My friend Sam Bray has a marvelous essay just published in The Green Bag on doctrines that do many things and doctrines that do only one. Here's the beginning of the piece:
Every kitchen has two kinds of tools. Some of these tools do many things well, like a chef’s knife. Other tools do only one thing, but they are meant to do that one thing exceedingly well, like a garlic press. The same distinction appears in legal doctrines. Some doctrines do one thing and are meant to do it very well. Others do many different things. They serve multiple functions, though perhaps all imperfectly. Cooks and cookbook authors debate the relative merits of single- function tools and multi-function tools. So do legal scholars. It often happens that a scholar will criticize a legal doctrine because it serves multiple purposes and is therefore incoherent.
And later, in defense of multipurpose tools:
One [advantage] is about skill. The use of a multi-function tool may be taxing. Yet use can lead to skill, and skill to expertise, and expertise to mastery, a kind of hard-won excellence that is rarely possible with a single-function tool. Perhaps this is why those who are most adept at chopping, dicing, and mincing garlic often deride garlic presses, calling them “ridiculous and pathetic,” even “abominations.” Some disagree. But it does tend to be the case that those who have greater experience and expertise prefer the chef’s knife, while those who have less of each tend to prefer the garlic press. Such tendencies suggest that any assessment of these tools also requires an assessment of the person who wields them: a tool that serves multiple functions can be mastered only by someone who is capable of achieving that mastery. And the same is true for mastering a doctrine that serves multiple functions. A person with skill in granting and fashioning a constructive trust may prefer the more general doctrine, with the possibility that one function will shade slightly into another, without the sharp and artificial choice imposed by the single-function tools. But that sharp and artificial choice may be appealing to one less skilled.
And on how people with distinct roles in the law are drawn to specific sorts of tools:
Nor is it an accident that the critics of multi-function doctrines tend to be scholars, and those who use and defend them tend to be judges. In making the choice between single-function doctrines and multi-function doctrines, the interests of the bench, the bar, and the academy do not align. Judges are generalists. And attorneys are specialists who write for generalists. But scholars are specialists who write for other specialists. Those roles affect the preferences each actor has. A generalist judge might want a smaller number of doctrines, each serving multiple functions – a set of doctrines that can be resorted to again and again, even if each is used in different ways and for different purposes depending on the case. Specialists, especially those who do not write to persuade generalists, may seek an ever greater refinement of the rules, so that each rule fits its function exactly. The evidence is the enthusiasm that so many scholars have shown for critiquing multi-function doctrines and urging their replacement with single-function doctrines. But the bench has resisted this. Judges have shown no interest in these scholarly projects of deconstruction.
In the end, Sam writes, the choice of a tool is one thing, but the choice of what to make for dinner is something else. I quite agree. Why would anybody ever cook with garlic?
I wish to thank our friend and colleague Kevin Walsh for his posting yesterday on the marriage turmoil that is now engulfing the State of Alabama. Much has been said about the legal controversies surrounding the claims for same-sex marriage, and I am confident more will be said. Today I wish simply to focus on the words—the expression—of the counsel to whom Kevin referred. The particular phrase involves the lawyer’s statement about “a federal court declaring what same-sex couples’ rights are under the federal Constitution.”
Words and their meaning are crucial to the noble craft of the lawyer—this category “lawyer” includes judges and many legislators and administrators. However, words can be poorly used; they can be incorrectly used; and, they can also be given a highly subjective meaning that obscures and frustrates the underlying intent and purpose for which they exist as a means of general communication. An illustration of the latter case is Lewis Carroll’s character Humpty Dumpty who audaciously and scornfully posits, “When I use a word, it means just what I choose it to mean—neither more nor less.” From the effort of striving to achieve the most accurate meaning from words and phrases—especially those having a legal import—the counsel of Mr. Dumpty leads us on a perilous course. Not only must it not be recommended, it must be avoided at all cost.
When one returns to the words of the lawyer from the Alabama marriage litigation cited by Kevin, we see the counsel’s emphasis on the words of the United States Constitution and the implied meaning of these words. So, what words does the Constitution contain regarding same-sex marriage or, for that matter, any marriage? It uses none because the text of our fundamental law is silent on the subject of matrimony just as it is mute on the matter of abortion. This does not mean that a topic not specifically mentioned in the Constitution is not addressed by our fundamental law. Subjects not specifically mentioned can still be addressed through a careful and objective interpretation that scrutinizes the words used in the text to tweak out their meaning that is consistent with the document with which they are associated. However, as a good interpreter will concede, words do have a certain elastic quality; however, this elasticity is not without limit. Like a rubber band, the meaning of words can be interpreted—stretched—only so far, and then they break, i.e., their meaning is lost or becomes highly subjective and therefore meaningless as Lewis Carroll’s example would suggest.
In the context of the Alabama marriage litigation, I hold and argue the view that the words of the Constitution cannot be stretched to the point that the Alabama counsel suggests they can.
