What is the point of jurisprudence?

“As I have just presented it, this debate is likely to confirm the worst fears of large numbers of contemporary American law professors, the fear that analytic jurisprudence in general, and the debates about legal positivism in particular, are the largely irrelevant preoccupation of a small group of socially unaware but philosophically obsessed pedants, many of whom are English and most of whom are dead.” (Fred Schauer, “Positivism Through Thick and Thin”, in Brian Bix's Analysizing Law).

This brief paper/'think piece' by Steve Smith about the relevance of jurisprudence has provoked an interesting (and certainly spirited!) exchange between Tamanaha, Leiter, Lipshaw, Solum, and Smith himself (links and reply here). Smith's argument seems to be more or less as follows:

The natural law/positivism debate seems semantic at best, and the intra-positivist debates are even more trivial. This might well be because of how debates about the nature of morality are typically bracketed within legal philosophy, taking place purely within (professionally separated) meta-ethics seminars. Perhaps, then, we should just give up on general jurisprudence. On the other hand, practitioners still seem to experience, or at least act as if, there really is some immanent rationality, rather than mere set of posited norms, to law; take their treatment of precedent. This might be where the action is.

Leiter's response is that if general jurisprudence seems sterile, it's because the positivists simply won the debate, and trying to bring God back into things serves no purpose but mystification. Moreover, asking philosophers to be "interesting" to outsiders makes no sense at all; we don't ask it of other specialized scholars, nor should we.

My own thoughts, for what they're worth, are more in line with those of Brian Tamanaha: while conceptual, analytic, general jurisprudence has become an increasingly insular conversation, the study of law 'as such', focusing on its social and institutional dimension, is and ought to be flourishing.

I, personally, focus on constitutionalism precisely because it's an area where the abstract insights of the positivists can and must be supplemented with the substantive insights of the historical institutionalists and political sociologists. Since Kelsen, Hart, and Raz, we've taken for granted a grundnorm, or a rule of recognition, or criteria of legal validity; but any examination of constitutionalism as a political practice immediately makes clear just how messy and interesting these abstract entities really are. If legal philosophers properly-so-called aren't interested in helping sort this stuff out, that's a shame, because I think their conceptual tools can be quite helpful in making sense of how institutional and social practices in fact create, sustain, and change constitutional meaning. We want to go beyond Hart's (quite true) observation that "nothing succeeds like success" when thinking about constitutional change, and I think it's only by marrying the best of the conceptual work with the richest of the substantive and explanatory that we can do this. Moreover, it's only when we have this more satisfactory institutional picture that we can really make headway on what is, in the end, of most importance: the prescriptive and justificatory work.

God and non-consequentialism

At the risk of turning this blog into footnotes-to-Balkinization, rereading Philip Pettit's wonderfully concise brief for consequentialism made me think a bit on Brian Tamanaha's takedown of Michael Perry's odd claim that atheism provides inadequate grounding for human rights. Tamanaha notes that theists are on equally shaky ground, since a loss of faith in the deity undermines the moral code that flows from divine command just as surely as a loss of faith in The Moral Law Within does for the Kantian atheist.

I wonder if perhaps the theist's worry is better interpreted as a claim that non-consequentialism becomes unstable without a god, combined with the assumption that consequentialist derivations of human rights are somehow deficient. And I actually think there's something to the first half of that. As Pettit puts it when explaining the attractions of consequentialism: "There may be features that mark [values that ought to be honored in one's choices, rather than promoted by one's choices] off from other values, but why do those features matter so much? That question typically goes unconsidered by non-consequentialists. Not only do they have a duality then where consequentialists have a unity; they also have an unexplained duality."

Divine-command theists have an easy rejoinder to Pettit: human dignity, etc., is to be honored rather than consequentially (and hence contingently) promoted because God says so. The insertion of God allows non-consequentialists to have a monist theory, just like consequentialists. The Tamanaha-inspired rejoinder might be: but you are still held hostage to the possibility that God does not exist, which is on no more secure footing than whatever meta-ethical grounding a Kantian could come up with. And this is right, but it's a different sort of insecurity. Skeptical meta-ethical arguments of the John Mackie sort--that it's just bizarre to imagine any sort of natural property that would automatically carry the ought-to-be-done-ness [especially of the dualist, non-consequentialist sort!] that characterizes morality--really fail against theism. It's really easy to imagine divine-command morality; you just straightforwardly analogize secular authority and attach it to an omnipotent being.

But what's happened is that the weak point in the argument has shifted from the meta-ethical (what sort of thing is morality; how could it be dualist?) to the straightforwardly metaphysical (how could there be a god of the sort my meta-ethics posits?). And here the theists run into trouble; the existence of such a god is no more reasonable for being easy to imagine, because this ease is fully explained by reasons that have nothing to do with the truth of the claim. Unicorns are easy to imagine, too.

At any rate, though, none of this is an issue unless one concedes that there's something objectionable about consequentialism. And I think most worries on this score are due to a misunderstanding of the theory, which can in fact provide a secure basis--on both the personal and the institutional levels--for human rights. After all, as Austin so wonderfully put it: "It was never contended or conceived by a sound, orthodox utilitarian, that the lover should kiss his mistress with an eye to the common weal." (Province of Jurisprudence Determined, Hart ed., p. 108; quoted in Pettit.)

What would make me wrong?

Commenter William asks (1, 2), in response to my remarks on exclusive originalism, the tough-but-fair question of whether anything could convince me that I'm wrong. More specifically, he wants to know whether:

IF it were the case that most people have always thought that the Constitution was a "law" in the sense of the sort of thing that lawyers ought to be charged with interpreting, and if it ALSO were the case that lawyers have always been mostly originalists, would that constitute a sufficient argument for originalism?

So let me try to clarify what sort of practice-based arguments I believe are relevant to the nature and application of constitutional meaning, and why. As with everything on this blog, this is all very sketchy and tentative.

There are typically two separate questions involved in these debates: A, the nature of constitutional rules, and B, the best method[s] for discovering, understanding, interpreting, and applying them. One move that is made by many otherwise quite dissimilar theorists is to claim that the answer to A strongly constrains the answer to B. Dworkin (1986) thinks the nature of law as an "interpretive concept" that can justify the use of coercion within a political community gives you (or at least Hercules) a method for negotiating the back-and-forth between facts of political history and facts about morality that will lead you the truth about propositions of (constitutional) law. Kesavan and Paulsen (2003) think the nature of the constitution as an authoritative text proclaiming itself supreme law entails a particular sort of originalist textualism with specific roles for different kinds of contemporary evidence to play. Etc.

I think what unites pluralists--resulting, I suspect, in a serious rhetorical disadvantage--is that they (we, I suppose) don't think solving A gets you very far with B. On the contrary, understanding A explains why you shouldn't hope to find any sort of one-size-fits-all answer to B. (And some pluralists don't even seem to see A as a real question at all.) I look at the United States Constitution and I see a particular instantiation of the constitutionalist project of empowering and limiting government through public rules. So a rough answer to A is that constitutional rules are simply those accepted as regulating good inferences about constitutional validity. Constitutional meaning is an emergent and possibly heterogenous property of successful constitutional argument over the document.

Within the American version of this project, the constitutional text plays a peculiar role: it's a supreme written text within a common-law system, and a blueprint for governmental structure that is silent with respect to a great deal of what the state actually does and how (compare). If we want to know how this all works, we have to look and see. But already this very deflationary conceptualization suggests that given reasonably uncontroversial assumptions about American political development, how institutions and social meanings change, and the political use of symbols, one ought not expect too much uniformity.

