Originalism and Constitutional Interpretation

Justice Scalia defines originalism as the only way of proceeding in terms of constitutional interpretation. In originalism, the text as law is interpreted under looking to the historical authorship of the law up to including the legislative intention in which the law is authored. By looking to this historical authorship, one assumes that one can have access to the authorial intention of the law. Anything short of originalism is a picking and selecting arbitrarily at what one wants the text to mean-such people are guilty of a form of judicial activism.

If we stipulate ahead of time that judicial activism is essentially Judges reading into the law what their personal views, then any time a Judge reads his personal views into the act of interpretation it can be said that such an act is wrong when interpreting the law. If one accepts originalism as a way of proceeding, then they, too, believe prior to the act of interpretation a personal view that they read into the law as well. Their prior commitment to finding the historical situation in which the law was written violates the central principle of their criticism of judicial activism.

What is ludicrous above is the fact that it is an unrealistic assumption that interpreters can separate themselves from the body of preexisting beliefs. time and place of their current situatedness. Since the law is about interpreting the law, one stands at the horizonal moment of a text -- between past and future expectation. Interpretation is never concerned with the past in a way that the originalist assumes the past available. Instead, the interpretive act is always futural. We look to history and what has happened in the past for our practical need to engage the law in the present, that is, toward the demands of our current situation. I think an example is in order to organize our intuitions on this very matter. The following example is inspired by its analogue in Ronald Dworkin's Law's Empire.

Let us suppose that Suzy is a tenant in a building. Under state law, a "Landlord must provide suitable time for tenant eviction." Suzy is getting her car repaired, and cannot leave immediately despite her landlord's desire for her to vacate the apartment so as to rent to more reliable tenants. Suzy leaves her apartment for a second to do some grocery shopping after staying 3 days over the day the landlord wanted her to vacate the apartment. As such, the landlord uses his key and starts to move all her possessions onto the lawn in front of the building. When she returns, she finds her pieces of furniture have been rained on, and the landlord ushering his nephews to hurry with her belongings. Suzy and her landlord end up in court.

The source of the disagreements rests between the two parties on how to define a "suitable time for tenant eviction." Laws are written with general appilcability in mind, often without precision in the law's authoring. Legal interpretation is assumed to flesh out the generality of what the laws shall mean in terms of their applicability. Suzy's civil claim would be compensation for property damage, and the landlord would counter claim the right to evict a tenant after suitable time has passed, arguing 3 days is "suitable." Any look to the legislative intention might be something like general guidelines so as to curtail private quarrels between interested parties. What is one to do for the legal interpretation of the state statute?

The above is a palatable example. It drives the fact that the law is a socially argumentative practice built on the praxis of concepts, not the stasis of universal meanings solidified in the past. Legal interpretation is more like Aristotle's notion of phronesis in which one gets better at practical reasoning in moral situations the more one gets better at being/cultivating the virtues over time. For this reason, this is why Gadamer revives Aristotle on exactly this point. The act of interpretation is connected to the past in a lively and workable way through the needs of interpreter. Privileging originalism is just hiding one's conservatism in a way that stagnates judicial review.

It is one thing to beat the drum of the untenable premises that undergird originalism, namely, that interpretation is about having epistemic access to the past in the way originalism thinks it does, but it is quite another to leave empty what a good theory of constitutional interpretation would have to answer. As such, I now turn to outline several unrelated points to the above post on what I think a good Constitutional theory of interpretation ought to have.

1) Constitutional interpretations employ normative concepts. Central to these concepts is justice, and as such a good theory must give us an answer to what justice is, and its relation to interpretation.

2) Constitutional interpretation relies on the assumption that the Constitution has legitimacy, that is, the Constitution has authority over us. This means that a good theory of interpretation must give us a story as to why we find the Constitution authoritative.

3) Conceptual analysis of interpretation needs to cut through the normative posturing; a deep philosophical story of what exactly interpretation is, and how far interpretation can go epistemically are necessary to give us a fuller story. I have alluded to what I think would be a good analysis on this end, a Gadamerian story of legal hermeneutics as found in Truth and Method.

In concluding this really long blog post, I will summarize my thoughts on originalism. First, the originalist rhetorically move to say that judicial activism is nothing more than reading what you want to read into the law is absurd in that originalism is guilty of the same way it defines judicial activism for other competing acts of interpretation. Moreover, I show that what the criticism lacks is a realistic picture of how interpreters are using the past to secure applicable knowledge for their present situation. This means that interpretation is always normative, never impartial--always bound to the reconstituted historical moment of the interpreter. All interpretations points to the present, and this is the more realistic temporal relation revealing the past as never static and accessible to be known in the way originalism thinks the past available. Instead, interpretation is an act, a lively and workable engagement with the text, past and situation one finds oneself in; the analogues for this type of activity is Aristotelian phronesis by which we live morally better and better by acquiring the practice that only living morally in experience can provide. In essence, I oppose originalism by defending Gadamer's conception of phenomenological hermeneutics as a way of proceeding on these matters. In addition, I end by outlining several concerns as to what a good theory of constitutional interpretation would look like, largely inspired by Leiter's post "Justifying Originalism"

Democratizing Effects of Social Networking

Check out this article for how a low-budget (and I mean really low-budget) movie utilized social networking for movie-making.

