I had to write this post this week for LSH 498 at Charter Oak State College. It is the first small step toward completion of my capstone and graduation. Who doesn't need to jolt out a purpose statement like this at least once a year?
What are you about?
My name is Nathan Straub. I am 23 years old, and I have six younger sisters and one younger brother. In my free time, I am a violinist and an avid researcher. In fact, my first year of college I studied to be a paralegal.
Three years ago I volunteered as an English teacher in Taiwan; my time with the Chinese-speaking students there awakened a long-held desire to learn as much as I could about language, and to use linguistic tools to serve people from other cultures in areas like language teaching, sociolinguistic survey, or Scripture translation.
Right now I am taking Spanish as part of my concentration, and after graduation I want to learn Chinese and Hebrew. Ultimately I would love to do a doctorate in linguistics. I realize this is ambitious, especially since I will be the first in my family to graduate from college. But my family has been very supportive, especially my mom, who dropped out of Oregon College of Education to get married in 1979 and taught me at home from kindergarten through high school. My dad is very encouraging as well, and he has included me in countless discussions and projects, on the berry farm, in the cabinet shop, and during our house remodel, to teach me common sense and uncommon persistence.
What is this course about?
LSH 498 is a 5-week pass/fail course designed to guide me through the process of defending the outcomes of my concentration and crafting a proposal for a capstone project such as a senior thesis based on those outcomes.
In order to pass the course, I need to demonstrate three specific competencies in each of the five outcome areas outlined in the course policies. Competency will be assessed based on my posts on this forum and my project proposal.
I will need to identify and justify the appropriate outcomes for my concentration, explain how my concentration met those outcomes, and write a proposal that focuses the skills and knowledge I have gained through my concentration into an important project.
The proposal for the project should communicate clear goals and a realistic timetable, as well as relevance and sound methodology.
What is your concentration about?
My concentration reflects two major interests: literature and linguistics. I used the GRE Literature in English test to demonstrate my competence in literary history and analysis. Then I studied the history of the English language, and the history of the Old Testament, to provide further background in the literature I value most.
I took Spanish as a way to meet the foreign language requirement for grad school, and simply to expand the number of people and writings with which I can converse. The linguistic tools I have studied include phonetics, phonology, morphology, syntax, sociolinguistics, and second language acquisition.
Although I’m very interested in the history of ideas as expressed in literature, the “big picture” of culture, I feel I must earn the right to be heard in these “soft” areas by working hard at the details of linguistic description and textual analysis. For the capstone project, I hope to use these tools and background to analyze a significant historical text.
Sunday, January 24, 2010
Friday, January 22, 2010
The worm turns for Marci Hamilton
Marci Hamilton, "The Election of Scott Brown, the Newfound Power of Independents, and Why the Framers Would Be Smiling" on Findlaw.com.
For someone normally hostile to my point of view, I appreciate her applause of independent voters, her invocation of the framers' intent, and her castigation of the President's hubris in relation to health insurance reform and the election of Senator Scott Brown of Massachusetts.
For someone normally hostile to my point of view, I appreciate her applause of independent voters, her invocation of the framers' intent, and her castigation of the President's hubris in relation to health insurance reform and the election of Senator Scott Brown of Massachusetts.
Monday, January 18, 2010
Her Face by Arthur Gorges
Sir Arthur Gorges, "Her Face" in R.S., The Phoenix Nest pp. 71-72. (London: Iohn Iackson, 1593)
I copied the image straight from Early English Books Online. There's nothing like a primary source. The cleverness of composition, how you can read each stanza top-down or left-right, and the charm of the rhyme pricked like a dart and stayed in my memory ever since I first read this lyric in the great Elizabethan anthology The Golden Hind.
Search more and you'll find more stanzas than appear in The Phoenix Nest compilation, but the matrix above is all you need to picture the beams of your love's face.
Dawkins on Information Increase
If you're interested in the information increase aspect of Intelligent Design theory, you really should examine Richard Dawkins' article "The Information Challenge". He wasn't the Simonyi Professor for the Public Understanding of Science at Oxford for nothing.... very clear and didactic. Follow his argument through, and you'll learn much. Things to watch out for: although his definition of information increase slips from the microgenetic level to the macro level when he speaks of natural selection, and he equates genetic information with expressed phenotype in order to reduce the argument to the familiar one of complexity increase.
Wednesday, January 13, 2010
Monday, December 07, 2009
Philosophical cocktail
"His philosophy was a mixture of three famous schools - the Cynics, the Stoics and the Epicureans - and summed up all three of them in his famous phrase, 'You can't trust any bugger further than you can throw him and there's nothing you can do about it, so let's have a drink.'"
(from Small Gods by Terry Pratchett)
(from Small Gods by Terry Pratchett)
Monday, November 30, 2009
Mental sharpener
Findlaw.com lets you sign up for email updates on new U.S. Supreme Court decisions. They will send you messages with summaries like this. Reading through it will keep your mind sharp.
CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, PER CURIAM, SENTENCING
Porter v. McCollum, No. 08–10537
In capital habeas proceedings, circuit court's order reversing a district court's grant of a habeas petition is reversed where it was objectively unreasonable for a state court to conclude that there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that petitioner's counsel neither uncovered nor presented, including evidence of petitioner's mental health or mental impairment, his family background, or his military service.
La Corona
From Six Holy Sonnets by John Donne
Deigne at my hands this crown of prayer and praise,
Weav'd in my low devout melancholie,
Thou which of good, hast, yea art treasury,
All changing unchang'd Antient of dayes;
But doe not, with a vile crowne of fraile bayes,
Reward my muses white sincerity,
But what thy thorny crowne gain'd, that give mee,
A crowne of Glory, which doth flower alwayes;
The ends crowne our workes, but thou crown'st our ends,
For, at our end begins our endlesse rest;
The first last end, now zealously possest,
With a strong sober thirst, my soul attends.
'Tis time that heart and voice be lifted high,
Salvation to all that will is nigh.
From Six Holy Sonnets by John Donne
Deigne at my hands this crown of prayer and praise,
Weav'd in my low devout melancholie,
Thou which of good, hast, yea art treasury,
All changing unchang'd Antient of dayes;
But doe not, with a vile crowne of fraile bayes,
Reward my muses white sincerity,
But what thy thorny crowne gain'd, that give mee,
A crowne of Glory, which doth flower alwayes;
The ends crowne our workes, but thou crown'st our ends,
For, at our end begins our endlesse rest;
The first last end, now zealously possest,
With a strong sober thirst, my soul attends.
'Tis time that heart and voice be lifted high,
Salvation to all that will is nigh.
Sunday, November 22, 2009
Steve Mugglin on Memorization
Daniel Staddon, the brother of a friend (Donald was my roommate in Taiwan, and Robert is Bill Gothard's assistant), recently won the National Bible Bee. (Congratulations, Daniel!) He pointed out a long, fascinating article by Steve Mugglin that gave him ideas for how to study the 1200+ verses he had to memorize.
Go read it.
Go read it.
Lewis on Trying our Hardest
C.S. Lewis, Mere Christianity, "Faith (chs. 11-12).
You may remember I said that the first step towards humility was to realise that one is proud. I want to add now that the next step is to make some serious attempt to practise the Christian virtues. A week is not enough. Things often go swimmingly for the first week. Try six weeks. By that time, having, as far as one can see, fallen back completely or even fallen lower than the point one began from, one will have discovered some truths about oneself.
* * *
Now we cannot, in that sense, discover our failure to keep God's law except by trying our very hardest (and then failing). Unless we really try, whatever we say there will always be at the back of our minds the idea that if we try harder next time we shall succeed in being completely good. Thus, in one sense, the road back to God is a road of moral effort, of trying harder and harder. But in another sense it is not trying that is ever going to bring us home. All this trying leads up to the vital moment at which you turn to God and say, "You must do this. I can't."
Philippians 3:12
Here is an elegant translation of a verse in the ESV.
Philippians 3:18b-12
English Standard Version
(Leland Ryken, style editor)
NET Bible
New International Version
Good News Bible
(Eugene Nida, translation consultant)
King James Version
New American Standard Bible
The Message
(Eugene Peterson, author)
Leave a comment and tell me which one you think is most elegant, and what makes it so.