But what about William's hypothetical? What would it mean if most people thought that the Constitutional was "law" in a leave-it-to-lawyers sort of way, and if lawyers were always originalists? A lot turns on what is meant by that last conditional. Suppose we take it to imply universal agreement to the claim that "the meaning of a constitutional/statutory provision is fixed at its enactment" (call this claim F). Some might be expectations originalists, some might put more weight on precedent than others, some would believe some clauses to reference moral truths, but none would deny that core tenet. In such a world, I'd probably have to sign onto some variant of originalism, yes.

But possibly not. It all depends on how F is deployed in legal reasoning, and what happens when it seems to conflict with other principles of constitutional law. How are lawyers trained to deal with F--do they spend a lot of time studying and practicing originalist theories of statutory and constitutional interpretation, compared to the time they spend on, e.g., common-law reasoning? If it turns out that F is only rarely brought into play (when precedents are thin on the ground, say), and judges routinely allow F-based arguments to be outweighed by other sorts of reasoning without being countered directly, then I think a theorist would have reason to deny the truth of exclusive originalism concerning constitutional meaning.

In other words, it would not be absurd in that hypothetical to assert that F, despite being both universally affirmed and theoretically "deeper" than, e.g., claims about the validity of secret drafting histories, was actually not particularly central to the practice of constitutional law. Now, it would be foolish and possibly malpractice for me to assert not-F while arguing a case in court; I ought merely use arguments that avoid issues of original meaning entirely. But the question here is about the theorist or judge, not advocate. (We care about citizens and politicians, too, but the hypo is explicitly about an artificially legalist constitutional culture.)

Perhaps the originalist impulse flows from an insistence on formal coherence among principles of constitutional meaning and an attraction to "deeper" (e.g., F) over "shallower" ones (e.g., "drafting history may never be consulted"). But I don't think this is always the right way to go with constitutions; sometimes the "deeper" principles should give way. This by no means implies that "anything goes"; constitutional rules exist and one can misinterpret them, both by making bad arguments from within particular modalities and by failing to give proper weight to the proper forms of argument. As for what that balance is, alas, my theoretical commitments force me to admit that I simply don't have enough exposure to the actual practice to have any confidence in my views. It's possible that the correct balancing really is to privilege original meaning over all else, but given the considerations above, I would need to see much more than a tradition of lip service to warrant concession.

[Still trying to sort out the Leiter-on-disagreement stuff.]
[Yes, a lot of this is influenced by Dennis Patterson's Law and Truth.]

Griffin vs. originalism -- coming soon!

More on Leiter and disagreement soon.

Stephen Griffin has put up something of a precis of his upcoming article attacking exclusive originalism--the sort that proclaims original meaning to be the only legitimate locus of meaning, with all other interpretive techniques valid only insofar as they are proxies for it. Unsurprisingly, I'm quite interested to see the finished piece; I'm sympathetic to his goal, and his points seem quite solid.

I'm particularly interested in how he develops his first critique, which I see as the more essential: showing that other modalities of interpretation have a central place in our constitutional tradition, and that originalists therefore face a heavy burden of justification in showing that they ought to be jettisoned.

My worry is that there's a reasonably strong counter to this move that must be acknowledged and refuted. The originalist can claim that [some] nonoriginalist modalities have a real place in ascertaining constitutional meaning, but that meaning itself is nonetheless fixed at ratification/amendment; the use of precedent or structural considerations can only be instrumentally justified as the best way to remain true to this meaning over time. Something like this seems to be Solum's view: his "Constitutional Stare Decisis" presents an essentially lexical ordering of precedent, plain meaning, structure, original meaning, and rule-ishness as considerations ... and yet despite the lowly place original meaning is assigned in the algorithm, his is still a "formalist legal reasoning that aims at the interpretation and application of the original meaning of the Constitution."

This objection does two things. First, it provides a more credibly positivist rejoinder to the claim that our constitutional practice just isn't exclusively originalist than does the typical "history-of-usurpation" one. What I mean is that no constitutional theory can assert that official practice is wholly detached from the constitutional rules; this would fail to acknowledge that we are seeking the meaning of our constitution, not restoring a lost one. But a sophisticated originalism can explain away the persistence of alternate modalities by showing them to be consistent in theory with exclusive originalism, even if misapplied in practice. Second, it gives reasons--reasons immanent within the practice of constitutionalism and legality--for preferring this view of meaning. A number of authors elaborate on the Marshallian idea that interpreting the constitution is just saying what the law is: original meaning + formalist method is what it means to be bound by law, and attempts to deny this go against the very point of legality.

My four readers will know that I don't think this argument works. But it's an incredibly seductive one, especially insofar as it may well work for statutes: the most sensible understanding of the constitutional allocation of legislative authority might be an originalist one. So where does the constitutional argument fail?

I see two points of attack. The first is to refuse to give ground in interpreting our legal practices: claiming that the varities of constitutional argument are (insofar as they are valid) simply guides to original meaning is false to the reality of constitutionalism, a failure to accept the facts on the ground. While this tack of 'textual fundamentalism' might, for example, be valid in the interpretation of authoritative religious documents, this is only because of the peculiar nature of divine authority at work in such cases--while we revere the Founders, we don't take it that far. In short, this attack just presses the positivist argument harder: you're not talking about our constitution, you're talking about one we used to have. There's no more need to defend this argument against "but it can't change like that; it says so itself!" than there is to defend the legality of the reconstruction amendments' ratification: the fact of practice is fundamental, the justification secondary. (Perhaps this is what Griffin does in his article; the post hints at this.)

The second attack takes on what I think of as the Marshallian Fallacy--the claim that, as some sort of analytic truth, "constitutional meaning:constitutional text::statutory meaning:statutory text". (Repeating the Supremacy Clause loudly is not an answer.) The first step is to see just how question-begging it is: why on earth would we understand the meaning of our legal criteria of validity--what it takes for a statute (for example) to be consistent with the constitution--by simply looking to how we understand the meaning of that statute? No: precisely because of the supremacy of constitutions, statutory interpretation must be guided by considerations internal to the nature of the constitution rather than the other way around. Originalism's (possible) suitability to the outputs of the constitutional structure has basically nothing to do with its propriety for understanding that structure.

Once this is recognized, I think the legality argument falls to pieces. Because to the extent that the nature of statutory meaning can be debated (rather than simply fumbled about for by Thinking Like a Lawyer), the arguments are going to go to the nature of Congressional and executive branch authority, and similar considerations internal to the constitutional structure (or republican theory by reference). And any attempt to apply these arguments to the meaning of constitutional provisions is going to founder on the devastating dead-hand objections that have long been recognized (Marmor's article is a nice, brief treatment). Precisely because of the Framers' relationship to us, arguments from within legality are going to cut precisely the other way: against originalism and towards precedent, established practice, contemporary meaning, and the like.

I think it is only by making arguments of this sort that the seductive appeal of originalism can be defused. For 'it takes a theory to beat a theory' reasons, I suspect that only by showing the propriety and appeal on grounds of legality of nonoriginalist theories of meaning can this battle be won.

*: To forestall objections that I'm misattributing claims to Solum: his argument-from-legality is about neoformalist reasoning simpliciter, and he simply assumes original meaning. But I think some authors have in mind similar arguments at the level of meaning, and see them not as instrumentalist, exactly, but as functional: for constitutions to be what they are, we need OM.