Babette Babich Interviews Patrick Heelan

I met Babette Babich at the Pacific APA, and she's great. Can't say enough wonderful things about her, and Patrick Heelan first came under my radar with his expertise of Continental philosophy of science. He's got a lot of interesting work I still have yet to get through.

Anyway, here's the link.

Anthony Steinbock on Bodily Attitudes in Reception of the Divine

I like this a lot. It was a presentation for one of Richard Kearney's seminars.

Morally Wrong to Support the Troops

I warn you. This post is not the run of the mill average intelligibility concerning our troops. I reach farther than that. Just now, a USO commercial advertised a positive message for “getting involved” and that they were “all about the little things” sending messages of praise to our US troops abroad. I think this is suspect, and find myself lapsing into thinking the institutional values espoused by our military policymakers are unacceptable morally (a point assumed for the purposes of this post). Ultimately, what the institution values, its character, become the default values of anyone following orders, regardless of whether or not such values are endorsed personally. Thus, this conclusion rests on drawing a distinction between agent-endorsed values and agent-functional endorsement.

People will object that a poor West Virginian high school senior just joined the US Marines to gain the benefits of a college education otherwise out of reach for his/her potential. In fact, the said agent might not even endorse the justness of the war. Moreover, it is possible to push this objection to the ultimate extreme that the agent might have chosen to be a conscientious objector, instead possibly becoming a combat medic than training to be a soldier. By driving a wedge between the institution, its norms and actions, the agent – still part of the institution – redeems themselves in light of the unethical endorsements of the institution as a whole. The values endorsed in the examples above are agent-endorsed values, and in this example they differ than the institution as a whole.

However, agent-endorsed values of the agent do not function when the agent acts as part of the whole. The wedge is foolishly thought to avoid the criticism that what the US military values are not internalized by its members. Some candidate values of the unethical variety I have in mind are: expansion of US economic interests at the expense of the rights of others, the suffering of innocents in war (especially children) and absolute lack of justification for the Iraq War as a candidate of being a “Just War.” Yet, there is no internalization requirement needed. The Combat Medic heals soldiers that re-enter the theatre of war. She is part of the chain and functions in a way that comes at odds with the agent-endorsed values. One cannot value healing if one heals someone that will cause bodily suffering. If the agent functions contrary to their own personal endorsements, then there is no integrity between the beliefs and actions of the agent. Thus, it is possible to say that even those that made an innocent choice to be part of the military are morally wrong. Following this intuition, I do not have to thank them, or even be supportive of their existence. To do so means that I am morally contemptible for indirectly supporting the suffering caused by war itself.



So, the USO commercial is wrong. We should be against the troops even in the cases where troop disagrees with the aims and goals of its employer. With that said, it is also wrong to further support Obama and his politics if they endorse any measure of war that fails to succeed morally as justified. It remains undecided in my own beliefs whether or not any principle can provide justification for sustained wars in which children and women suffer.

Blog Slowing Down

Hello readers,

I know that a great many of you come here expecting something philosophical these days. However, I just can't keep up with all the hits I'm getting. I apologize for that.

I'm asking you for a little leniency in your expectations since I am moving from Canada back to the United States. I have about 10 days to go.

In the mean time, I've been thinking about the limits of perception phenomenologically. If one follows the metaphor of morality as given as objects of perception are given, then the same limitations of perception might be consistent with values. In sum, the fact that things are given incompletely and that situations are given incompletely might explain moral disagreement, or some aspect of it. Anyway, that's the only recent thought I had and it's not very developed either. It came to me after reading the second paragraph in Section III of Ideas I.

I'll be back to blogging in no time when I am well-situated back in the United States.

Three beautiful years in Vancouver, BC!

You should try it.

Best,

Ed

Philip Gourevitch in May 2009's New Yorker

This is a wonderful piece I read in the New Yorker this month. Here's the link to the podcast (it's on the right to the article teaser) of the New Yorker Out Loud.

Phenomenology of Ownership

I want to know what it is for the agent to own their action. In some sense, this is a phenomenological appeal made in many stripes. From Kantians to utilitarians, there is the implicit assumption that the agent is connected through ownership to the action they bring about. The Kantians ground their moral thought in intentions, and utilitarians focus on the consequences brought about by action. Yet, both think ownership primitively basic.