Philippians 3:18b-12
English Standard Version
(Leland Ryken, style editor)
For his sake I have suffered the loss of all things and count them as rubbish, in order
that I may gain Christ and be found in him, not having a righteousness of my own that comes from the law, but that which comes through faith in Christ, the righteousness from God that depends on faith --
that I may know him and the power of his resurrection, and may share his sufferings, becoming like him in his death,
that by any means possible I may attain the resurrection of the dead.
Not that I have already obtained this or am already perfect, but I press on to make it my own, because Christ Jesus has made me his own.
NET Bible
Not that I have already attained this — that is, I have not already been perfected — but I strive to lay hold of that for which Christ Jesus also laid hold of me.
New International Version
Not that I have already obtained all this, or have already been made perfect, but I press on to take hold of that for which Christ Jesus took hold of me.
Good News Bible
(Eugene Nida, translation consultant)
I do not claim that I have already succeeded or have already become perfect. I keep striving to win the prize for which Christ Jesus has already won me to himself.
King James Version
Not as though I had already attained, either were already perfect: but I follow after, if that I may apprehend that for which also I am apprehended of Christ Jesus.
New American Standard Bible
Not that I have already obtained it or have already become perfect, but I press on so that I may lay hold of that for which also I was laid hold of by Christ Jesus.
The Message
(Eugene Peterson, author)
I'm not saying that I have this all together, that I have it made. But I am well on my way, reaching out for Christ, who has so wondrously reached out for me.
Leave a comment and tell me which one you think is most elegant, and what makes it so.
Wednesday, November 18, 2009
Lincoln's birthplace
Abraham Lincoln was born in a log cabin...
that he made with his own two hands.
It just shows how big his hands were.
[This was mine, but you can read more here.]
that he made with his own two hands.
It just shows how big his hands were.
[This was mine, but you can read more here.]
Who Are the Blue Dogs? - The New York Review of Books
Who Are the Blue Dogs? - The New York Review of Books
[F]or the vast majority of members of Congress, once you've been elected and reelected once or twice, it takes either a pretty big scandal or a rare historical tidal wave (as in 1994) to produce defeat. Members know this—in fact, they typically know exactly how many percentage points a certain vote might cost them at the polls. One begins to suspect that some Blue Dogs don't really fear losing as much as they fear facing a semicredible opponent and actually having to campaign hard for a change.
That said, it is true that they "campaigned on fiscal responsibility," as the Pelosi spokesman put it after the stimulus vote. What Blue Dogs typically want out of legislative negotiations, one leadership aide told me, is to be able to go back to their districts and say to their voters that they managed to wrest this or that concession out of the more liberal leadership. This aide spoke of "thousands of hours of meetings" with individual legislators seeking to change health care legislation in large ways and small: "If you can't go back to your district and say, 'I've changed this bill to reflect you voters,'...you have to be able to point to something that you did that made the bill better."
Such concessions to members of their caucus by the Democratic leaders are the price of aspiring to be a genuinely national party. The congressional Republicans are unified, all right. But they are reduced to an ideological and regional faction and seem intent on "purifying" the party even more—the forces that backed Conservative Party candidate Doug Hoffman against Democrat Bill Owens in upstate New York vow to run conservative challengers in GOP primaries against alleged moderate apostates. If the Democrats are eventually to increase their majority, the only place to increase it is in districts that are currently red, or at best "purple." Thus the paradox that a larger Democratic majority, at least in the House, will likely make for a somewhat more conservative one. The Blue Dogs will long be with us.
Tuesday, November 17, 2009
Hadley Arkes on Scalia
SCALIA CONTRA MUNDUM
Review Essay on ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997).
Harvard Journal of Law and Public Policy (Fall 1997)
In The Federalist No. 78, Alexander Hamilton noted the rule that guided the courts in dealing with statutes in conflict: The statute passed later is presumed to have superseded the law enacted earlier.[1] The same rule does not come into play, of course, with the Constitution, for a Constitution framed earlier would have to be given a logical precedence over the statute that came later. Were that not the case, the Constitution would lose its function, or its logic, as a restraint on the legislative power. But these rules for the interpretation of statutes are nowhere mentioned in the Constitution. As Hamilton remarked, they were "not derived from any positive law, but from the nature and reason of the thing."[2] Somewhat later, in The Federalist No. 81, he went on to point out that the notion of "parliamentary supremacy" in Britain had never been taken to mean that the legislature was empowered to overturn a verdict rendered in a court.[3] The understanding seemed to be settled that the legislature might act instead to "prescribe a new rule for future cases."[4] But here, too, this understanding was not expressed anywhere in the positive law of the Constitution. And so what made it valid or authoritative as an understanding bound up with the Constitution itself?. As Hamilton explained, this understanding was simply anchored in "the general principles of law and reason."[5]
Blackstone had written in a similar way about "the law of nature and reason," and when jurists of the founding generation spoke in these accents, it seemed to be understood that they were pointing beyond the positive law to the principles of natural justice.[6] That kind of pointing has not exactly been part of the repertoire of conservative jurists in our own day. One even has the impression at times that these passages in Hamilton must have been expunged from the edition of the Federalist papers read by conservative judges. Some of the judges have proudly claimed their names as "positivists," or they have made their point, in the style of Justice Scalia, by engaging in a certain good-natured scoffing at natural law. But now, in his Tanner Lectures at Princeton,[7] Justice Scalia seems to have induced some confusion among his liberal adversaries by coming at the problem of our law from the angle of Hamilton. For he too finds himself writing here of rules of construction to guide the judge: rules that are found nowhere in the Constitution, but which clearly do not spring merely from the whimsy of the judges. Justice Scalia does not invoke "the laws of nature and reason," but it is evident that he regards these rules as, well, reasonable. We might even say, irresistibly reasonable. One of these rules, in fact, had been cited by Hamilton: expressio unius est exclusio alterius. The expression of one marks the exclusion of the other. "If you see a sign that says children under twelve may enter free, you should have no need to ask whether your thirteen-year-old must pay."[8] Or: noscitur a socis--that something is known by its companions or associates. It is known, that is, in context. As Justice Scalia explains, "If you tell me, 'I took the boat out on the bay,' I understand 'bay' to mean [something different from what it meants in the sentence] 'I put the saddle on the bay."[9]
Not all of these principles spring from the same logical core. Something more would be needed to explain that rule of construction, held firmly by judges in the 1920s and 1930s, that "statutes in derogation of the common law are to be narrowly construed." That rule of construction grew out of a commitment to a certain kind of regime, a regime in which judges wove a vast tapestry of law by expounding the principles of equity and natural justice. The rule of construction reflected an emphatic preference for honoring the kind of law shaped in that way, and leaving it as little disturbed as possible. Justice Scalia is far more skeptical about that law and its premises, but he takes that figure of the common-law judge as the irony that supplies his path of entry into these lectures: his principal lecture in this volume bears the title "Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws." The study of the law begins in America with the classic cases of the common law--the old English cases, crafted by judges when the law was spare. Those cases display the stringent clarity and wit of the judges, applying the "principles of law" in a series of cases, often before the advent of statutes. We may recall, for example, that doctrines on libel and slander were carved out by the judges before a legislature would codify that law in statutes. The mystique of the law may be imparted then to students in this way, in the example of the common-law judge, concentrating his genius within the field marked off by the maxims of the law, and annexing to his judgment the authority to command.
The majesty that attaches to the judges carries over from those fabled days of the common law; and yet we are now in the age of statutes. With the American Constitution, the legislature was supposed to take itself out of the business of acting in the style of a court, pronouncing judgments on parties in cases. And that shift has altered also the vocation of judging. As Justice Scalia points out, most of what the federal judges do is interpret the meaning of statutes and regulations and the text of the Constitution. But that enterprise is undertaken now in a profession that no longer has the same confidence that there are fixed rules of construction, anchored in the enduring principles of law. Justice Scalia has made his career as a legal skeptic, but plainly he wants to summon now to his cause the convictions that once imparted to the Constitution and the laws the sense of a fixed meaning, which would not alter with the political seasons. And a Constitution standing in that way, with its own integrity, would not be so open to the manipulation of judges. The liberals celebrate a "living Constitution," kept current with the times by judges, who are apparently more in tune with the times than ordinary politicians. For Justice Scalia, the "living Constitution" is a stylish title that covers a rather unlovely state of affairs: namely, a shift of power to the hands of judges, who become free then to project into the Constitution the ethic, or the peculiar politics, of the class that now dominates in the law schools and the universities.
[I]t is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. ... It is the law that governs, not the intent of the lawgiver. ... A government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us.
