Archive for November 2009
Tim Sandefur’s amicus brief in McDonald v. Chicago—the case that will review the Slaughterhouse Cases decision that rendered the Fourteenth Amendment’s Privileges or Immunities Clause a nullity—provides a very nice analysis of the disparate constitutional and political theories behind the Fourteenth Amendment, the Privileges or Immunities Clause, the Congress that crafted and ratified it, and the Supreme Court that promptly emptied it of all meaning. It demonstrates what happens when ideas are separated from their proper, underlying philosophical framework, why proper constitutional and political theory is so necessary to our political order, and why a judge who adheres to the wrong theory of constitutional interpretation subverts democracy.
It is exciting that there are still so many scholars and practitioners of constitutional law who continue to honor the primacy of the history of ideas that give substance to the words in our founding documents.
That we should all get paid the same for doing less is something people say with a heavy “as if” inflection, and before they’ve given a bit of consideration to whether it would be feasible. Professional legislators should know better.
Since going to law school and becoming an attorney, I understand lawyer jokes less and less. Most lawyers I know are good advocates and, shall we say, “highlight” the facts that best support their position. And as for the ones that just tell bald faced lies, it becomes part of my job to stick their noses in it before the court. In short, in my line of legal work, liars don’t often get far before their lies get the better of them.
This is less so when lawyers get involved in politics. There, the only ones to police them are other elected officials, who often don’t have the time, and reporters who often don’t know what they’re looking for. In short, unlike in the relatively tight-knit world of civil litigation, no one’s very motivated to keep anyone else honest.
One more point about why we need a tenable underlying moral framework. Start from the example of business transactions. A businessman engages in several transactions every day, and rarely, if ever, concerns himself with whether the legality of the transaction can be enforced. He simply assumes there is an underlying legal framework that, when called upon, will be available to translate his transaction into legal terms involving primary rights, primary duties, causes of action, justiciability, and so forth. From time to time, the capability of that underlying legal framework must be demonstrated to the businessman, whether at such time when he needs resort to it, or when he learns of his colleagues’ and competitors interactions in it. If the legal system fails to prove to men’s minds that his transactions may be enforced through clearly defined laws objectively and rationally applied, it will be no longer useful.
Something similar may be said about morality. It is true that one will not often, perhaps ever, happen upon any person who doubts whether, because no transcendent moral order can be empirically established, such thing as a moral evil can ever exist. But this has more to do with the fact that we happen to be the successors of a long train of adherents to a particular moral code. However, moral quandaries do still come up. When they do, it becomes necessary to resort to more formal systems of moral philosophy that identify the origins of our moral beliefs, and whether they adhere to a rational, orderly, consistent structure. And, in particular, whether they can end their regression in some non-arbitrary place, or whether it simply winds up positing a moral opinion not unlike the one they started with.
Heather MacDonald gripes about the common objection to atheism that, without a transcendent moral order, no appeals to moral authority are possible and, ultimately, any atheistic moral system fails. Heather’s rebuttal runs as follows:
Would someone please provide an actual example of such endless moral regress without the God trump card? If I may borrow a phrase from my misspent youth, it seems to me that we are “always already” embedded in a moral environment far more complex and sophisticated than the blunt pronouncements of the Ten Commandments (i.e., those not commanding obsequiousness before God). The question of some original source beyond human law and custom for our most basic principles, in my experience, never comes up.
. . . .
I have simply never witnessed the need to reference to God to establish the validity of our laws against extortion, say. Real-world moral disputes are more complicated: Is health care a right? Who should pay for it and how much should one group pay for another’s health care? Is economic regulation theft? Is theft admissible to stave off starvation? We answer these questions by drawing on our innate and developed moral intuitions and our society’s legal framework.