What is it though for ownership to be? Where does the sense of ownership come about? Is it connected to our embodiment? In what ways does our pre-reflective life give rise to the fact that we own our action?

Ownership is such a basic notion that ethics of any stripe could not succeed in terms of its question if people did not own their actions.

Examples of Moral Phenomenology

In this post, I want to speculate about some connections I've long hinted at, but never fully developed. While I don't suspect that I will develop them in any substantial way on a blog, I do want to say what types of questions and concerns I've been thinking about as of late.

It has come to my attention that to make sense of morality, we have a few options on the table. They go from varying degrees of acceptance of morality to complete skepticism about morality.

1) Moral realism is the thesis that there are moral facts independent of our knowledge of them. The existence of moral facts is our best explanation to make sense of moral practice.

2) Moral anti-realism is the thesis that there are no moral facts, but instead, moral facts are not needed to make sense of moral practice. Our moral judgments are actually statements that issue from our own subjectivity of approval and disapproval.

3) Moral nihilism is the thesis that there are no moral facts at all. With no moral facts at all, one cannot make sense of moral practice.

Now, I do not want to argue for why 2) or 3) are not true. Such a defense is the subject of a book, and not to be taken up lightly here. Instead, I want to develop some intuitions I have as to what 2) and 3) have a hard time explaining. In so doing, I am only putting a challenge to the anti-realist or nihilist. Such a challenge, I think, is not sufficiently developed at the basic level. I don't know if they have well-developed answers for the intuitions I will be sharing in this post.

The problem: In order to make sense of moral practice, I appeal to a set of moral beliefs. These moral beliefs are expressed and revised due to critical reflection and experience following Ross' notion of a prima facie status of moral duties. If I mistakenly hold a belief, then I disregard it because it is not true. My claim is that the presupposition about the truth or falsity of moral judgments enables a wider range of responsiveness than either 2) or 3). Suppose I have come to believe that I should perfect myself at all costs, even to the point that my selfish aims of self-perfection are not mediated in any way to take into account my wife. My wife points out that a planned commitment of marriage is at odds with the aim of uncompromising self-perfection. Moreover, she tells me that not only have I hurt her, but others are hurt by my neglect of them in pursuit of my uncompromising self-perfection. So, in order to make sense of moral experience, the actual phenomenology constitutive of this experience, I am committed to several propositions.

A: Moral judgments are truth-assessable.

B: In being truth-assessable, the judgments are true through the existence of moral facts.

C: Given A and B, human responsiveness is enhanced.

I think A, B, and C might be called the propositions for presumptive realism. However, I want to up the ante. I want to say that presumptive realism is due in a large part to how we experience the world. The experience of morality is revealed in such a way that our phenomenology reveals it as such. We make sense of our beliefs under the supposition of their truth or falsity. Moral nihilists are few and far between. I do not think they have sufficient evidence to say that moral practice has no meaning. The anti-realist can vehemently deny that moral practice can still be made sense in part to how people use language, yet when they talk about the various states of approval and disapproval, they will have to assume cognitivism in order to communicate. In some way, they must assume the intersubjective possibility of communicating their own subjective reports of approval and disapproval. While not a knockdown argument, I do not know how to explain that moral facts or in other words, nihilism and anti-realism can disregard how a) we treat our moral beliefs as truth-assessable and b) the fact that moral facts are present in our phenomenological experience as such.

However, here's the end and finish of the early 20th century moral philosophy. When people make this claim, they do not have any power to gain traction in an appeal to phenomenology. Enter some version of Husserlian thought.

Phenomenological realism is the thesis that moral facts about rightness, wrongness, and agency broadly construed are grounded within our phenomenological experience. The invocation of phenomenology is a return to the popular anti-naturalism found in Prichard, Moore and Ross, and motivated, in principle, by the very fact that morality seems higher-ordered feature of human experience. Being higher-ordered involves reasons for rejecting the metaphysical alternative that would make moral facts into emoting subjective preference states or thinking it a complete sham. Instead, there are aspects of Husserlian thought that can explain this appeal. Let me start by listing some of the areas phenomenological description could start.

Moral facts are context-sensitive, but can be identified by a subject with the appropriate moral intentionality. Moral intentionality could reveal the subject's faculties for moral experience, such as providing a fleshed out conception of practical reasoning derived from our pre-theoretic life that could settle the externalism/internalism debate. Within my intentional experience, phenomenological descriptions could reveal agents and how they achieve a narrative unity about their life. Moreover, certain habitualities form over time, and phenomenological description can help spell out the existence of certain habitualities that could be cultivated as a form of excellence to conform to. If moral properties are detected, then the intuitionism of Husserl might give us a model to think about how I come to know moral beliefs.