... When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean. ...[10]
And yet, the understandings that once imparted more fixity to the Constitution, and discipline to the judges, could not be detached from the lingering attachment to natural law. Justice George Sutherland, as a youngster, used to copy into his commonplace book long passages from Burlamaqui on the natural law." But even where justices were not exactly versed in the bibliography, there were still certain convictions, settled among the judges, that there really were some anchoring truths in this profession they were practicing. One minor problem for Justice Scalia is that he cannot restore the law as it was without drawing again on that metaphysic still locked away in his soul, even though he cannot quite bring himself to pronounce its name.
On this point he was twitted by some of his critics, who were invited to fill out this volume by appending their commentaries to his lectures. In the conditions that prevail now in the American academy, the presence of a single conservative on the Faculty may be quite a disturbing event, which must be modulated through a firm policy of assuring that there will not be a second. In the case of Justice Scalia, it may be altogether too unsettling: for an academic place such as Princeton to give a prominent platform to a conservative scholar and jurist of his caliber, who annexes, to the force of his arguments, a certain personal dash and comes bearing, in addition, the authority of high Office. As the line goes, serious measures must be taken. Careful provision must be made for "hearing the other side"--in this instance, by offsetting Justice Scalia with a panel of worthies, of notable professors in the law, with a membership strongly tilted, of course, to the side of his adversaries. Princeton, as ever, would not stint, and so the panel of commentators gathered around Justice Scalia included: Ronald Dworkin, Laurence Tribe, Gordon Wood, and Mary Ann Glendon. The main gesture toward "balance" within the panel came with Professor Glendon, who managed to reinforce Justice Scalia through some angles that proved both novel and compelling.
Professor Dworkin would strike a posture of civility on a high plane--from which he could then condescend to instruct Justice Scalia in his own argument and offer some useful thoughts for his better ordering. With a comparable tone, civil on the surface, disparaging beneath, Professor Tribe could engage in some decorous twitting, though it must be said that this was twitting at a high level, touching points at the center of the argument. In that vein, Professor Tribe noted that Justice Scalia evidently follows certain rules as to when he would apply, or relax, the doctrine of stare decisis. Professor Tribe could properly ask then, "what is the origin of those rules?"[12] They were not in the Constitution, and so "they certainly are not derived from the 'original meaning' of the text of the Constitution."[13] Tribe was inviting Justice Scalia to recognize that he was standing on some ground outside the positive law, and to consider just where he might be placing himself in the universe of writers who found the anchor of their positions in one school or another of natural justice.
Anyone who has spent five minutes with Justice Scalia knows that the vocation of the law is absorbed in his character, and so he can hardly help himself: He cannot speak deeply and searchingly of the law without speaking the language of natural law, and the recognition hardly comes as news to him. But it does seem to unsettle his critics, who fancy, in their bafflement, that they have spotted the threads of contradiction running through his lectures. In point of fact, they have merely failed to grasp the design of his argument. Or as Jane Austen had Mr. Bennet say in Pride and Prejudice, they have not had the pleasure of understanding him. And so, Professor Dworkin arranged his critique of Justice Scalia to culminate in the conclusion--as portentous as it was understated--that there was, finally, an "inconsistency of [Justice Scalia's] lectures as a whole."[14]
[Justice Scalia's] most basic argument for textualism is drawn from majoritarian theory: he says that it is undemocratic when a statute is interpreted other than in accordance with the public text that was before legislators when they voted and is available to everyone in the community afterwards. His most basic argument for rejecting textualism in constitutional interpretation, on the other hand, reflects his reservations about majority rule.[15]
Professor Dworkin was evidently satisfied that he had distilled, in this manner, the fallacies running through Justice Scalia's lectures. But, to borrow a line from Henry James, Professor Dworkin might merely have made himself the victim of perplexities :from which a single spark of direct perception might have spared him. Justice Scalia's teaching has its turns and shadings, and yet there should not be much mystery about the main lines of that teaching. One version may be condensed in this way: The United States did not offer a novelty to the world in 1787 because it brought forth a novel form of oligarchy, managed by nine men, unelected, wearing robes. The new order for the ages, proclaimed in America, was the right of a people to govern itself. The decision in 1787 was for popular government, or government by consent, and it was not thought to be the least inconsistent with that scheme that a free people would place itself under moral restraint. As Plato taught, a man with self-control was not a weaker man, and the rule of the people did not become a weaker version of self-rule when the people came to acknowledge certain powers they had no right to claim, certain ends; they had no right to pursue, even in the name of their right to govern themselves.
As Justice Scalia understands the matter, that was precisely the purpose or function of the Constitution: A free people legislated for itself certain powers, and certain ends, that would be placed outside the reach of ordinary politics and ordinary majorities. To that extent, his notion of constitutionalism does contain a recognition of certain things placed beyond the rule of the majority. But that was of a striking exception that only brought out, even more dramatically, the character of that regime in which it stood as an exception. The decision in 1787 was for democratic government: a regime in which the people, or their representatives, would deliberate in public on the gravest questions, the questions of moral consequence that stood at the center of their public lives.
That sense of the matter stands in sharp contrast with the understanding expressed to me by a seasoned lawyer in Washington a few days after the Supreme Court, in 1986, refused to strike down the laws on sodomy in the separate States.[16] With some astonishment he asked, "Do you want politicians making decisions on matters of that kind?" In the estimate of this veteran of the law, decisions of moral consequence reposed more properly in the hands of judges---of people who had been trained in the best law schools, such as the school from which he himself had sprung. And implicit in this perspective was the most damning critique that one could offer of democratic government: that as people are elevated to positions of authority through the process of elections, they become, in that measure, impaired in addressing the most serious questions of justice.
In this contrast we find exactly what is at stake for Justice Scalia in the ongoing argument over our jurisprudence. To the extent that the Constitution can be altered in its critical passages--or even inverted in its meaning--through the inventiveness of the judges, the Constitution ceases to function as a restraint on political power. Even more plainly, it ceases to function as a restraint on the power of the judges themselves. And to the extent that the judges embark on a grand aesthetic project, a project involving nothing less than the remolding of the constitutional order, Justice Scalia has the most profound sense that they are changing the regime itself. For Dworkin, that prospect is overborne by the grand accomplishment of the judges over the past forty years in expanding the domain of "rights." But this cheery assessment becomes far easier to deliver if one happens also to screen from one's view of the landscape the casualties that have been produced by liberal jurisprudence. If there is ample reason, then, to think that human lives are being destroyed in abortions, a record of thirty million killings over the past twenty-four years hardly stands as a monument to the "rights" created under Roe v. Wade.[17] That point has not made an impression on Dworkin, but the unborn children killed in these surgeries evidently suffered the most notable contraction of their "rights."
For Justice Scalia, it seems plain that if judges modify the Second Amendment to bring it into consonance with the times---or with the sense of the times prevailing in liberal circles--there would be a serious erosion of the right of the people to bear arms. But then, of course, every articulation of a new "right" on the part of the courts for one class of litigants may be seen as a contraction of rights on the part of some other people. And so, was it too much to ask of Deborah Weisman that she merely sit in silent respect as others offered prayers of thanks at her commencement from high school? If Weisman had a "right" not to be burdened in that way, then she had a right also to deprive other students and families of the right to offer a prayer of gratitude in circumstances in which they thought themselves obliged to express that gratitude in public.
Professors Tribe and Dworkin seem at least aware that Justice Scalia is no enemy of rights. But, ever-helpful, ever-professorial, they are ever-willing to instruct Justice Scalia in the implications of his own argument, and to find, in his defense of rights, a confirmation of their own doctrines. After all, Justice Scalia voted to protect, under the First Amendment, the freedom to burn the American flag or to burn crosses outside the homes of black families.[19] Is it not clear then, asks Professor Tribe, that Justice Scalia is not "freezing a fixed set of rights into the constitutional ice"; that he is willing to bring under the First Amendment liberties that would not have been protected in the Eighteenth Century, or for that matter in the 1940s?[20] Is that not in fact an exercise of adapting the provisions of the Constitution to the circumstances of our own day? Has Justice Scalia not provided us then with living evidence of the "living Constitution"?
