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Constitutional "Is" Versus Constitutional "Ought" -- A Brief Reply to Barnett and Jost:
Looking over the exchange between Randy Barnett and Timothy Jost on what it means to say something is "unconstitutional," I wonder if their disagreement is primarily semantic. We all recognize that there is often a difference between how the Supreme Court has construed the Constitution and how a particular person thinks the Constitution should be construed. The question is, what label to use for those different approaches?

  My sense is that the most common labels distinguish between what the law "is" and what the law "ought" to be. The former is what the courts say the law is, and the latter is what a particular person thinks the law should be. This appears to be the approach Professor Jost follows. Randy offers a somewhat different approach: He would say that the Constitution "is" what a proper theory of Constitutional interpretation indicates it should be — proper, that is, according to Randy — while what the Supreme Court has said it is is merely "the opinions of justices" which may be right or wrong.

  I suppose which understanding is better depends on which community you're talking to and what your goals are. Among constitutional theorists, the question of what the Supreme Court has actually said is boring; whether the Supreme Court was right is the interesting question. On the other hand, if the audience is the public, my sense is that claims by experts about what is constitutional or not are generally understood as a prediction of what the courts should do under existing law. The expert is normally consulted for expertise on existing law, not for his or her own individual theory of constitutional meaning. For example, if a reporter calls me and asks for my view on whether a particular police investigation violated the Fourth Amendment, I understand that to be asking me what a court should do based on existing law, not to apply my personal normative theory of constitutional interpretation to the facts.

  On the other hand, if you are trying to sell a constitutional vision to the public, with the aim of having your own views become more widely shared, you might speak of that vision as what the Constitution "is" on the thinking that the strong statement will have more persuasive impact. In that context, the claim of what is constitutional or unconstitutional is less a claim about the particular legislation or action under consideration and more a normative claim about how we should interpret the Constitution. Such claims can be a little misleading, as the public generally isn't told of the author's normative goals. On the other hand, those sorts of claims are common in public discourse about the Constitution.
Constant (mail):
For example, if a reporter calls me and asks for my view on whether a particular police investigation violated the Fourth Amendment, I understand that to be asking me what a court should do based on existing law, not to apply my personal normative theory of constitutional interpretation to the facts.

But in both cases you would be applying an interpretation of law to the facts. In one case, you would be applying an interpretation of the Constitution itself directly to the facts, and in the other case you would be applying an interpretation of the (much larger) body of existing law to the facts. It's the same basic act in both cases; what is different is what body of law you are applying (the Constitution itself, or the larger body of law). If either one involves a "personal normative theory", then so must the other, since it's the same basic act, applied simply to different bodies of existing text.
9.20.2009 3:47pm
J. Aldridge:
Actually the court gets to have it both ways by saying what the law "is" and at other times what the law "ought" to be. Take incorporation, nothing in the constitution about it, it isn't "law" but just exists because the court says that it "ought" to exist.
9.20.2009 3:53pm
M-Dub (www):

[I]f the audience is the public, my sense is that claims by experts about what is constitutional or not are generally understood as a prediction of what the courts should do under existing law.


I think this bit is the important point in this debate, and the point that made it seem like a bit of a stretch when Prof. Barnett started making statements about the nature of "today's constitutional law." (I wrote about that issue here.) When someone asks me if something is constitutional, I think it's similiar to the question, "Is this illegal?" You might say, "The statute, properly interpreted, should allow for your proposed activity." After all, the statute is just as much of an "external standard" (in Prof. Barnett's words) as constitutional text. But the person who's asking the question probably wants to hear something like, "If you appear before any judge in this [county/state/etc.], they're likely to find you guilty/not guilty under that statute." I think Jost reasonably spoke to that issue.
9.20.2009 3:54pm
Chris Newman (mail):
Orin unsurprisingly takes the position of his hero Holmes that the question of what the law "is" means nothing more than a prediction of what courts are likely to do. I suspect, though, that the much of the "public" is more interested than Orin (and more interested than he expects them to be) in the possibility that some of what courts do should be regarded as illegitimate, i.e., not in accordance with what the law "is."
9.20.2009 3:56pm
OrinKerr:
Constant,

I do not understand your argument.

Let's say I am a constitutional theorist, and I think the true Fourth Amendment prohibits all police officers and any conduct by any police officers. I am asked if a particular police search violates the Fourth Amendment, and I answer, as I always answer, "yes." How is that the same as answering whether the police search violates existing Fourth Amendment doctrine? I suppose it's the same basic act in the level of generality that it is answering a question in English, but other than that I'm not sure I see the similarity.
9.20.2009 3:58pm
OrinKerr:
Orin unsurprisingly takes the position of his hero Holmes that the question of what the law "is" means nothing more than a prediction of what courts are likely to do. I suspect, though, that the much of the "public" is more interested than Orin (and more interested than he expects them to be) in the possibility that some of what courts do should be regarded as illegitimate, i.e., not in accordance with what the law "is."

Chris, I'm afraid you have simply misread the post. The post is not defending one view as "correct," but rather arguing that the question is semantic, and that which label is better depends on the context and the author's purposes.
9.20.2009 4:04pm
Tim Nuccio (mail) (www):
Perhaps there'd be less distinction if judges could read the words and apply the plain meaning of the text, rather than beating their heads against the words until it says what they think it "ought" to mean.

What the words say is a matter of fact. It's just too bad that often, the logic that follows is so fatally flawed, that it becomes difficult for someone who believes that the words mean what they say (like "Congress shall make no law" or "shall not be infringed") become "oughts" instead of "is."

If the constitution was properly interpreted in the first place, what "is" (the text) wouldn't a normative statement.
9.20.2009 4:06pm
OrinKerr:
Tim,

Perhaps the Supreme Court will begin setting things straight by upholding all the campaign finance laws: As I'm sure you agree, the words of the First Amendment don't say that you can't regulate campaign finance.
9.20.2009 4:09pm
Jon Roland (mail) (www):
Here is my comment on Politico (which had not appeared the last time I looked):

A common refrain from some legal scholars is that we should focus on "what the law is" rather than on "what the law should be", by which they mean "the law is whatever judges decide", the classic statement of the doctrine of legal realism. They are deceptively using the word "law" when the honest term would be "legal practice". Legal practice is supposed to conform to "the law", but we all know that it largely does not. For most of us who reject legal realism, "the law" is what is consistent with what can be derived from the written Constitution by an unbroken chain of logical inference, regardless of what opinions legal practitioners might express.

The question is, how can we get back to constitutional compliance. Do we need to amend it, or just strike down most the government programs that have emerged over the last 100 years? At constitution.org you can find some Draft Amendments. Click on "Political Reform", then scroll down.
9.20.2009 4:20pm
Angus Lander (mail):
Let's say we adopt your terminology. Then when we say "the Constitution means x" we mean "SCOTUS has held the Constitution means x;" if we say "the Constitution should mean x" we mean "SCOTUS should have held the Constitution means x."

Suppose someone then asks "why should SCOTUS have held the Constitution means x?" We've deprived ourselves of the obvious reply: because the Constitution means x.