In summary, there are ways of bolstering 1) above without thinking 2) or 3) are stronger. One example could be to develop the commitment to what is revealed in our moral experience as a leading clue to what must be true about morality. Now, I know this is broad, and I was a little "all over the place" in this blog post. Some of the ideas in here need more refinement. Secondly, I maintained that human responsiveness is enhanced by thinking that moral claims are truth-assessable. It is to this that I want to briefly turn before ending.

Recall my case of the uncompromising self-perfecting spouse. Is it really the case that anti-realism can make sense of the meaning found in the the opposite spouse's appeal to the fact that if I truly ignore my caring relationships, then I am inconsistent with endorsing the goals of marriage? Moreover, my fictional neglect of any kids or family is also TRUE. These are not simply the effects of my belief, but that in my failure to reason thoroughly, I am wrong. My belief in uncompromising self-perfection is damaging, and has moral significance for that very reason. It is true.

One shortcoming of my account I foresee is one over the conditions under which some moral belief can be said to be true. The claim that human responsiveness is enhanced, as in the previous paragraph, resonates with a certain feel of pragmatism. If that follows, then the power of Husserlian phenomenology and the conceptual schema it offers to make sense of the whole body of claims I want to apply it suffer. I would have to reject elements of Husserl's privileged transcendental position and what work it does in phenomenological description for pragmatic truth. In short, human responsiveness cannot be a reason why I think moral phenomenology better suited to support realism, but simply a benefit of holding the position.

Okay, that's it for now. Philosophers help with applying the dialectical pressure here.

Summer Agenda

I felt I should list those things I want to get done this summer. I'm aware I'm not working in the classical sense, but having a set of goals also makes me feel like I am where I want to be.

1) Continue to work on a paper in development in which I argue that Husserl's Fifth Meditation in the Cartesian Mediations can be interpreted as offering a picture of what moral intentionality looks like in addition to solving for solipsism of some variety.

2) Get better at German.

3) Outline Division 1 of Being and Time, and try to crack the relevant sections on circumspection. I'm thinking that circumspection breaks down a lot more than Heidegger assumes it does. This breakdown, as I call it, originates when morally relevant considerations supervene on things we find instrumentally bound in the referential totality. Thus, there should be a separate form of being-in-the-world when we find things meaningful in terms of their moral relevance. Why Heideggerians avoid ethics in any traditional form is a little boggling to me.

4) Finish Anthony Steinbock's book, Home and Beyond.

5) Find an apartment in Carbondale, IL over the summer and send out the TA contract for next year.

6) See at least one Pittsburgh Pirates game, preferably with my father. Since I have avidly maintained to my fellow Canadians that baseball is the most complete sport, I should at least follow through with consistency on this belief.

7) Have New Jersey pizza everyday while away for my cousin's wedding this summer in Manasquan, New Jersey.

8) Surprise wife with something awesome for three year wedding anniversary.

The Faithful Are More Likely to Torture

Following my rant on guns on campus, I found this little ditty thanks to Philosopundit.

Big conclusion: The more faithful you are, the more you think you are justified. I chalk this up to someone thinking that they have God on their side. If that's true, then they somehow participate in the unfolding teleology of the righteous. Bullshit.

Smaller Conclusion: If these people had their way, they would be teaching creationism, not evolution, and we could bring back Aristotelian substances and get rid of particle physics!

Big Guns on Campus

I've been thinking a lot lately about returning to the United States. Since I will be on a campus again for the next four years, I've been thinking about those issues that I'll confront. What stands out the most is how many people regard the presence of a gun on campus as a way to prevent violence on campus.

I'm confused as to how more guns will make me safer. In truth, we've grown accustomed to thinking of American individualism as a romantic motif to draw on when thinking of how to prevent violence. However, the romantic conception of obtaining a concealed weapon permit and drawing a gun to "save the day" is as atrocious as the violence at Virginia Polytechnic. Here's why.

If campuses serve any purpose, it is that campuses are entrusted to provide a safe and nourishing environment. Weapons on a campus threaten this purpose. It's that simple. Simply the presence of a weapon is enough to threaten and undermine the university's educational mission. Recall this one:

Now, the image here is meant as recalling what violence does to a campus.

Moreover, our laws do not really recognize the romanticized conception of the special "hero" that will save the day. People are not empowered to take the law in their own hands. We have police for that. As a society, we've given over some powers of law enforcement to those entrusted to serve the public trust. Only these individuals may really detain someone, or end someone's life only when absolutely necessary. In fact, they have special training in order to do so. Normal citizens do not have that kind of power. We should stop pretending we do.

In the end, campus violence is always felt as a disruption of its purpose. The fact that we want to prevent massive injustices is a good thing. However, in the heat of ultimately desiring prevention, we seek those measures that would make us secure but forget the cost of approving such measures. This is also true when we approve the state may torture the accused at the expense of celebrating the greatness of the American state as a place so enlightened it even protects the rights of the accused.