we got out of gender performance was others' approval (or lack), many people would feel more validated by a subculture's acknowledgment of their genderqueerness than they would by 'passing' with the mainstream.

But Helen's mistake goes deeper than that. She seems to hate authenticity, so I'll avoid the term, but my preferred understanding of the philosophy of action makes me think that social recognition and acknowledgment matter as much as they do precisely because we need to maintain a sense of meaningful identity over time. That is, we need to understand our lives as narratives that matter, and this can't be done if we see ourselves as windowless monads acting out individualized scripts. The quest for personal identity (and even, gasp, authenticity) isn't in opposition to sociability, normative constraint, or tragic loss; it requires at least the possibility of all of these.

Helen's argument needs it to be true that subversive identities are doomed--that genderqueers will always fall in love with squares who can't deal, that transmen will inevitably find their sense of self disrupted by pregnancy, etc. But this is not merely bleak, it's wrong. Thomas Beatie seems to have no problem being a pregnant man; sometimes marriages continue when one partner transitions. Those few people willing to be openly gender-subversive typically derive not just pleasure but meaning from it, which is why, like the Christians in ancient Rome, they continue to do it despite persecution. About the only group for whom Helen's story seems remotely apt is the "ex-gay" movement, populated as it is with folks who found homosexuality incompatible with their religious beliefs, but anyone who takes the time to read through Disputed Mutability's archive (in comparison to, say, Eve's) must surely acknowledge the folly of prescribing that path for all.

Moreover, insofar as the tragedy with "ex-gays" derives from the difficulty with integrating deep aspects of sexual desire into a personal identity marked by precisely the traditionalist, religious norms Helen is trying to defend ... well, it looks a lot like her theory has a tragic narrative of its own: believing in it makes it true that one will experience the very moral dissonance and tragedy that the theory insists is inevitable. Well, no, thanks. Not when all it takes is reading, e.g., Sugarbutch to see just how much goodness and value--how much meaning--can be derived from what Helen would condemn as intrinsically deficient.

Look. It's true that gender identities are deeply entangled with sexual identities and preferences. What turns one on--what represents the beautiful, the sublime, the cute, and all the rest; what makes sex delicious or sacred or just fun--all of this has a lot to do with gender roles, with archetypes of social presentation (rather than just anatomy). And vice versa. So maybe this is what's driving Helen's about-face on butchness--if gender roles and sexual preferences are entangled, and we stop repressing deviant gender roles, might we arrive at her oft-ridiculed dystopia, that world where nobody knows who to fuck anymore?

Not so much. I've been ridiculing that dystopia for a reason; it's nuts. People would still need to find meaningful identities for themselves as sexual beings in a world with other sexual beings, and those identities would necessarily reflect extant traditions and practices, just as they do now. Even if sexual desires are quite socially relative, they're not particularly mutable for most individuals; even a society fully accepting of gender diversity would find that diversity anchored by both the need for social recognition and that relative immutability of desires. If anything, a flourshing of alternate gender identities would encourage everyone to be more thoughtful and conscientious about sexuality and gender. Helen fears a world of 12-year-old wallflowers, too bereft of shared understandings of sexual interaction to even get dates on Craigslist, but it's precisely our current, outmoded, ill-fitting gender dualism that leads to those wallflowers--and the 20- and 30- somethings that are their benighted future selves, the Nice Guys who can't get beyond the roles to see the people, and the all-too-common males who simply have no idea what they want out of sex or relationships because they've never had to think about it. (I'm sure there are equivalent female pathologies.)

So. Sure, most straight guys don't go for butch women. But substitute in "tomboy" or "Amazon" and suddenly "most" seems quite contestable; and Helen's corresponding assertion that there are no straight butches is just laughably wrong. Yes, sexual desire--both one's own and that of others--shapes gender identity and expression, and yes, most people throughout history have had tragically cramped understandings about all three (IBTP). But it's a blessing, not a curse, that economic, social, and technological shifts have increasingly provided space for gender and sexual deviance to flourish.

And once we see that flourishing for what it is, see those who reach for it as no more doomed or tragic (though certainly more vilified, and perhaps more self-conscious) than anyone else, then there's just nothing more to be said about arguments like Helen's. If you believe (straight) masculinity and femininity have value because of the way they enable flourishing through the constraints of tradition, if you're attracted to the metaphors of genre and poetic form, you should be on the front lines at the next Pride march.

If you want to argue God, of course, or make consequentialist arguments about social change--well, I don't think there's much to be said for those claims, either. But that's a different topic altogether.

We gotta stay positive!

I'd put off reading Mark Greenberg's "The Standard Picture and its Discontents" for an embarrassing reason: I suspected that I would find it extremely challenging and persuasive, and be forced to reorient my thinking about general jurisprudence as a result. And I was right. It is really, really good, and I think hits on exactly what I find frustrating with much of the general jurisprudence literature. I suspect, too, that a rejection of the "standard picture"--something like a command paradigm of law, where authoritative pronouncements directly explain the content of legal norms--may be at the root of my disagreement with constitutional originalism. (And an implicit acceptance of it may be why some of my interlocutors seem so dogmatic from my perspective--Solum's "Semantic Originalism," for example, seems entirely unmotivated from outside the SP.)

That's not to say that I agree with everything in the paper, which after all is merely a draft. I'm dubious about the direction he seems to be pushing his Dependence View in--I think any attempt to have law-on-morality dependence will need to take account of moral disagreement at the ground floor, as it were. But as a critique of the prevailing paradigm, it's nothing short of brilliant.

I found it curious that Greenberg doesn't mention Gerald Postema's work at all--having recently read a few of his papers, especially "Implicit Law," "Melody and Law's Mindfulness of Time," and "Law as Command," it strikes me that they're both hitting on the same point.

I'm kinda saving myself for the scene...

I really don't understand the argument Eve Tushnet is making here, prompted by an article in First Things claiming that Huckabee's mistake lay not in the substance of his arguments but his failure to give appropriately public reasons (and, more controversially, that Natural Law arguments would be sufficiently public). Is her view that natural law arguments presuppose evaluative standards which are just as contested (think justice, flourishing, common good, etc.) as the policy prescriptions the natural lawyers wish to arrive at? And that since we no longer share such standards ... well, what then? This is where I really can't follow Eve--it seems like she's saying we must replace them with evaluative-but-not-moral ones, such as aesthetic terms. And thus, we must be very, very afraid of mixed-sex college dorms, because they will make sex (both the fact of sexual difference, and the activity of intercourse) meaningless.