And yet, what seems to have slipped, quite curiously, from Professor Tribe are the properties of a "principle." Once we grasp the principle by which the ball rolls down the inclined plane, we understand that the principle is utterly indifferent to the color of the balls and the planes, and whether they are made of aluminum or wood. It is precisely because a principle is abstract that it can be applied, over time, to a limitless number of instances. Once we understand what is wrong in principle with discriminations based on race, we need no new principle to explain the wrongness of barring people, on the basis of race, from their access, say, to swimming pools, tennis courts, xerox machines, or marriage licenses. We would understand that these are all but instances in which the same principle is being manifested.[21] If we understand the principles behind the protection of "speech," then we would understand how those principles may be engaged in circumstances quite distant in time and quite varied in their technology, from quills to computers. In the case of the burning crosses and the burning flags, I happen to think myself that Justice Scalia made a grievous mistake, that he read into the First Amendment a moral relativism that forms no necessary part of the protections of speech.[22] But whether we happen to coincide with his judgments there or not, it should be clear that Justice Scalia did not need any novel principle in order to cover, with the First Amendment, the "expression" engaged in burning draft cards or burning crosses. There was no need for him to "update" the First Amendment. As Justice Scalia understands it, the principle that protects speech under the Constitution means now what it has ever meant, and the task of the judge now, as ever, is to apply the principles; of the Constitution to the novel cases that arise in our daily lives.
But then is it not also possible that we may draw out of those principles implications that have heretofore gone unforeseen? Indeed, the moral life itself may involve an ongoing effort to draw out of our principles--to bring to a new level of awareness--implications that had previously gone unnoticed. In 1971, in Cohen v. California, Justice Harlan announced that "one man's vulgarity [wa]s another's lyric," and with that move, he grafted onto the First Amendment a new relativism." With those new premises, it became harder for the law to justify restrictions based on the "content" of speech, and with the accumulation of cases, it became harder for the law to restrict the marching of Nazis and the burning of crosses.[24] Justice Scalia has clearly made himself part: of that project, emanating from Cohen v. California, for he has joined his colleagues now in finding, in the First Amendment, rights that were not there as recently as thirty years ago. But Justice Scalia himself has made it clear that he finds deeply uncongenial the results of his own decisions in protecting the burners of crosses and flags. If he has extracted these implications from the First Amendment, it is evidently because he finds them contained in the logic of that Amendment. And his own artful efforts, in summoning the reasons and making his case, should be enough to ward off any charges that his judgments in this field have been "arbitrary."
But in that event, why would he not be open to the plea, offered by Professors Tribe and Dworkin, that their own allies on the bench deserve quite the same presumption in their favor: why should we not begin at least by crediting their earnest claim that they too are seeking to extract from the Constitution the implications that have been there all along? Why would we be warranted in assuming that they are "making up the Constitution," any more than we would be warranted in making that assumption about Justice Scalia? On this matter, there is probably no more dramatic case in point than the problem of the Fourteenth Amendment and miscegenation. Senator Lyman Trumbull, one of the managers of the Amendment, had assured his colleagues that there was nothing in the Amendment that would overturn the laws on miscegenation in the separate States. As Trumbull reasoned, those statutes would not violate the "Equal Protection of the Laws" because they bore equally on blacks and whites: they barred whites from marrying blacks, as they barrett blacks from marrying whites.[25] We would not take that view of the matter today, and not merely because "times have changed." It might be as apt to say that times have changed precisely because we have come to understand, in a more demanding, rigorous way, the principle that bars discriminations based on race.
To put the matter another way, it is possible for jurists and legislators in our own day to find, in the principles behind the Fourteenth Amendment, an understanding that was not shared by the men who had enacted the Amendment. And yet, that reading of the Fourteenth Amendment would be quite plausible--quite in accordance with the deep principles contained in the Amendment--and judges and legislators who extracted this implication could not be accused merely of "making up" their own version of the Fourteenth Amendment. But if that understanding has become plausible for us, there should be nothing implausible in the prospect, set forth by Professor Dworkin, of judges drawing out the implications embedded in the very logic of the American Constitution. On the other hand, one could hardly fault Justice Scalia for a certain worldly skepticism. After all, the judges who practiced a jurisprudence of natural rights in the Eighteenth and Nineteenth Centuries understood that their judgments were indeed grounded in "the laws of nature and reason." But where is the discipline that now confines those judges who soar grandly beyond the text, and yet acknowledge no moral truths that could possibly provide a tether for their judgments? Professor Tribe has helped articulate new constitutional rights to privacy and abortion, but he insists at the same time that there are, behind these rights, no moral truths that make them truly "rightful." In place of truths, Professor Tribe can offer merely convictions "powerfully held."[26]
But the obvious retort has been that if these judgments are traceable in the end to no truths, there is no reason why we should be ruled by the convictions "powerfully held" by judges, rather than by the sentiments, firmly held by the people who are ruled by the judges. And yet, even if the judges had detached themselves from the relativism of Professor Tribe--even if they found the anchor of their jural reasoning in moral truths--there is still something that must be said on the side of Justice Scalia, and the occasion for saying it has been provided by Hawaii. There, the courts have been arranging the unsolicited gift of gay marriage. In two separate phases of litigation, the courts have been preparing to extract this novelty in the law from Hawaii's version of the Equal Rights Amendment (ERA).[27] That Amendment barred discriminations based on sex or gender, and the argument played out in this way: The State issues a license of marriage only to a couple composed of a man and a woman. But it will not issue such a license to two people of the same sex. There is a discrimination made then in the laws, and that difference turns entirely on the gender, or sex, of the people composing the couple.
On its own terms, this argument may be plausible, unless there are compelling reasons for connecting marriage to the "N"-word [nature]--the inescapable fact that it requires two persons, not more than two and not less, a man and a woman, to beget a child. Not all loves require marriage for their completion, but marriage does have a distinct rationale as a framework of lawfulness to envelop the begetting and nurturing of children. The purpose of marriage is connected then to the purpose that is marked, in our natures, by the very presence of gender.[28] "Male and female created He them."[29] If the enterprise of jurisprudence could be detached, on this question, from "nature" and the natural sense of a marriage, then the decision churned out by the judges in Hawaii might be an arguable rendering in the current state of the American law. But one flaw in this construction is that this "implication" of the ERA is regarded as bizarre by the people of Hawaii. Even in a State legendary for its tolerance, the surveys reveal that more than seventy percent of the public remain quite opposed to the notion of "gay' marriage."[30] It appears now that this opposition will finally be felt in the laws, or even in the amending of the Hawaiian Constitution. But until that amendment is voted on in November, we are faced with a neat problem in the debate between Justice Scalia and his adversaries. The question may be posed in this way:
The people of Hawaii voted, in an act of sovereign judgment, to amend their constitution and install an Equal Rights Amendment. 'the judges of Hawaii, armed with their juridical science, now find in that Amendment an implication that had not been noticed or advertised when the Amendment had been passed. It would appear that the people who voted for the Amendment never had any reason to suspect that they were voting also to install "same-sex marriage" as part of their fundamental law. Still, the judges advise the public that these implications are indeed contained in the principle that the public had placed in the constitution, and those implications are there quite regardless of whether the public happens to find them congenial.
Fair enough, on both sides: the judges are doing their jobs according to the requirements they find in their profession, and the people, for their part, are now exerting their influence to change the law. But as it was remarked in one of the briefs submitted to the Supreme Court of Hawaii, the judges in the State had taken it upon themselves to impose a judgment that "transforms the oldest institution in organized society in a manner that no civilization since the dawn of recorded history has accepted."[31] The judges were willing to order these changes, in the very matrix of the law, on the strength of a constitutional amendment that never mentioned gay marriage. The public that voted for the amendment never had any inkling that it was voting to establish gay marriage, and it is evident even to the dimmest onlooker that the amendment never would have passed if the public: had any reason to suspect that it was voting for gay marriage. In the presence of these points, I suppose that a judge might be determined nevertheless to "expound" the law with a respect for its own integrity and let other people worry about the fallout. But a willingness to persist marks a willingness on the part of judges to use their leverage, in effect, against the people who form the political community of Hawaii. There must be a willingness to impose on the people the burdens of summoning extraordinary majorities and jumping through a series of legal hoops, simply for the sake of preventing judges from imposing on them an arrangement they find deeply repugnant, deeply at odds with the moral grounds of the law. There must be in all of this a quotient of chutzpah that should make even the most confident judge pause and reflect. He might well consider at that moment whether a sense of propriety in a democracy should induce him to hold back. Is there not at least that lingering respect for a democratic regime that would induce a judge to leave, to the people themselves, the fight to deliberate in public and reach their own judgment on a matter that runs to the very roots of the law in family, marriage, and nature?