In the current political and legal climate dealing with claims for same-sex marriage, it is generally argued that constitutions, those of the States and that of the United States, support the claims based on claims made from equal protection under the law (equality) and, then, due process.
I have previously addressed the equality arguments here at the Mirror of Justice and elsewhere. But to reiterate briefly what I have said in the past, the meanings of the phrase “equal protection” and the word “equality”, like other words and phrases, cannot simply mean what the advocate—or Humpty Dumpty—intend them to mean. While every human person is equal to all others in some regards, they are not equal in all regards. We see and accept all kinds of inequality in various realms such as salary compensation or recognition of sporting, artistic, and literary accomplishments. The fact that such inequality exists does not vanquish the meaning of equality and equal protection insofar as the United States Constitution addresses and protects equality and equal protection.
So, when it comes to the rights that any of us have under the United States Constitution, we need to bear in mind the boundaries which words have in a legal context. When we fail to do this, the words of important, foundational legal texts are deprived of their intended and purposeful significance and of their general application. The result, then, is not the desirable ordered liberty of our Federal Republic but chaos.
Instead of a torrent of criticism taking the Supreme Court to task for what Justice Thomas properly describes as the Court's "indecorous" pretension about the proper way to discharge their Article III responsibilities, we see a flurry of critical energy directed to Alabama Chief Justice Roy Moore. A New York Times headline, for example, asserts "Alabama Judge Defies Gay Marriage Law." Putting aside the question of what "gay marriage law" Chief Justice Moore is defying, the legal issues here come down to the scope of the federal district court's judgment and order and the scope of Chief Justice Moore's administrative authority with respect to the state judiciary. Howard Wasserman has previously discussed these issues and others in multiple posts at Prawfsblawg: "Roy Moore Gets it Right" (in his earlier memorandum, that is); "Queued up"; "More from Alabama"; "Sue Moore?" It would be nice if sometime down the road lawyers could take a look back and sort this all out once the legal grandstanding on all sides settles down. For now, though, I thought I'd pass along a peculiarly unassertive assertion by a lawyer for the prevailing parties in the Alabama federal litigation:
“Unfortunately, sometimes it makes for very good politics here to be seen as opposing federal intervention, whether it’s from a court or a federal agency,” said David G. Kennedy, who represents two women involved in a case that prompted Judge Granade’s decision. “The situation here is that this is not federal intervention. It’s not federal intervention at all. What it is, is a federal court declaring what same-sex couples’ rights are under the federal Constitution.”
(Source: Last paragraph of NYTimes story linked above)
Michael Moreland's recent post "Liberal Political Theory and the Family" helpfully notes how the framing of the questions in what seem to be two bona fide exemplars of Rawlsian investigation make various perspectives supplied by Catholic social theory "all but impossible to entertain." Another reaction to the review is to recognize the similarity in orientation toward reasoning about the family in the academy and in the federal judiciary.
Take these two paragraphs from the middle of the review:
Before turning to some critical comments it is worth being absolutely clear what the book is trying to do and what it is not doing. One could ask several normative questions about the family. In the present context three are salient. The first is why there should be families, or, in other words, why anyone should be permitted to act as a parent. The second is that of who gets to be a parent, and the third is that of who gets to be the parent of some particular child.
Brighouse and Swift are mainly concerned with the first question and least concerned with the third question, except inasmuch as they doubt that biological provenance — being the progenitor of a child — gives an adult a decisive claim to be the parent of that child. They thus offer some responses to arguments that purport to show that a progenitor has a right to a child. Otherwise they principally stick to the principal issue of ‘whether there should be “parents” at all’. It is, on their account, ‘a separate and further question which adults should parent which children’ (p. 49).
Some questions about these paragraphs: Who do these people (both reviewer and reviewed) think they are and what do they think they are doing? From where do they believe they have acquired the moral resources to enable their investigation? What supplies the active principle to enforce an answer to their passive-voice question: "Why [should anyone] be permitted to act as a parent?" Put another way, by whose permission is anyone to "be permitted" to be a parent?
There are unthreatening and intellectually interesting answers to these questions of mine, as well as of theirs. And the activity of critical normative reflection on basic social structures can be a worthwhile activity. But there is reason to worry when reading sentences like these in close proximity to similar sentences written by those exercising the coercive power of government authority in authoritative proclamations. See, for instance, the resemblance between this kind of philosophizing about the family and judicial opinionating about marriage in federal courts in recent times.
In addressing the "reasons" for defining the legal institution of civil marriage to require one man and one woman, "moral" arguments are purportedly sidelined even while John Stuart Mill and his nephew Lawrence make an appearance. Judicial moralizing about the instrumental rationality of the institution of marriage in the name of "constitutional law" characterizes the opinions from beginning to end.