If this is the argument, then I think I disagree with her about everything except her acknowledgement of deep moral disagreement. And even here, I think she moves much too fast. What's important about disagreement is responding to it appropriately, which depends a lot on who disagrees and how much. Sometimes we have disagreement all the way down, but sometimes not. It really depends on the issue. Moreover, it's only through a thick public conversation about these normatively-loaded terms that we can create such shared meanings. Yes, some people are just talking past each other, but in the process of doing so, public meaning can take root. (And when we stop talking to each other as if it matters, public meaning dissolves.) There's certainly a difference between attempting to speak the language of public reasons versus not even trying, and the former can have valuable effects even when it's seemingly mistaken in its assumptions about consensus.

Second, I just can't see how aesthetic imperatives--or even the demands of practical reasoning, but this is because I'm an internalist about the latter through and through; let's put that aside here--can even come close to taking the place of moral discourse as a standard of public reason. At best, aesthetic response can function as an input in moral argument (in making claims about the value of environmental preservation, say); at worst, it reduces to Leon Kass's so-called "wisdom of repugnance." When it comes down to brass tacks, aesthetic responses are no more shared than moral ones, and--what is worse--are much less amenable to correction through argument and reflection. De gustibus, etc.--at least where politics is concerned. Public meaning--at least as far as law goes--is not merely fragile and contingent; it's also an achievement with real moral consequences. If it's really hopelessly lost, the answer is decentralization, subsidiarity, a liberal archipelago--not a Jurisprudence of Yuck.

Finally, one of the two examples she uses--the supposed banality of sex within any ideology that rejects traditionalist doctrines about its proper role--just rings false to me. I'm not saying that no one fits this diagnosis; the "pick-up artist" subculture described in Neil Strauss' "The Game," for example, seems full of unhappy men whose pathologically instrumentalist search for sex has made the prize no longer worth winning. But insisting that mixed-sex college dormrooms ought to be permitted is a far cry from committing to a training regimen explicitly designed to reduce all conversational interaction with women into a series of game-theoretic moves and counter-moves.

Recognizing that one can live harmoniously in a mixed-sex household doesn't mean desacralizing sexuality (for straights, obviously). If anything, it requires recognizing that sex isn't just about putting together parts that fit; if it were, mixed dorm rooms really would be a big distraction. Seeing women as people rather than as exotic Others is precisely what allows a man to escape the cramped misogyny of the "pick-up artist", and see sex as a joint exploration rather than as a prize. There are many ways for sex to be beautiful, but almost all require this reciprocal recognition of common humanity--a recognition that is blocked, rather than encouraged, by living arrangements (and other cultural practices) that keep men and women strangers in each others' eyes.

As embodied beings, we can never entirely break down the barriers that divide us. We can never merge with our loved ones in order to know them completely. And sometimes, sex is beautiful precisely because it is a concrete expression of that longing, an always-imperfect pursuit of an impossible unity. But trying to protect and encourage this beauty by further estrangement of the sexes is needlessly perverse: while seclusion and mystery may ignite a fiery lust, it cannot help but be the shallow obsession of the self-absorbed. Gourmands, oenophiles, lovers of music and dance and art in all its varieties--not only is the connoisseur's passion heightened and honed by knowledge and familiarity, but they are the only things that can ever bring it into being. The same goes for sexuality, and all the social interactions touched by it--ignorance, not knowledge, is what breeds banality.

I don't expect Eve to agree with this argument, at least in the context of sexuality; I know she takes Catholic doctrine here quite seriously. But I think those of us who aren't so bound, but who similarly value the aesthetic dimension of sexuality, should recognize that the gender rigidity and social repression of traditionalism represents its true enemy.

Constitutionalism and the Is-Ought distinction

Orin Kerr and Sasha Volokh have an interesting back-and-forth here about the is/ought distinction in constitutional law. Kerr claims that 'many people who discuss constitutional law are pretty sloppy in distinguishing "is" and "ought." When asked what the Constitution means, lots of people construct a pastiche of existing law and law that they personally would really like.' On his view, talking about constitutional law descriptively means "trying to describe what the law is in the same way [one] might describe the law to a client who needs to know the legal consequences of particular conduct."

Volokh points out that there are other ways of interpreting the constitutional "is" than this "bad man" view of law; we might believe that unenforced constitutional rules are still law despite a lack of institutional sanction, for example. Kerr thinks this is entirely consistent with his point: "My position was that by law I meant the doctrine of legal institutions -- courts, legislature, and executive, in whatever mixture." Or as he put it in his reply, law is "what legal institutions believe it they must do or not do using widely shared practices of interpretation."

But once Kerr has acknowledged this, his original claim--that many people are "sloppy" about is and ought, joining together what they want the law to be with what it actually is--starts looking a lot more questionable. Is Kerr's claim that normative arguments have no role to play in determining exactly how the actions of governmental branches create legal content? That they have no role to play in determining the limits of the relevant interpretive community?

One needn't be a Dworkinian to think that normative arguments are relevant to the content of constitutional norms; all but the hardest of hard positivists think so. And once you allow for this, then it is entirely reasonable for someone to challenge your description of a constitution's content on the grounds that it fails to properly reflect normative considerations.

Trying to be heroic in an age of modernity

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I know semantic externalism is a symptom, not a cause, but grrr ...

Depressing: that this post on the importance of seeing human experience in all its glorious particularity has already, by comment three, served as a pointed example of how doggedly we insist on processing all new information through a set of transparently inadequate categories.

That book sounds fascinating, though. Even if it isn't the Buffy-verse backstory I'd originally assumed.

Maximization and the supererogatory

Charles Johnson, in a thoughtful Comment to my last post, suggests that the demandingness objection to consequentialism is really about making conceptual room for the supererogatory. And I think that's probably right, but I'm still not convinced by it. I freely concede that maximization can't allow for supererogation at the fundamental level of moral ontology, but I actually see this as something of a feature, not a bug.

I think that supererogation is on a par with virtue and duty--a pervasive feature of a moral landscape that reflects, not a basic moral property, but the intersection of the unqualified (and maximizing) moral 'ought' with the limitations of the imperfect human frame. Virtues are character traits likely to reliably bring about the good; duties arise when maximization is itself a self-defeating approach to the good; and supererogation reflects a complicated mix of factors involving human sociability and fragility.