But an appeal of this kind to prudence may itself be a tacit admission that there is something tenable in the persuasions on either side, and that the problem can yield only to a sense of moderation. And yet, in the interplay between Justice Scalia and his critics, there is a curious omission of that moderating device in the Constitution itself that was applied in the most compelling way by Lincoln. Judges might indeed be free to expound the law in the style of Professor Dworkin, but that prospect may seem far less threatening if we understand that any extravagant decision by the courts could readily be limited or confined by the political branches. Presidents Jefferson, Jackson, and Lincoln reminded us that presidents and members of Congress bear their own, necessary responsibility to interpret the Constitution, and they may confine or limit the power of the courts through the simple expedient of confining the judgments of the courts to the parties in litigation. "We do not propose," said Lincoln, "that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free."[32] But Lincoln and his party would
oppose that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.[33]
Lincoln would respect the judgment of the Court as it settled the case of the litigants. But the broader principle articulated in the case he would not be obliged to accept until he was persuaded of its rightness. And with that understanding, the Lincoln Administration proceeded to reverse decisions taken in the Buchanan Administration, as different parts of the executive branch showed a willingness to apply the principle of the Dred Scott case even to circumstances quite remote from the situation of former slaves litigating over their freedom.[34] In my own reckoning, I cannot see how Lincoln could possibly have been wrong, and if Lincoln's understanding remains immanently legitimate--and perfectly shaped to the American Constitution--then it gives rise to this possibility: A conservative presidential administration could make it clear that it accepts the disposition of the case in Roe v. Wade, but that it will not adopt the principle articulated in that case in the decisions that come under the hand of the executive. That reach of the executive may be far wider than we suppose, even on the matter of abortion. It may encompass, for example, the question of whether the National Institutes of Health would be free to use in their research and therapies the tissue drawn from fetuses who have been killed in elective abortions. The executive may also have to determine whether abortion should be regarded as a surgery fit to be performed under the authority of the United States in the diplomatic and military outposts abroad.
A turn of that kind might be quite startling in our current politics, and yet it would not be in the least novel, and it would require no changes in the Constitution. That Professors Dworkin and Tribe are not drawn to this solution can hardly be a surprise. But the curious point is that even conservative jurists such as Justice Scalia and Judge Bork have not been drawn to that modulated scheme, taught and practiced by Lincoln and other presidents and judges both before and since. Judge Bork has flown instead to a plan of having decisions by the Supreme Court overturned by the vote of a majority in both houses of Congress.[35] But a plan of that kind is bound to be seen as radical and threatening, and one must wonder why even conservative jurists would rather leap to a measure so unlikely to be enacted or used, rather than a far more modest measure that requires not the least change in the Constitution, and promises to yield a far more dramatic result. An old saying has it that the silence of a wise man is always instructive. In this situation, the notable silence of conservative judges may be a telling sign that even they have accepted a certain preeminence for the judges in fixing the meaning of the Constitution without the interference of the political branches.
What could be said, however, on behalf of Justice Scalia is that the "interference" of the political branches is already incorporated in his understanding of jurisprudence and the vocation of judging. When judges work under a discipline of restraint, they leave power in the hands of others. When they show the gravest reluctance to remold the meaning of the Constitution, they manifest their willingness to be governed by the design and understanding of the Founders. At the same time, they would preserve for the people themselves the main authority to decide just when that design will be amended. And when the judges show a certain fastidious concern to stay close to the statute as it was written, they show a willingness to be guided by the legislators who drafted and enacted the law.
A judge who constitutes himself in this way may not cultivate a reputation for inventiveness or originality, but he will be positioned to see several "home truths" quite clearly. For one thing, he will be utterly clear, along with Justice Scalia, that what is enacted is the statute and not the legislative history. In our own time, as Justice Scalia has pointed out, a virtual industry has sprung up to write legislative histories.[36] Speeches may be planted in the congressional record, reports may be spun out by staffs, sounding themes that can be cited later by judges as they are invited, in effect, to remold the statute by choosing the meaning they prefer. But we do not know who has read these reports or been moved by the speeches. We know only the language which the legislators were finally willing to vote upon. Justice Scalia, anchored as he is, can see remarkably past the fashions that have distracted many Washington hands and recognize that legislators legislate only the law. At the same time, he can draw the simple but telling corollary that "[t]he legislative power is the power to make laws, not the power to make legislators. It is nondelegable."[37] It is not within the power of legislators to shift the legislative power to others--to councils of businessmen and unions (as in the days of the New Deal), to staffs, to administrative agencies--in short, to people who bear no direct responsibility to the public. Under those conditions, small clusters of groups may be freer to vote their interests--and impose those interests .on the rest of the community with the binding force of law.[38]
Justice Scalia recalls one lawyer artless enough actually to say, in a brief, that the legislative history of a certain statute was rather murky, and so he would turn instead to consider the statutory language.[39] That state of mind may explain why Justice Scalia can survey the field and find, in the profession, no settled canons for the interpretation of statutes. The application of statutes forms the work of most lawyers, most of their days, and yet it has become clear that lawyers do not take their main bearings these days from the language in the statute. If this situation were suddenly viewed from the outside--from a "comparative" perspective on law--the conventions that have grown familiar to us might be seen more truly as striking. Or to put it another way, they may be seen for what they are.
That perspective was supplied in A Matter of Interpretation by Professor Mary Ann Glendon, who has encompassed in her own work the comparative study of divorce and abortion in Europe.[40] From the angle of the comparativist, Professor Glendon weighs in with the most powerful reinforcement for Justice Scalia: America was supposed to be the land in which the rule of judges would be supplanted by the rule of statutes. Instead of judges wielding vast discretion, inventing the law from case to case, the judges would be guided by statutes, enacted by legislators, elected by the people, and more sensitive then to the range of interests in the community. Yet the study of statutes and their drafting has nearly vanished from the training of lawyers, along with the study of canons of interpretation, just as the study of the Constitution itself, in its text and structure, has receded into the background in the study of constitutional law.[41] In a curious inversion, the new legal ethic, promised in the New Land, has been cultivated more fully in the Old World, or the Continent. There, the tradition has been dominated by the code law, with judges fixed on the reading of statutes.[42] But now, judges on the Continent are trying to flex some new-arts, in expounding the principles that lie behind the code.[43] In the meantime, in America, the professors of law fly from one affectation of "theory" to another, to schemes even more exotic: from Marxism to deconstruction and "literary theory," and then onward to "feminist epistemologies" and "critical race theory." As the professors soar beyond the world that most of us inhabit, they well understand that the purpose of their flight is to detach themselves from those "laws of reason and nature" that provided the anchors of our law in the past. But the practitioners of the new law may not entirely understand that they detach themselves at the same time from the protections that the law used to provide. In her culminating lines, Professor Glendon warns, with Tocqueville, that "[t]yranny ... need not announce itself with guns and trumpets. It may come softly--so softly that we will barely notice when we become one of those countries where there are no citizens but only subjects."[44] And as Justice Scalia warns now, judges swollen with the most benign motives, animated by the most tender sentiments, determined to open vast new regions of rights, may nevertheless have acted, unwittingly, to convert a nation of citizens into a settlement of subjects. In order to create new, unpopular rights in the days of the Warren Court, the judges had to detach their decisions from the text of the Constitution and from the discipline of fixed jural truths. Indeed, the judges had to take it as part of their mission to detach the public itself from any lingering reverence for the truths that used to stand behind the Constitution and confine the power of judges. Justice Scalia now registers his own lament for a public that may be detached from these ancient, wholesome prejudices. That may be a public less suited now in temperament, less disposed now in conviction, to accept the moral restraints of a Constitution. After all, the judges have fashioned a new law, in the image of an "autonomous" man, who trumps, with his autonomy, the claims of traditional morality. A public tutored in these new maxims may will that same autonomy for itself; it may be less inclined now to indulge a naive reverence for a Constitution that would cast up barriers to its wants. Justice Brennan and his colleagues in the 1960s and 1970s were no doubt bent on improving the republic, but the project may have run quite beyond them, until it changed the regime itself. And along the way, the judges managed to cultivate a people far less willing to abide the constraints of lawfulness.
1. See THE FEDERALIST NO. 78, at 468 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
2. Id.
3. THE FEDERALIST NO. 81, supra note 1, at 484.
4. Id.
5. Id.
6. 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *67.
7. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3-47 (Amy Gutmann ed., 1997) [hereinafter A MATTER OF INTERPRETATION].