(Why can't we reply that way? Because we've stipulated that "the Constitution means x" expresses "SCOTUS has held the Constitution means x," so our justification for why SCOTUS should have held the Constitution means x is that "SCOTUS has held the Constitution means x" - which isn't what we wanted to say at all.)
9.20.2009 4:24pm
pintler:

What the words say is a matter of fact


But what the words mean is not so simple. Given the paucity of 2nd amendment jurisprudence, prior to Heller both 'the 2nd amendment only means the feds can't stop a state from organizing a militia' and 'the 2nd amendment means every individual can own a select fire rifle' were both potentially accurate statements.

Post Heller, what the 2nd means is that individuals can own pistols for self defense.

Now, saying 'the 2nd means I can own an M-16' or 'the 2nd doesn't stop me from arresting you for owning that pistol' means you're going to jail (for respectively, owning a select fire weapon or violating someones civil rights). When you're trying to avoid legal hot water, it's all about 'is'. When you're trying to sway future decisions, it's all about 'ought'. I think Orin is right, it's a distinction that a lot of people don't seem to get.
9.20.2009 4:24pm
Curt Fischer:

For most of us who reject legal realism, "the law" is what is consistent with what can be derived from the written Constitution by an unbroken chain of logical inference, regardless of what opinions legal practitioners might express.


"For most of us"? I think this gives away the problems with your argument. By your own admission, not even among those who reject legal realism does everyone agree what "the law" is...much less "what can be derived from the written Constitution by an unbroken chain of logical inference."

If there really were a precise, uncontroversial view of "what can be derived from the written Constitution", using set theory, you should be able to formulate an exact model for the written constitution and also enumerate all propositions which can be derived from it.
9.20.2009 4:34pm
Curt Fischer:
...not that I'm holding my breath or anything...
9.20.2009 4:34pm
Jon Roland (mail) (www):
The semantic confusion could be easily avoided if people would just recognize there are two distinctly different denotata involved:

"Law" = commands from a lawgiver to the public that they are obliged to obey.

"Legal practice" = decisions and actions of legal practitioners, especially judges, and that judges support when done by officials.

These two domains coincide only when the practitioners are lawgivers, but when the law is the Constitution, written before any living practitioners were born, there can be no intersection, unless practitioners pretend to be lawgivers, able to have the exclusive prerogative of saying what the Constitution means.

Like many, including Randy Barnett, Jost,l and perhaps others in this forum, I reject that pretense. Judges have the duty to decide cases, but when they do they are emphatically not making law that is binding on those not parties before them. As for predictability, it is not a prediction of how judges will decide cases if the public rises up and ousts the judges, and that is more likely to occur than many now think.
9.20.2009 4:35pm
troll_dc2 (mail):

Perhaps there'd be less distinction if judges could read the words and apply the plain meaning of the text, rather than beating their heads against the words until it says what they think it "ought" to mean.

What the words say is a matter of fact. It's just too bad that often, the logic that follows is so fatally flawed, that it becomes difficult for someone who believes that the words mean what they say (like "Congress shall make no law" or "shall not be infringed") become "oughts" instead of "is."

If the constitution was properly interpreted in the first place, what "is" (the text) wouldn't a normative statement.


Your basic problem is that you assume that the drafters of the Constitution intended that a plain-meaning approach be used to interpret it. Moreover, you assume that there is a plain meaning. Furthermore, I assume that you believe that the plain meaning has to be the meaning that existed in 1787. Not only that, but you are assuming that the drafters agreed on the meaning of what they had written.

Do you think that libel laws are unconstitutional? What about laws against pornography? What about incitements to engage in illegal conduct? What about threats? (Prof. Kerr has already mentioned campaign financing, heh heh heh.)
9.20.2009 4:43pm
Andrew Hyman (mail) (www):
If most everyone agrees that the Constitution says X, then it's okay to simply say that the Constitution says X. Otherwise, it's best not to. Better to tell the public that the Constitution says X "according to the Supreme Court". IMO.
9.20.2009 4:48pm
Jon Roland (mail) (www):
Curt Fischer:

If there really were a precise, uncontroversial view of "what can be derived from the written Constitution", using set theory, you should be able to formulate an exact model for the written constitution and also enumerate all propositions which can be derived from it.

What one uses is deontic logic, that is, the first order predicate calculus extended to include commands -- normatives. Actually, computer languages have that logic.

It is not productive to try to generate all valid propositions from a set of premises, and then pick out the ones of interest to you. Too many statements are generated. Rather, you start with a proposition of interest and try to find a chain of inference for it. Once formulated in precise terms, this can, in general, be done by computer, using known proof-finding methods, although for many propositions of interest the search is computationally intractable, and may need to wait for quantum computers to be feasible. (Which may be closer than some think.)

Of course, legal practice is not just about law. What can be verified by logical proof is law, but legal practice involves applying the propositions to sets of facts. It does indeed make sense to speak of "constitutionality" or "unconstitutionality" as applied. That is where we have the proper realm of judicial discretion. However, that realm is not unbounded. Law may be applied reasonably or not, or even abusively.

However, most of the legal issues being discussed in this forum recently (health care, firearms, etc.) do indeed take us out of the realm of legitimate discretion, and into the realm of inconsistency with the Constitution by any but the most ludicrous (mis)interpretations of it. The umpires aren't calling the balls in when they are out by an inch, but when they are out by a mile. It is time to take our balls and call the game foul.
9.20.2009 4:54pm
Chris Newman (mail):
Sorry that the tone of my earlier comment reads a bit more archly than I'd like. Still, I do think you're parsing the semantic issue in a way that is--perhaps unintentionally--loaded. You yourself point out that claims about what the law "is" have greater rhetorical and normative punch than ones about "what I personally believe the law ought to be." Which is true, for obvious reasons. It's possible I'm reading too much between the lines, but I do think your post suggests that the "correct" way to resolve the semantic difficulty is to recognize that we should adopt what you present as the dominant usage: i.e., that an assertion about what the law "is" by an expert to the public is "generally understood as a prediction of what the courts should do under existing law." (This phrase is itself potentially ambiguous given that you use both the word "prediction" and the word "should." I assume what you have in mind is a prediction as to what courts <b>will </b>do--assuming they faithfully apply existing precedent (hence the "should").) This would implicitly relegate any argument that existing precedent is wrong to a category of idiosyncratic viewpoints or desires, forcing one to argue for a "change" in the "law" rather than for a correction of erroneous current doctrine. It seems to me that all assertions as to what the law "is" are assertions as to what courts <b>ought </b>to do if they were to faithfully apply the <b>existing </b>law (which includes, but is not exclusively defined by, precedents). If we want a really neutral way of resolving the semantic difficulty, we should distinguish between assertions about what the "law" is and what "current Supreme Court doctrine" is. In many practical contexts the distinction may be irrelevant and the latter label may be unnecessarily cumbersome, but not ones like this.
9.20.2009 4:58pm
J. Aldridge:
Better to tell the public that the Constitution says X "according to the Supreme Court". IMO.