Our twin needs for self-respect and for the esteem of others--to be able to hold our heads up in public, to echo a concern of Pettit's--require us to differentiate the morally required from both the legally/institutionally required and from the morally desirable. These needs help us place sensible dividing lines between bad and forbidden, good and required; they help us translate this continuous line of valuations into something that can properly guide actions. We need to be able to see our lives as narratives with meaning, and we need to see and by seen by others as more than moral failures. But this no more goes against maximizing consequentialism than Bentham's acknowledgment that only certain bad acts merited legal sanction betrayed utilitarianism.

In short, supererogation has more to do with moral psychology than it does with moral ontology; and that is precisely why the example of Christ on the cross is misleading. As Johnson notes, supererogation makes no sense for an all-powerful, all-knowing being; but a theory like mine wouldn't expect it to.

That said, the original post was a bit of half-assed speculation about just why philosophers take the demandingness objection so seriously--and since Johnson's example suggests a Christian upbringing might encourage one to make room for the supererogatory as a foundational moral property, I suppose it tells against my suggestion.

Consequentialism and the demandingness objection

The demandingness objection against consequentialism--that, since it bases the right on maximizing the good, it demands perfection from moral agents--has never struck me as being all that problematic. Indeed, I'm rather puzzled that so many find it a reductio; what's so weird about the claim that you should always do better?

Wild speculation: perhaps there's some connection here with the prevalence of atheism among philosophers. After all, if you grow up taking Romans 3:23 seriously ("For all have sinned, and come short of the glory of God"), demandingness is exactly what one ought to expect from a moral theory. Hrmmm--are ex-Catholics more likely than others to be consequentialists?

Agency, akrasia, and Velleman

I've been reading a bit about practical rationality and reasons for action, and find David Velleman's theory quite interesting (see here, esp. chapter 3). But here's something curious: apparently both Velleman and I take it to be an advantage of his theory that it provides a plausible explanation for akrasia (weakness of will)--and yet we seem to have diametrically opposed beliefs about what exactly this explanation is.

Now, this probably just means that I've misunderstood his view, but, A, I find my interpretation independently interesting, and B, this is my blog, so there.

So. Briefly, Velleman's view of agency is that it consists in being guided by a motivation towards self-understanding, a motive that is constitutive of agency and hence inescapable. He likens it, persuasively, to a particular sort of improv: improvising the role of oneself, where a bad performance, an inauthentic performance, is one that fails to make sense. (Making sense is here cashed out in either a folk-psychologic or narrative sense.)

Now, he's not claiming that this motive dominates all others, merely that it exists and is an essential aspect of agency itself, and hence guides the formation and regulation of our other motivations. It plays the functional role of selfhood, basically.

How does this explain akrasia? Well, it seems like--at least in an earlier work--he sees the virtue of his explanation to lie in demonstrating the genuine agency of the akratic actor. He seems to be saying that akratic actions are those in which either the motive of self-understanding correctly overrides mistaken beliefs about what reasons there are, or the proper weighting of them, or correctly refrains from action, despite being aware of the right thing to do, because the awareness doesn't here constitute a full grasping of how the action fits into the agent's self-narrative.

My objection to this story, put simply, is that it makes akrasia sound okay. But it's not okay; it's awful--and if there's one thing I'm intimately familiar with, it's the phenomenology of akrasia. Under this reading, it seems like what's gone wrong isn't the "will" at all, which is doing fine; it's rather that the belief subsystem hasn't quite caught up to it. And this seems to utterly miss what's so disturbing about the phenomenon.

When I first read Ch. 3 of his manuscript, though, I felt it invited a dramatically different interpretation, one much more attuned to its tragic aspect. On this reading, is not that what the motive of self-understanding grasps has come apart from what the agent believes to be justified, or even to make the most sense. On the contrary--the problem is that the motive of self-understanding, while active, is simply too weak to enforce a coherent narrative. The akratic action may be undertaken while under the influence of that motive while remaining out of step with its demands. As a result the agent feels torn between his self-understanding as someone whose actions are under conscious control and his self-understanding as someone who doesn't do whatever it is he just, akratically, did.

On this interpretation, akrasia is worse that mere non-agency; it's an active subversion of agency, because it engages with the agent's self-understanding while undermining the narrative whose construction is its entire aim.

(I think a similar analysis helps illuminate one aspect of what's so awful about extreme depression.)

Thoughts on Hayekian liberty and democracy

Some scattered thoughts, while rereading The Constitution of Liberty:

I'm not very surprised by how close he is here to something like Pettit's republicanism. But I am surprised by the similarities between his view of law's generality and Rousseau's. (This is what comes of having a terrible memory, and even worse note-taking habits.)

Now, Hayek focuses on the formal (abstractness, generality) rather than procedural (mode of enactment) aspects of law ... mostly. But in his Chapter 10 discussion of law and coercion, he comes quite close to Rousseau's insistence on law's double generality. For Rousseau (Social Contract II.6), only norms that are willed by the people as a unified whole and applied to the people as a unified whole may be properly considered laws. Laws can have differentiated effects, and even establish separate groups of citizens, but only if the people wills it as a general, undifferentiated whole. This doesn't mean unanimity, but it does require an absence of faction.

So, too, with Hayek: "There may be rules that can apply only to women or to the blind," and this is inevitable, since "only a woman, for example, can be raped or got with child" (154). But what would keep laws touching on such matters from being arbitrary would be their status as "equally recognized as justified by those inside and those outside the group." As with Rousseau, this doesn't mean unanimity but rather a sort of anti-factionalism.

Hayek acknowledges this debt explicitly in a later section (194). But what I find interesting is that he doesn't do much with the procedural side of things; indeed, he's at pains to argue that liberalism has only a limited, instrumental connection to democracy (ch. 7). And in chapter 1, he insists that the "political freedom" of self-government is quite distinct from liberty proper, and represents the metaphorical extension of the latter concept to collectivities (a "free people," etc.).

But even the most expansive versions of political liberty (institutionalizing the equality of political power, let's say) are implicated in Hayek's anticoercion--this is what I take to be the moral of Rousseau's double generality. The negative argument is straightforward: if a new law is passed that only a minority recognizes as justified, each individual of the majority has reason to feel that it is thereby being made subject to another's arbitrary will, insofar as a 'minority rules' decision procedure implies some degree of differentiated status that falls afoul of the 'arbitrariness' criterion. Supermajoritarianism presents analogous, though less severe, difficulties. In the easiest case, the status quo bias implicit in supermajoritarian decision rules might be seen as benefitting a discrete set of persons and lasting only through their efforts, in which case it represents the enforcement of their arbitrary will. Even if this isn't true, however--even if opposition to the status quo takes the form of cross-cutting majoritarian coalitions--the individuals within those coalitions will have reason to feel that they are subject to the arbitrary will of the governing coalitions of the past.