8. Id. at 25.
9. Id. at 26.
10. Id. at 17-18.
11. See ARKES, GEORGE SUTHERLAND, supra note *, atvi.
12. Laurence H. Tribe, Comment in A MATTER OF INTERPRETATION, supra note 7, at 65, 83.
13. Id.
14. Ronald M. Dworkin, Comment, in A MATTER OF INTERPRETATION, supra note 7, at 115, 127.
15. Id.
16. See Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that there exists no constitutionally-protected right to engage in sodomy).
17. 410 U.S. 113 (1973) (holding that there exists a constitutionally-protected right to have an abortion). Regarding the number of abortions that have occurred in the United States since Roe v. Wade, see ALAN GUTTMACHER INSTITUTE, FACTS IN BRIEF: INDUCED ABORTION 1 (1997) (stating that over 31 million abortions occurred in the United States between 1973 and 1994); NATIONAL RIGHT TO LIFE EDUCATIONAL TRUST FUND, ABORTION IN THE UNITED STATES: STATISTICS & TRENDS (1997) (estimating 35.3 million abortions in the United States between 1973 and 1996).
18. See Lee v. Weisman, 505 U.S. 577 (1992) (holding that the First Amendment prohibits public schools from including clergy who offer prayers as an official part of graduation ceremonies).
19. See United States v. Eichman, 496 U.S. 310 (1990) (striking down an anti-flag burning statute on First Amendment grounds); Texas v. Johnson, 491 U.S. 397 (1989) (holding flag burning is "speech" protected by the First Amendment); R.A.V.v. City of St. Paul, 505 U.S. 377 (1992) (holding unconstitutional on First Amendment grounds a city ordinance prohibiting the display of symbols, including swastikas and burning crosses, that one knows or reasonably should know arouse anger, alarm, or resentment on the basis of race, color, creed, religion, or gender).
20. Tribe, supra note 12, at 81.
21. That must also stand as the telling sign of a certain obtuseness in Chief Justice Warren when he remarked, at the beginning of Loving v. Virginia that "[t]his case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment." 388 U.S. 1, 2 (1967). The Court had never addressed discriminations based on race? Or restrictions on marriage? The observation, offered by Chief Justice Warren, becomes comprehensible only with the recognition that in the host of cases dealing with racial discrimination--and including, most famously, Brown v. Board of Education, 347 U.S. 483 (1954)--the Court never did manage to explain what was wrong "in principle" with segregation, or with discriminations based on race. On this matter, see HADLEY ARKES, THE PHILOSOPHER IN THE CITY 223-58 (1981) [hereinafter ARKES, PHILOSOPHER].
22. One of my own students expressed puzzlement over this point: Justice Scalia had found no such lurking principle of moral relativism in the First Amendment when it came to protecting people who engaged in nude dancing or lewd entertainments. In Barnes v. Glen Theatre, he thought that the legislature could properly "enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified." 501 U.S. 560, 575 (1991) (Scalia, J., concurring). In that respect, there did not seem to be much question for him that the legislature could act, not merely for the sake of dealing with the "secondary effects" of lewdness, but for the sake simply of conveying a moral understanding--that certain acts were "contra bonos mores," or immoral. Id. But in that event, my student was moved to wonder just why a local legislature might not find something comparably "immoral" in an attempt to terrorize black people through the burning of crosses, a gesture that was long understood in our common usage as a gesture of assault and threat. Under the traditional doctrine of 'fighting words," it had been possible, after all, to recognize certain forms of expression that constituted assaults, and it was possible to restrain those modes of expression without interfering in any way with the freedom of people to make substantive arguments. For an extended treatment of this problem, see ARKES, PHILOSOPHER, supra note 21, at 23-91.
23. 403 U.S. 15, 25 (1971).
24. See, e.g., Skokie v. Collins, 439 U.S. 916 (1978) (denying certiorari and allowing a Nazi parade to march in the village of Skokie, Illinois); R.A.V., supra note 19; ARKES, PHILOSOPHER, supra note 21, at 63-74.
25. See CONG. GLOBE, 39th Cong., 1st Sess. 505 (exchange among Senators Trumbull, Fessenden, and Johnson during the debates over the Civil Rights Act of 1866); id. at 600 (exchange between Senators Trumbull and Davis). This early understanding was also incorporated in some early cases testing the laws on miscegenation under the Fourteenth Amendment. See In re Hobbes, 12 Fed. Cas. 262 (C.C.N.D. Ga. 1981); State v. Gibson, 36 Ind. 389 (1871); State v. Hariston and Williams, 63 N.C. 451 (1869); Lonas v. State, 50 Tenn. 287 (1871).
It is worth noting that we would not have discovered, in our own time, an understanding of the principle that was not already grasped in the Congress that passed the Fourteenth Amendment. Indeed, this more exact implication of the principle in the Fourteenth Amendment was drawn out by legislators who had sought to resist a sweeping principle of racial equality in the laws. And so Maryland's Senator Johnson pressed this argument in the face of Senators Trumbull and Fessenden: "Now there is a State law which says to the black man, 'You shall not marry a white woman.' and so to the white man, 'You may.'" Id. at 505. It seemed to Johnson that this arrangement ran afoul of a new law that barred discriminations based on color. Senators Trumbull and Fessenden appeared not to credit that argument. Whether they were sincere or not, it could hardly be argued that our own generation discovered a principle that was not evident to legislators even at the time.
* 26. See LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 5, 6, 8 (1985).
* 27. See Baehr v. Lewin, 852 P.2d 44 (1993) (remanding case questioning constitutionality of prohibition of same-sex marriage with instructions to decide using strict scrutiny standard); Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996), appeal docketed, No. 20371 (Haw. 1997) (holding that a prohibition on same-sex marriage fails strict scrutiny under the Equal Rights Amendment to the Hawaii Constitution).
* 28. For the way this ancient understanding had to come into play recently in the argument for the Defense of Marriage Act, see Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 87 (1996) (statement of Hadley Arkes); Hadley Arkes, Odd Couples, NAT'L REV., Aug. 12, 1996, at 48.
* 29. Genesis 5:2 (King James).
* 30. See David Orgon Coolidge, Same-Sex Marriage: As Hawaii Goes. ... FIRST THINGS, Apr. 1997, at 33; Hadley Arkes, Gay Marriage in 1996?, AM. ENTERPRISE, May/June 1995, at 57; Hadley Arkes, Questions of Principle, Not Predictions: A Reply to [Stephen] Macedo, 84 GEO. L.J. 321 (1995).
* 31. Brief for Defendant-Appellant at 1, Baehr v. Miike, appeal docketed, No. 20371 (Haw. Apr. 27, 1997).
* 32. Abraham Lincoln, Sixth Debate with Stephen A. Douglas, at Quincy, Illinois (Oct. 13, 1858), in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 255 (Roy P. Basler ed., 1953).
* 33. Id.
* 34. For a discussion of these cases and Lincoln's understanding of them, see HADLEY ARKES, FIRST THINGS 416-22 (1986).
* 35. See ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 117 (1996).
* 36. See SCALIA, supra note 7, at 34 ("One of the routine tasks of the Washington lawyer-lobbyist is to draft language that sympathetic legislators can recite in a pre-written 'floor debate'--or, even better, insert into a committee report.").
* 37. Id. at 35.
* 38. For a fuller statement of this problem, arising from the litigation and controversies of the New Deal, see ARKES, GEORGE SUTHERLAND, supra note *, at 103-10, 159-75.
* 39. See SCALlA, supra note 7, at 31.
* 40. See generally MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW (1987).
* 41. See Mary Ann Glendon, Comment, in A MATTER OF INTERPRETATION, supra note 7, at 95, 96-97, 111.
* 42. See id. at 97.
* 43. See id. at 102-03.
* 44. Id. at 113-14.
~~~~~~~~
By HADLEY ARKES
HADLEY ARKES, Hadley Arkes is the Edward Ney Professor of Jurisprudence at Amherst College. His most recent book is THE RETURN OF GEORGE SUTHERLAND (1994) [hereinafter ARKES, GEORGE SUTHERLAND].
Review Essay on ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997).