Or be brutally honest by saying the a handful of court justice decided to hold a constitutional convention to amend the constitution to read......
9.20.2009 5:04pm
Jon Roland (mail) (www):
One of the questions we need to ask discussants is why do they insist on lumping together totally different things under the term "law", so that they confuse themselves and others? I invite others to join me in insisting that the terms "law" and "legal practice" be used to clearly distinguish between the two general kinds of things, and berate those lumpheads who insist on lumping. :)
9.20.2009 5:12pm
troll_dc2 (mail):
Jon Roland: If you think that the Constitution says X and that the Supreme Court is wrong to say that it means Y, do you advise your clients to ignore what the Supreme Court has said?
9.20.2009 5:20pm
Teh Anonymous:
Jon: I'm not a lawyer, but isn't it established usage to say (depending on context) common law, precedent, or case law for what you're calling legal practice? How would saying legal practice be an improvement over the current state of affairs?
9.20.2009 5:23pm
jim47:
Orin,

You have mentioned this is-ought distinction before, and I've had problems with your characterization. I think part of my problem is that in previous posts you seem to have privileged the "is" part of the equation, disputing whether it is proper to use the word "is" for what you call "ought." You don't do that here, but I still have a big problem with your binary formulation, because I think there are actually many more meanings of "is" and "ought."

Is:
* In a phenomenological sense, the law is what actually occurs on the ground. A law may be on the books, and interpreted affirmatively, and even be directed to be enforced, but if the actual practice that determines the rules of the real world is different, then that isn't what the law is.

* In a caselaw sense, the law is what judicial and other decision-makers say it is. That's the outcome that binds specific parties who are directed by courts, and we employ the fiction that it binds the rest of us because we speculate that were we to find ourselves in court, that is what we would be directed to do. It is the law in a fictional sense, but it is a very useful fiction.

* In an interpretive sense, the law is whatever rules have been properly enacted. It only exists "out there" in an abstract sense, and thus is itself a sort of fiction, but because courts purport to be bound by what has been legally enacted, we speak to them in terms of saying what the law is.

Ought:
* Typically we say that the law on the ground, and the law of judges ought to be the same as the law as it has been properly enacted.

* But we might say that these ought not align, perhaps because of moral considerations. When I make a statement about what the law in Nazi Germany, as it was enacted, as opposed to as it was decided or enforced, was (which is the question Orin calls the "ought" question) I am definitively not say that it ought to have been decided or enforced as it was written, because at some point judges and police have a higher duty to morality than to institutional consistency.

* In another sense, I might also say that a law whose content is based on legislative facts ought to have certain content — i.e. a certain contact ought to be an offensive battery because a reasonable person ought to find that contact to be offensive, even though reasonable people may actually not agree with my assessment of what is offensive.

* Finally, I might say that the law ought to be something, because the decision-makers able to properly enact such a change ought to exercise that power toward my suggested end.


As I allude to, I don't think its fully correct to say that what Orin calls the "is" of the law is what the law literally "is;" and I don't think that an argument about what Orin calls the "ought" of the law need necessarily take the position that the law really "ought" to be the thing argued for.
9.20.2009 5:27pm
OrinKerr:
Chris Newman,

I suppose any discussion of how words are used will be biased in favor of the status quo: after all, common usage *is* the status quo almost by definition.
9.20.2009 5:28pm
ChrisTS (mail):
Jon Roland:
If I understand your comments, you seem to be suggesting we have only 2 hermeneutic options: either formalism or realism.

I dislike both, but formalism seems to have special problems in constitutional law: either we take a robust formalist view, in which case there is always 'enough' law somewhere in that broadly articulated document to cover whatever comes up, or we take a minimalist position, in which case we run out of constitutional law pretty quickly. In the latter case, this would seem to mean that the legislature gets to fly pretty much by the seat of its pants so long as it does not violate any of the minimalist content of the constitutional document.

By the way, I did not read OK as advocating realism. I think he wanted to distinguish, as he said, between the decisions of courts and the views of others as to how the Constitution should be interpreted.
9.20.2009 5:35pm
Leo Marvin (mail):
Speaking of boring, I agree with Orin 100%.
9.20.2009 5:42pm
David M. Nieporent (www):
Actually the court gets to have it both ways by saying what the law "is" and at other times what the law "ought" to be. Take incorporation, nothing in the constitution about it, it isn't "law" but just exists because the court says that it "ought" to exist.
I thought we were done with this silliness, having proven that PA Madison fabricated his claims. Incorporation is in the 14th amendment.
9.20.2009 5:43pm
Allan Walstad (mail):
Was de jure racial segregation Constitutional between 1892 and 1947?
9.20.2009 5:57pm
troll_dc2 (mail):

Was de jure racial segregation Constitutional between 1892 and 1947?


Yup. In fact, the period may have been even longer.
9.20.2009 6:02pm
Brett Bellmore:

As I'm sure you agree, the words of the First Amendment don't say that you can't regulate campaign finance.


But, of course, the First amendment is scarcely the only relevant clause of the Constitution. Per the 10th, the question is not, "What part of the Constitution says (Congress) can't regulate campaign finance?", but instead, "What part of the Constitution says (Congress) CAN regulate campaign finance?"

And the answer to that question is, no part of it.

That aside, the 1st amendment doesn't say Congress can't regulate campaign finance. Only that it can't do so by laws which abridge freedom of speech or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances.

It is not the least incidental that campaign finance regulations DO, in fact, so abridge said rights.

It seems to me Orin is implicitly assuming the correctness of a realist view of "the law", including the Constitution: That it's whatever the legal community decides to say it is. It's no accident that this view of "the law" is almost exclusively held by lawyers.
9.20.2009 6:19pm
Constant (mail):
Let's say I am a constitutional theorist, and I think the true Fourth Amendment prohibits all police officers and any conduct by any police officers. I am asked if a particular police search violates the Fourth Amendment, and I answer, as I always answer, "yes." How is that the same as answering whether the police search violates existing Fourth Amendment doctrine?

I did not say it was the same full-stop. I said that the difference was in what it related to rather than a difference between "is" and "ought". Same relationship, different object in the relationship. For example, if you're married to Alice and I'm married to Betty, then you and I are in the same relationship (marriage), only with two different people at the other end (Alice versus Betty).

For example, suppose you had said:

Let's say I am a constitutional theorist, and I think existing Fourth Amendment doctrine prohibits police search. How is that the same as answering whether police search violates existing Fourth Amendment doctrine?

Or alternatively:

Let's say I am a constitutional theorist, and I think the true Fourth Amendment prohibits any conduct by any police officers. How is that the same as answering whether any conduct by any police officers violates the true Fourth Amendment?

The only differences are the choice of specific question (police search versus any conduct by police) and text by which the specific question is to be answered (the Fourth Amendment itself versus existing Fourth Amendment doctrine).

My point is that this isn't a shift between "is" and "ought", this is a shift between what set of texts you are interpreting and what questions you are answering on the basis of those texts.
9.20.2009 6:28pm
J. Aldridge:
David M. Nieporent wrote: "I thought we were done with this silliness, having proven that PA Madison fabricated his claims. Incorporation is in the 14th amendment."

You only proved P.A Madison was right all along. Get your head out of the sand. Yes, due process and the P&I's of article IV is incorporated under the 14 amendment.
9.20.2009 6:31pm
Gabriel McCall (mail):
I don't see where there's any room for controversy regarding OK's post. It's observable reality that some people, when they say "X (is|is not) constitutional", are using that statement as shorthand for "X (is|is not) considered lawful under the current state of constitutional law". It's also observable reality that other people, using exactly the same words, mean instead that "X (is|is not) in agreement with the original Constitution as I personally understand it."