Obviously no one can make a complaint on these grounds who simultaneously wishes to enact a law that would, by his own lights, count as furthering oppression. But as Jeremy Waldron insists, questions of authority go precisely to cases when we disagree about matters of justice and liberty; and the liberal who finds his anti-oppression law frustrated by supermajoritarian decision-rules has a legitimate complaint on procedure, not merely substance--a complaint his opponents should acknowledge as well-founded insofar as they too consider themselves liberals.

Best. Originalism. Article. Ever.

I'm sure you're all eager to hear my thoughts on Mitchell Berman's "Originalism Is Bunk" article. So here they are:

1. This is awesome. He gets everything right. Best. Originalism article. Ever.
2. Damn. Damn, damn, damn. So much for my writing the definitive refutation of conceptual originalism. Curse you, Mitchell Berman.

There's more to say, of course--Larry Solum has yet to concede defeat, so the fight must go on--but I really do think Berman has thoroughly refuted the extant "hard" originalist claims. To respond, originalists will need to articulate and defend an account of conceptual content sophisticated enough to deal with the fact the disagreement over the nature of constitutionalism and constitutional law extends all the way down when elaborated at any level of specificity. And this they have yet to do.

This, I think, has to be the next step. Perhaps pragmatic inferentialism will have a large part to play here; perhaps not. But, like Berman, I suspect "strong originalism" will lose its attractiveness as a interpretive theory.

More on Razian authority

Brian Leiter prefers that commenters refrain from pseudonymity, so I'll just continue this conversation here. I understand what Gardner and Green are saying, but if it's an accurate interpretation of Raz, it seems to be practically a reductio. To recap, my argument is as follows:

Imagine a legal system, SP, where the criteria of legal validity are: 1, only directives issued by official O are valid; 2, all those directives issued by O which do not conflict with moral considerations A and B are valid. Suppose O issues a directive, "Do X, and do not consider dependent reasons C, D, ... , J." This is clearly a soft positivist system. The question is whether such a system is possible. Gardner and Green claim that on a Razian account, it is not; such a system is incompatible with the conceptual truth that law claims authority.

I claim that, on the contrary, SP's law can easily claim authority. Obviously this claim may or may not be warranted, but, as Raz has been at pains to stress all along, this is not a problem; what Razians need to assert is the conceptual impossibility of SP. And not only is it possible, I believe that the legal system in SP is likely to have a stronger claim than one without such soft-positivist criteria.

Gardner claims that in my example "law-applying officials have no authority regarding the application of A and B. It is irrelevant that they have authority regarding lots of other things (such as C, D ... J)." But this seems to imply that to be an authority--to validly issue directives that can be taken as authoritative--one's directives must be taken as authoritative in all circumstances. Or as Green puts it, "if one assumes, with Raz, that it is necessary to the law that it claim authority, the law cannot include requirements, like A and B, concerning which the lawmaker plays no authoritative function."

To see why I feel this claim must be false, consider hard positivist "sources" criteria. The lawmaker, obviously, plays no authoritative function in deciding whether or not these criteria obtain; they either do or they do not. A bill was either passed in the proper way by the Queen in Parliament or it was not. Subjects must decide for themselves whether or not the directive issues from a valid Source before granting it authoritative status, and the officials might in fact be wrong; the Source-based criteria might fail in particular instances. Some directive might not in fact be encompassed by the authorizing legislation passed by the Queen in Parliament, despite the official's belief that it was (obviously there are complications, as the criteria may in a particular legal system have to do with the official's belief concerning ultra vires concerns rather than the fact of the matter, etc., but this can be put aside; we can imagine hard positivist criteria without such worries). In such a case, would we say, with Green, that "a[n] [executive official] issuing what he believes is a valid [legal] directive cannot consistently *claim* to be acting as an authority when issuing it, insofar as these requirements [ie, the Source-based criteria] are concerned"? No; the official will presumably believe that the criteria are satisfied, and hence be perfectly consistent in her claim (even if wrong). She is not acting as an authority on the question of whether or not the criteria are satisfied; she is acting under the authority conferred on her by the presumed satisfaction of those criteria.

This is exactly parallel to my official O in system SP consistently claiming that her directives are valid, even when she is wrong about A & B. If she is acting in good faith, she must obviously believe herself to be right about A & B; this is enough for her claim to be consistent. Just as the law can be wrong about its claim to authority--whether or not a directive ought in fact exclude and replace the dependent reasons underlying it--so too can officials be wrong about whether they have issued directives that pass the tests of validity within their systems. Are Raz, Green, and Gardner really denying this?

It might seem so. I'm having a bit of a hard time understanding Gardner's claim that "on the hard positivist view the directive must be interpreted so as to make the (legal) force of unexcluded reasons A and B turn on the law-applier's determination of their force." Is the claim is that whether or not the legal criteria of validity--even Source-based criteria--are satisfied turns on the official determination of this fact? Such an assertion seems truly odd, and does not flow at all from the self-image of the law as authoritative. It would seem to imply that officials can never be mistaken about applying the criteria of validity. But of course they can, just as different officials can disagree about whether or not they are satisfied. One official--an executive, say--might think he has valid authority; another--perhaps a judge--might disagree; perhaps a second set of judges will side with the first official. At each stage the officials will be trying to determine whether in fact the criteria of validity--whether Sources-based or otherwise--were satisfied (again, perhaps the judges will be looking at the different question of whether the official was justified in his possibly unauthorized action, but if so they are asking the slightly different question of whether the citizen had a legal duty to obey an invalid law in those circumstances, or a right to recover from the official's act, etc.).

Contra Gardner, soft posivitism does not efface the authority of a legal system's officials; what it does is narrow the scope of this authority. Hard positivist criteria of validity also narrow this scope. A legislature that can only pass bills with a 2/3 supermajority has "less" authority than one operating under simple majority. Same with one that can only legislate on Tuesdays. But this is no more incoherent or problematic than the idea that a doctor might have epistemic authority with respect to kidney diseases but not kidney diseases and brain tumors.

