A Critique of Pure Reason

Our resident anonymous liberal, Liberal Anonymous (which sounds like a good name for a self-help group), writes to my colleague:

Actions speak louder than words, Hunter, and Scalia has shown himself to be a rank hypocrite whenever he disagrees with the outcome of the law.

Aye, that’s our real world, LA. We are all human, and thus vulnerable to rationalizations and therefore hypocrisy—although I personally think Scalia’s batting average for fidelity to his judicial philosophy might make him the court’s ranking non-hypocrite. To wit: Justice Ginsburg fully allows that Roe is bad law, but won’t lift a finger to overturn it, or even tame it.

Do you favor turning your back on essential questions of right and wrong when the law dictates the contrary of your moral sense? I mean, surely a person of your obvious cosmic rectitude would have dissented in the Dred Scott decision.

Or as our current President Bush (two down, one to go) so eloquently put it:

“Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

That’s a personal opinion. That’s not what the Constitution says. The Constitution of the United States says we’re all—–you know, it doesn’t say that…”

Precisely. Ah, the inarticulate speech of the heart: he is the master.


Trusty Slate lefty Tim Noah associates
, and not unfairly, Roe with Scott, and why Bush says he wouldn’t appoint someone so reasonable as to agree with the Constitution (at that time) on the latter.

I ask you this not to put you on the spot, LA, but to open the gates of heaven and hell to all on this Miers thing. I mean, it’s far easier and quicker to learn someone else’s mind than their heart, which is why I think Bush went this way. Peter Singer or FDR? Sensibility or sense? Nietzsche or Jesus? Justice or mercy? Winston Churchill or Viggo Mortensen?

“Be kind. It’s worthwhile to make an effort to learn about other people and figure out what you might have in common with them. If you allow yourself to be somewhat curious — and if you get into the habit of doing that—it’s the first step to being open minded… and realizing that your points of view aren’t totally opposite. I don’t think anyone’s are, in the end. It’s just a question of finding out by spending time with them or giving their ideas a chance to be considered.”
Viggo Mortensen, Artist, Actor, Activist

(Very interested as to what Brother Viggo has found in common with al-Qaeda and the janjaweed, and to hear his plan for Congo, but that should not diminish the universialityness of his sentiment. I’d think we could count him as firmly in Ms. Miers’ court. What a nice man. If he had spent 10 years at Harriet Miers’ side, spending time with her and giving her ideas a chance to be considered, I’m sure he would have nominated her himself.)

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18 thoughts on “A Critique of Pure Reason

  1. I’m not an “originalist”, so the question seems rather meaningless to me.

    Whether or not something is “good law” is a matter of opinion. But it appears that if we have clever enough folks on the Supreme Court, quite a bit of new things can be justified in terms of “good law”. This is unavoidable — interpretation isn’t something you’re going to be able to remove from any legal system. (Even originalism is an interpretation of the law, albeit one that is ostensibly based on what is believed to be the original intent of those who wrote it.)

    But because recognizing new freedoms (or entitlements, as it were) is such an arduous process, relying on public opinion, political appointments, the whims of various politicians, lawyers and judges, etc., it makes for what I feel is a nice way to allow change, but not too quickly.

  2. One thing of which I am certain is that self-government does not consist of having the ACLU present claims to the Supreme Court, which then wipes all the democratically enacted laws off the books in favor its policy preference.

    There is a reason why we have legislatures and bother to hold elections. Does that system occasionally fail as regards what are clearly human rights? Yes, but quite often that same system will rectify itself via democratic means without leaving the same kind of gaping wounds as Roe. Witness the 1964 Civil Rights Act, for example. Ends segregation. Sweeping effect. Done by vote of the people’s duly elected reps.

  3. Would self government consist of having the NRA present claims to the Supreme Court, which would then wipe the democratically enacted gun laws off the books in favor of its policy preference?

    Hunter, relying on the mob to police itself is a recipe for disaster.