As for Solum's affirmative defense of original meaning as conceptually necessary, here and here ... I'm not convinced. The sentence meaning of a constitutional clause at the time of its enactment is indeed fixed by the time and audience of that clause; but the sentence meaning of that clause right now was not so fixed. It would be a reductio of Grice to think that the first declamation of each unique English sentence fixed its sentence-meaning forever, and I think it equally wrong to insisting that each textual instantiation fixes it for that text. The only warrant for so claiming is sneaking in pragmatics: the contextual fact that the abstracted-intentions that constitute sentence meaning, when dealing with a text, are typically fixed on its time of creation. Indeed, Solum's refinement of "clause meaning" as a subset of "sentence meaning" adds in precisely the contextual background ("1) that the clause is part of the United States Constitution, (2) that it was part of a particular type of legal document, (3) that it was uttered in the context of the whole document") that I insist is both implicit and a question of pragmatics in every extraction of sentence meaning from texts. Solum already concedes, by this refinement, that the sentence meaning of constitutional texts is constituted by particular genre conditions unique to legal/constitutional ones; it's unclear what then justifies the insistence on time-fixity if not something like the Marshallian-functionalist argument. Whew!

Leiter against Dworkin, the continuing series

I love reading Brian Leiter's articles. He does a great job combining clarity with erudition, making clear where his arguments fit in with those that have been advanced by others while avoiding the temptation to romp over a field of defeated straw men. (While his readings of Dworkin aren't exactly "generous," he's hardly guilty of distorting the substance of Dworkin's arguments, even if his conclusions about their merit are rather vituperative^*.) His newest paper, available here, doesn't disappoint: I think it's his clearest and most persuasive articulation yet of why he thinks Dworkin's argument-from-disagreement--as glossed by Scott Shapiro in his wonderful The Hart-Dworkin Debate: A Short Guide For The Perplexed--fails. But I'm still not entirely convinced that theoretical disagreement can be pushed to the side.

In a nutshell, Leiter's argument is that 1, we have no good reason to treat disagreement about criteria of legal validity as the central problem for theories of general jurisprudence, since the massive agreement that characterizes legal systems is of far greater import; 2, to the extent we care about understanding such disagreement, the two natural positivist explanations (there is no truth of the matter about some legal disputes, and thus claims to the contrary are either mistaken or disingenuous) are good enough. Positivism, then, remains superior to Dworkinian interpretivism on the basis of the standard criteria (simplicity, consilience, conservatism) of theory selection. (But go read it. It's very good. Shapiro's, too, if you haven't.) Now, I'm not convinced that interpretivism is the way to go (nor do I think Shapiro's suggested solution works, either). I do think, however, that disagreement about the criteria of legal validity cannot be satisfactorily explained away by an error theory of the sort Leiter supposes.

To some degree this may be just a matter of emphasis. I care about constitutionalism, first and foremost; I look to general jurisprudence only insofar as it relates to this, and think it a mistake to just identify the legal system with the state apparatus. Since I don't really worry about, e.g., tort law or contracts, the fact of massive agreement on these topics isn't so salient. What concerns me is fundamental disagreement over the criteria for constitutionally legitimate activity, about the powers of and limits on the state, and here I just don't think you can consider the topic "marginal." I suppose that one could respond with the claim that, even here, the vast majority (however measured) of issues really are settled (even if perhaps in a decidedly suboptimal way); that's the difference between the USA and, say, Somalia or Iraq. But I just don't think this is good enough, at least not in the United States (which may be uniquely problematic in this respect). At the very least, the class of officials on whose practices constitutional criteria of validity supervene include a number executive and legislative branch actors, besides the usual Article 3 suspects ... and if you don't see deep disagreement over basic questions of constitutional authority there, I don't know what to say.

So the reason we cannot, as Leiter urges, be content with simply saying that constitutional validity norms supervene on convergent constitutional practice and that where such convergence fails, the norms run out, is that this is just not good enough for even a naturalized project of constitutional theory. What I mean by this is straightforward, and ultimately owes much to Leiter's own writings: we want to understand how it is that societies structure political institutions and procedures so that the emergent states are both empowered and constrained in credible, public ways. And to do this, we need a concept of constitutional norms that will tell us exactly how these norms supervene on the practice, what degree of convergence is required for truth-talk of them to be apt (such that disagreement reflects epistemic rather than metaphysical failure), and perhaps even how they reflect or incorporate extra-constitutional norms.

To clarify: I am not saying that a naturalized constitutionalism requires us to deny constitutional indeterminacy; that would be lunacy (or a solid reductio). But it does require us to explain the supervenience relation in a way that fits into this project--or, more pessimistically, to show us the limits of the constitutionalist project by highlighting the precarious nature of any such norms. Theoretical disagreement has to be a central problem for any theory of constitutionalism because the project is about creating structures that will withstand it.

In some ways, this might be seen as a naturalist analog of Raz's authority argument. But rather than claiming that our intuitions about legality show that laws must be individuated such that they could, in theory, guide conduct, the claim is that understanding the (social-scientific!) project of constitutionalism requires a theory of the meaning of consitutional norms, and their relation to the practices on which they supervene, rich enough to help us see when and to what degree they can be institutionalized and sustained^#. Even if many of the actors within the practice will--for predictable, Leiter-noted reasons--consistently overstate constitutional determinacy, we need to understand when and why there is or isn't a truth of the matter.

* -- "In any case, what the preceding shows, rather clearly, is that when Dworkin declares “there is no positive evidence of any kind that when…judges seem to be disagreeing about the law they are really keeping their fingers crossed” (as the Disingenuity Account would have it), what he really ought to have said is, “There may be lots of evidence, but I have made no effort to consider any of it.”" -- Leiter, p.39. Ouch.

# -- This might lead towards Mark Greenberg's "rational relation" doctrine. Or it might not! Stay tuned!

Deflationary constitutional theorizing

At first glance, the relevance of philosophy of language arguments and distinctions--like those utilized by Prof. Green, as discussed here--to constitutional theorizing may seem straightforward. Among other things, we want to know what it is for something to be constitutional or not, and we therefore need an account of constitutional meaning. For example, we might want to know just what the sentence:

"The executive power shall be vested in a President of the United States of America."

means. Claims that the President has complete authority over every official who appears to be in the executive branch look like semantic ones that turn on the meaning of that sentence. And this seems like something a philosopher of language could help us with.

Certainly, some theorists go in this direction: Stavropoulos, for example, and Dworkin in his way. And Chris Green's paper is definitely pressing a semantic argument. But I'm increasingly doubtful that semantics, rather than pragmatics, is where the action is; insofar as arguments about the Vesting Clause are linguistic in any sense, they're focused on that particular use of "executive power" in a particular constitutional / legal context. And this doesn't seem to be what semantic theories are trying to make sense of.

Even a shift to pragmatics may be misleading, though. If we start from the question of which of various possible constitutional orders we have, right now, then it looks like the focus will be on norms of constitutional validity, which may or may not be amenable to (let alone constituted by) authoritative verbal formulation. We care about particular constitutional sentences because of what they do to these norms. And it's not clear why we would expect a general theory of pragmatic content to help us much with this in any concrete way, as the relationship between sentences and norms may be quite system-specific; and indeed is perhaps the defining feature of that system.

[Many theorists have analogized the norms of legal validity to the norms of a game. Would we expect a general theory of pragmatic content to help us much in understanding the rules of Calvinball? Not really: we need to understand Calvinball first, in order to see how utterances within it fit into our theory of content.]

This isn't to say that these theories don't apply to constitutional texts; they surely do. But to the extent we're pushed towards pragmatic theories of legal content, it will be a very deflationary sort of application. On something like Brandom's inferentialism, for example, it seems like we'd characterize the meaning of the Vesting Clause within U.S. constitutional practice as the commitment of everyone involved to take it as a premise in their constitutional reasoning; in particular, their inferences towards entitlements to "x is un/constitutional"-type propositions. But this formulation clearly doesn't help us make the right inferences of this sort; it just makes explicit what's going on already.

