Tuesday, January 1, 2013
First of all, a blessed new year to the Mirror of Justice community—participants and readers all.
I have found Patrick’s and Marc’s commentaries on Professor
Louis Michael Seidman’s December 30 essay published in The New York Times fascinating and illuminating commentaries.
Professor Seidman is well-known for his work on Constitutional Law and Criminal
Law and Procedure and enjoys a favorable reputation amongst many in the legal
academy. Moreover, I enjoyed the several conversations I had with him when I
was a visiting professor at Georgetown Law during the summer of 1993. However,
I respectfully think that he has misidentified the source of the problems which
he addresses in his essay.
It is not the Constitution per se that is the problem; rather, it is people who interpret it,
mold its meaning, and administer its provisions. I would agree that the
Constitution is not without its limitations or ambiguities, but it is still a
remarkable document, especially when the often forgotten Preamble is
considered, for within this beginning we, regardless of the time in which we
live, can see the eternal wisdom that defines the Constitution’s raison d’être. What might that be? Well,
the text spells it out with clarity for any age including that of the Framers
and that of today and tomorrow—the community of people formulating the
objectives of: forming a more perfect union; establishing justice; insuring
domestic tranquility; providing for the common defense; promoting the general
welfare; and securing the blessings of liberty for the folks of 1787 and for
future generations. This sounds like and is a sensible and durable plan for the
fundamental positive law of the nation. So, is it really the problem?
Indeed, it is, as I have said, not without its limitations.
But even the Framers foresaw its limitations and made prearrangement for its
revision when needed by amendment. Its provisions really are not the source of
what is archaic, what is idiosyncratic, or what is “downright evil.” It must
not be forgotten that the Constitution is, besides a construction of human
effort, a tool in the form of a judicial instrument that is to be used as a
principal means for attaining what is spelled out in its Preamble. And, there
is nothing archaic, idiosyncratic, or “downright evil” there. By itself, the
Constitution does nothing until it is used by the citizens and by those chosen,
directly or indirectly by the citizens, to implement its provisions. If there
are problems with the Constitution, it is not with the text per se but with those who use and apply
it.
The objectives of the Constitution specified in the Preamble
were not only noble for the time in which the text was written and adopted.
They are durable and ought to apply to any time regardless of what the demands
of any time may dictate. The difficulty is not with the text that the Framers
developed, but rather how the users appropriate the text and then construe or
misconstrue it. The real question and, therefore, the real problem is with the
person who does this work—be the person citizen, lawyer-advocate, judge,
administrator, legislator, or policy-maker. My contention is that there is a
problem, so I am in some agreement with Professor Seidman. But our disagreement
is with the problem’s source. His position is that it is with the text; mine is
that it is not with the text but with the people who have claimed the authority
to use and apply it.
Here I need to be more specific about why I make this claim.
For the Constitution to do anything, it needs human agents. By itself, it is
inert (as you might glean, I am not a big fan of the doctrine of the “living
Constitution”). For it to have activity in human existence, it requires human
agents. These agents can accomplish much that is good for the human race, but
they can also accomplish mischief along the way. The real source of the problem
is how are these agents formed and what do they see as their objectives? When
we understand the import of this assertion, we can then better understand how
the text, i.e., the Constitution of the United States, is employed and what it
accomplishes.
I do not like to identify what I consider to be a problem
without offering a solution or a means to one, which I hope is shared by people
of good will who have a strong sense of the importance of the common good. One
place to begin with the formation of the human agents who have claimed
responsibility for implementing the Constitution and its various provisions is
to test the degree to which they have been exposed to and adopted the cardinal
virtues of courage, prudence/wisdom, forbearance/temperance, and justice. These
are all important dimensions of human existence that are allied with the
objectives of the Preamble. The issue is, I think, the degree to which the “elites”,
to borrow from Professor Seidman whose term this is, have been reared in these
indispensable human attributes that are essential for the agents who will
determine what the Constitution is about and what it is not.
A great deal more needs to be said about my thesis, but
since Professor Seidman has welcomed mature and tolerant debate on the matter
of the Constitution, I, for one, look forward to this exchange, which I am sure
will demonstrate that the Constitution is not the problem.
RJA sj
So now, it seems, we have rather a good test for the elite media. We know how reporters and commentators would be reacting to this story if the people arrested were (or were thought to be) tea party activists, do we not?
http://www.nypost.com/p/news/local/manhattan/bombmaking_in_the_village_LoRDqNzP02SDZyfC1pLVXN
So how will they react now?