    Americans support all sorts of unpleasant restrictions on freedom during times of real or perceived crisis. I’m glad we have a mechanism whereby laws which give the government more power than it should have can be overturned.

  4. Wow, I have no clue what some people are arguing on this issue. Tom – Viggo is a pacifist and a citizen of Denmark, the United States and a firm supporter of the United Nations. He is what he is, a believer that we are all more alike than we are different and that the world is not a Hobbesian hellhole, but composed of mostly good people. What that has to do with Harriet Miers totally escapes me.

    Hunter Baker is advocating for true democracy, not representative democracy? I was always taught that one of the geniuses of our American way is that it has checks and balances and avoids tyranny of majority. It is precisely because the Supreme Court can overrule democratic overreaction and overreaching legislation that we have such a stable government. At least that’s what I got out of my Straussian professor’s love affair with de Toqueville.

    Mr. Baker, I don’t think the ACLU is arguing in favor its policy preference. Last time I looked it has generally been a strong advocate of the Bill of Rights. Strict construction of the 4th Amendment and its brethren and sistren can, at times, run contrary to policy preferences in favor of law enforcement. From my point of view, the judges who turn a blind eye to legislative enactments which run contrary to the Bill of Rights are elevating their policy preference over the principles laid down by the founding fathers.

    The courts exist to correct the failures of legislatures. Roe, however is not. Personally I hate Roe because I believe that if the Supreme Court had not elevated policy over law, that the religious right would never have had the rallying cry it has and ultimately the policy-makers would have allowed abortion everywhere because the majority of Americans favor it.

  5. The point is that even Brother Viggo could learn to love Miers before Peggy Noonan will. He’s that kinda guy.

    But the real and dangerous question is whether a judge should vote their conscience or vote the constitution.

    This concept is apparently not operative for LA, although I admire her Burkean conservatism about the pace of proposed change. I myself am a fan of gridlock.

    (I believe the world is mostly made of good people, but also mostly a Hobbesian hellhole. The problem of tyranny is one of concentrations of power, coupled with, as Burke notes, good men doing nothing. Pacifists, for instance, who although perhaps morally admirable, are parasites on the societies that spill their own blood to protect them.)

  6. Connie, I’m essentially talking about Roe and its progeny, so you shouldn’t have much complaint with me.

  7. “Whether or not something is “good law” is a matter of opinion.”

    But is “whether or not something is`good law’ is a matter of opinion” itself a matter of opinion? If so, then we can reject your opinion about opinions, since it is only an opinion. But if it is not merely an opinion, but a firm normative guideline about the nature of legal opinions, then why can’t there be good law if there is good judgments about the nature of law?

    Also, if there are no good or bad laws in any objective sense, then a state that promotes holocausts or hospitals are equally bad and good.

    That is so counterintuitive that only a person protected by a regime governed by the rule of law can entertain such nonsense.

  8. Pacifists, for instance, who although perhaps morally admirable, are parasites on the societies that spill their own blood to protect them.

    I couldn’t disagree more with this. Maybe it’s a definitional problem. Pacifists in Europe in the 1930’s were delusional or tools. Clearly Englishmen who fought Nazi Germany were protecting their society. Once bombs started dropping in England, I’m not sure how many pacifists were left.

    However being pacifistic in the face of foreign invasion of your country (how many people opposed our entry into WWII after Pearl Harbor was bombed) is not the same as supporting our police action in Vietnam. You’ll never convince me that a drop of blood spilled there went to protecting America.

    In the same vein, even I supported our incursion into Afghanistan with the aim of hunting down bin Laden and Al-Qaeda. I don’t know anyone except perhaps some Quakers who opposed that. Iraq, however was another kettle of fish. Again, the blood spilled there hasn’t done one thing to protect my country. It’s put our safety in a much more precarious position as far as I’m concerned.

