February 6, 2014

If intentionalism / language in politics is fundamentally unserious, why does the left want you to ignore it?

And not just any random leftist, but Mr Soft Totalitarian himself, Cass Sunstein, who would “nudge” you into compliance with a world of his narcissistic design — and who today wants you to forget about all this intent balderdash and come to love the Constitution not for what it is, but for what people like he can do with it, if given the proper hermeneutic latitude.

“Resist the Siren’s Call of ’Originalism’”:

Originalists insist that the meaning of the Constitution is settled by the original public meaning of its terms — that is, the meaning of its provisions when they were ratified. According to Scalia and Thomas, the job of the judges is to go into a kind of time machine and learn what history tells them about the “expected applications” of these provisions.

If the Equal Protection Clause was originally understood to allow sex discrimination, the Constitution allows sex discrimination. If the First Amendment was originally understood to allow regulation of commercial advertising, it allows regulation of commercial advertising.

The strongest defenders of originalism recognize that their method has to be defended, not simply asserted. This is important, because it is tempting to think that originalism is built into the very idea of interpretation. That’s a mistake.

True, you can’t ignore the words of the Constitution while claiming to interpret it. But you can be faithful to the Constitution’s text while also believing that its meaning isn’t fixed by the original understanding (and the “expected applications”). You can fully respect the text of the Equal Protection Clause while concluding that the clause bans sex discrimination even if the original understanding was otherwise.

No, actually, you can’t.   And note that throughout, what Sunstein does is assert:  “you can be faithful to the Constitution’s text while also believing its meaning isn’t fixed […]”; “you can fully respect the text of the Equal Protection Clause while concluding that the clause bans sex descrimination even if the original understanding is otherwise.”  But linguistically speaking, this is absurd:  you can of course conclude that something that wasn’t intended to mean one thing can mean that thing, but that just means that your conclusion is faulty, self-serving, and incoherent.  Similarly, you can’t be faithful to the Constitution’s text “while also believing its meaning isn’t fixed” because if it’s meaning isn’t fixed you aren’t being faithful to any thing save some floating marks — and you are showing fidelity not to a text but to a procedure, and one that allows you to claim that you have a right to consistently recreate with that procedure your own thing, which you can then claim to be faithful to.

Which, how charitable of you!

But let’s address Sunstein’s reasoning, such as it, by looking at his arguments in turn.  He writes:

Originalists contend that their approach is best because it reduces the discretion of judges, stabilizes the legal system, and ensures that the Constitution’s meaning is settled by the judgments of We the People, who ratified its provisions. Scalia argues that originalists help to produce a “rock-solid, unchanging” Constitution — and that if the document reflects the views of people long dead, well, that’s fine, because those who are living are always free to amend it.

It seems like an appealing argument, but it faces three objections. The first is historical. Did those who ratified the Constitution embrace originalism? If not, originalism turns out to be self-contradictory, because the original understanding rejected originalism as Scalia and Thomas understand it.

As I’ve shown on several occasions, just because Scalia, eg., doesn’t correctly explain his “textualism” (which is in fact intentionalism) doesn’t mean he isn’t actually engaging in an intentionalist approach to the interpreting the Constitution.  To extrapolate out from that — and even given Sunstein’s absurd idea that the ratifiers didn’t believe themselves to mean what they meant when they voted to ratify what it is they voted to ratify — it makes no difference how one describes what one is doing when one interprets, because intentionalism, as you’ve heard me say over and over again, just is.  And in the end, all we have to decide is whose intention we believe should be privileged when dealing with legal texts:  those who signified them and passed those signs into law intended to function in a particular way and in specific circumstances?  Or those who believe themselves clever enough to extrapolate from signifiers — having reduced the text of the Constitution to its marks, not its signs (that is, those who have robbed it of what makes it language to begin with, in order to resupply it with their own signification, and rewrite the text using their own intentions to turn the marks back into language of their choosing) — and thereby lay claim to being the Constitutions “interpreters” when what they are really laying claim to is being its new authors.

The Constitution contains broad and abstract terms, such as “equal protection of the laws,” “freedom of speech” and “cruel and unusual punishment.” It is reasonable to object that We the People didn’t understand the meaning of such provisions to be frozen for all time. Some originalists have tried to meet that objection, by pointing to history that seems to support their view, but it isn’t a simple task. And, in fact, other self-described originalists insist that because the Constitution deliberately uses broad terms, originalist judges legitimately understand the meanings of those terms to change over time.

