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.

Roxanna Again

Today, I called with grave concern about Roxanna Saberi. She's supposedly on a hunger strike for the last 5 days. Her lawyers are continually barred from Evin Prison, and Tehran is asking the West "respect Iran's independent judiciary and not hype this situation up."

I suggest a digital sit-in. I found out that the number to the receptionist of the DC Embassy is 202.965.4989. Bombard them with concern. Make their DC Office know that we will not forget this young lady!

Political Language, Abortion and the Middle Road

Every once in a while, it is good to remind people (there are many that come here) how powerful interest groups employ language to reflect their interests. This is an unfortunate reality, and while I have no empirical data, I do have some qualitative notions that help to pump this intuition. In the American political climate, we can just see how normal people discuss "abortion." Consider that there is no nuanced position that reflects the following two propositions: 1) Some abortions are morally justified and 2) Some reasons don't justify abortion at all. One must be either pro-life OR pro-choice. In that forced disjunction, 1) or 2) make little sense. I contend that 1) and 2) make more sense when we consider how complex the different moral situations are across cases of abortion.

At the outset, I'm not going to claim that I can solve the abortion debate. Many philosophers have engaged this problem in a variety of ways. From Mary Anne Warren, Judith Jarvis Thomson to Don Marquis have said a great deal. Moreover, I am not going to engage in popular debates (like the argument from bodily autonomy), nor propose some radical new idea in this post. That's not the point. The point of abortion is a test case for seeing how 1) or 2) are excluded.

We can take a better look at the interest of pro-life groups by understanding the term "pro-life" and "pro-choice." First, the term suggest that the opposition would be "anti-life." The term sets up that one would never want to be against life. But, that's just an oversimplification of a very complicated moral issue. Consider the opposite of pro-choice, "anti-choice." Would anyone really want to be against the ability to make choices? That also doesn't sound to fruitful. In both cases, the actual complexity of the moral issue is reduced to bumper-sticker mentality, and I've always been more attracted to a view of morality that attempts to see a moral issue in terms of the case by case basis that one might adjudicate, say, in a court room. Not all cases are identical, and for that reason, a little intellectual humility is involved in seeing in what types of cases succeed in allowing abortion, and others that fail to generate a reason for abortion.

Consider the following bumper sticker. Keeping your laws off one's body follows the idea that the positive argument for abortions stem completely from bodily autonomy. However, this idea that one can do with one's body what one may doesn't follow or make much sense. Getting an abortion isn't morally neutral like cutting one's hair and painting one's fingernails.

Consider the bumper sticker that abortion stops a beating heart. Such a sticker construes again the oversimplified notion that the impermissibility of abortion rests on the presupposition that a fetus is like you or I---a fully blown member of the moral community with a status of personhood.

In both cases, the language used conceals the philosophical complexity of two concepts central to the abortion debate: autonomy and personhood. Critical reflection moves past these, and I think I could show cases for 1) and 2) or refer back to Thomson, Warren and Marquis for how these terms get better attention in moral philosophy.

Now, one should take this case by case basis for morality without conflating morality and legality. Morality is more fundamental than the law. We don't legislate all forms of immorality. We don't make it illegal to cheat or your spouse, or lie to your neighbor. So, when I say that morality is complicated by the types of situations that engender different moral responses, we should take moral justification for what it is, and not confuse the analogy of cases with legal justification. That's not where I am going.

Let's take 1) Some abortions are morally justified. There might be several cases in which abortion is justifed prima facie. First, if a woman is raped, she has no responsibility for being the victim of a sexual offense. Typically, we do not hold victims of crime's accountable for the effects of the crime, and this is the central premise that will do the work needed to explain the sexual offense case. An insurance company would never make the claimant pay for things damaged in a fire as long as the fire was not initiated by the claimant. Secondly, if the mother's life is in danger due to pregnancy, the life of the mother trumps the life trying to enter the world. Our moral intuitions favor the health of those that are here before us, present in our lives. A husband might have to decide in favor of aborting the fetus while the wife is incapacitated during labor.

Let's take 2) Some reasons don't justify abortion at all. Let's go back to the bumper sticker about bodily autonomy. If I wanted to do with my body as I wanted, and part of this was vanity, then it is conceivable that someone might be vain about their personal appearance. If I heard someone say they didn't want to get fat, or would not look good in a skiing outfit due to pregnancy, these reasons do not support or mesh with the seriousness of abortion. In fact, we would think there is something seriously wrong with this person. Consider a second case. If a teenager said that simply out of fear, she wanted an abortion. We couldn't take fear alone as a reason to justify abortion anymore than vanity.