  9. “In the same vein, even I supported our incursion into Afghanistan with the aim of hunting down bin Laden and Al-Qaeda. I don’t know anyone except perhaps some Quakers who opposed that.”

    Put me in that catagory. I would have supported a police action (in the literal meaning, not the it’s a war but we won’t call it that) to find and apprehend Bin Laden and any Al-Qaeda operatives. Such an activity could certainly have been supported by the military but would have had to have been a police/intelligence operation.

    Overthrowing the taleban on the other hand was simply unneeded, illegal, and ill advised. The Taleban didn’t attack our country. Al Qaeda did. The two groups, while friendly, were entirely different. Notice that while we suceeded in driving the taleban out of Kabul we failed to either break them or to catch the al qaeda leadership we were after.

    Is there some aspect of our afghanistan invasion we should be proud of?

  10. But is “whether or not something is`good law’ is a matter of opinion” itself a matter of opinion……

    There have been lengthy and repeated explanations by Tlaloc, James, myself and others as to why this line of reasoning is faulty. It’s acceptable to disagree with our explanations, but your little straw-man up there was not that; it was simply ignoring those explanations.

    Frankly, I’m not interested in holding anybody’s hand through them again. Maybe Tlaloc has the energy, or maybe you’ll simply be presented with the choice of reading the Reform Club archives or remaining ignorant. Something tells me you’ll choose the latter.

  11. Straw men?

    I’ve never known anyone from the right to put up straw men about liberal positions. (cough, cough, Rush, Sean, Anne).

    Though I have to admit that Tlac strains my argument since he was opposed to the overthrow of the Taliban. I’ll just assign him to the fringe.

    For the record, the fringe left does not represent liberals.

  12. “Though I have to admit that Tlac strains my argument since he was opposed to the overthrow of the Taliban. I’ll just assign him to the fringe.”

    Rather than just “assign” me to the fringe why don’t you consider my argument? In light of what I’ve said and what we know how do you justify overthrowing Afghanistan’s sovereign government?

  13. “But is “whether or not something is`good law’ is a matter of opinion” itself a matter of opinion……”

    “There have been lengthy and repeated explanations by Tlaloc, James, myself and others as to why this line of reasoning is faulty.”

    I would consider it a personal favor if you’d indulge me with a brief recap of the contrary argument, LA. I find Dr. Beckwith’s case convincing.

    I often similarly disconnect from discussions around here when I feel we’re into pearls before swine time, but I promise you an unquestioning reciprocation at a time of your own choosing should you comply with my request.

  14. Beckwith’s argument is solely semantic. He brings credence to Wittgenstein and Derrida with every keystroke.

    What would Gandhi or MLK Jr say about invading a country, provoked or no? Were they fringe lefties?

    I believe the difficulty in this entire conversation is this: Who decides what the Constitution really means? Both sides have happily ignored additional writings of the Founding Fathers, such as the Federalist Papers, when they don’t support their views. No one has the corner on an “originalist” doctrine because the Founders are all DEAD. We’ve already deviated from the original intent of the Constitution: The Constitution’s authors neither wanted nor included political parties. As society has evolved and changed, issues have appeared that were beyond the ken of the Founders.

    So, until so-called originalists can present us with a heretofore undiscovered trove of prophetic writings by Hamilton, or a magic crystal ball, or the preserved brain of Madison, we’ll have to look askance on any one “definitive” doctrine.

  15. James Elliot – see my last comments on the “lefty bullsputum” discussion. I agree with what you’ve said here. We all define “good and bad”, “truth and lies”, “founders intent”, etc. from the prism of our own values and belief systems.

    Then again, I’m much more of a relativist than an absolutist. Rather than spending my time trying to reason to the perfect, unchanging truth, I prefer to simply analyze and understand, recognizing the biases and predispositions that myself and everyone else has. If nothing else, that helps one cut through the crap of verbiage like “bankrupt liberal ideas” What in the world does that mean? Really? Just a propaganda ralling cry, those big bad. awful, liberals.

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