Originalism is a sort of foundationalism concerning constitutional inference: it claims there's only one sort of valid argument towards proposition-entitlement, though others may be good if they are taken to reliably generate the originalist sort. What kinds of arguments could justify this claim? Only ones internal to the inferential practice itself, I think: arguments that demonstrate why non-originalist inferences are somehow defective (perhaps by leading inevitably to contradiction). I think this is the most respectable gloss to put on many of the arguments put forward for originalism; and I think that the pervasiveness of "constitutional faith" is why moral arguments are actually respectable in this context, though only when formulated in a certain indirect fashion. This is also how many dynamist arguments work: one commenter pointed to Stevens' concurrence in Georgia v. Randolph, in which we can see his attempt (ably rebutted by Scalia) to demonstrate why originalist inferences would be unsound (namely, because they would lead to contradictions with commitments to gender equality).

Now, I take the project of constitutionalism to aim at the institutionalization of public rules of constitutional inference. I think this, in fact, actually points towards internal arguments against originalism, arguments based on incentive-incompatibility (at least within a supermajoritarian amendment framework). But, alas, few writers seem to be advancing claims like this.

Philosophy of language and originalism

Chris Green's paper on applying the sense-reference distinction to constitutional law, available here, is interesting, although I find it ultimately frustrating. His claim is basically that originalism, while implausible if taken to mean original references (truth-values, more or less) of constitutional propositions, is bother possible and correct if taken to mean original senses (functions from possible worlds to truth values, more or less). This has some affinities to Jack Balkin's "original principles" approach, and places it within the broader family of "original meaning, not applications" originalisms.

One upshot of this approach is to make clear just how immense is the authority it accords to the constitutional framers. This is because sense determines extension; the job of modern interpreters, once the original sense has been extracted, is merely to slot in the facts of the actual world, as best they know them, and thus discover the truth of concrete propositions ("segregation is unconstitutional"). Not only did the framers get to pick a rule that would decide constitutionality in the world they knew (even if they might have been mistaken about how to follow that rule); they got to pick a rule that would decide constitutionality in all possible worlds, now and forever.

And yet--I repeat myself, perhaps, but I keep seeing the same thing!--just why we are in fact bound to the original sense/intension rather than the current one is almost entirely unmotivated. In Green's defense, he is upfront about this, admitting (on page 16 of 102) that he "cannot here give a full defense of the theory" before pointing, in a footnote, to the possibility of an argument relying on the text's self-understanding as an "historically-embodied textual assertion of authority." In the article itself, he claims that intension-originalism follows from the point of constitutionalism as a set of rules that can stay fixed while applying to changing and unforseen circumstances (16-17). But both arguments seem question-begging to me.

1. The text's self-understanding of its own authority, on its own, is irrelevant. "X. Trapnel's Best Constitution Ever" could claim unlimited and perpetual authority for itself, but it would still have none; the nature of a text's authority must flow from the character of the practices of understanding, interpreting, and applying it. Perhaps Green disputes this, but I had thought this a core tenet of almost all general jurisprudence; even Dworkinian interpretivism starts from the history and point of the practice, rather than the artifactual locus of the practice, in order to get things going.

2. The idea that original-intension/sense is a "natural position to take" because of our concern with the rules as apart from their contingent (and possibly mistaken) applications may be true psychologically--and if so, that does count as evidence, on a practice-based view, for the non-exclusive validity of originalist arguments. But it is hardly the only position, and the normative/practice-based concerns that motivate it actual push the other way. (I'm unsure whether Green is arguing that his theory follows because it best accommodates the objective values of stability and responsiveness, or whether he is making a more practice-based claim about the purposes embedded within American constitutionalism right now, irrespective of their merits. But either way!)

Suppose we accept that constitutional sense/intension determines constitutionality. What does that get us? Not originalism: Green points to Frege's claim that sense remains constant over time, but Chalmers' modern reconstruction, which Green also relies on, abandons this claim as implausible; and even at the same moment, two individuals can assign different intensions to natural kind terms or names. Why privilege the original (standardized across users, let's grant) intension over the current one? Both give us a rule that is metaphysically prior to its applications and can reach unforeseen ones. Moreover, the contemporary intension will do a better job of dealing with vagueness: precisely because it is our rule, not our forebears', we will find it easier to apply.

Worries that relying on contemporary intension/meaning/what-have-you means abandoning constitutionalism entirely are simply misplaced. The common law--which is nothing if not unoriginalist--wasn't just a bunch of lawless judges handing down decrees, pace Bentham (though he may well have been right at the time). Now, there's clearly a difference between interpreting a line of purely atextual decisions and interpreting a written constitution, but exactly what sort of difference is a deeply contingent question. The moves you can make in Australia are different than in Canada, and it's not just a matter of conceptual confusion. I think it rather telling that Scalia's originalist manifesto was titled "Common-Law Courts in a Civil Law System"; that alone should set off alarm bells.

There's definitely an originalist strand in American constitutional practice, but to elevate that to hegemonic status and deny the validity of all other forms of argument seems to require either wishful thinking or explicitly normative arguments--and I think the latter are only persuasive to those who approve of original meaning on substantive grounds, and even then ought to be overridden by procedural concerns.

(If I've misunderstood or mischaracterized the positions here, please correct me!)

Legal inferentialism: totally sweet

So I've been reading Brandom's Articulating Reasons, the gentle introduction to his inferentialist magnum opus, thinking that perhaps therein lies a rigorous foundation to a practice-based conception of legal argument that goes beyond mere handwaving. And, hey, look: "On Legal Inferentialism. Toward a Pragmatics of Semantic Content in Legal Interpretation?" I love it when it turns out someone has written an article clarifying exactly the problem I'm trying to muddle through.

One frustrating aspect of the questions I'm interested in is that I really need to become conversant not merely in general jurisprudence and constitutionalism-as-political-theory, but philosophy of language/mind/action, and probably sociological analysis of institutions, too. Especially insofar as the inferentialist stuff seems rather heterodox. (Brandom's "Making it Explicit" has about 500 Google Scholar citations, but it seems like about 450 are dedicated to refuting it.) Eeep!

More later.

Public rule-following and constitutional "fidelity"

I find it interesting to read Matthew Adler's "Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism" paper (here) against the background of Philip Pettit's "The Reality of Rule-following" (here). Adler's paper summarizes the struggles that legal positivists have had in moving beyond H.L.A. Hart's not-so-helpful formulation of the Rule of Recognition as a 'social rule'. The difficulty, generally speaking, is that the level of cooperation and (colloquially speaking!) coordination that extant philosophical models of group activity presuppose seems to be lacking in the real world with our legal criteria of validity. In response, some theorists have explored weaker and weaker models of social practice, but Adler suggests that even these do not go far enough. The problem, for him, is that all these models insist on "group-sensitive" acceptance of the rule or criteria, which rules out the sort of "group-insensitive" acceptance displayed by a "constitutional fidelity" that proclaims its version of the rules to be correct no matter what everyone else thinks. Surveying the landscape of American constitutional theorizing, Adler finds this "fidelity" ubiquitous and hence considers it a strike against most positivists that they treat it as somehow deficient.

I'll put aside the specifics of the various proposals at issue here--Scott Shapiro's 'massively shared agency', in particular, I need to look at more closely--and just touch on why I think some very general philosophical worries about public rule-following might perhaps push back against Adler. In other words, rule-following itself might preclude group-insensitive (GI) acceptance, making "constitutional fundamentalism" perhaps a better label for such an attitude than "fidelity."