I predict that the story will be covered by Fox News and some conservative journalists (the link I provided is to the report in the conservative-leaning New York Post) and largely ignored by most of the mainstream media--print, broadcast, and on-line. I hope I'm wrong about that. In any event, the folks at the New York Times, NBC, CNN, etc. will certainly not use the story to blacken Occupy Wall Street or the political left. They will not do what they almost certainly would be doing if the persons arrested had been tea party people. Of course, we've all more or less gotten used to this double standard; at this point even most conservatives have resigned themselves to it. But that doesn't mean it's not a problem. The common good of a democratic polity does not require a pristinely unbiased media, but it requires far more evenhandedness than ours gives us. Especially in circumstances of pluralism such as ours, groupthink in the media is not a good thing. It is even worse than groupthink in academia, though that too is bad--for everyone.
Monday, December 31, 2012
I caught on C-SPAN the other night this speech (video here, text here) by George Will, which was delivered earlier this month at Washington University under the auspices of the Danforth Center on Religion and Politics. I admire much about Will, though there is always plenty to disagree with in an author who has been writing regularly and prodigiously since 1974 (!), and I think his best work reflects an earlier American Toryism in such books as Statecraft as Soulcraft: What Government Does (1983) and the collected essays in The Pursuit of Virtue and Other Tory Notions (1982). Will is himself not a religious believer, as he discusses somewhat autobiographically in the talk (philosophical trivia: Will mentions his father, Frederick Will, a longtime member of the Philosophy Department at the University of Illinois and also a friend and colleague of moral philosopher James Wallace, father of David Foster Wallace). But Will thinks religion serves an important purpose in American politics, expressed in his thesis:
Religion is central to the American polity because religion is not central to American politics. That is, religion plays a large role in the nurturing the virtue that republican government presupposes because of the modernity of America. Our nation assigns to politics--to public policy--the secondary, the subsidiary role of encouraging, or at least not stunting, the flourishing of the infrastructure of institutions that have the primary responsibility for nurturing the sociology of virtue. 13
I worry, however, that the rest of the talk expands upon a basically instrumental and peculiarly modern (see the praise of Hobbes at pages 25f that will surely cause panic among some of my MOJ colleagues) conception of religion and politics that is too theologically austere to sustain itself, even if I am sympathetic in some respects to what Will says on, for example, natural rights (but then note the debatable anti-perfectionist conclusion to this line of argument):
They [the Founders] understood that natural rights could not be asserted, celebrated and defended unless nature, including human nature, was regarded as a normative rather than a merely contingent fact. This was a view buttressed by the teaching of Biblical religion that nature is not chaos but rather is the replacement of chaos by an order reflecting the mind and will of the Creator.
This is the Creator who endows us with natural rights that are inevitable, inalienable and universal--and hence the foundation of democratic equality. And these rights are the foundation of limited government--government defined by the limited goal of securing those rights so that individuals may flourish in their free and responsible exercise of those rights.
A government thus limited is not in the business of imposing its opinions about what happiness or excellence the citizens should chose to pursue. Having such opinions is the business of other institutions--private and voluntary ones, especially religious ones--that supply the conditions for liberty.
In short, read or watch the talk for its engaging and provocative presentation of a certain kind of "American-establishment-constitutional-conservative-natural rights-liberalism," but then ask what it leaves out.
Augustine was preoccupied throughout his life by questions about beginnings and origins, so here is some food for thought on New Year's Eve and in light of today's Gospel reading from John 1:1-18:
In the beginning was the Word: the Word was with God and the Word was God. He was with God in the beginning. Through him all things came into being, not one thing came into being except through him.
What has come into being in him was life, life that was the light of men; and light shines in darkness, and darkness could not overpower it.
A man came, sent by God. His name was John. He came as a witness, to bear witness to the light, so that everyone might believe through him. He was not the light, he was to bear witness to the light.
The Word was the real light that gives light to everyone; he was coming into the world. He was in the world that had come into being through him, and the world did not recognise him. He came to his own and his own people did not accept him. But to those who did accept him he gave power to become children of God, to those who believed in his name. who were born not from human stock or human desire or human will but from God himself.
The Word became flesh, he lived among us, and we saw his glory, the glory that he has from the Father as only Son of the Father, full of grace and truth.
John witnesses to him. He proclaims: 'This is the one of whom I said: He who comes after me has passed ahead of me because he existed before me.'
Indeed, from his fullness we have, all of us, received -- one gift replacing another, for the Law was given through Moses, grace and truth have come through Jesus Christ. No one has ever seen God; it is the only Son, who is close to the Father's heart, who has made him known.