More sophistry, broadly extrapolated: if some terms are broad and abstract enough where latitude is given for how they may reasonably be interpreted, that just means that the authors left that latitude, either intentionally or accidentally. In either case, what we know is, they had a meaning — and legal convention allows for some latitude to apply meaning should a text prove abstract, and there is no recourse to understanding what specifically was intended by it.  This does not mean, though, that because some terms are abstract, the entire document is abstract, or that we can take very specifically understandable intent and abstract it ourselves.  What Sunstein wishes to do is to say that because we can’t possibly gauge all intent perfectly, we needn’t worry about intent at all.  Which is absurd — and dangerous.

Because what he’s doing in that instance is making the claim that whatever new intent can be applied to the text has equal standing with the text as intended.  Or to put it another way, the Constitution doesn’t exist unless and until it is applied by the latest people to suggest its application.

The second objection has to do with changed circumstances. In prohibiting unreasonable searches and seizures, the ratifiers of the Fourth Amendment couldn’t have anticipated wiretapping, much less the Internet. But it would be absurd to think that the government has unlimited power to tap our phones and monitor our e-mails.

Whenever circumstances change, originalists have to engage in some extrapolation, asking how the original understanding applies to problems on which We the People had no view. When they engage in that extrapolation, they aren’t asking a purely historical question, but instead about the best or most appropriate understanding of a constitutional principle in an unanticipated context — the very question that originalists want to avoid.

Again, this is a distraction, not an argument.  And it’s nothing we haven’t heard before (the framers couldn’t have anticipated “assault weapons,” eg., therefore the 2nd Amendment is a dead letter of sorts, unless you wish to own a musket).  The fact that the framers couldn’t anticipate wiretapping or the internet doesn’t mean they couldn’t anticipate instances in which searches and seizures would be unreasonable.

Intentionalists don’t “want to avoid” the consequences of a law running up against and unanticipated context.  And that’s because the context has to address the law, not the other way around.  Of course some extrapolation is going to be necessary as new circumstances arrive and we are dealing with a fixed set of intended laws.  But it is hardly a problem to make the argument that a ratifying body who didn’t want the government entering their homes without cause or seizing their property without due process was instituting a broader point of law:  that the government’s infringement on our private property rights must meet a high legal threshold to be considered something other than “unreasonable.”  Sunstein wants you to focus on the contemporary contexts in which the laws must be applied while ignoring that the laws weren’t themselves written in a vacuum, but were in response to historical circumstances that we don’t specifically face today (British using general warrants), and so were meant to prevent a kind of government behavior.  Not being able to anticipate the internet or the NSA’s datamining capabilities is therefore irrelevant.  What is relevant is what the authors believed constituted “unreasonable.”  And from the historical context of the law, that class of government action the law was seeking to curtail is fairly self-evident.

The final objection, and perhaps the most fundamental, involves the consequences. If we accepted Scalia’s version of originalism, much of the U.S. constitutional system would be deeply unsettled, and in a way that would trouble liberals and conservatives alike.

It’s pretty clear that under the original understanding, states could discriminate on the basis of sex, and there’s a strong argument that they could engage in racial segregation. It’s even clearer that the federal government could freely discriminate on the basis of both sex and race.

— Things that were addressed by later law, as our understanding of race and sex evolved.  Sunstein is correct here:  under the original understanding of federalism, states could and did have differing views on social matters, and therefore different states could have different standards of law, based upon the will of their citizenry.

Where Sunstein is incorrect is in his implied assertion that the 9th and 10th Amendments were mistakes — that federalism was something that troubles originalists.  It doesn’t.  The fact that states are given autonomy in certain regards was a requirement of the Constitution’s ratification.  And you have to rewrite history entirely to suggest that the framers would have frowned upon giving states that kind of legal power and latitude.

What we’ve seen — pace Sunstein — is that, after the 14th Amendment, and thanks in large part to a move away from originalist readings of the Constitution, what racial inequalities that exist in law today are a function of rewriting the Constitution’s text entirely, so that equal protection has come to mean special dispensation for certain favored groups.

I’ve been over this thousands of times — including with putative conservatives who either shrugged off the seriousness of how language (and in particular, what it is we think we’re doing when we claim to be interpreting) affects policy and the institutionalization of certain kernel assumptions that provide for a necessary legal trajectory; or who embrace the very notions of “democratizing” interpretation made famous by the agrarians and the New Critics, and then carried forward by the post structuralists, such that the individual or corporate agency responsible for willing thought into language is subjugated to the “interpretive community” who wishes to lay claim to control over meaning.

This is how individualism is subsumed by collectivism, and it happens on the very basic level of language.