Pettit's paper is part of the vast literature (with which I have only a dilettante's acquaintance; caveat lector) responding to Kripkensteinian worries about how we can ever know ourselves to follow one rule rather than another (because all our prior experience underdetermines future use, &c). He wants to account for our being able to directly but fallibly "read off" of particular rules applications of potentially indefinite scope. In order to do this, Pettit takes an interestingly naturalist tack: perhaps a rule can be uniquely picked out by prior uses through an exemplification relation, such that even if (a, b, c) are consistent with rules (r1, r2, ... , rn), they will in fact exemplify only r1 if presented in ideal conditions to beings like us with our particular, evolutionarily adaptive, capacities. Without at least hypothetical others to compare reactions with, however, we lose the fallibility requirement; in order to know that I'm following a rule rather than grasping at a different one each time a new situation presents itself, I must be able to engage in counterfactual introspection to see how I might have gone wrong in my responses.

What about public rules? Here there's an extra difficulty: I need to know not merely that I'm continuing to apply one rule to various situations, but also that it's the same one that you're applying. As Pettit puts it, "it is only if the person identifies the rule on the basis of an interpersonally as well as intertemporally standardized inclination that I can know which rule he is following." But this isn't--can't be--a one-time encounter; it's only by continually interacting with one another, testing our (fallible) responses against each other and jointly wrestling with that fallibility, that we have any reason for believing that we're still following the same rule. Apart, we have nothing to combat the inescapable worry that we're on two separate tracks that ran together for some time before diverging.

This is, of course, transparently speculative--but not implausible. For whatever reason, I find it enormously appealing. And it presents an interesting lens through which to study constitutional rules. In particular, it highlights the sheer precariousness of political and legal rule-following: somehow, we must embed this back-and-forth of collective error-correction within an institutional structure robust enough to withstand the enormous pressures that the interests at stake in alternate rule-interpretations will call forth. Because unlike [most] questions of linguistic or mathematical rules, everyone involved in the practice of constitutionalism cares very deeply (or ought to!) about which rule we're following. Indeed, only the most bloodless of rule-fetishists would deny that it is sometimes more important to grasp onto a different, better rule than to accept the consequences of the existing one. Values, interests, personal and communal histories and identities--all of these will loom far larger in the legal than in the [pure] linguistic case.

The irony here is that, in defusing the skeptical paradox, we've made the everyday practice of constitutionalism seem almost miraculous. But is this a bug, or a feature? How confident can we be--how confident are we--that we in the contemporary United States are, in fact, following the same rules? Are John Yoo and Marty Lederman displaying the dispositions required of public rule-followers? Were Antonin Scalia and Sandra Day O'Connor? To depersonalize things a bit: are the institutions we rely upon to ensure that we're all "tuned in" to the same constitutional frequency--from our educational system and most obviously our law schools, to Congress, the Presidency, the vast administrative apparatus and the courts, and of course our media ecosystem--up to the task?

The question is not whether there are any public rules of constitutional validity; of course there are. The question is rather one of degree: just how rule-governed, how constitutional, our system is--or could possibly be. Less so than we once thought, I suspect.

Goodness!

Now that Scott Lemieux has kindly linked to my inchoate ramblings about coordination games and the law, doubling this blog's cumulative pageviews in the space of an hour, I suppose I'd better put up some new posts. Stay tuned!

Legal philosophers: please don't talk about coordination games any more

UPDATE, July 7th, see below.

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Despite Les Green's best efforts (The Authority of the State, "Law, Coordination, and the Common Good"), this seems to be one of those inapt metaphors that just won't die. Some scattered thoughts on the use and misuse of game-theoretic "coordination games" in analyzing the normativity of laws or legal orders generally.

1. If game theory is to illuminate rather than obscure, practitioners must be clear about the players, strategy and information sets, and payoffs. They must show why this game (as opposed to slightly-modified versions that induce with different equilibria) is appropriate for understanding the real-world phenomenon in question. I almost never see this.

2. If the point of the model is to show why we should expect an exogenously imposed change in payoffs, or elimination/addition of strategies--in other words, explaining exogenous law, or the exogenous creation of an entire legal order--the shift cannot be a deus ex machina. What is the mechanism that leads from the original equilibrium to the imposition of sanctions or what-have-you? Who are the players that impose the sanctions; why and how do they do so?

3. Modeling constitutional choice is easy to do badly. It is rarely appropriate to model strategy sets as consisting of regime types. You can't "play" a regime; one emerges as the institutional embodiment of the intersecting strategies of others. If you're at a constitutional convention, you can vote for a regime type, but determining how votes translate into outcomes and payoffs is very tricky and entails hard counterfactuals. When does a vote of X induce factional violence, as opposed to multiple polities, as opposed to some uneasy status quo ante? If instead you wish to model a "state of nature" situation, there is no good reason to include private violence as within the strategy set but not include the violence of players constituting a state.

4. Once we allow for the full set of strategies--and violence--open to players in a state of nature situation, it is obvious that many equilibria will be awful, much worse than many non-equilibrium outcomes. Some equilibria will look like states, some will not. Some will have normatively desirable properties. Outcomes that describe a voluntarist legal order--no sanctions--are unlikely to be equilibria, which is a basic reason states reach for sanctions. Insofar as this model is supposed to explain the emergence of states, it will emphasize the importance of bargaining power, contingency, and path dependence, rather than justice or welfare.

5. Similarly, looking at ongoing polities as large-N games is unlikely to help legitimate the state. A full accounting of strategies and outcomes is likely to once again highlight contingency, power, and path dependence: the incentives that induce the players to go along with the state are rarely as stark or systemic as "my choice brings about system X." Individual sanctioning, rather than the collapse of the polity, generally does the work. This is old stuff, Hume and earlier.

6. None of this is to deny that citizens often do consider their governments legitimate, nor to deny that these beliefs often track (perceptions of) procedural, systemic properties rather than personal advantage. It is merely to note the ceteris paribus importance of state coercion.

7. The bottom line: if coordination game means something more stringent than "multiple equilibria which are local maxima for almost everyone"--in particular, if it means "multiple equilibria, each of which pareto-dominates non-equilibrium outcomes"--there is no reason to think it applies either to state-of-nature anarchy situations or to ongoing regime resist-or-support situations. But if we weaken it to the former definition, then the fact that a particular outcome is an equilibrium carries no normative weight beyond surmounting the "ought implies can" barrier. It is therefore misleading to use a term that carries such significant connotations of mutual advantage, both in game theory and in ordinary language.

8. And also: insofar as coordination games are taken to mean games where everyone plays "corresponding" or "matching" strategies in the multiple equilibria, it's just not clear how the idea of "correspondence" adds anything meaningful in the context of constitutional order and maintenance. It is a property of the emergent outcome, rather than the strategy of an agent considered alone, that makes a certain series of actions come under the description "following the constitution of polity X" rather than "disobeying Y" or "fighting for Z." Claiming that *only* outcomes like the first are equilibria is false to the reality of order's fragility and the diversity of human interests. Is the civil war in Iraq supposed to represent "matching" strategies among factions? If so, the idea of "coordination" adds nothing to that of equilibrium simpliciter; if not, then it's not generally applicable to questions of order.

Blah!