Moreover, the later development of a fetus provokes reactions in us that early first trimester abortions don't. We seem more permissive with first-term abortions than the complexity revealed in selective late term procedures. Clearly, the fetus has developed and the closer it gets to emerging in the world as a moral person.

To summarize up to this point, I have not proposed anything substantial about the abortion debate. Instead, I have only advanced the opinion that morality by a case to case consideration actually reflects a proper understanding of the issue. This is meant as a contrast to the over-simplified politics of abortion. My point is to show that this understanding of morality should be reflected in how it is portrayed in public debates, yet this is not the language employed. Instead, one is either for abortion in all cases, or strictly against it. However, like all either/or's in political language, it is a false dilemma. There is more going on in abortion than reflected, more options between the one's presented in the either for it or against it categories.

In some ways, I feel that politics and our culture dumb things down for our immediate consumption. News coverage, political debate and the populism of information have all contributed to a culture so bent on attaining what is needed now that the civic virtues of understanding, organizing and communicating have flown out the window. Being a philosopher leaves one with a bad taste in one's mouth as I look at the case of politics. I take my cue from Socrates that most profess knowledge they truly don't know, and every once in a while, you have to remind people that the world is more complicated philosophically than the comfort of faith, science or common-sense alone provide.

Maverick Again on Nietzsche

Okay, that's it. I'm calling you out, Maverick.

I don't like doing this. In fact, as a philosopher, I'm supposed to be charitable. I'm supposed to build up the damn reasons as to why I interpret a text T as supporting X. That's one of the very few things I do, and as an aspiring Continental philosopher (such a skill at exegesis surpasses any pejorative division in my discipline), I am practicing all the time. It pains me to see that this is not done in a recent http://maverickphilosopher.typepad.com/maverick_philosopher/2009/04/nietzsche-and-national-socialism.html#more my Maverick philosopher. The blog post takes the following rough form (note this is heuristic only)

1) Nietzsche says X in T.
2) I interpret X in T as supporting National socialism.
3) Cite passage of Gay Science, 325.
4) Proviso: X in T as supporting National socialism cannot be maintained on one passage alone, and mention that there are many passages that fit this bill.
5) Even with the proviso, Nietzsche's saying X in T could support National socialism.

The immediate problem with his post is the purpose of the post equivocates in the sense meant by 2) and 5). We see this in how he refers to Kaufmann's footnote as derisive as well as those that would "scream in protest." He doesn't honestly accept the dialectical challenges of his opponents, or he would present a better case for support of 2). If pressed into a corner, I think he would suggest that 5 is what he is really doing although he wants to conclude definitively 2.

Given 5, he admits that he is not offering a sustained treatment or objecting to reading Nietzsche and his worth as a philosopher. He is only suggesting that Nietzsche can be read this way. Yet, before this humility sets in, he pedals some provocative statements meant to provoke the interpretation he favors without substantial argument mind you--really wanting to pass of 2 from above. First, he is observing the inadequacy of Walter Kaufmann's translation footnote, specifically taken issue with the fact that 325 can be explained by reference to another aphorism "how boldness in expressing one's ideas can cause emotional hurt to those near and dear." Without really offering a reason why we shouldn't accept this footnote, Maverick only points to the possibility that the passage can still be read this why being situating his favored interpretation as an explanation for why this is not the case. This amounts to the stupid undergraduate mistake of reasserting your conclusion as a way to answer an intelligible objection to one's view. Reassertion is not a way out of a dialectic.

Secondly, he implies that Kaufmann's translation of the Übermensch as "Overman" is motivated to stem the interpretation to sliding this way. Über can mean ultimate, above all, and best. In this sense, choosing Over, at least in my eyes, has always been meant to usher in a conception of a certain ethical archetype set over and beyond the current moral conception, essentially someone healthy, self-creative and passionately dedicated to a life-affirming project. The English "Super" seems to suggest not the over and beyond sense that Nietzsche means since super exaggerates something in the here and now. As such, I think the rendering by Kaufmann responsible.

When considering a counter-argument to his interpretation, we are told that LIBERALS do not want to be reminded of certain things, which Maverick fails to prove as objectionable. It could very well be the case that God is dead among the other doctrines:

when one interprets these passages in the light of such key Nietzschean doctrines as the death of God, the Will to Power, the perspectival nature of truth, (which amounts to a denial of truth), the denial of a moral world order, it becomes clear that there are definite links between Nietzsche's philosophy and Nazi ideology. But I can understand why leftists don't want to be reminded of this.