Harvard Journal of Law and Public Policy (Fall 1997)
In The Federalist No. 78, Alexander Hamilton noted the rule that guided the courts in dealing with statutes in conflict: The statute passed later is presumed to have superseded the law enacted earlier.[1] The same rule does not come into play, of course, with the Constitution, for a Constitution framed earlier would have to be given a logical precedence over the statute that came later. Were that not the case, the Constitution would lose its function, or its logic, as a restraint on the legislative power. But these rules for the interpretation of statutes are nowhere mentioned in the Constitution. As Hamilton remarked, they were "not derived from any positive law, but from the nature and reason of the thing."[2] Somewhat later, in The Federalist No. 81, he went on to point out that the notion of "parliamentary supremacy" in Britain had never been taken to mean that the legislature was empowered to overturn a verdict rendered in a court.[3] The understanding seemed to be settled that the legislature might act instead to "prescribe a new rule for future cases."[4] But here, too, this understanding was not expressed anywhere in the positive law of the Constitution. And so what made it valid or authoritative as an understanding bound up with the Constitution itself?. As Hamilton explained, this understanding was simply anchored in "the general principles of law and reason."[5]
Blackstone had written in a similar way about "the law of nature and reason," and when jurists of the founding generation spoke in these accents, it seemed to be understood that they were pointing beyond the positive law to the principles of natural justice.[6] That kind of pointing has not exactly been part of the repertoire of conservative jurists in our own day. One even has the impression at times that these passages in Hamilton must have been expunged from the edition of the Federalist papers read by conservative judges. Some of the judges have proudly claimed their names as "positivists," or they have made their point, in the style of Justice Scalia, by engaging in a certain good-natured scoffing at natural law. But now, in his Tanner Lectures at Princeton,[7] Justice Scalia seems to have induced some confusion among his liberal adversaries by coming at the problem of our law from the angle of Hamilton. For he too finds himself writing here of rules of construction to guide the judge: rules that are found nowhere in the Constitution, but which clearly do not spring merely from the whimsy of the judges. Justice Scalia does not invoke "the laws of nature and reason," but it is evident that he regards these rules as, well, reasonable. We might even say, irresistibly reasonable. One of these rules, in fact, had been cited by Hamilton: expressio unius est exclusio alterius. The expression of one marks the exclusion of the other. "If you see a sign that says children under twelve may enter free, you should have no need to ask whether your thirteen-year-old must pay."[8] Or: noscitur a socis--that something is known by its companions or associates. It is known, that is, in context. As Justice Scalia explains, "If you tell me, 'I took the boat out on the bay,' I understand 'bay' to mean [something different from what it meants in the sentence] 'I put the saddle on the bay."[9]
Not all of these principles spring from the same logical core. Something more would be needed to explain that rule of construction, held firmly by judges in the 1920s and 1930s, that "statutes in derogation of the common law are to be narrowly construed." That rule of construction grew out of a commitment to a certain kind of regime, a regime in which judges wove a vast tapestry of law by expounding the principles of equity and natural justice. The rule of construction reflected an emphatic preference for honoring the kind of law shaped in that way, and leaving it as little disturbed as possible. Justice Scalia is far more skeptical about that law and its premises, but he takes that figure of the common-law judge as the irony that supplies his path of entry into these lectures: his principal lecture in this volume bears the title "Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws." The study of the law begins in America with the classic cases of the common law--the old English cases, crafted by judges when the law was spare. Those cases display the stringent clarity and wit of the judges, applying the "principles of law" in a series of cases, often before the advent of statutes. We may recall, for example, that doctrines on libel and slander were carved out by the judges before a legislature would codify that law in statutes. The mystique of the law may be imparted then to students in this way, in the example of the common-law judge, concentrating his genius within the field marked off by the maxims of the law, and annexing to his judgment the authority to command.
The majesty that attaches to the judges carries over from those fabled days of the common law; and yet we are now in the age of statutes. With the American Constitution, the legislature was supposed to take itself out of the business of acting in the style of a court, pronouncing judgments on parties in cases. And that shift has altered also the vocation of judging. As Justice Scalia points out, most of what the federal judges do is interpret the meaning of statutes and regulations and the text of the Constitution. But that enterprise is undertaken now in a profession that no longer has the same confidence that there are fixed rules of construction, anchored in the enduring principles of law. Justice Scalia has made his career as a legal skeptic, but plainly he wants to summon now to his cause the convictions that once imparted to the Constitution and the laws the sense of a fixed meaning, which would not alter with the political seasons. And a Constitution standing in that way, with its own integrity, would not be so open to the manipulation of judges. The liberals celebrate a "living Constitution," kept current with the times by judges, who are apparently more in tune with the times than ordinary politicians. For Justice Scalia, the "living Constitution" is a stylish title that covers a rather unlovely state of affairs: namely, a shift of power to the hands of judges, who become free then to project into the Constitution the ethic, or the peculiar politics, of the class that now dominates in the law schools and the universities.
[I]t is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. ... It is the law that governs, not the intent of the lawgiver. ... A government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us.
... When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean. ...[10]
And yet, the understandings that once imparted more fixity to the Constitution, and discipline to the judges, could not be detached from the lingering attachment to natural law. Justice George Sutherland, as a youngster, used to copy into his commonplace book long passages from Burlamaqui on the natural law." But even where justices were not exactly versed in the bibliography, there were still certain convictions, settled among the judges, that there really were some anchoring truths in this profession they were practicing. One minor problem for Justice Scalia is that he cannot restore the law as it was without drawing again on that metaphysic still locked away in his soul, even though he cannot quite bring himself to pronounce its name.
On this point he was twitted by some of his critics, who were invited to fill out this volume by appending their commentaries to his lectures. In the conditions that prevail now in the American academy, the presence of a single conservative on the Faculty may be quite a disturbing event, which must be modulated through a firm policy of assuring that there will not be a second. In the case of Justice Scalia, it may be altogether too unsettling: for an academic place such as Princeton to give a prominent platform to a conservative scholar and jurist of his caliber, who annexes, to the force of his arguments, a certain personal dash and comes bearing, in addition, the authority of high Office. As the line goes, serious measures must be taken. Careful provision must be made for "hearing the other side"--in this instance, by offsetting Justice Scalia with a panel of worthies, of notable professors in the law, with a membership strongly tilted, of course, to the side of his adversaries. Princeton, as ever, would not stint, and so the panel of commentators gathered around Justice Scalia included: Ronald Dworkin, Laurence Tribe, Gordon Wood, and Mary Ann Glendon. The main gesture toward "balance" within the panel came with Professor Glendon, who managed to reinforce Justice Scalia through some angles that proved both novel and compelling.
Professor Dworkin would strike a posture of civility on a high plane--from which he could then condescend to instruct Justice Scalia in his own argument and offer some useful thoughts for his better ordering. With a comparable tone, civil on the surface, disparaging beneath, Professor Tribe could engage in some decorous twitting, though it must be said that this was twitting at a high level, touching points at the center of the argument. In that vein, Professor Tribe noted that Justice Scalia evidently follows certain rules as to when he would apply, or relax, the doctrine of stare decisis. Professor Tribe could properly ask then, "what is the origin of those rules?"[12] They were not in the Constitution, and so "they certainly are not derived from the 'original meaning' of the text of the Constitution."[13] Tribe was inviting Justice Scalia to recognize that he was standing on some ground outside the positive law, and to consider just where he might be placing himself in the universe of writers who found the anchor of their positions in one school or another of natural justice.
Anyone who has spent five minutes with Justice Scalia knows that the vocation of the law is absorbed in his character, and so he can hardly help himself: He cannot speak deeply and searchingly of the law without speaking the language of natural law, and the recognition hardly comes as news to him. But it does seem to unsettle his critics, who fancy, in their bafflement, that they have spotted the threads of contradiction running through his lectures. In point of fact, they have merely failed to grasp the design of his argument. Or as Jane Austen had Mr. Bennet say in Pride and Prejudice, they have not had the pleasure of understanding him. And so, Professor Dworkin arranged his critique of Justice Scalia to culminate in the conclusion--as portentous as it was understated--that there was, finally, an "inconsistency of [Justice Scalia's] lectures as a whole."[14]
[Justice Scalia's] most basic argument for textualism is drawn from majoritarian theory: he says that it is undemocratic when a statute is interpreted other than in accordance with the public text that was before legislators when they voted and is available to everyone in the community afterwards. His most basic argument for rejecting textualism in constitutional interpretation, on the other hand, reflects his reservations about majority rule.[15]
Professor Dworkin was evidently satisfied that he had distilled, in this manner, the fallacies running through Justice Scalia's lectures. But, to borrow a line from Henry James, Professor Dworkin might merely have made himself the victim of perplexities :from which a single spark of direct perception might have spared him. Justice Scalia's teaching has its turns and shadings, and yet there should not be much mystery about the main lines of that teaching. One version may be condensed in this way: The United States did not offer a novelty to the world in 1787 because it brought forth a novel form of oligarchy, managed by nine men, unelected, wearing robes. The new order for the ages, proclaimed in America, was the right of a people to govern itself. The decision in 1787 was for popular government, or government by consent, and it was not thought to be the least inconsistent with that scheme that a free people would place itself under moral restraint. As Plato taught, a man with self-control was not a weaker man, and the rule of the people did not become a weaker version of self-rule when the people came to acknowledge certain powers they had no right to claim, certain ends; they had no right to pursue, even in the name of their right to govern themselves.