UPDATE: Just so clarify a bit, I'm not saying game theory can never be useful in legal philosophy; it can. I'm not even saying coordination games are never apt; Gerald Postema's "Coordination and Convention at the Foundations of Law," J. Legal Studies 1982, is perhaps the best example of it done right. My point is rather that there are so many ways of going wrong, so many traps that seem to catch even those who surely know better, that it should be used only as a last resort, and then with fear and trembling.

Begging the question, a continuing series

I know I shouldn't even bother, but this is just ridiculous. Solveig Singleton is making the (worthwhile) point that we should distinguish between semi-virtuous black markets that trade in things the sellers have a moral right to and vicious ones that trade in wicked acts or others' property. But in doing so, she simply begs the question of whether or not authors do, in fact, have a moral right that others not reproduce their works without permission. It bears repeating that what has been "wrested away unlawfully from a third person and appropriated by the seller" is neither the instantiated copy of the work nor the right to sell the work, and it's certainly not the right to try to profit by the work. It is instead the right to prevent others from copying, selling, or profiting from the work. Singleton is claiming that this is a case where competition must not be allowed, for the sake of "creating a market."

Also worth highlighting is the contention that the harm to authors from copyright violation is more serious than the harms to others created by drug use and abuse. Again, all the work is done through question-begging: unless we moralize authors' monopoly rights, the idea that the loss of potential profits is genuinely more serious a "harm" than the effects of drugs addiction on the parents, children, lovers, and friends of the addicted is laughable. Now, I'm completely in favor of drug legalization--and decontrolling substances more generally--but pretending there aren't massive negative externalities requires almost willful blindness.

Singleton is right in her "larger point" that evaluating black markets requires a willingness to critically examine the substantive rights at issue. But the real lesson of her post is how difficult it is to do so without letting one's presuppositions tilt the scales sub silentio.

Some scattered thoughts on popular constitutionalism and social epistemology

Recent years have seen the blossoming of scholarly interest in both popular constitutionalism and social epistemology, but there has been little cross-fertilization between these two literatures. I think this is an oversight, and I'd like to sketch out some tentative connections between the two ideas. Popular constitutionalism has both descriptive/explanatory and normative aspects. On the descriptive side, it claims that constitutional practice is in fact shaped by the beliefs and actions of ordinary citizens rather than merely judges, scholars, or office-holders; on the normative side, it stands for the proposition that this is in some sense desirable—whether as a matter of political morality or constitutional accuracy. Social epistemology is rather less well-defined, but at least two research programs that fall under its header have clear applications to constitutionalism: the use of social-scientific methods to investigate the knowledge-producing properties of social structures, and the more theoretical work concerning attributions of doxastic states to collectivities.

On one conventional view of constitutional meaning, average citizens are irrelevant. This view is often grounded in a positivist view of law as grounded in a social practice or convention among officials such as that defended by H.L.A Hart. On this view, law just is whatever the rules of recognition accepted by officialdom (usually glossed as the courts) validate; so long as the system is minimally efficacious, average citizens need neither endorse nor even have knowledge of the underlying social practice. If we believe constitutions to exist primarily as rules of recognition—as the criteria for legality within a given society—citizens can thus remain ignorant of their constitution.

Not all versions of popular constitutionalism will conflict with this picture. One could coherently believe both that the meaning of the constitution is determined by the correct interpretation of the social practice of particular political elites and that popular views about constitutional meaning will often have a causal effect on that elite practice. One could add to this a normative claim that the people have a right to exercise this causal power. But again: neither of this views presents any difficulty for the elite-practice model.

The difficulty comes if we see constitutionalism as entailing something stronger than the “regrettably sheeplike” society imagined by Hart, and certain flavors of popular constitutionalism might well do the trick. This conception of constitutionalism would borrow from the aspirational conception of law developed by Lon Fuller and recently rehabilitated by Jeremy Waldron and focus attention on the ideal of constitutionalism as the subjection of the state to strong demands of publicity and restraint. In other words, we can speak of a state being more or less constitutional to the degree that its constitutional limitations are both real and known to be real. Moreover, the character of our discourse about constitutional meaning will change as we move from less to more constitutional polities: it will become more truth-apt, and we will be able to speak confidently about its objectivity.

On this view, the people do matter—not merely in a causal but a constitutive way. They matter because the public character of constitutions places restrictions on both the substance of the constitutional rules and the nature of the political and social institutions in which these rules are embedded. And here we see the connection to social epistemology: we need to understand how people come to have the beliefs they do about the political order, and the relationship between these belief-forming processes and the institutional structure of the polity.

Note that it is an open question how much actual knowledge on the part of the citizenry constitutionalism's publicity requirement demands. Certain republican understandings of constitutionalism that emphasize self-government and the collective choice of the people to live under these rules rather than other ones might push towards fairly strict requirements, which in turn would have quite drastic consequences for appraising actually-existing political structures. But this is not inevitable: one could defend an understanding of publicity that emphasized justified true beliefs in the binding and objective character of the constitutional rules, without requiring each citizen to have personal knowledge of those rules. (In order for the beliefs to be justified, of course, it would have to be the case that each citizen could in fact verify this if they chose.)

Ultimately, this idea of constitutionalism implies embedding the epistemological question of how one knows what the constitution is within the metaphysical question of what, in fact, constitutions are. But this is not a case of conceptual confusion or category error. Legal philosophers have long adduced epistemological constraints on the concept of law; for contemporary examples one need only look to Joseph Raz's argument for hard positivism, or Mark Greenberg's recent claim about the “rational relation” determination of legal content. In the case of constitutionalism, moreover, this move seems quite reasonable. Much of the confusion and controversy that besets constitutional theory lies in the difficulty of reconciling the descriptive, social-practice aspect with the aspirational nature of constitutions. Accepting this aspirational aspect, the demands of publicity that come packaged into any defensible understanding of constitutional government, results in a happy marriage: the aspirational elements turn out to be those that are themselves necessary for any coherent account of social rule-following more generally.

Note to self: may need to abandon all of this once I've fully digested this stuff.

New Socialist Man needs no Colombian lingerie

You can always count on the New York Times to elide important distinctions, and you can usually rely on its siding with rules, regularity, and authority. It's therefore no surprise to see this article on the Caracas government's campaign to purge unlicensed and black-market street vendors from a particular boulevard captioned "Vendors’ Removal Brings a Venezuelan Gem Back to Life."

There seem to be a number of different things going on here:

1. Once Sabana Grande was the epicenter of the city's "effervescent intellectual life," but it had lately become "emblematic of the city’s decline into lawlessness and neglect." Apparently there were many pickpockets.

2. In recent times, about 3000 street vendors had set up shop in the boulevard: "products like pharmaceuticals of dubious origin, smuggled Colombian lingerie and pirated Hollywood DVDs were available."

3. This interfered with the "exclusive shops and outdoor cafes" of Sabana Grande, some of which shut down.

4. Having prevailed in the latest election, and thus no longer needing the vendors' political support, the state is now trying to sanitize the area.

Now, it's clear that the reporter approves of cafes, bookstores, outdoor chess, and (presumably licensed) mimes, and finds pirated DVDs, unregulated pharmaceuticals, and Colombian lingerie distasteful. The crackdown is no doubt a happy development for those who see capitalist transactions between consenting adults as threatening things, presumptively illegitimate without the blessing of the state, and for those more generally who take administrative legibility to be the sine qua non of social order.

A few skeptical observations, though:

1. How tightly linked were the vendors to the crime? Was removing them genuinely necessary to controlling the crime, or was it simply the case that the area wasn't a high police priority, being primarily a marketplace for the lower classes?