We have here fresh evidence of what Steven Smith has dubbed a "culture of rationalism." Smith argues that judicial decisions on certain matters of constitutional law in the United States reflect an indirect academic influence through inculcation of a culture of rationalism. "This rationalism," he writes, "has three components:"
[A] discourse that clings to the vocabulary of instrumental rationality; a perpetual roving commission that seeks to ferret out views or decisions based on tradition, faith, and emotion; and, finally and most decisively, an attitude of deference to the opinions prevalent among an educated class of citizens.
"This is the culture," Smith continues, "within which judges live and move and have their being:"
It largely sets the boundaries of what they can and cannot think and can and cannot say, and hence determines what the lawyers who address judges can and cannot think and say.
I would that it were otherwise but better not to understand it otherwise than it is.
Here's something kind of fun. I was reading the Civil Rights Cases (1883) again and came across this line early in Justice Harlan's dissenting opinion: "It is not the words of the law but the internal sense of it that makes the law. The letter of the law is the body; the sense and reason of the law is the soul." The lines are quoted without attribution, but they come from a 1574 statutory interpretation case, Eyston v. Studd, decided by the King's Bench.
But they reminded me of something in Plato's Phaedo. So I went back and took a look (the dialogue at this point is between Socrates and Simmias):
And what do you say of the pleasures of love-should he [the philosopher] care about them?
By no means.
And will he think much of the other ways of indulging the body-for example, the acquisition of costly raiment, or sandals, or other adornments of the body? Instead of caring about them does he not rather despise anything more than nature needs? What do you say?
I should say that the true philosopher would despise them.
Would you not say that he is entirely concerned with the soul and not with the body? He would like, as far as he can, to be quit of the body and turn to the soul.
That is true
In matters of this sort philosophers, above all other men, may be observed in every sort of way to dissever the soul from the body.
That is true.
Whereas, Simmias, the rest of the world are of the opinion that a life which has no bodily pleasures and no part in them is not worth having; but that he who thinks nothing of bodily pleasures is almost as though he were dead.
Last term, the Supreme Court reversed a restitution award for a victim of child sexual abuse images (a.k.a. child pornography) and ruled in Paroline v. United States, that this victim could not receive mandatory restitution under 18 U.S.C. 2259. In Paroline, the defendant was a possessor of the images. Although the Court recognized that “[i]t would be inconsistent …to apply the statute in a way that leaves offenders with the mistaken impression that child-pornography possession (at least where the images are in wide circulation) is a victimless crime,” the Court ruled that the victim would have to establish that the possessor was a proximate cause of her harm. So, somewhat paradoxically, the Court recognized the harm caused by possessors, but applied a nearly impossible and unworkable standard for victims to actually receive restitution for that harm. (It should be noted that in doing so the Court was not alone, but other lower courts required proximate cause as well.)
While a blow to the ability of victims of child sexual abuse images to be able to recover from this pernicious exploitation, the decision sparked legislative actions. Yesterday, the Amy and Vicky Child Pornography Restitution Act passed 19-0 in the Senate Judiciary Committee. Not only is the Act a step forward for victims. It also represents a refreshing change in Congress working together for what is inherently good, as it is sponsored by Orin Hatch and Charles Schumer, among others.
The Murphy Institute has posted on line videos of two recent programs that might make great resources for anyone who might want to inject some Catholic perspectives into a class on the topics of just wage, family leave policies, or the role of amicus briefs at the Supreme Court. As an added bonus, two of the speakers are MOJ'ers.
One is a program in the Murphy Institute's "Hot Topics: Cool Talk" series: Just Wages: Catholic Social Thought and Economic Perspectives. It features MOJ'er Susan Stabile and David O. Vang, UST professor of Finance, both applying Catholic social teachings to policy questions like raising the minimum wage, and both coming up with different prudential conclusions.
The second is a panel on the Young v. UPS case recently argued in front of the Supreme Court, in which a part-time UPS driver challenged UPS's refusal to accommodate the lifting restrictions her doctor recommended during her pregnancy, claiming a violation of the Pregnancy Discrimination Act. The panelists include two UST School of Law professors, MOJ'er Thomas Berg and Teresa Collett, who served as counsel on an amicus brief filed for the case in support of Peggy Young, by a large coalition of pro-life groups. The other panelists were Sara Gross-Methner, UST's General Counsel, and Melissa Raphan, Labor and Employment Department Head of the law firm of Dorsey & Whitney.
Both of these programs offer sophisticated, nuanced discussions of the issues at stake, and could be valuable supplements to courses touching on these topics.
Speaking of new books, I was delighted to see that this book is now available from Oxford University Press. I've eagerly followed Jacob Levy's work for many years (this 2003 blog post at the Volokh Conspiracy when I was still in practice was my introduction to the important work of John Neville Figgis). I look forward to reading the book and will post on it when I do, but--based on the excerpts and conference presentations I've seen from it--I already know this will join (among others) John Inazu's Liberty's Refuge and Nancy Rosenblum's Membership and Morals as essential reading for thinking about associations, pluralism, and liberalism.