Why, I beseech Thee, O Lord my God? I see it in a way; but how to express it, I know not, unless it be, that whatsoever begins to be, and leaves off to be, begins then, and leaves off then, when in Thy eternal Reason it is known, that it ought to begin or leave off; in which Reason nothing beginneth or leaveth off. This is Thy Word, which is also "the Beginning, because also It speaketh unto us." Thus in the Gospel He speaketh through the flesh; and this sounded outwardly in the ears of men; that it might be believed and sought inwardly, and found in the eternal Verity; where the good and only Master teacheth all His disciples. There, Lord, hear I Thy voice speaking unto me; because He speaketh us, who teacheth us; but He that teacheth us not, though He speaketh, to us He speaketh not. Who now teacheth us, but the unchangeable Truth? for even when we are admonished through a changeable creature; we are but led to the unchangeable Truth; where we learn truly, while we stand and hear Him, and rejoice greatly because of the Bridegroom's voice, restoring us to Him, from Whom we are. And therefore the Beginning, because unless It abided, there should not, when we went astray, be whither to return. But when we return from error, it is through knowing; and that we may know, He teacheth us, because He is the Beginning, and speaking unto us.
Augustine, Confessions XI.8
There is, I think, an interesting parallel in the discontent expressed in Patrick's recent post on the inadequacies of our constitutional form and Louis Michael Seidman's column yesterday. I should say first that Professors Brennan and Seidman know a tremendous amount about constitutional law -- much more than I do, and about many subjects, more than I am likely ever to know. I've learned a lot from their writings over the years and will continue to do so. And, to be sure, they express different positions, coming, as they do, from very different points of departure and having very different ends in mind. Consider this post just a thought about an interesting parallel, seasoned with a sprinkle of skepticism.
It seems to me that there is a fundamental convergence of perspective in the gentlemen's outlooks, and it is this. If we want to understand what is "broken" about our government today -- what has failed, or what is decaying, or even what never had a chance to succeed at all -- our diagnosis must focus on our legal forms. We can explain, at least in large part, how we have gone so badly wrong by looking to the constitutional forms of government and to the authority that we vest in the text of the document -- where we will find, as Seidman has it, "the culprit" of many infirmities in today's body politic. The root cause of our "dysfunctional political system" -- the Constitution -- has thwarted us from being our best selves -- a position with which (I think) Patrick might agree. For example, Seidman writes that the Constitution prevents us from having a unitary "interpretive method," because it can actually accommodate both originalism and living constitutionalism: "Whichever your philosophy, many of the results — by definition — must be wrong." It is the structure and the forms, both men say, which seem to entrench disagreement, perhaps even to valorize it. So we are already predisposed, by the structure itself, not to think clearly, and rightly, about political governance. And until we reject the structure and replace it with a better structure -- one that (for Seidman) reflects the ideal of popular "real freedom" achieved through "mature and tolerant debate" or that (for Brennan) reflects the ideal of real (that is, true) thinking ("intellectus") about the human good -- we will not be the best political community that we can be (as Seidman and Brennan, respectively -- and very differently -- conceive it).
I am skeptical about this view. One reason is that I do not agree with the claim that our contemporary disagreements are traceable to structural legal arrangements. Structures and forms are mechanisms that contain, limit, and focus disagreement. They do not eliminate disagreement. Pick a different structure; you will not have eliminated disagreement. You will only have redirected it into other channels arranged by the structure. I believe that Seidman agrees with this point, but he then says this: abandoning the form, and the authority that we place in it, would make it "apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace." I am unsure why abandoning the constitutional form would make this likely to occur. If it would, the aspirations would have to be taken at the very broadest and least helpful level.
That gets at another, perhaps larger, reason that I do not find convincing the view that the legal or political structure is the "culprit." In republics and democracies, structures of governance are chosen by people. People choose structures and the structures that they choose reflect their cultural commitments. Culture precedes positive law, not the other way round. And a culture (like ours) within which widespread and deep disagreement is the rule may be well-advised to choose a legal and political structure in which disagreement has maximal space to dissipate -- like a gas that, when concentrated, will explode, but can be tolerated as it becomes more and more diffuse.
Forms, in this view, are protective; they are a bargain reflecting respect for differences of opinion, and we are in need of protection against one another's desires, intentions, and wills. Just so, formality (in interpersonal dealings, in personal expression, in dress, and so on) is no mere nicety, but a (small) gesture of respect toward other people. Most people, with good reason, want very much to be protected from what lies beneath the manicured surface of their fellow human beings. Formality betokens respect for other people's sensibilities, accompanied by the hope for reciprocity. None of this means that forms and structures cannot be improved or modified or amended to accommodate either a changed vision of the human good or a changed understanding of contemporary circumstance. Surely they can be; certainly the Constitution can be. But criticizing forms and structures, and wishing for their replacement with others, is largely a distraction from the real action -- action that has comparatively little to do with the Constitution or the forms of constitutional governance.