2. The article says that "pedestrians have flowed back," but this is a misleading formulation. With 3000 street vendors, it can't be the case that Sabana Grande was a desolate wasteland prior to the crackdown; you can't sustain that many vendors (nor a thriving pickpocket sector!) without customers and crowds. A bustling marketplace has been destroyed, or at least displaced (which entails some destruction).

3. The genuinely black-comedy aspect of the article is the credulity shown towards the possibility of reviving the boulevard as an "area for discussing the direction of Venezuelan politics." As we all know, the first step towards reviving an atmosphere of free expression, disagreement, and debate is to make sure that everyone is properly licensed and that everything is orderly and clean.

Now, you see a bit of skepticism expressed in one newspaper seller's worry that the boulevard will become "a place full of boutiques for the bourgeoisie." But the piece as a whole turns a blind eye to the fact that this is, in fact, the clear and unmistakable goal of the city. None of this should be particularly surprising coming from a newspaper that thinks it an expression of civic virtue to use state authority to seize property in order to build itself a new headquarters. It's just a sad example of the way reporters' natural habits of mind shape the news the rest of us rely upon.

Sigh.

The stupid, it burns

You might think that an article with the headline "Pill That Eliminates the Period Gets Mixed Reviews" would be about women who have used hormonal contraceptives to stop menstruation, and how their experiences with doing so range from positive to negative. Instead, we have precisely one "review" ... and it's of Seasonale, a product which reduces periods to four a year. Moreover, the review is wildly enthusiastic:

“I had some months when I couldn’t get out of bed unless I popped 600 milligrams of Motrin,” said Marcella O’Neal, a department manager for Nordstrom in Atlanta. Ms. O’Neal, 36, said Seasonale had eliminated many of her symptoms — cramping, hot flashes and depression. “I love it, actually,” she said.

Now, the article itself is pretty terrible. But even bad articles deserve accurate headlines. Perhaps "Pill That Eliminates the Period Provokes Anxiety, Excitement"? Words have meanings, folks.

(As for why I think the article is terrible: it completely elides the distinction between whether suppressing one's periods is a bad idea and whether the means to do so should be legally prohibited by the government; moreover, it's written as if women hadn't been taking control of their periods without the FDA's blessing for decades. It's a great example of two of the worst tendencies in NYTimes journalism: the lazy substitution of unrepresentative anecdotes for data, and the unwillingness to question the Authority Paradigm: the worldview wherein all decisions must be mediated by some appropriately authoritative institution. Ugh.)

Two senses of "constitutional"

On a related note, "constitutional" can be used in two different ways, which may get a bit confused in discussions like the previous one. On the one hand, it can mean simply "permitted by the set of norms that govern what is and what is not legitimate political action," whatever those may be; on the other, it can refer to a polity where the rule of law holds not merely with respect to individual exercises of authority, but even over questions of what is properly a matter of state action at all. There is nothing paradoxical, then, is saying *both* that X policy is constitutional (in the first sense), and yet demonstrates our polity to be a less constitutional one (in the second sense) than some other polity Y. And indeed, I think it fair to say that states with large, power-projecting militaries, habits of using them, and the concomitant attitude towards executive discretion, are in fact *less constitutional* than those without them, no matter how strictly the former type adheres to their particular governmental charters. This is a bit like Walter Murphy's distinction between "constitutionism" and "constitutionalism", though I'm not sure I quite like his way of drawing the lines.

When they came for the rule of law, I said nothing; I was, of course, no statute

Will Baude at Crescat Sententia objects to those who see the administration's "war on terror" policy as a threat to the rule of law, saying "the fact that powerful agents of the government justify themselves with constitutional arguments whose correctness can be debated is not an 'attack on the system' of law and lawyering, but rather a recognition of its true power." This seems mistaken to me, but mistaken in a way that's worth dissecting.

The argument seems to be that so long as political actors feel the need to justify their actions with legal and constitutional arguments, and so long as these arguments meet some very minimal threshold of plausibility (more or less: "some tenured professors at top schools have endorsed them"), their behavior isn't a threat to the rule of law--even if the arguments are rejected by most legal/constitutional experts, even if they refuse to adjust their behavior in response to legal/constitutional critiques, and even if this behavior is with the aim of greatly expanding executive discretion. This is so because the very act of *offering* these arguments serves to bolster the idea of legal and constitutional constraint; by contrast, imagine if the administration didn't even pretend what they were doing was legal or constitutional.

The obvious point, first, is that just because things could be worse doesn't mean they're not bad. But the more important point is that bad faith arguments for executive discretion, or weak arguments maintained in the face of overwhelming criticism, can sometimes be just as dangerous to rule of law values as explicit illegality. This is so for two reasons: first, there is an *inherent* threat to the rule of law from executive discretion; second, the rule of law requires that there be clear, known legal norms, *and* that those norms effectively constrain the powerful.

1. Executive discretion has always been difficult to square with the rule of law, because the entire point of allowing such discretion is the belief that, in some areas, it is more important to have the swiftness, secrecy, and particularism that only discretion affords than it is to act only in accordance with clear and promulgated rules. Obviously, then, a society committed to the rule of law cannot be one of untrammeled executive discretion; equally obviously, no modern nation-state can be so devoted to the rule of law so as to eliminate discretion completely (even A.V. Dicey acknowledged the propriety of, e.g., Acts of Indemnity in such cases).

When an administration claims that the scope of its discretion authority is as sweeping as this one has done, therefore, it is asserting that rule of law values are less important than other desiderata; it is claiming, in short, that we have too much Rule of Law. Perhaps the administration's claims are a plausible reading of our Constitution, though I doubt it; regardless, they are a change, and a retreat from the ideal of law-governed state action.

2. In the world of pure abstractions, there is no paradox in the idea of a dictatorship instantiating the rule of law: hypothetical Rex (or perhaps Hercules) would be such a paragon of enlightened virtue that he would clearly see how his general, promulgated norms applied to each situation and voluntarily act in accordance with them.

In our world, this is patently absurd.

It is a sad lesson of history that the powerful obey the law because they are compelled to, not because of their virtue (see Stephen Holmes' "Lineages of the Rule of Law," and this volume generally). The point of having independent review of state action is not that unreviewable conformity to the rules is impossible, but that it is not incentive-compatible. Ex post review is one of the ways we attempt to balance swift and particularist action with rule-of-law values; we allow for discretion within certain boundaries, or guided by certain standards, and insist on evidence that this was adhered to. When an administration attempts to limit review of its actions, just as when it tries to expand the scope of that discretion, it is claiming that we have too much constraint by law.

A more subtle point concerns the relationship of bad-faith or weak argument to the legal system. Baude is quite right that we would have much more to worry about if the administration simply announced that henceforth it wouldn't bother to consider the constitutionality of its actions; on the other hand, the outcry, impeachment, and disgrace that would follow would send a nice signal pour encourager les autres. I don't mean to endorse any general "the worse, the better" view of politics; my point is simply that the example is a bit of a red herring, because such blatant disregard for legality remains something that our political system can effectively deter.

Within the realm of what one can get away with, though, bad-faith/weak arguments have a particularly pernicious character. This is not simply because they diminish our confidence that the administration will in fact be bound by rules in the inevitable cases when independent review is impossible. They also introduce unnecessary uncertainty about the identity, and even metaphysical skepticism about the existence, of the legal and constitutional rules in question. This is because of the nature of public, political rules (here I get controversial); they are picked out by an idealized "cottoning-onto" reaction to examples of their use (apologies to Philip Pettit for the appropriation). As paradigmatic exemplars of this sort, the official policies of presidents inevitably shape the future development of the constitution and the laws.