The point of the "partial exclusion" critique is that while the law needs to claim authority, it need only claim authority contingent on validity. Indeed, this contingency is precisely what separates a fully articulated legal system with criteria of legality applied by a cadre of officials from a simple personalist regime where Rex or Regina is an authority on everything. Just as an official can say "Do X" and claim authority because she believes that she is authorized to do so by a bill passed in the proper way (and she believes that moral considerations justify the subjects of her directive treating it as authoritative and hence excluding A, B, ... , J), so too can an official say "Do X" and claim authority because she believes she is authorized to do so by the existence of the bill plus the fact that the directive in fact complies with A & B (and moral considerations justify the subjects excluding C-J). In both cases the official can be wrong both about validity and about whether the authority is warranted, but so what?

Is the claim that inserting any moral considerations into the criteria of validity destroys the possible service value, because any sort of moral evaluation is categorically more difficult to apply than the Sources-based tests the hard positivists envision? This doesn't seem at all persuasive to me, but I won't bother trying to refute it. At any rate, it doesn't seem the natural interpretation of Raz; I had thought the point wasn't that moral considerations were distinctly harder to evaluate, but rather that authority would be undermined by trying to peek beneath and look to all its dependent reasons. Soft positivism doesn't do this. Even if A & B (let's say these are rule-of-law values) are among the dependent reasons that the authority will consider in making its judgment, O provides a service to her subjects by giving her directive in place of C-J. Is is not merely question-begging but mistaken to say that unless all dependent reasons are excluded, no useful service is provided by the exclusion of the rest.

Whether or not O in fact provides this service is an open, moral question, just as are all claims of authority. But I submit that O might actually have an easier time justifying this claim than she would if she were in a hard positivist system lacking the extra criteria of conformity with A & B. This flows from the general claim that it is easier to justify authorities of lesser rather than greater scope. Think about justifications for rule-of-law values: they often point to the ways in which the formal aspects of law (prospectivity, generality, due process) may increase conformity with other, more substantive, moral values. As a potentially vulnerable subject, I may think it reasonable to treat O as authoritative with respect to C-J only if I need not take her as authoritative with respect to rule-of-law considerations A and B. Her conformity with the latter allows me to believe that, in fact, I am better off letting her directive replace my own judgment concerning the rest.

I'm not saying this argument always goes through; I'm generally skeptical concerning legal authority. But soft positivism, by limiting (but not effacing) the law's authority, makes it easier to justify.

I'm really not sure what to add to this. If there's something I'm still missing about Gardner or Green's argument, I'd love to know what; I continued to be baffled by the acceptance of Raz's claim, and I'd be happy to be shown what I'm missing.

Grumpy before my time

Any article titled "An Economist Goes to a Bar And Solves the Mysteries of Dating" is pretty much guaranteed to annoy me. Now, again, the research here is rather interesting: they ran speed-dating experiments for two years and thus have a huge data set on 4-minute interactions between Columbia grad students, at the end of which each decides whether or not they'd be interested in a future date. Very cool. One might question how generalizable are conclusions derived from Columbia grad students (or from speed-dating), but still, neat.

My complaint is simply that the author is doing the world a disservice by implying ("all of this rational-choice stuff") that if you want to study this sort of thing, you should look to economics. This is social psychology pure and simple (and indeed, two of the coauthors were psychologists). Now, none of this would matter much ... except that the social ecology of knowledge-production really is sensitive to considerations like this. It's not good for Truth when economics is seen as the only "real" social science, and bright students go for econ PhDs regardless of the questions they intend to study or the methods best suited for studying them.

UPDATE: to clarify a bit--I don't have a problem with interdisciplinarity. Interdisciplinarity, done well, is great. What I have a problem with is when the general public comes to have a distorted view about what various disciplines are about. If you go to grad school for econ, you'll spend your first years with Mas-Colell, Whinston, and Green; it's not the most natural place for learning how to conduct field studies to gather data on social interactions.

Against Raz's SCA argument for hard positivism

I think Leiter and Greenberg are quite right with their "partial exclusion" critique of Raz's argument that soft positivism is incompatible with the law's necessary claim to authority. I'm not sure their example is quite what they are looking for, though. With a slight modification, it could be immunized against Michael Steven Green's objection:

An official lays down a legal directive: "In instances of this sort, do X; do not consider C ... J." Moreover, the criteria for legal validity in this system include, 1, that directives be issued by this particular official, and 2, that they be consistent with reasons A and B, which are presumably dependent (moral) reasons applicable to a very wide variety of situations.

This is clearly a directive that could be authoritative: we can easily imagine (expertise, democratic respect, whatever) the official's directive being a reason to do X and to exclude C-J from our deliberations about whether to do X. It has served us, despite requiring us to consult A and B to test its legal validity.

This is positivist, because the fact that A and B rather than C and D are among our criteria for legal validity is a consequence of the social practice that we happen to have; it is soft positivist because, as John Gardner puts it in his comment, the A and B reasons do the validating independent of the official's assertion, should he make one, that A and B are in fact satisfied.

Ta-da! Soft positivism. Has this argument not been made in print before? The 1989 S. Calif. Law Review symposium on Raz had a few pieces that came close to this argument (I'm thinking of Stephen Perry's, I believe).

Words have meanings, part XXVI

In the midst of an otherwise-excellent article summarizing what appears to be quite nice research on the degree to which auto repair shops correctly diagnose problems and prescribe unnecessary services, David Leonhardt inserts a rather curious claim: that this research somehow exemplifies "freakonomics," against which there has been a (possibly justified) backlash, but does so in a good way. In doing so he links to an older NYTimes piece that seems just atrocious, one that runs together a number of totally different trends:

(1) economists studying non-market interactions (Beckerites, public choice folks, etc.)
(2) economists distancing themselves from political advocacy, seeing themselves as impartial scientists
(3) economists turning to statistics (or empirical work more broadly) as opposed to formal modeling
(4) economists turning to micro- as opposed to macro- level questions
(5) economists studying "the everyday"

Whatever categories you think Steve Levitt's work falls into, it's just insane to claim that these 5 things are somehow identical. Nor do they necessarily go together. Examples are easy enough to come by--David Friedman's "Hidden Order" is clearly 5, 1, and 4, but certainly not 2 or even 3.