The rest — the movement leftward, the increasing institutionalization of policy and assumption favorable to the left’s incoherent use of the signifier/signified relationship with respect to autonomy (they wish to hide the fact that it is their intent that they wish to privilege, always, whether as authors OR interpreters) — is entirely predictable.

And it is why people like Sunstein wish to reduce the Constitution to an idea that can constantly and repeatedly be rewritten on the fly.

Allowing them to do so is suicidal.  Yet, here we are.

Don’t blame me, though.  I keep on telling you where we’re going, and while some of you listen, others are so offended by the loss of power attendant within the hermeneutic paradigm they’ve come to rely upon that they will rail against all things leftist, even as they allow the very structure of leftism to take root and become legitimated.

(h/t serr8d)




Posted by Jeff G. @ 1:28pm

Comments (36)

  1. Do you want the rule of law or the rule of men? I think it really is that simple.

  2. I think a clever test is to use Sunstein’s theory of interpretation on his own text – see how you can distort his words to mean what you want them to mean rather than what he meant that the should mean.

  3. Cass Sunstein wants you to believe the rule of law and the rule of men is the same thing.

    And thanks to social scientific critical method most people at least accept it, if not believe it.

  4. Obviously Sunstein is demanding that I be made absolute decider on every question for everyone — and that science must now devote all of its resources to making me literally immortal so I can serve this function forever.

    For the children.

  5. I gotta come back to this. I have to run my youngest to a basketball game, where, alas, the refs will be ignoring James Naismith’s intent regarding blocking fouls.


  6. I dunno if this is apropos of anything or nothing, but I’m pretty sure the states can in fact discriminate on the basis of sex. They rejected the ERA after all.

    And proposing the ERA wouldn’t have been necessary if Sunstein had been right about “evolving interpretive standards” so to speak.

    Which, come to think of it, explains why the Institutional Left prefers to read into the Constitution all the things it has failed to write into it.

    Or out of it, as the case may be.

  7. At its heart, it’s just simple will to power: if I can make the Constitution mean what I want it to mean, then I can make the American people do what I want them to do.

  8. If the meaning of the Constitution can evolve due the the evolution of society, then why build mechanisms into the Constitution that allow for the Constitution to be changed?

  9. Cass Sunstein and his ilk never get around to trying to explain just how Article 5 of the Constitution doesn’t moot their arguments for allowing 9 robed philosopher kings to supplant three-fourths of the several states. But, I suppose it would go something like this: Since the framers of the Constitution never envisioned 57 states, which makes it nigh on to impossible to enact ‘reasonable amendments’ pertinent to today’s evolved thinking, we have no choice other than to defer to said philosopher kings. Because, shut-up.

  10. As is usual with thinkers like Sunstein, they create an interpretation where they always see themselves and like minded individuals in power. Do they forget the fear of a President Palin so quickly?

    He also forgets that power attracts the corrupt and evil. Strict interpretation is what limits and mitigates damage caused by those people.

  11. A couple of pieces.

    The Origins of Originalism” by Ilya Somin which contains a like to a much longer 1999 piece by Randy Barnett “An Originalism for Nonoriginalists” which is well worth the time required to read it IMHO.

  12. He also forgets that power attracts the corrupt and evil.

    You give him too much credit for good faith.

  13. Cass Sunstein wants you to believe the rule of law and the rule of men is the same thing.

    For some reason, imagining our current president wearing the Judge Dredd helmet (and let’s not forget the “LawSigner” pen) just seems, well, silly.

  14. Tank Commander Dukakis silly, or just Mom Jeans Obama silly?

  15. We can likewise figure the Necromancer get-up wouldn’t work any the better.

  16. Sometimes, I am still astounded that power lust and linguistic abuse are so intimately and fundamentally connected.

    I don’t reckon that Attila the Hun needed to screw with signifiers overmuch, given that burning the village to the ground did the talking for him.

    But where you want to divide society into cattle and herders, I guess you have to persuade people that they’re cows, and that they’d best let you herd them, and that can only be done through sophistry and deception, which consists of ideas, which are communicated through language.

    He also forgets that power attracts the corrupt and evil.

    McGehee’s right: Your assumptions about his intentions are way off. Sunstein is the corrupt and evil person who is attracted to power. He is the sociopath with designs on human freedom. He is the guy who pretends in public to be doing it all for The Common Good while approving plans for death camps in private.

    He’s not an idle intellectual who is unwittingly playing with bad ideas: he’s putting the bad ideas into effect.