All OK is doing, as I see it, is pointing out the potential for confusion when people use the same words to mean different things. What's to argue about? He's right. He's not attempting to argue that either usage is the correct one; he's just pointing out that there are two different usages and that more careful attention to clarity might serve the interest of effective communication.
9.20.2009 6:46pm
troll_dc2 (mail):

It's observable reality that some people, when they say "X (is|is not) constitutional", are using that statement as shorthand for "X (is|is not) considered lawful under the current state of constitutional law". It's also observable reality that other people, using exactly the same words, mean instead that "X (is|is not) in agreement with the original Constitution as I personally understand it."




Very few people, I submit, would be interested in one's personal interpretation of constitutional law that is based on a belief as to what the law "ought" to be said to be. The reason is that, unless they are consumed by a desire to examine legal theory, they are inquiring as to what the law is because they want to know what they can or cannot do or what the ruling would be with respect to what someone else does or does not do. In short, they are being practical.
9.20.2009 6:53pm
David Schwartz (mail):
It's observable reality that some people, when they say "X (is|is not) constitutional", are using that statement as shorthand for "X (is|is not) considered lawful under the current state of constitutional law". It's also observable reality that other people, using exactly the same words, mean instead that "X (is|is not) in agreement with the original Constitution as I personally understand it."
You're just artificially creating a difference by adding objectivity words in one case and subjectivity words in the other. One could just as well summarize them as "X (is|is not) considered lawful under my personal understanding of the current state of constitutional law" or "X (is|is not) in agreement with the original Constitution as it was actually written".
9.20.2009 7:08pm
JasonF:
I'm reminded of the aphorism that the Supreme Court is not final because it is always right; it is always right because it is final. With all due respect to Professor Barnett, where his views on the scope of the Constitution differ with the Supreme Court's, his views are of academic interest only.
9.20.2009 7:15pm
David Welker (www):
Orin,

Thank you for your helpful post. I agree that what sense is "better" from an author's perspective depends on the author's purpose. Of course, what is "better" from a reader's perspective might depend on whether they agree with the author or not.

That is, it can be annoying to hear someone's assertions about what "is" the meaning of a particular phrase in the Constitution when you disagree with their premises about how Constitutional interpretation should be done.

Without going into details, I strongly disagree with Randy Barnett's individual views regarding proper Constitutional methodology. Not only that, I do not elevate his views above my own or Larry Tribe's or Martha Minnow's or anyone else with an informed view.

For someone like myself who basically thinks that Barnett's approach is no more legitimate than competing approaches -- his assertion about how his view constitutes what the Constitution "is" strikes me as a special kind of arrogance. It is as if he his trying to illegitimately steal a mantle of special legitimacy that is completely undeserved. He is, basically, asserting that his view is superior to my view, to Larry Tribe's view, to Martha Minnow's view, and to all people who have contrary views.

Who is being fooled when someone like Randy Barnett uses the term "is" to refer to his own beliefs? I am not. Larry Tribe is not. Martha Minnow is not. Orin Kerr is not. The only people confused are going to be layperson's with unsophisticated views concerning Constitutional Law. As such, the preference for "is" over "ought" to refer to one's one views should be viewed as political.

Instead of admitting to the layperson that your views are contingent on particular premises that they may or may not agree with, you are asserting that your views are not to be legitimately disagreed with. This is basically a method of persuasion that has much in common with bullying.

If I say the it is a fact that it rained yesterday, then your opinion about that assertion is irrelevant. I may be incorrect in that fact, but my incorrectness is not a matter of opinion.

But whether we agree with Randy Barnett or not is nothing more than a matter of opinion. Either we accept the method of interpretation invented by Randy Barnett or we do not. Randy Barnett's methodology was neither endorsed by the Founders nor does it have textual support in the Constitution. Therefore, there is no objective reason to adopt his point of view. To adopt his view or not is a matter of opinion, not fact.

You cannot build an "is" based on an "ought." The only reasonable argument that Randy Barnett can make in favor of his methodology is that you "ought" to adopt it. Therefore, the only reasonable assertion that Randy Barnett can make about Constitutional meaning should use the word "ought" instead of "is."

So, unlike you, I am going to take a side here and say that while the difference is semantic, one is generally better.

If one's goal is to display arrogance and annoy people that are sophisticated enough to understand that your view is ultimately based upon very debatable permises, then you should use "is" and not "ought." If your goal is to intellectually bully laypersons, then you should use "is" instead of "ought." Otherwise, you should use "ought" instead of "is" for your own views.
9.20.2009 7:22pm
troll_dc2 (mail):

Instead of admitting to the layperson that your views are contingent on particular premises that they may or may not agree with, you are asserting that your views are not to be legitimately disagreed with. This is basically a method of persuasion that has much in common with bullying.


I think that this observation is a good one. The use of "is" instead of "ought" amounts to stating a conclusion without having to explain or justify it.
9.20.2009 7:35pm
Some dude:
In Orwell's Animal Farm, the pigs had to physically change the text of their constitution slowly over time hoping the animals didn't notice. Being more progressive, the American constitution can be "changed" slowly over time without ever changing the actual text.
9.20.2009 8:20pm
Tim Nuccio (mail) (www):


Perhaps the Supreme Court will begin setting things straight by upholding all the campaign finance laws: As I'm sure you agree, the words of the First Amendment don't say that you can't regulate campaign finance.


Professor Kerr:

Surely you cannot actually believe this. Such campaign finance laws have to, on some level "abridge" the freedom of speech. In fact, if they didn't, what would be their purpose? Not that their purpose really matters anyway (in the context of analyzing their constitutionality, anyway) but what purpose would such laws serve if not to limit the exercise of speech rights?

The discussions on whether or not corporations are "persons" or have any rights is a totally different one that I don't believe there exists a clear consensus on among the reader of these blogs. But as-applied to individuals, it seems that any constitutional interpretive theory wouldn't find this a tough question.
9.20.2009 8:39pm
Another realist:
Such campaign finance laws have to, on some level "abridge" the freedom of speech. In fact, if they didn't, what would be their purpose?


To regulate the buying and selling of congressmen and senators. That is, to control the commerce —with foreign nations, among the several states and with the Indian tribes— the rank commerce in politicians.
9.20.2009 9:38pm
Allan Walstad (mail):


Was de jure racial segregation Constitutional between 1892 and 1947?

Yup. In fact, the period may have been even longer.

Troll dc2, I appreciate your taking the time to offer an answer to my question. Forgive me for waiting so long to see if I might get a second opinion. May I ask another question, then? When the Court handed down its decision in 1892 that racial segregation was Constitutional, was the Court correct? Because if so, then was not the Court in 1947 necessarily mistaken? But if not, then contrary to your assertion above, racial segregation was not Constitutional from 1892 to 1947. At least, that would seem to be the plain meaning of words.
9.20.2009 10:21pm
OrinKerr:
Gabriel McCall writes:
I don't see where there's any room for controversy regarding OK's post. It's observable reality that some people, when they say "X (is|is not) constitutional", are using that statement as shorthand for "X (is|is not) considered lawful under the current state of constitutional law". It's also observable reality that other people, using exactly the same words, mean instead that "X (is|is not) in agreement with the original Constitution as I personally understand it."