Schneider's research is at the heart of economics: the study of market interactions. It's probably true to say that it's in some sense Not What Most Economists Do, but let's be a bit more precise about what we're talking about. He's studying "the everyday," but the everyday of the market, and while it's micro and empirical it doesn't at all sound like one of those "this instrumental variable regression will explain once and for all a complicated multicausal phenomenon that other social sciences, whose work I shall not read, let alone cite, have studied for decades" findings. Can we please reserve the term "Freakonomics" for the book and the blog? No? Sigh.

On gaps, contradictions, and originalism

Just a brief clarification concerning the last post, as Larry Solum has emphasized in a response to another interlocutor that "One of the points of the New Originalism is that the semantic content of the Constitution sometimes underdetermines its application. That's a feature of the theory, not a bug." While I discussed the problem of gaps and contradictions in my post, I wasn't entirely clear about distinguishing two separate levels of indeterminacy that give originalists trouble in different ways. So let me try to restate this argument, which was merely implicit before.

While Solum acknowledges that semantic content underdetermines its application, he misses the force of the full critique. On the one hand, if we are genuinely restricting ourselves to literal semantic meaning or something very close to it, "underdetermination" is a huge understatement: literal semantic meaning gets us nothing but the really obvious provisions about 2 senators per state, etc. (Keep in mind, though, that deference even to literal semantic meaning requires smuggling in some assumptions, with which I take issue; I think it's quite possible for our criteria of constitutional validity to contradict and override even this thinnest, least controversial sort of meaning. This can be safely put aside, however.) But, as I argued, literal semantic meaning is just not the stuff constitutions are made of: if it were, the idea that they can effectively constrain and structure governments would be absurd. So we have to import some degree of pragmatic content--whether it's Solum's "clause meaning" or something else--to get anything workable at all.

Once we do this, however, we run smack into the interpretive pluralism--the deep disagreement about the criteria of constitutional validity--that Leiter so rightly brings up. (As I noted, it's actually an issue even with LSM, but less obviously so.) Whether we should view this pluralism as generating contradictions (a plurality of inconsistent but valid "constitutional moves") or gaps (when you have a plurality of inconsistent criteria covering some area of consitutional import, then this means you lack any criteria at all) is an interesting philosophical question, but the bottom line is the same. Semantic originalism is not just a theory that leaves certain applications underdetermined; whether or not one may or must use it is itself underdetermined (at least, I would say, from a mainstream positivist standpoint) on any realistic appraisal of American constitutional practice. It is because our highest strata of officialdom are populated by originalists and structuralists and legal process types and Dworkinians and on and on that gaps/contradictions exist in the norms of constitutional validity. And that can't be wished away--or at least, not at once; if every Con Law professor converts to semantic originalism tomorrow, then perhaps in 40 years ...

In short: there are at least two levels of indeterminacy related to constitutional meaning. One is the sort Solum highlights: the rule may not determine the application; semantic meaning won't get us very far (though, as highlighted above, this bites deeper than he acknowledges). The second is at the level of rule-identification itself--and it is this, I insist, that is fatal to the semantic originalist's claim of conceptual necessity.

Originalism wars: the empire strikes back

A nicely combative post by Brian Leiter has set off the latest battle in the Originalism Wars--and best of all, Larry Solum has responded at length with a more complete defense of his semantic originalism than I have seen elsewhere. Further contributions are here, here, here, here, and here. As before, I think it's a mistaken theory, so I'm very happy to see it laid out so clearly; hopefully this will help further contructive debate. Read the whole thing! All done? Good. Now, to give a brief roadmap of my argument:

First, the choice of Gricean sentence meaning or “clause meaning” versus intentionalist “speaker's meaning” is a false dichotomy. Indeed, Solum's shift from “sentence meaning” into “clause meaning” is an example of just how wide the range of possibilities is. Second, Solum's argument for original clause meaning (versus contemporary public meaning) is unpersuasive; as it happens, contemporary public meaning makes a great deal more sense. This is so because of what constitutions norms are, at least on a positivist line: the criteria of legality for the system as a whole. They must therefore supervene on actual practices—whether of officials, on the standard positivist line, or of We the People, on popular constitutionalist views—in an institutionalized way. But originalist modalities of argument, while clearly embedded within American practice, are not the only ones so embedded. Originalists, not living constitutionalists, thus bear the burden of proof in showing why what seem to be foundational practices of constitutional argument are in fact parasitic on originalist ones. Leiter suggests that moral argument is the only thing that could bridge this gap; I'm less certain, especially if one takes a more inferentialist approach to norm validity. But regardless, the typical arguments adduced—about the nature of law or of constitutions—actually cut in the other direction, towards living constitutionalism.

Whew. Let's take this one step at a time, now.

1.

Solum claims that we can usefully divide theories of meaning into textualist and intentionalist camps, with textualists looking to Gricean “sentence meaning” and intentionalists looking to Gricean “speaker's meaning.” While he acknowledges that this is an oversimplification, I insist that it is a dangerously misleading one. To get a sense of just how broad the space of options is, we can look to Paul Horwich's helpful discussion (Reflections on Meaning, p. 23, 27), where he distinguishes the “literal semantic meaning of a word,” which he uses to refer to

'the sense of meaning in which “I” has a single meaning in English, the same one that “Ich” has in German; in which “and” and “but” possess a common meaning, whilst diverging in pragmatic import; in which “everyone” covers all people, although a speaker may use it to ‘mean’, in a different sense, “everyone present”, or “everyone in Boston”, etc.; in which “She's a genius” does not mean either “She's incompetent” or “Let's give her the job”'

from the following other sorts:

(a)
What the speaker means on a given occasion by some word—where this is some temporary modification of its meaning in the language as a whole. The notion of meaning in which “The President” may be used, in virtue of the speaker's local intentions, to mean “The current President of France”.
(b)
What is said, in a given context, by the utterance of some sentence, the proposition expressed by a sentence-token. The notion of meaning in which “I am hungry” means different things depending, not on the speaker's intentions, but on who is speaking, and on when the utterance is performed.
(c)
The conventional pragmatic content of a term, its illocutionary force (going beyond the de dicto propositional constituent that is expressed by it). The respect of meaning in which “but” differs from “and”, and in which “I promise to go” engenders a specific obligation.
(d)
The full information conveyed by the making of a given utterance, i.e. its ‘conversational implicature’, that which the hearer may infer from the speaker's deciding, in the circumstances, to say what he does. The respect of meaning in which “There's no milk left” can mean “Would you buy some?”.
(e)
The non-literal meanings of an expression, including metaphorical and ironic meanings.