Here's a brief synopsis of my remedy. One way of interpreting Nietzsche is that he is trying to offer an ethic to combat the impending nihilism in the wake of the Death of God since so much meaning is invested in this notion; its collapse would wreak havoc. If this interpretation is true (as I think it very well is), the honest passages of life-affirming values and the myths to reinvigorate this conception prove to establish a remedy to this nihilism, not the support of national socialism. I could even supply those passages I feel warrant this interpretation over the one favored/but-not favored by Maverick (confusing as it is to read his post) Moreover, the biographical observation of his sister's proto-Nazi leanings and meeting of the Fuhrer go unnoticed by Maverick. It's simply that I am a liberal and don't want to think about these things. That's really lame if you want to meditate on the value of Nietzsche's thought.

Well, Maverick, I do think about these things. I also think about exegetically responsible views. Your passing reference to some Nietzsche lovers "in protest" is an attempt to lessen those that read him responsibly. I find this distasteful, and like last time, I invite you to comment--hoping that you find my criticism accurate of how irresponsible your characterization of Nietzsche's view really is.

Maverick Philosopher on Nietzsche

I really like the attempt at understanding Nietzsche.

I'm wondering however if Maverick is aware that Nietzsche's critique of truth gives up on the idea that it is a thesis about the epistemological sense of knowing a proposition, or a fully-blown nature of truth thesis like correspondence theory. In this way, the truth doctrine of Nietzsche is more about the determinative social forces that determine the strength of an idea as a historical product, as he describes towards the end.

Skeptical of a Heideggerian Ethics, Reading Hatab's Ethics and Finitude

As I read more Continental philosophy, the project of moral philosophy becomes suspect. Most have inherited a Nietzschean skepticism of ethics as rule normalizing that threatens heroic creativity, individual eccentricity and the openness of life. In some ways, maybe the climate in Continental circles is right. Analytic moral philosophy proceeds to ground systematic principles that explain normative praxis. What is missed in any conceptual analysis is the pre-reflective dimension of our practical involvement, social relations, concerns, emotions and very historic situatedness. Passing over, concealing over these dimensions, ethics has construed itself as moving beyond the limits of what Lawrence J. Hatab would call our finitude. "The finitude of being-in-the-world also refers to the limits of human selfhood caught up in the encumberances and contingencies of life" (p. 3, Being and Finitude)

Moving past these concerns, Hatab contrasts the presuppositions of Anglophone moral philosophy. It is preoccupied in theory, and measures its philosophical validity by logical consistency, universality, impartiality and indefeasability. In fact, I find some of these features very compelling, and am not inclined to shy away from all these criteria whereas Hatab sees them as detrimental to a deeper understanding of ethics as an engaged, interpretive, contextual, addressive discourse for the sake of disclosing ethical bearings in life. (Ibid., p. 4). Attempts at deeply universal or theoretical approaches that justify ethical principles extended over time are abandoned, and an anti-foundationalism is enacted to reflect how we are already situated in the threshold of our own finite limitations.

I take it that Heideggerian phenomenology empowers this type of analysis. However, I am unsure that ethical pronouncements can strictly be embedded in socially pragmatic and finite contexts. As I grow older, the same old patterns of human life repeat throughout history and forward in time. As such, if this is even a remotely accurate intuition, then the repeated patterns and forms of life enacted by human beings may generally be subsumed under moral principles, or in my case prima facie intuitions that have acheived a theoretical recognition of human life have validity despite the want for contextual-sensitivity that a Heideggerian would want to foster. This repetition throughout history is not a collapse into a human nature essentialism. On the contrary, it is just an observation that human beings seem quite comfortable in choosing what has worked in the past until there is a major rift in the necessity of life engendering a new pattern of life. I still maintain human beings are free amongst the contingent freedom they possess to choose between what pattern of human life would best suit them.

It would seem the one lesson to learn from Hatab stems from the contextual-sensitivity of ethical principles. Following his insight, we could say that the responsiveness of some people stem from observing the theoretical need for contextual-sensitivity and the pre-reflective dimension of human experience. This point has been made reluctantly by Simon Critichley who thinks that religion and politics will never go away despite the philosophical want for a secularly enlightened society (See Continental Philosophy Review, Dec. 2008). While leaving the question of religion aside, it does point to the fact that ethical pronouncements engage us traditionally and historically. The point remains whether or not such insights are more true, that is intuitively self-evident, beyond the manifestation in a particular traditional, religious or historical milieu.