All OK is doing, as I see it, is pointing out the potential for confusion when people use the same words to mean different things. What's to argue about? He's right. He's not attempting to argue that either usage is the correct one; he's just pointing out that there are two different usages and that more careful attention to clarity might serve the interest of effective communication.
That is certainly my intent. I suspect the controversy is in part that if you are trying to persuade others that your view is correct, and you use the "is" approach to articulate your view, it seems threatening to acknowledge that this is merely your opinion, and that most people have different opinions. Cf. similar debates in the context of religion,
9.20.2009 10:27pm
Oren:

With all due respect to Professor Barnett, where his views on the scope of the Constitution differ with the Supreme Court's, his views are of academic interest only.

Not true. The legal academics/activists/groups shape what ends up on the docket and thus frames the decisions. They shape the future Justices of the Court. They may even shape the opinions of the current Justices -- see, e.g., the various cites that Scalia put it Heller.
9.20.2009 10:28pm
David M. Nieporent (www):
Very few people, I submit, would be interested in one's personal interpretation of constitutional law that is based on a belief as to what the law "ought" to be said to be. The reason is that, unless they are consumed by a desire to examine legal theory, they are inquiring as to what the law is because they want to know what they can or cannot do or what the ruling would be with respect to what someone else does or does not do. In short, they are being practical.
If that were the case, there would be a lot fewer law reviews and a lot fewer law professors quoted in the paper and a lot fewer books sold. You can use wikipedia if all you want to know what the law "is," if by that you mean "How the courts have already decided."
9.20.2009 10:40pm
Jon Roland (mail) (www):
troll_dc2:

Jon Roland: If you think that the Constitution says X and that the Supreme Court is wrong to say that it means Y, do you advise your clients to ignore what the Supreme Court has said?

No, because that is a reality that presents certain risks if one insists on taking a contrary position. However, it doesn't require us to bow down and say they are right. That is a lie, and we need to proclaim it a lie until we can make it right.

I use the allegory of living with one's family on a farm, and one day an evil neighbor decides to plant land mines all over my property, surrounding my house, so that if I or any of my family try to escape to get supplies, we are more than likely to die horribly.

We have enough supplies to last a few months, and a good well, so we can survive for a while. At some risk we can also attempt a careful mine clearing operation, except that every night the neighbor plants more mines as fast as we can find and remove them.

We can live that way for a while, but eventually it has to end. Either we are going to have to make a desperate break for it, losing most of our family, or die in place.

When that break comes, if any of us makes it, I think we would be morally justified in terminating that neighbor with extreme prejudice. No mercy.

We are all like that besieged family. We just haven't run out of supplies yet. That time will come.
9.20.2009 11:53pm
Jon Roland (mail) (www):
Teh Anonymous:

Jon: I'm not a lawyer, but isn't it established usage to say (depending on context) common law, precedent, or case law for what you're calling legal practice? How would saying legal practice be an improvement over the current state of affairs?

Lawyers, as a profession, are not philosophers, who make their living clarifying thought for people. They make their living with sophistry, and one of the tools of sophistry is to conflate terms artfully. We who are not lawyers don't have to fall for that.
9.20.2009 11:56pm
Jon Roland (mail) (www):
ChrisTS:

If I understand your comments, you seem to be suggesting we have only 2 hermeneutic options: either formalism or realism.

You don't understand. I don't think they are so unclear if you re-read them more carefully, even if some of the ideas may seem unfamiliar. You need to break out of your brainwashing.

We have an entire website for this subject, and can hardly do justice to these questions with every original source document we have been able to put online, which is most of the ones that bear on constitutional construction.

Commands to the public and decisions for parties in court are simply not the same things, and to use the same word "law" for both is not just stupid, the way it is often done is blatant deception.

First we have to stop the lying.
9.21.2009 12:10am
Jon Roland (mail) (www):
David Welker:

But whether we agree with Randy Barnett or not is nothing more than a matter of opinion. Either we accept the method of interpretation invented by Randy Barnett or we do not. Randy Barnett's methodology was neither endorsed by the Founders nor does it have textual support in the Constitution. Therefore, there is no objective reason to adopt his point of view. To adopt his view or not is a matter of opinion, not fact.

It wasn't invented by him. It was taken directly from the principles of legal contruction that prevailed in 1787 and provided the context for how the Framers chose their words. For a competent legal and etymological historian, it not just a matter of individual idiosyncratic opinion. But one has to immerse himself in the literature of that era to appreciate that, just as one has to do to understand ancient poetry written in a language no longer spoken. The legal language of 1787 is a foreign language with respect to usage in 2009, despite some apparent, and often misleading, similarities. No one can really interpret the Constitution accurately who has not made the effort required to learn that now ancient language.
9.21.2009 12:19am
loki13 (mail):
loki13's maxim:

at the heart of every internally consistent, bizarre, far-out-of-the-mainstream, fundamentalist theory of constitutional jurisprudence lies a desire not to pay income taxes.

see also jon roland's website.
9.21.2009 12:56am
Tritium (mail):
I have always thought the Constitutionality is very clear. 'Scholars', as you might call them, seem to overcomplicate the simplest of things. What is constitutional? That which was true from the time of Constitution. Anything that was not valid to all intents and purposes would be Unconstitutional. Any attempts to make something constitutional that wasn't from the time of Constitution of government would be ex post facto, and unconstitutional.
9.21.2009 3:13am
Guy:
Jon Roland,

However, most of the legal issues being discussed in this forum recently (health care, firearms, etc.) do indeed take us out of the realm of legitimate discretion, and into the realm of inconsistency with the Constitution by any but the most ludicrous (mis)interpretations of it.

Well, then, how lucky we are to have you, who are able to recognize that the opinions of those who disagree with you are fools misled by bias and personal opinion. So that we can trust your clearly unbiased wisdom to guide us out of our foolish ways and back to the Constitution's clear true meaning, which many of us are too blind to see.

Seriously, many of Scalia's (for example) opinions seem to me to be truly misguided, but I don't accuse him of intentionally misinterpreting the Constitution. He occasionally engages in, what sometimes appear to me to be, mental gymnastics and ridiculously flawed arguments. But I honestly don't doubt that my legal opinions would look just as misguided to him, and I don't accuse him of having disrespect for the rule of law. Here's something to keep in mind in legal (or even all) debates: when someone disagrees with you, maybe they're not just doing it to piss you off, or just because they're stupid, or just because they're evil. If you're going to accuse the Supreme Court of simply ignoring the Constitution or deliberately re-writing it to their whim, you better be damn sure no reasonable person could ever find their opinions convincing. I don't know about you, but I usually find the opinions to be pretty solid, coherent arguments, even if I think they're wrong and can point out a few minor flaws here and there.