Now, we're clearly somewhere in the range of (b) – (e) when we talk about legal norms. Troy Booher's paper “Putting Meaning it its Place” (Law and Philosophy 25, 2006, esp. 398-408) does an excellent job of showing why constitutional meaning can't be a matter of pure semantics: we're interpreting particular utterances, not sentence types. So it's an open and fascinating question just how much pragmatic content should be included in the “meaning” we're looking for. And as I said, Solum seems to acknowledge this: his actual argument for “clause meaning,” in his “Constitutional Texting” article (p. 27), is exactly the right sort of context-sensitive investigation into the constitutional “conversational situation”:

“Clause meaning is the meaning that would be assigned to a clause, on the assumption that the clause was written with the knowledge that it would be ratified and interpreted by readers who would have very limited access to information about the framing and who would be under normative pressure to disregard any information that was not universally accessible.”

Note what's going on here: Solum is giving us a particular conception of meaning that is to be preferred to alternate ones because it makes the most sense of the Framers' attempt to legislate for the future, and our attempt to discover what they did (but not necessarily intended to do) in that attempt. These are normative considerations insofar as they are about how one should attribute meaning if one is to succeed at communication.

2. But while Solum's argument is the right sort, it is still quite wrong. His originalism, like most, fails to take seriously enough the positivist insight that the fundamental criteria of legal validity are practice-based. Our rule of recognition, if we wish to take a Hartian tack, simply cannot be, as Jack Balkin put it, “a continuing legal command addressed to us in the present.” Such a claim is vulnerable to the withering criticisms Hart leveled so long ago at Austin's “command theory” of law. Not the command but the rule that invests it with authority is fundamental, and whether or not the rule points to original rather than present public meaning is precisely the question and hence cannot be assumed. Moreover, it is a question that can only be answered by reference to present practice. Any other sort of inquiry is simply not an inquiry into our constitution, but rather a different constitution that might have crystallized around the same textual artifact.

Now, we needn't endorse what seems to be the standard gloss of Hart—that the Rule of Recognition is a duty-imposing rule on officials—for this to generate problems for originalism. Even if we take constitutional rules to be more purely constitutive (like the rules of chess, which cannot be said to impose obligations; I take this to be Marmor's view, though this may be a misreading) then the lack of convergence at this level—in particular, the lack of convergence on originalist argumentation—means originalists, not living constitutionalists, have the burden of proof. As Bruce Boyden notes in his response to Solum, non-originalist arguments do not sound “odd” at all; precedent, not original understanding, is the touchstone of American constitutionalism.

Solum might reply that the bar is higher than this, that living constitutionalists need to show “a well-established judicial practice of reading the Constitution in ways that are self-consciously inconsistent with the original public meaning.” But this is an entirely unwarranted shifting of goalposts: scholars have been demonstrating since at least Bobbitt's Constitutional Fate that, in fact, we do have interpretive pluralism (I recently came across a reference to a law review article that attempted to study this empirically, with predictable results, but I can't seem to find it right now—if anyone knows the one I'm thinking of, please let me know). As for the demand for “self-conscious inconsistency,” a practice of Xing may obtain even without its practitioners self-consciously repudiating Y, even if Ying may sometimes be inconsistent with Xing. The Canadian constitutional metaphor of the “living tree,” for example, is quite obviously non-originalist, despite the tree's continuity with its roots.

Solum claims that "even a moment’s reflection reveals that there are serious problems with contemporary public meaning" as a semantic theory; I believe this is precisely backwards. Nothing in "contemporary public meaning" requires we treat the phrase "domestic violence" as encapsulated in the Constitution as meaning "spousal, child, and elder abuse,” as Solum and even Balkin seem to suppose. The contemporary meaning of “domestic violence” is simply different in constitutional versus non-constitutional contexts; this is absolutely normal, reflecting the fact that terms of art will often resist broader linguistic shifts. This example should remind us to take with a grain of salt any warnings that abandoning originalism means being left adrift on a sea of meaning, with nothing to hold onto—robust institutional factors that work to conserve meaning are plentiful, precedent being only the most obvious and formal among them. Every difficulty that plagues attempts to discern some unique contemporary meaning within a contested legal practice is equally present in attempts to do the same for a time period in the past, with all of the familiar historical/epistemic hurdles tacked on for good measure. Looking to contemporary meaning is no more viciously circular than looking to contemporary meaning for the definition of words; something can be "objective" by virtue of interpersonal standardization and convergence.

Now, contemporary public meaning does require that, if constitutional practice came to redefine "domestic violence" to have its modern sense within constitutional discourse, then that would be that--but this is a feature, not a bug. "Contemporary public meaning" takes seriously HLA Hart's recognition that, when it comes to constitutional change, "nothing succeeds like success"; the fact of a change cannot be disputed by questioning its legitimacy. (Though one can attempt to reverse it by drawing on still-extant constitutional resources that remain in tension with the shift.) "Original public meaning," by contrast, refuses to accept the possibility of illegitimate change. And this is why I keep insisting that it is the originalist, not the living constitutionalist, who is confusing ought for is.

Semantic originalism, then, is doubly false: false because constitutional meaning is surely more than literal semantic meaning, and false because we needn't restrict ourselves to the original version of whichever sort of meaning that turns out to be. But where does this leave us? Is there answer simply that, where we lack convergent practice, the constitution runs out—and that this covers both specific constitutional norms, and norms of interpretation? And that therefore the only interesting questions that arise once we enter this realm of constitutional dissonance are purely moral ones—about which norms ought to be promoted (with the hopes of eventually embedding them so deeply in constitutional practice that they become hegemonic), etc.?

Quite possibly. This seems to be Leiter's view, and there's a lot to be said for it; Liam Murphy seems to lean this way as well. It's often hard to tell where particular philosophers stand, because few are explicit about whether the practices that constitute the rule of recognition / criteria of validity / what-have-you are in fact interpretive modalities or more concrete norms (e.g., some particular formulation of the First Amendment's freedom of association). And if you agree with this view, moral considerations will probably push against originalism (I won't bother rehearsing the critiques here). The more a theorist thinks of the criteria of validity as being concrete norms, the less constitutional meaning we'll have; but focusing on constitutional inference, as Bobbitt and Dennis Patterson seem to do, just means we have contradiction where before we had gaps. But note that nothing in what I'm saying requires that originalists stop being originalists; it just requires them to admit that originalism is not the whole truth of American constitutionalism. If they wish to keep making originalist arguments, they can; they merely can't pretend that logical necessity compels it, and hence must acknowledge the moral considerations that bear on their choice.