But this is to confuse public morality with formal morality. We do not subject our laws to the rigors of formal philosophy and morality and epistemology. We must accept certain fundamental truths as given in order to go on with political and legal life. But that is not to say that such formal inquiries are without value. Though we plod ahead from the place of our intellectual beginnings, from time to time it is important to have a look behind us. As Tocqueville put it:
Dogmatic beliefs are more or less numerous according to the times. They are born in different manners and can change form and object; but one cannot make it so that there are no dogmatic beliefs, that is, opinions men receive on trust without discussing them. If each undertook himself to form all his opinions and to pursue the truth in isolation down paths cleared by him alone, it is not probable that a great number of men would ever unite in any common belief.
Now it is easy to see that there is no society that can prosper without such beliefs, or rather there is none that could survive this way; for without common ideas there is no common action, and without common action men still exist, but a social body does not. Thus in order that there be society, and all the more, that this society prosper, it is necessary that all the minds of the citizens always be brought and held together by some principal ideas; and that cannot happen unless each of them sometimes comes to draw his opinions from one and the same source unless each consents to receive a certain number of ready-made beliefs.
If I now consider man separately, I find that dogmatic beliefs are no less indispensable to him for living alone than foracting in common with those like him.
If man were forced to prove to himself all the truths he makes use of every day, he would never finish; he would exhaust himself in preliminary demonstrations without advancing; as he does not have the time because of the short span of life, nor the ability because of the limits of his mind, to act that way, he is reduced to accepting as given a host of facts and opinions that he has neither the leisure nor the power to examine and verify by himself, but that the more able have found or the crowd adopts. It is on this first foundation that he himself builds the edifice of his own thoughts. It is not his will that brings him to proceed in this manner; the inflexible law of his condition constrains him to do it.
Alexis de Tocqueville, Democracy in America, Univ. Chicago Press, 2002 (Mansfield and Winthrop, eds.) at 407-08 (emphasis added).
A good friend of mine shared this YouTube video of 20 year old nightly news piece on his elementary school alma mater, Orange Crescent School in Garden Grove, California (“OCS”). OCS is an Islamic school, part of the Islamic Society of Orange County, and shares a campus with the local mosque. My friend Hassan, who appears in the piece as an adolescent, has always stressed to me that the Muslim community is very American, sharing in our values of self-reliance, hard work, virtue, and personal responsibility, and that they have long desired to become more accepted into the American culture. Sadly for them, in the 20 years or so since this piece aired, Americans seem more wary of Muslims than ever.
The likes of Andy McCarthy and Geert Wilders characterize Islam as not a religion, but a political ideology, and that there is no such thing as “radical Islam,” but instead the atrocities we see people committing in the name of Allah are simply dutiful Muslims following the letter of the Koran. The Fort Hood tragedy was not a freak accident—it was an inevitability given our irrational toleration of Islamic ideology. Islam, McCarthy and Wilders would have the Western world understand, is anathema to free society.
Interestingly, Edward Gibbons, author of the seminal The History of the Decline and Fall of the Roman Empire, concluded something similar about Christianity. According to Gibbons, Christianity poisoned the pluralistic, secular fabric of the Roman empire, and instead made claims to a singular, universal Truth. They stressed the temporal quality of the physical world, and focused on the otherworldly. Rather than committing themselves to the protection of the Roman empire from the barbarians and swearing fealty to the emperor, Christians were committed to personal salvation and swore fealty to the God.
Today, by contrast, it is the view of many Americans that America is founded upon Christianity. What changed? Not the core tenets of Christianity. It is not Christianity’s message that determines its cultural impact. Religion and political regimes have a symbiotic relationship. The Roman empire was pagan. America was deistic and at least loosely Christian at its founding. Religion—whether Christianity or Islam or just about anything else—is inherently dangerous to political systems if not suitably integrated in the respective society’s cultural fabric.
Most religions can be used to either support or tear down political society. The culprit is not religion qua religion. We should not be so naive as to explain terrorism and anti-Americanism as the inexorable conclusion of a religious view. And until we more fully understand the deep sociological and historiographical reasons that actually underlie modern ethnic and religious tensions, we ought to refrain from alienating that segment of our society that shares so many of our most important values and that wants to become part of our society. Terrorism is a great evil. We do a disservice to the cause of eradicating it by including so many false positives.