When the Supreme Court rules that a person can be convicted of treason in federal court without the testimony of any witnesses, I'll start to worry. Until then, try to relax.
9.21.2009 5:41am
Guy:
Try to keep in mind that English is not a formal language, and absolutely no English sentence has a unique, clear, unambiguous meaning. When I was a small child I used to worry about traffic laws... how do you define "vehicle"? "road"? "traffic light"? they are usually clear, but borderline cases can be imagined. I imagined that for law to work, there must be enormous reams of legal definitions and painfully precise, rigorous language that left no room for ambiguity, and that when one was "proven" guilty, there must be some method of producing that proof, like a mathematical proof, that left no room for argument. What disturbed me was that I could not imagine that any factual assertion could ever be "proven" in such a way. Eventually, I got over it, there's a reason they're called "judges", not "deducers".
9.21.2009 5:58am
readestreet:
This seems like a pretty simple issue to me - possibly because I am a corporate tax lawyer. I have advised clients on commerce clause issues before - analyzing whether a particular tax is consitutional or not. Even if there are impeccable arguments that you could make that a particular tax is unconsitutional, I would imagine your client is going to be pretty pissed off if you advise them that a tax is unconstitional and they challenge it on those grounds, and then lose in court, and you explain that it's definitely unconstitutional, but 70 years ago, the court incorrectly held that it was constitutional and wrongly has enforced unconstitutional taxes ever since. I'm pretty sure you get fired for that.
9.21.2009 8:12am
fishbane (mail):
[...] because I think there are actually many more meanings of "is" [...]

It really is the 90's again.
9.21.2009 10:48am
Anonymouse Troll:


Jon Roland

I use the allegory of living with one's family on a farm, and one day an evil neighbor ...


Since your allegory depends on the antagonist being evil, it's not much help. Their just deserts are particularly irrelevant unless you've migrated to black helicopter territory.
9.21.2009 12:06pm
Jon Roland (mail) (www):
loki13:

loki13's maxim:

at the heart of every internally consistent, bizarre, far-out-of-the-mainstream, fundamentalist theory of constitutional jurisprudence lies a desire not to pay income taxes.

see also jon roland's website.

Your attempts to be cute are tiresome and libelous. I, and most of those who agree with me, happen to take the Constitution seriously, distinguish between lawful taxes and unlawful taxes, accept and pay the former, and vehemently object to the latter, not because of the amount of money, but on principle, and we would object to them even if they were measured in microcents.

It may surprise you to discover that there still are people in this world who take stands on legal principle and don't just make economic decisions. It is the difference between honor and dishonor.
9.21.2009 12:15pm
ShelbyC:
I'm not sure "is" and "ought" are enough. Take Miranda as an example. I think cops ought to be required to give Miranda-type warnings. The constitution, however, does not require them to give such warnings. But Supreme Court has falsely determined that the constitution does so require them (or something like that).

So the law ought to be that they are required to give warnings, except that it ought not to be that they are required, because the constitution doesn't say that they are required to, except that is does say that, because the Supreme Court says it does.
9.21.2009 12:18pm
Jon Roland (mail) (www):
Guy:

Seriously, many of Scalia's (for example) opinions seem to me to be truly misguided, but I don't accuse him of intentionally misinterpreting the Constitution. He occasionally engages in, what sometimes appear to me to be, mental gymnastics and ridiculously flawed arguments. But I honestly don't doubt that my legal opinions would look just as misguided to him, and I don't accuse him of having disrespect for the rule of law.

Sorry to burst your bubble, but in his speech to the Federalist Society National Convention, Nov. 22, 2008, Justice Scalia came right out and admitted that he goes along with wrong SC decisions, explaining that he would have to be "crazy" to do otherwise. He admitted to violating his oath to uphold the Constitution, and to yielding to political pressure, in making his judicial decisions. I was there. I videorecorded it. View it for yourself.
9.21.2009 12:24pm
Jon Roland (mail) (www):
Guy:

When the Supreme Court rules that a person can be convicted of treason in federal court without the testimony of any witnesses, I'll start to worry.

As a practical matter, they have. It just hasn't been called "treason", and it consisted of accepting the extrajudicial killings by federal agents as within the scope of their official duties. Long past time to worry.
9.21.2009 12:29pm
ChrisatOffice (mail):
Jon Roland:

You don't understand. I don't think they are so unclear if you re-read them more carefully, even if some of the ideas may seem unfamiliar. You need to break out of your brainwashing.

We have an entire website for this subject, and can hardly do justice to these questions with every original source document we have been able to put online, which is most of the ones that bear on constitutional construction.


Thank you for your intelligent and respectful reply to my comment. I see, now, that I have been brainwashed and should go to your site for help. By the way, I assume that is the royal 'We'?
9.21.2009 12:30pm
Jon Roland (mail) (www):
Guy:

Try to keep in mind that English is not a formal language, and absolutely no English sentence has a unique, clear, unambiguous meaning.

Now you're exaggerating. Of course some sentences are unambiguous.

However, legal scholars of the Founding Era recognized the problem, and provided for it in their rules of construction. One of them was expressed in several ways, but I'll give you two:


Potestas stricte interpretatur. A power is strictly interpreted.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.


In other words, if there is any ambiguity in what are delegated powers, the decision must always be as restrictive as the words allow. For more on that see this article.

To use your example, if there is any doubt about whether something is a "vehicle", "road", or "traffic light", then it is not, and if the lawmakers don't like that, they can amend the law.
9.21.2009 12:39pm
Jon Roland (mail) (www):
readestreet:

This seems like a pretty simple issue to me - possibly because I am a corporate tax lawyer. I have advised clients on commerce clause issues before - analyzing whether a particular tax is consitutional or not. Even if there are impeccable arguments that you could make that a particular tax is unconsitutional, I would imagine your client is going to be pretty pissed off if you advise them that a tax is unconstitional and they challenge it on those grounds, and then lose in court, and you explain that it's definitely unconstitutional, but 70 years ago, the court incorrectly held that it was constitutional and wrongly has enforced unconstitutional taxes ever since. I'm pretty sure you get fired for that.

If you were working for me I would fire you if you neglected to give me all the arguments, including the warning that challenging the statute, though meritorious, was unlikely to prevail in court. As a businessman, I may ultimately decide to make a business decision and not challenge it, but I may also decide to make a principled effort to push back. Your job is to estimate the odds, not make the decision for me by withholding some arguments that I need to make a fully informed decision.
9.21.2009 12:45pm
Jon Roland (mail) (www):
Anonymouse Troll:

Since your allegory depends on the antagonist being evil, it's not much help.

From my viewpoint the violators of the Constitution are evil. They may honestly not think they are. The guy mining my yard may think my family is a foreign invading force, and just be wrong. Most evil people think they are good guys. That's why it can be so difficult to recognize them. Most of the evil that evil people do is not done directly by them to their victims, but remotely and impersonally, through chains of tools. But that does not relieve them of moral responsibility.

As far as we know, Hitler never personally gave explicit orders to kill all the Jews. He just made vague remarks about the need to solve the "Jewish problem" and left it to his minions to figure out what he meant. Like King Henry II's remarks that led to the assassination of Thomas Becket. That is evil, and morally blameworthy. The victims of the crimes done with "plausible deniabilty" are nonetheless within their rights to put an end to the ultimate cause of their misery if they can.
9.21.2009 12:59pm
Jon Roland (mail) (www):
ShelbyC:

I'm not sure "is" and "ought" are enough. Take Miranda as an example. I think cops ought to be required to give Miranda-type warnings. The constitution, however, does not require them to give such warnings. But Supreme Court has falsely determined that the constitution does so require them (or something like that).