At the outset, I am suspicious of Hatab's efforts here. The phenomenology of moral experience is concealed from the "view from nowhere" efforts at moral theorizing, yet the contexts of Heideggerian finitude cannot ignore the vast similarities throughout time that human beings have exhibited. To remedy this, as I have may said here in the past, the search for a phenomenology of moral experience should rest on the transcendental variety found in Husserl.

Iranian American from North Dakota Imprisoned (Updated)

Here goes. I'm using every tool I have, my facebook, my blog, my telephone, and my email. I get about 15-20 people from around the world. I can't list all the phone numbers, but it's easy. All you have to do is google the Iranian Embassy in your home country, and make the call. I ask that you copy this blog post to your friends, family and strangers. Anyone that can help.

Here's a list of Iranian Embassies Abroad

This is about someone you don't know, but is an American suffering in an Iranian prison for no reason other than being a journalist in a country that doesn't like transparency or a free press. She's a 31 year old and reportedly frail according to her father.

I'm asking you copy this note to more than just people I know. I am asking you to call, write, email and FAX the Iranian Embassy. In addition, call your own Senator and US State Department.

Roxanna Saberi is a North Dakotan of Iranian heritage that went to file stories for a host of networks in Iran.

She was tried without her lawyer present. She was sentenced for 8 years for espionage. The trial lacked any transparency, and the ruling comes at a shock to a host of media outlets. The charges are baseless.

Here is the full CNN story.

Call the Iranian Embassies and Declare her trial baseless as Senator Conrad did from North Dakota.

I ask that you tag everyone you know, and get her home. But make the call.

DC:

2209 Wisconsin Avenue NW, Washington DC 20007
Telephone: (202) 965-4990
Fax: (202) 965-1073

Ottawa, Canada:

consulate@salamiran.org (613) 2334726

Some minor development: http://news.yahoo.com/s/ap/20090419/ap_on_re_mi_ea/ml_iran_us_journalist

Phenomenological Properties Ground Moral Ones

Well, I just heard Robert Audi give a talk at the APA about moral perception, and I was suspicious about his project since anytime anyone would object; he'd just give him/her another distinction. One wasn't really sure how much work or what those distinctions are doing. The reason for positing moral perception is to make intuitionism somewhat more naturalistic since according to him moral properties are anchored in natural properties. Both the realist and the anti-realist I think accept something like moral properties are anchored by natural properties. I deny that moral properties are anchored in natural properties.

In this post, I only talk about my reasons for rejecting the relationship, and will not outline a substantive proposal to replace it. Much of moral philosophy is driven in terms of the larger body of philosophy, namely, that ontology drives what is legitimate. In this day, it is naturalism that drives all forms of philosophical legitimacy. The drive for this form of legitimacy first has grown so popular, it is actually uncritically accepted.

Moral properties resist articulation in more precise naturalistic terms. In fact, if you look at how we apply the term right and wrong, they are applied wholly to deed+agent. At first, this looks like a massive confusion to some that want more clarity in our usage, application and articulation of what exactly is going on in our moral language. Yet, the want for more clarity is, under my view, impossible. Our moral language encompasses qualities of an entire situation, and speak of morally relevant considerations as they might qualitatively change the situation. The frustration, I think, with this feature of our moral language makes some so frustrated that they impose standards from more scientific discourses onto our moral language for the want of rigor and precision that just can't be there.

So given the lacking precision of our moral language, I ask what kind of properties hold for situations in general, and what could possibly ground them? A philosophy that is driven by ontological naturalism tries to over-determine the possibilities of what exists in a top-down method. Phenomenology works from the bottom-up, and so I think that when I deny moral properties being anchored in natural properties what I really mean is that phenomenological properties ground our understanding of the world in general, including ethics. What naturalists often forget is that their understanding is a subjective accomplishment. Subjectivity is so embarrassing to them they would rather eschew the subject and the intentional life of consciousness than bring to light those implicit intentional structures that constitute the emergent-sense of our world.

If one were to ask what we could get from focusing on the experience rather than explaining the phenomena, I resist that objection on the grounds that there is no difference between explanation and experience as the naturalist would want. The explanation is not apart of how we experience it, and in ethics, we are trying to capture the structures of morality, judgment and our language without losing sight of the normative. Take for instance, B. Williams. His efforts at spelling out the internalism requirement of practical reason is an effort to philosophically explain AND capture how we experience the world. In fact, that's the appeal of motivational internalism, it explains how we experience ourselves in the world, and deflates a confused notion -- externalism -- based on our experience of the world (I'm just using this as an example; I happen to be more of an externalist) .