What this means is that the idiosyncratic constitutional theories of presidents will *inevitably* introduce extra "constitutional dissonance" into the system, enlarging the set of "plausible" arguments. The wider this set of arguments, the harder it is to actually enforce constitutional and legal rules against those who would flout them, whether through political or judicial checks. This is not always a bad thing, on net: it may sometimes be the case that the current Constitution is a wicked one, and needs to be pushed in a more just direction, short-term indeterminacy be damned. No doubt this is the administration's view, at least among those in it who actually care about the Constitution. But even so, the cost to the rule of law is real, and must be acknowledged.

Free culture vs. big-budget productions

Tim Lee has some fair-minded musings here and here on the dangers copyright infringement poses to large-budget video game development, prompted by the (apparently infringement-related) news that a well-reviewed hockey game franchise will not be continued. He wants to discuss what he calls "the policy question": whether it's bad if infringement puts increasing pressure on the big-budget video game business model. The comments are a mix, as usual, with Tom Lee thinking it might not be so bad to have smaller but cheaper games and Adam Thierer giving an emphatic "screw that!" to a future without production values fit for his HDTV 7.1 setup.

I think what's fascinating about this debate is how its very terms conceal what are arguably quite illiberal assumptions. We're used to thinking, perhaps wrongly, that it's right to evaluate economic policy through its effects on measurable outputs, etc., but it's important to realize that we're talking about cultural policy here, where such conclusions requires even stronger confidence in the propriety of imposing the planner's values on society. To be blunt: of course, ceteris paribus, it's a shame if a desired product is no longer available on the marketplace; every Madden is sacred and all that. But we can't say anything useful without knowing what else will happen, and once we do, we have to confront the fact that we're talking about whose liberty shall be sacrificed for whose LAN parties.

So let me propose an alternate, intentionally provocative reframing of the real question: the question is whether we should restrict, through civil and criminal penalties, the liberty of everyone to create, alter, exchange, and enjoy cultural materials to the best of his or her abilities and opportunities. And the reasons we are offered for the proposed restriction is that it will enable us as a society to finance the lavish, big-budget spectacles--whose budget is, of course, partially a result of such restrictive policies--that a certain segment of the population enjoys.

For myself, I have no idea what our cultural landscape would look like in a copyright-and-patent-free world. I suspect there would be large shifts--smaller budgets, more outsourcing, increased ties of cultural materials to continuous revenue streams (like MMOGs)--but, really, who can say? My point is that, absent, say, an Atlas Shrugged-like general cultural strike, this is the wrong question to ask. Obviously, some will want More and Bigger and Prettier games, especially if that's what the nation's game industry, itself shaped by prior mistakes in allocating rights, has encouraged consumers to want--but to take this as a social imperative is to mistake special interest pleading for the demands of justice. I want more and better erotic vampire fiction, but I don't think this warrants limits on human liberty. Should the videogame featureset treadmill slow down, will Thierer's complaints be more legitimate than mine, or than those of the old-time rock'n'roll aficionado who grumps that nobody makes 'em like they used to?

I think Will Kymlicka and others are right to think that human flourishing depends crucially upon one's ability to make sense of oneself through cultural artifacts, but it is a mistake to think this pushes towards any particular allocation of cultural resources. Are we really to say that the ideal society has so much poetry, so much literary fiction, so many sports video game franchises, and the like? The right response, here as elsewhere, is to preserve each person's liberty to weave the cultural strands around them into a tapestry that provides meaning, and for each of us to do what we can to enrich that cultural patrimony.

Why not paint by number?

Finally getting back on track with work, which is an extraordinary feeling. So, yay.

Finding a perfect pop song is a lot like seeing the first crocuses of spring--the beauty is exquisite, but always already dying. Against the simile: pop songs aren't short-lived in their own right, only in the experience of each listener ("new to you!"). A quick-tolerance drug, perhaps? Regardless, at the rate I've been listening to The Pipettes' "Pull Shapes", I'm sure I'll be sick of it within a week, which is a bit tragic.

On reading our own recipes ... and our constitution

[UPDATED BELOW]

Over at Legal Theory, Larry Solum has generously linked here and posted an helpful response. The key part seems to be his analogical move from how we decode the meaning of ordinary documents (like maps) to how we therefore ought to do so with constitutions. It's an argument that reminds me of Gary Lawson's rhetorically brilliant "On Reading Recipes ... and the Constitution" (Georgetown Law Rev 1997), and it strikes me as problematic in much the same way.

Solum's example is of a treasure map from 1689 that uses the word "agolanad", whose meaning has shifted from "oak" to "elm" from 1689 to the 1860s. As he puts it:

"If we want to know what the map meant, we will use the conventional meaning that prevailed at the time, and we certainly won't use the meaning that came into being more than a century later. On the other hand, if we couldn't determine when the map was created, the meaning would be ambiguous, and we would have good reason to look for the location of either an Oak or an Elm."

What I find interesting and problematic about this example is that what does the work here in fixing meaning at 1689 rather than 1862 is a set of linguistic guidelines whose force seems to flow entirely from pragmatic, genre-dependent considerations about successful communication. The reason we care about the map's meaning is to find the treasure, and for that purpose, we want to have as direct access as possible to the information that was being communicated by its creation. In short, there's an implied minor premise here about what meaning is, in the circumstances, supposed to accomplish.

But moving from maps (or recipes) to constitutions makes this minor premise more controversial. It's still a colorable one, but it's now something much more like Barnett's argument that I cited earlier--an argument about what constitutions are for (in Barnett's case, generating the stability needed for the rule of law) that gives reasons for preferring fixed over mutable meanings. And I think here, considerations like those pressed by Andrei Marmor and Jeremy Waldron (and, for that matter, Jefferson) carry the day. Language and the natural conservatism of a well-governed polity will provide enough stability for rule-of-law purposes; seeking more would be to grant the framers authority that simply can't be justified.

It's possible to make a more conceptual, less functional, claim instead--that there's something about authorship and fixity inherent in our linguistic practices, perhaps. We read Shakespeare through the light of Elizabethan meaning not because we think it makes the plays better (though it does) but because extricating ourselves from this fixed-at-creation conception of textual meaning would simply be unnatural to us. And I think there's something to this argument, but not enough.

I think its strength, much like the strength of the functional claim, is both genre- and context-dependent. It draws for its force on the Romantic idea of authorship, and is weaker in those areas where this idea plays less of a role. I suspect it would seem much less natural if the text in question was one known to have been banged out by a group of monkeys, or if we were considering lines of computer code that, by freakish coincidence, also executed flawlessly (but in a very different way!) on an entirely different machine than the one they were written for.

To return to constitutions: to my mind, the first and most important truth about constitutional meaning is to view it through the practice of governance that makes it the constitution of some polity rather than an inert text. This is one reason why I think arguments like Lawson's about how constitutions are transparently and necessarily like recipes are misguided: such claims leave little room for understanding, eg., a Canadian constitutionalism that seems to have decisively rejected originalism without falling into anything resembling conceptual incoherence.

Any decisive originalist argument will have to be one internal to the constitutional practice in question. Of course, such arguments must be consistent with (external) theories about what it is to make an internal argument and what truth in such matters could consist in, but I doubt this constraint by itself will settle much.

[UPDATE: Solum continues the conversation here. A clarification--when I claimed that originalism gives more authority to the framers than is warranted, I meant both that it defers too much to their generation, and that, within that generation, it grants the framers in particular too much power. Both these points are fully compatible with rejecting intentionalism, as most originalists do; the framers were still the ones to choose the words, even if we subsequently ignore their internal mental states. That's power, a power I believe unjustified. A fuller response to follow.]