Miranda was not, despite the attempt to dress it as constitutionally mandated, a constitutional construction. It was an equitable decision, and a prudential one. The Constitution makes the general federal courts (apart from those with special jurisdictions) courts of equity as well as of law. The problem for the court was that the proper remedy for violations of rights by the police was to prosecute the police, but it recognized that in the present system of law enforcement that wasn't going to happen. The remedy would not be available to the victim, and attempts to get such remedies would overwhelm the courts with cases. So the court decided, sua sponte, to extend due process back to the point at which suspects were taken into custody by officials. That is not a great stretch. The concept of "due process" allows for extension to all official activities that could affect the rights of people adversely. So in that sense it was a constitutional construction, but the basis for it, as for the entire concept of "due process", is equity.
9.21.2009 1:12pm
Teller:
It appears that the dispute is with common law judging. The judge must apply written law to facts. The meaning of law then is defined in application to actual facts. The next case is then analogized or distinguished given the new facts.

Is common law judging unconstitutional? Did the framers intend that the "judicial power" not include common law judging?
9.21.2009 1:41pm
Jon Roland (mail) (www):
Teller:

Is common law judging unconstitutional? Did the framers intend that the "judicial power" not include common law judging?

Some parts of it are. When the Constitution was adopted, federal courts were made courts of "law and equity", which brought in nonconflicting parts of "common law", as it then existed in the 13 States, not necessarily as it existed in Britain. A divergence, sometimes called the Camdenian-Mansfieldian split, had already set in.

The Seventh Amendment then incorporated nonconflicting common law, again, the American variety, in civil suits.

So from the common law we get rules of construction, like


Potestas stricte interpretatur. A power is strictly interpreted.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.


One of the parts of the common law tradition that is in conflict with the Constitution is binding stare decisis, as I discuss here. That is not convenient for judges, because it compels them to always go back to the Constitution and the historical evidence of its meaning, afresh with each case, and not rely on precedents. Tough. The Constitution wasn't intended to make things easy on judges.
9.21.2009 2:10pm
steverino:
This is certainly helpful. It confirms what Abraham Lincoln said in his first inaugural address.

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.


We are not a self-governing people. And we haven't been a self-governing people for a long time.

It would be too restrictive to say we have resigned our government entirely into the hands of the justices of the USSC. I see from Professor Kerr's post that certain qualified individuals are also allowed to participate in the process of shaping the scope of my rights.

So what we have is government by experts. Not a government that can be constrained in any meaningful sense by the people as a whole.

As it stands now, I really have no idea what is guaranteed by the first or second amendments. I can hardly wait until the SCOTUS sees fit to explore the scope of those rights. Because I'm already middle-aged and so I spent more than half of my life without ever knowing if I had a an individual right to bear arms. Apparently the Second Amendment means I do. In DC. So I've got less than half my life left to find out if that means can also own a handgun if I move to Chicago.

I have a more definite idea about the evolving scope of my new right to health care. I have the right to pay what I'm told to pay and the right to receive what the government determines I'll get. That's pretty definite.

I realize it's all great fodder for you legal theorists, and I realize you may all believe that the only alternative purpose of a Constitution is as a vision to be sold to the general public at election time.

But I have always been more interested in having a Constitution that performed the function of providing a standard by which I could determine my own rights.

It would be really nice if the Constitution served as a means by which the government gains its just powers from the consent of the governed.

And serves as a yardstick by which the governed can determine how well the government is securing the rights for which it was constituted.

Apparently it has failed at that purpose. So in that sense, it be accurate to say the Supreme Court "is." But the Constitution "ought" and the Constitution "isn't."
9.21.2009 2:13pm
Jon Roland (mail) (www):
steverino:

Apparently it has failed at that purpose.

The Constitution didn't fail. We, the people, failed. Constitutions and laws are not self-enforcing. They depend on all of us to make them work.
9.21.2009 2:55pm
steverino:
Thanks for correcting me.

The founding fathers gave us a Republic. It was up to us to keep it. It still is.

In many unintended ways I believe that Barack Obama's presidency will benefit the country. He's sparked a lot of renewed interest in the Constitution, and that can only be good.
9.21.2009 3:12pm
loki13 (mail):

loki13's maxim:

at the heart of every internally consistent, bizarre, far-out-of-the-mainstream, fundamentalist theory of constitutional jurisprudence lies a desire not to pay income taxes.

see also jon roland's website.

To which Jon Roland replied:

"Your attempts to be cute are tiresome and libelous."

While I would never disagree with you on a characterization such as "tiresome", it is clear that your knowledge of libel- as a "legal practice" as you so quaintly put it, is sorely lacking. Again, I highly recommend that others go and view your website. I have found that a strange feature of almost all fundamentalist theories of constitutional interpretation is that there is no basis for income taxes- despite the 16th Am. You may wish to quibble about whether it is the cherry or the ice cream or your jurisprudential sundae- but it is most certainly an ingredient!

In short, I think thou dost (tax) protest too much. Good luck with that!
9.21.2009 3:48pm
Oren:
Jon, while I generally agree with your characterization of the nature of evil (although Hitler was, in fact, personally involved in the Final Solution), the remedy might not be as you say.

In fact, your remedy is implausible because it is not a Nash equilibrium. That is, if we assume that the problem is that well-meaning people do evil by ignorance, killing them off does nothing to solve the long-term problem. That is, the person doing evil unwittingly is not the "ultimate cause" that you speak of, because whatever compelled him to do so (which is not, by stipulation, simple animus) will recur.

Like the Exupéry's petit prince, we can spend eternity rooting out evil. That doesn't sound too appealing. Neither does the Jeffersonian notion that we need a civil war every 40 years. The first one was bloody enough.

I'm not long on solutions, perhaps there is no Nash equilibrium that also preserves all the rights in such fashion as you or I would find optimal (certainly not optimal, acceptable maybe). I can only hope that Jefferson was wrong.
9.21.2009 3:54pm
FWB (mail):
The current practice of the SC "saying what the Constitution is" is absolute nonsense and a lie taken to the extreme. The SC is subordinate to the Constitution because the Constitution CREATES the SC and without the Constitution the SC DOES NOT EXIST. The subordinate cannot define the superior. The act of the SC defining its superior is a theft of power from the superior of the Constitution, We the People.

Blackstone taught the proper position of the courts to society but it seems that too many have missed the point:


For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6



The Constitution IS what the People say it is. There will come a time....

Tiocfaidh ar la!
9.21.2009 4:12pm
Jon Roland (mail) (www):
Oren:

your remedy is implausible because it is not a Nash equilibrium.

You seem to be confusing nash equilibrium with optimum strategy, the forer iof which only really applies to unmixed strategies in noncooperative games.


That is, if we assume that the problem is that well-meaning people do evil by ignorance, killing them off does nothing to solve the long-term problem.

Didn't say there was a long-term solution. Barring genetic engineering of homo sapiens to only produce virtuous people who magically always know what is the right thing to do, the struggle will have to go on. But that doesn't mean we can't shift the point of equilibrium between good and evil toward the good.


Neither does the Jeffersonian notion that we need a civil war every 40 years. The first one was bloody enough.