Moreover, those originalists who focus on the nature of law as binding constraint (I'm thinking of Prakash in particular, and perhaps Lawson and Paulsen) must recognize that these considerations actually push against their position. These might or might not be considered moral considerations; one could consider them, as Fuller did and Waldron (at least sometimes) and Dyzenhaus seem to do, part of constitutionalism / legality itself. After all, if what you care about is certainty, predictability, and the like—if what you care about is having a known and stable framework within which people can live their lives—it's truly bizarre to suggest that the criteria of legal validity ought to be what they were taken to be 140 or 220 years ago, regardless of what they were yesterday. The simple truth is that for a constitution to in fact structure and constrain a government, it must not be seen as a command from the past; by refusing to allow up-front recognition of change, you merely force change to happen sub silentio, in unprincipled and unpredictable ways. (Of course, this applies to supermajoritarianism generally!)

To conclude, Solum insists that if living constitutionalists

"want to contest the truth of semantic originalism, they should lay their arguments on the table and make them explicit. If they want to deny the normative significance of the semantic content of the Constitution, but claim that the semantic content of other constitutional texts has normative authority and creates obligations of fidelity, they should produce the arguments that justify this distinction. And if they want to argue that some nonoriginalist theory of constitutional interpretation is justified on normative grounds, they need to produce the arguments."

I have focused here mostly on the first of these tasks, but living constitutionalists have been doing all three for decades. For example: the best arguments for statutory textualism—those of democratic authority and rule-of-law transparency—simply don't apply to supermajoritarian constitutions; the first is subject to dead-hand objections, and the second to incentive-incompatibility. And normative arguments for living constitutionalism are positively legion; that label fits at least half the books published by Americans on constitutional theory. In short: philosophy of language does not compel semantic originalism. Legal positivist considerations push against it, except as one modality among others. And moral and political philosophy can provide all the distinctions needed between statutory and constitutional originalism, in addition to moral considerations for living constitutionalism. The New Originalism is no more attractive than the old.

In which I confess shameful ignorance

Are there many libertarianish theorists who subscribe to freedom-as-non-domination, or variants thereof? Kukathas' (2003) emphasis on freedom of conscience strikes me as not unrelated, insofar as it's a (distinctly individualized) way of requiring institutions be arranged so as to minimize (a certainly conception of) arbitrary power. Others? Am I totally off-base in so characterizing Kukathas?

EDIT: Hayek, obviously, at least sometimes. Silly Trapnel. More?

Does hard positivism matter?

Rather than post something new, I'm going to put up something I drafted a month ago but shelved. That's how I roll.

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A very brief response to the comment left by "Brutum Fulmen", which expressed puzzlement at my apparent rejection of the philosophical division of labor, and went on to note that even that most inside-baseball debate of general jurisprudence, the hard v. soft positivism, has real consequences ('ILP leads to the view that the law *incorporates*, whereas ELP that the law only *frames*, the moral judgment of what is "cruel and unusual"'):

First, I don't want to knock the division of labor; my point is simply that the theoretical and abstract side has to serve some useful purpose. A university devoted to counting the angels on a pin instantiates the division of labor, too. I don't think I'm alone in thinking that at least some of the questions that motivated the positivism debates of the last 40 years have, in some sense, lost their urgency. But, again, I framed this as a conditional: I also agree with Tamanaha that many legal philosophers are engaged in quite interesting, fruitful work that does engage with what I take to be urgent questions.

Second, I disagree that the hard/soft positivism distinction actually does very much work when it comes to, e.g., the U.S. 8th Amendment. I think we can all agree that Joseph Raz is a fair representative of the hard positivist camp; here's his view on the subject:

'When the Constitution “incorporates” a moral consideration, such as freedom of speech, it sets limits to the power of Congress and other lawmakers to modify this aspect of morality. References to moral considerations in constitutions are typically not cases of the incorporation of morality but blocks to its exclusion or modification by ordinary legislation.' (Incorporation By Law, p. 13.)

Maybe I'm reading this wrong, but I see room here for a nearly Dworkinian theory of adjudication; it surely doesn't make one a Scalia. And Raz is often taken as the hardest of hard positivists!

-- 10/13 update:

I've given a bit more thought to this; I kept it a draft until now due to worries that I was being too glib, perhaps misreading or mischaracterizing Raz's position. But I stand by my claim -- conceptual hard positivism, I believe, is either trivial or implausible. Obviously, Raz disagrees. He thinks, first, that you can reference a body of norms by law without thereby incorporating them into law (a law requiring contracts to be adjudicated through foreign legal system F doesn't thereby incorporate all of F's contract law into the home system), and second, that since morality always applies to everyone anyway, apparent incorporation is merely a matter of law not getting in the way of already existing reasons. But this can't handle the 1stA / 8thA / 14thA cases, let alone the Objective Value Order of Germany's Basic Law, without opening the door to the softest of soft positivism.

If you can have a criterion of legal validity that directs judges towards a subset of moral considerations ('cruel and unusual') when determining whether another norm is law--and hence requires engaging in moral reasoning--it doesn't keep you meaningfully Hard Positivist to note that these considerations already apply anyway; the law is still making a practical difference precisely by insisting that these particular moral reasons, but not others, are to be used as criteria. And analogizing to the referencing-foreign-law case won't work, because at least some of these situations (Germany's Basic Law being the most blatant case) will be right there at the foundations of the system. In other words, you can't say that the underlying criteria are pure, preserving the Sources Thesis, and it's only the derivative laws that then explicitly allow for reference to certain moral considerations in applying them, because this picture excludes legal systems where the references to morality structures the entire legal normative order, as the BVerfGE has consistently held in Germany.

At any rate, as I said: I think general jurisprudence can be and has been helpful in understanding constitutions and legality. But any claim about what's true in all legal systems everywhere is unlikely to resolve standing controversies concerning particular legal systems at particular moments. Indeed, my entire anti-originalist crusade is precisely about denying the applicability of the (general jurisprudence-flavored) syllogism that 'the constitution is written law' + 'written laws are norms whose content just is fixed by public meaning at enactment, period' => 'the content of our constitutional norms are what they were at ratification.'