    Aren’t we lucky? We get to witness America’s downfall from the outset, just like Orwell and Rand and Huxley saw Europe’s, only we get to watch it all unfold, step by insidious step, with the benefit of their hindsight at hand.

    We can almost forgive our forbears of 100 years ago for not really knowing where certain roads lead, but us?

    We gleefully elect people who “nudge” us down those paths as fast as possible because they know where the road leads.


  17. It’s a cookbook!

  18. The Left’s problem is twofold: nobody likes their ideas, and nobody likes a liar. So they find ways to twist the language to allow them to couch their horrible ideas in wonderful-sounding descriptions, and to bury their true aims so deeply that most people don’t even realize that it’s all one big lie.

    Then they pre-emptively label people like us as heartless evil lying bastards, so that nobody takes us seriously when we point out the naked emperor strutting down the boulevard.

    Little do they know that we have a secret weapon: reality. When you set up a system where ten people pull on a cart carrying a thousand, it’s going to fail, no matter how creative you are at describing the scene.

  19. [N]obody likes their ideas

    I would say that few like the actions with which they implement their “ideas”/ideals and the results of the implementation.

    Their “ideas,” which they express openly, are the lies, the sophistry which gulls people into letting them do the implementation which is always has the purpose, not of making the ideas come to life, but of making power flow to the salesmen of the ideas.

  20. I don’t mean the “ideas” they express openly; those aren’t “ideas,” they’re just a sales pitch. At least when Audi asserts that their cars will restore your sex drive and your physique, they don’t back it up with threats of prison if you don’t buy one.

  21. I see I mistook the meaning of your use of “ideas.”

  22. It may be that by now, after over one hundred years of selling the lie[s], that even the leaders on the left don’t know what truth, reality is anymore. It’s lies all the way down.

  23. Seems to me the relevant idea the Democrat party seeks to conceal is the very same idea Thrasymachus so eagerly seeks to proclaim: “Justice is the advantage of the stronger”, i.e., when someone does injustice to the Democrat the Democrat seeks to punish in retaliation, and when the Democrat does injustice to someone, the Democrat seeks to escape punishment sought in retaliation.

  24. Thanks, JG. All I could come up with in response was “eat me.”

  25. Squid, I think their model has 1,000 people pulling a cart with 10 in it, as long as it is the right 10.

  26. Little do they know that we have a secret weapon: reality.

    Which took eight decades to assert itself in the Soviet Union, during which time the people’s ability to live free, under the rule of law (assuming they ever had that ability) was destroyed utterly. Instead, it’s organized crime all the way down, with Pootie as head thug.

    Who in the former Soviet bloc is doing well after reality chased off the communists? Which of those unfortunate countries sprang back to life like Mount St. Helens after the blast, and which are still hip-deep in ash and fallen trees?

    Unfortunately for you and me, the human ability to fend off reality while crafting an ersatz one is plenty strong. Reality is a harsh enough taskmaster that the sophists can more readily sell a “fat burning” pill than a rigorous diet and training regimen.

    Thus sayeth the Gods of the Copybook Headings.

    Thus has it ever been.

  27. Geoffb: That article by Wretchard includes this comment of his:

    Back when I was a database administrator I realized that if you corrupted your database you might as well destroy it. Even if you conspired to keep two sets of books, at least one set had to be the truth. Once there was no “true database” the whole thing was a waste of money.

    It came home to me — and I suppose to every other database guy — that lies are the deadliest things of all. Once you lose track of the truth, it is no longer even possible to engage in intelligent deception. For you must know the truth first before you can lie. Otherwise you’re just making random utterances.

    I’ve suspected for some time that the Western elites, in their enthusiasm for moral relativism, have long ago lost track of the truth. There is no true copy of the database any more. Nowhere the real transactions are getting posted to. There is no uncorrupted log. It’s all spin. And they believe their own spin. If so, we are truly screwed.


  28. Dicentra, I thought that comment was what I linked but I may have goofed.

  29. It’s your Tilt-A-Whirl all ooooooooooooooooover again.

  30. You did indeed link to that comment, but I thought you meant to link the article and the browser popped down to the comments because it’s retarded.

    It happens.

  31. Flaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaame war!

  32. Y’all remember when it was Lex Rex instead of Rex Lex?

    Good times!

  33. Squid, I think their model has 1,000 people pulling a cart with 10 in it, as long as it is the right 10.

    Add that it’s being pulled over the broken bodies of 10,000,000 others, and I think we may have a complete picture.

  34. “Which took eight decades to assert itself in the Soviet Union”

    Because we were holding both it and China up for that last 25 years or so.