It's as if the world is not carved up so nicely that many of our distinctions do not work to bring it to light, I especially think this in relation to the top-down method of just doing meta-ethics without keeping sight of what we are trying to explain, the moral life.

New York Times Op Ed: End of (Moral) Philosophy

The article in question...

Some challenge the independent evaluative nature of normative ethics. They argue that a more naturalistic description of morality and all that it involves -- including the emotions -- is a natural way to proceed. The effect is that there is no science of the Good as traditionally conceived. Ethics is overtaken from the outside by larger descriptive projects. The climate of modern philosophy is to let ontology drive all other divisions in philosophy. Ethics is no exception.

However, a lesson from Husserl (and Nagel of all people) is extremely useful. First, the objective viewpoint of the sciences cannot explain all facets of the human condition. Science is not exhaustive. Husserl reminds us that the natural attitude, the objective viewpoint, can overtake our understanding of the world making us forget how much our subjectivity is involved and structures elements of our awareness. If we attend to these structural elements through the phenomenological reduction, phenomena are illuminated in ways that the sciences cannot see.

The above fairly naive article accepts the truth that morality is a product of the emotions. Evolution directs our cooperative behavior, and this understanding has three benefits. They are a) it emphasizes the social nature of moral intuition, b) a warmer view of evolutionary-based human nature and c) dignity and choice are maintained despite the descriptive explanation implying facts about our decision-making. I'll speak to each of these in turn.

Concerning a), there was never a time in which our moral intuitions weren't social. When ethicists consult intuitions, they are looking at their prima facie reflective judgments that are other-regarding already. Within a Rossian framework, they were always social to begin with. It is not a new insight to the coinage and use of the term.

With respect to b), when we conceive of agency in the moral framework independently of any science, the warm view of humanity's cooperative nature is generally assumed. Morality is usually construed as a set of reason that prohibit or permit a range of behavior. Morality is taken to be overriding my interests when they confict with the larger set of reasons. In this way, a bear minimum of the assumption in ethics already has the warmer view at heart.

It is true that not everyone emphasizes the cooperative nature of human beings. Neo-Hobbesians like David Gauthier argue for a self-interested account that see morality as nothing more than one device among many to instrumentally solve coordination problems. The coordination problems can be very competitive given the implicit Hobbesian views of our moral psychology. But, not all of us are Hobbesians.

As for c), this makes no sense and only conflates the descriptive and the normative projects already. Even if our decisions are explained in great detail from this emotion-based view, it does not follow that the range of the description does not intend to overtake the evaluative parts of our choices. According to the cognitive science view, the more we understand, the more we can predict (unless, I am assuming more than can be fairly attributed to the view of science in question, which I think I am not). The view does impede our conception of free choice because as Kant's third antinomy shows if we construe ourselves as an object of causal understanding, we lose our freedom. If we conceive of ourselves morally, we conceive of ourselves as acting freely beyond the causal nexus of the world. What Kant teaches us, apart from this being an antinomy of pure reason, is how in tension these viewpoints are.

The phenomenological impulse in me thinks Kant had it right. We have a phenomenologically adequate conception of ourselves as agents to initiate action freely and evaluate our own terms of action. Thus, you can see where I stand. Phenomenological descriptions underwrite our claims of the naive natural attitude, and it seems foolish to reject agency for the science that would vitiate how it is that our agential experience of the world occurs.

In summary, a) and b) are anticipated by much of moral philosophy, and Brooks is not entitled to conclude c). Thus, Brooks misrepresents moral philosophy while not observing the history of philosophy, and what current ethics entails. Given the misrepresentation, we cannot conclude that ethics has ended. Moreover, even if Brooks is entitled to the conclusion of c), ethics would lose its evaluative component becoming descriptive. These are just some of the mistakes I see in his article.

Finally, it is not clear how this new conception of morality infers the "challenges the new atheists, who see themselves involved in a war of reason against faith and who have an unwarranted faith in the power of pure reason and in the purity of their own reasoning." Being involved in one dialectic in which the shape and form of morality is at issue bears no direct relation to the metaphysical debate concerning New Atheism. New Atheists are not talking about reason in the practical sphere, but in the theoretical sense.