Actually, he called not for "civil war" but for a "revolution", and every 20 years, not 40. He primarily had in mind violent conflict, but he also identified three "revolutions": the War for Independence, the adoption of the Constitution, and the Election of 1800.


I'm not long on solutions

The Universe is not designed for our comfort or convenience. All it offers is an opportunity to struggle.
9.21.2009 5:33pm
Grey:
I guess while it's ridiculous day, we should also mention that (arguably) the Constitution itself is illegitimate (or at best, suspect). America was taken over by a hostile force in 1789.

That said, Tim Nuccio's comment near the top (#7 or so) is exactly the kind of cocksure certitude that makes me want to scream. Language is inherently ambiguous, and no codex is going to envision every single scenario.

This doesn't make people who disagree with your interpretation evil, stupid or immoral (we're all biased).

Jon Roland, I think it's interesting that you besmirch Hitler and King Henry, calling their statements "evil, and morally blameworthy" -- yet presumably Constitutional under a strict interpretation of the First Amendment. There is no power granted to Congress to regulate "evil, and morally blameworthy" speech in the document, after all.
9.21.2009 6:49pm
Guest14:
If you were working for me I would fire you if you neglected to give me all the arguments, including the warning that challenging the statute, though meritorious, was unlikely to prevail in court.
Would you also fire me if I neglected to include an argument about tax fairies who may or may not exist, and if they do, may or may not magically discharge your tax liability in the nick of time? Because let's be honest, that's basically what we're talking about.
9.21.2009 6:49pm
Oren:

You seem to be confusing nash equilibrium with optimum strategy, the forer iof which only really applies to unmixed strategies in noncooperative games.

I meant what I wrote. The situation you wrote about (a series of small encroachments followed by violent conflict) is unstable -- there is an incentive to strike sooner and sooner (so as to brave fewer and fewer mines) in each iteration until it reaches an equilibrium of non-stop conflict.[ Meanwhile, the inventive for the mine-layer is to lay down more mines and faster, leading to the same place. ]
9.21.2009 8:40pm
Oren:

Didn't say there was a long-term solution. Barring genetic engineering of homo sapiens to only produce virtuous people who magically always know what is the right thing to do, the struggle will have to go on. But that doesn't mean we can't shift the point of equilibrium between good and evil toward the good.

The construction of society is pretty much, by definition, how to build a straight structure out of crooked timbers (to paraphrase in exact opposition to the point Hume was making). We don't make people better, we organize our relations such that goodness emerges as a higher-order property.

The massive increase in civility and prosperity in the past 200 years, for instance, is not because humans have improved. The Constitution of the United States does not purport to only work if the virtuously pure hold office. As the architects of our own society, we have built it so that the crookedness in the individual parts is ironed out on the larger scales.

One does not have to believe in the perfectibility of humanity (laughable, I know) in order to believe that we can improve our results through better organization and relation.
9.21.2009 8:54pm
Oren:

Actually, he called not for "civil war" but for a "revolution", and every 20 years, not 40. He primarily had in mind violent conflict, but he also identified three "revolutions": the War for Independence, the adoption of the Constitution, and the Election of 1800.

A revolution is a civil war when the rebels win.
A civil war is a revolution that failed.


The Universe is not designed for our comfort or convenience. All it offers is an opportunity to struggle.

One more thing to add to my list of the complaints for the almighty.

[ Yup, that just about nails it. ]
9.21.2009 8:55pm
Cato The Elder (mail) (www):

One does not have to believe in the perfectibility of humanity (laughable, I know) in order to believe that we can improve our results through better organization and relation.

No doubt. But the problem is that this is a really, really hard problem. The point of libertarianism is to be extremely doubtful that we could do any sort of social engineering macroscopically, given our present state of knowledge. I mean, we don't even completely know how mere ants organize their societies. When an ant determines the shortest path to food, he does not perform a calculus of variations. He only needs figure out which path smells most pleasantly of decaying pheromones, while dropping some of his own to "help". He himself does not understand the social logic of his behavior; he does not understand that he does "good" for his compatriots by making the shortest path smell sweetest. It took many tons of biological wetware over many centuries for even "wise man" to figure this out himself!

If the goal was strictly do good, people who want to organize society should needfully be required to organize their personal lives or small businesses to be in impeccable order first. When enough people have done that, then perhaps we may talk of grander things. But of course the instinctual goal is not to do that, to maximize average fitness over individual fitness; the goal is to acquire personal prestige and power as agent to the principal. Understanding people's true motivations, foibles, and the gaping pitfalls in the path of "engineering" is the only way to actually and eventually improve society.
9.22.2009 12:27am
Jon Roland (mail) (www):
Oren:

The situation you wrote about (a series of small encroachments followed by violent conflict) is unstable -- there is an incentive to strike sooner and sooner (so as to brave fewer and fewer mines) in each iteration until it reaches an equilibrium of non-stop conflict.[ Meanwhile, the inventive for the mine-layer is to lay down more mines and faster, leading to the same place. ]

That seems a fairly good metaphor for the efforts of statists to subvert the Constitution, as seen by those of us who object to that.
9.22.2009 1:53am
Jon Roland (mail) (www):
Oren:

The Constitution of the United States does not purport to only work if the virtuously pure hold office.

No, it is designed to allow for some degradation in public virtue, but not for a degradation of the civic virtue of the people, who might be deceived by some officials for short periods of time, but to eventually catch on and correct their servants.

People have not changed much biologically, but there have definitely been rises and falls in civic virtue, which is what gave rise to Jefferson's remark about needing a revolution every 20 years. He was saying that that trauma enhanced civic virtue, and that civic virtue declined with peace and prosperity. The decline was noticeable by the time he wrote that.
9.22.2009 1:59am
Jon Roland (mail) (www):
Grey:

Jon Roland, I think it's interesting that you besmirch Hitler and King Henry, calling their statements "evil, and morally blameworthy" -- yet presumably Constitutional under a strict interpretation of the First Amendment. There is no power granted to Congress to regulate "evil, and morally blameworthy" speech in the document, after all.

The First Amendment protects civilians from the government, not government officials for statements that their minions may take as orders to do evil things. Congress does have power to remove officials, and once removed, states can prosecute them for their crimes committed while they were officials, and federal prosecutors if the crimes are properly federal (not based on the Commerce Clause).
9.22.2009 2:07am
Anonymouse Troll:

Jon Roland (mail) (www):
Anonymouse Troll:


Since your allegory depends on the antagonist being evil, it's not much help.


From my viewpoint the violators of the Constitution are evil. They may honestly not think they are. [...] But that does not relieve them of moral responsibility.

Unless you think killing in self-defense is immoral, you've gone too far with your analogy. Intent counts in any reasonable moral calculus.
9.22.2009 9:59am
Cornet of Horse:
Oren,

Well said on rooting out evil. The favorite quote again:

"Injustice, poverty, slavery, ignorance - these may be cured by reform or revolution. But men do not live only by fighting evils. They live by positive goals, individual and collective, a vast variety of them, seldom predictable, at times incompatible."

- Isaiah Berlin

JR,

"The Universe is not designed for our comfort or convenience. All it offers is an opportunity to struggle."

All? Whatever you say, Karl.

The smart money's on a different strategy.
9.22.2009 4:57pm

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