As Justice Scalia understands the matter, that was precisely the purpose or function of the Constitution: A free people legislated for itself certain powers, and certain ends, that would be placed outside the reach of ordinary politics and ordinary majorities. To that extent, his notion of constitutionalism does contain a recognition of certain things placed beyond the rule of the majority. But that was of a striking exception that only brought out, even more dramatically, the character of that regime in which it stood as an exception. The decision in 1787 was for democratic government: a regime in which the people, or their representatives, would deliberate in public on the gravest questions, the questions of moral consequence that stood at the center of their public lives.
That sense of the matter stands in sharp contrast with the understanding expressed to me by a seasoned lawyer in Washington a few days after the Supreme Court, in 1986, refused to strike down the laws on sodomy in the separate States.[16] With some astonishment he asked, "Do you want politicians making decisions on matters of that kind?" In the estimate of this veteran of the law, decisions of moral consequence reposed more properly in the hands of judges---of people who had been trained in the best law schools, such as the school from which he himself had sprung. And implicit in this perspective was the most damning critique that one could offer of democratic government: that as people are elevated to positions of authority through the process of elections, they become, in that measure, impaired in addressing the most serious questions of justice.
In this contrast we find exactly what is at stake for Justice Scalia in the ongoing argument over our jurisprudence. To the extent that the Constitution can be altered in its critical passages--or even inverted in its meaning--through the inventiveness of the judges, the Constitution ceases to function as a restraint on political power. Even more plainly, it ceases to function as a restraint on the power of the judges themselves. And to the extent that the judges embark on a grand aesthetic project, a project involving nothing less than the remolding of the constitutional order, Justice Scalia has the most profound sense that they are changing the regime itself. For Dworkin, that prospect is overborne by the grand accomplishment of the judges over the past forty years in expanding the domain of "rights." But this cheery assessment becomes far easier to deliver if one happens also to screen from one's view of the landscape the casualties that have been produced by liberal jurisprudence. If there is ample reason, then, to think that human lives are being destroyed in abortions, a record of thirty million killings over the past twenty-four years hardly stands as a monument to the "rights" created under Roe v. Wade.[17] That point has not made an impression on Dworkin, but the unborn children killed in these surgeries evidently suffered the most notable contraction of their "rights."
For Justice Scalia, it seems plain that if judges modify the Second Amendment to bring it into consonance with the times---or with the sense of the times prevailing in liberal circles--there would be a serious erosion of the right of the people to bear arms. But then, of course, every articulation of a new "right" on the part of the courts for one class of litigants may be seen as a contraction of rights on the part of some other people. And so, was it too much to ask of Deborah Weisman that she merely sit in silent respect as others offered prayers of thanks at her commencement from high school? If Weisman had a "right" not to be burdened in that way, then she had a right also to deprive other students and families of the right to offer a prayer of gratitude in circumstances in which they thought themselves obliged to express that gratitude in public.
Professors Tribe and Dworkin seem at least aware that Justice Scalia is no enemy of rights. But, ever-helpful, ever-professorial, they are ever-willing to instruct Justice Scalia in the implications of his own argument, and to find, in his defense of rights, a confirmation of their own doctrines. After all, Justice Scalia voted to protect, under the First Amendment, the freedom to burn the American flag or to burn crosses outside the homes of black families.[19] Is it not clear then, asks Professor Tribe, that Justice Scalia is not "freezing a fixed set of rights into the constitutional ice"; that he is willing to bring under the First Amendment liberties that would not have been protected in the Eighteenth Century, or for that matter in the 1940s?[20] Is that not in fact an exercise of adapting the provisions of the Constitution to the circumstances of our own day? Has Justice Scalia not provided us then with living evidence of the "living Constitution"?
And yet, what seems to have slipped, quite curiously, from Professor Tribe are the properties of a "principle." Once we grasp the principle by which the ball rolls down the inclined plane, we understand that the principle is utterly indifferent to the color of the balls and the planes, and whether they are made of aluminum or wood. It is precisely because a principle is abstract that it can be applied, over time, to a limitless number of instances. Once we understand what is wrong in principle with discriminations based on race, we need no new principle to explain the wrongness of barring people, on the basis of race, from their access, say, to swimming pools, tennis courts, xerox machines, or marriage licenses. We would understand that these are all but instances in which the same principle is being manifested.[21] If we understand the principles behind the protection of "speech," then we would understand how those principles may be engaged in circumstances quite distant in time and quite varied in their technology, from quills to computers. In the case of the burning crosses and the burning flags, I happen to think myself that Justice Scalia made a grievous mistake, that he read into the First Amendment a moral relativism that forms no necessary part of the protections of speech.[22] But whether we happen to coincide with his judgments there or not, it should be clear that Justice Scalia did not need any novel principle in order to cover, with the First Amendment, the "expression" engaged in burning draft cards or burning crosses. There was no need for him to "update" the First Amendment. As Justice Scalia understands it, the principle that protects speech under the Constitution means now what it has ever meant, and the task of the judge now, as ever, is to apply the principles; of the Constitution to the novel cases that arise in our daily lives.
But then is it not also possible that we may draw out of those principles implications that have heretofore gone unforeseen? Indeed, the moral life itself may involve an ongoing effort to draw out of our principles--to bring to a new level of awareness--implications that had previously gone unnoticed. In 1971, in Cohen v. California, Justice Harlan announced that "one man's vulgarity [wa]s another's lyric," and with that move, he grafted onto the First Amendment a new relativism." With those new premises, it became harder for the law to justify restrictions based on the "content" of speech, and with the accumulation of cases, it became harder for the law to restrict the marching of Nazis and the burning of crosses.[24] Justice Scalia has clearly made himself part: of that project, emanating from Cohen v. California, for he has joined his colleagues now in finding, in the First Amendment, rights that were not there as recently as thirty years ago. But Justice Scalia himself has made it clear that he finds deeply uncongenial the results of his own decisions in protecting the burners of crosses and flags. If he has extracted these implications from the First Amendment, it is evidently because he finds them contained in the logic of that Amendment. And his own artful efforts, in summoning the reasons and making his case, should be enough to ward off any charges that his judgments in this field have been "arbitrary."
But in that event, why would he not be open to the plea, offered by Professors Tribe and Dworkin, that their own allies on the bench deserve quite the same presumption in their favor: why should we not begin at least by crediting their earnest claim that they too are seeking to extract from the Constitution the implications that have been there all along? Why would we be warranted in assuming that they are "making up the Constitution," any more than we would be warranted in making that assumption about Justice Scalia? On this matter, there is probably no more dramatic case in point than the problem of the Fourteenth Amendment and miscegenation. Senator Lyman Trumbull, one of the managers of the Amendment, had assured his colleagues that there was nothing in the Amendment that would overturn the laws on miscegenation in the separate States. As Trumbull reasoned, those statutes would not violate the "Equal Protection of the Laws" because they bore equally on blacks and whites: they barred whites from marrying blacks, as they barrett blacks from marrying whites.[25] We would not take that view of the matter today, and not merely because "times have changed." It might be as apt to say that times have changed precisely because we have come to understand, in a more demanding, rigorous way, the principle that bars discriminations based on race.
To put the matter another way, it is possible for jurists and legislators in our own day to find, in the principles behind the Fourteenth Amendment, an understanding that was not shared by the men who had enacted the Amendment. And yet, that reading of the Fourteenth Amendment would be quite plausible--quite in accordance with the deep principles contained in the Amendment--and judges and legislators who extracted this implication could not be accused merely of "making up" their own version of the Fourteenth Amendment. But if that understanding has become plausible for us, there should be nothing implausible in the prospect, set forth by Professor Dworkin, of judges drawing out the implications embedded in the very logic of the American Constitution. On the other hand, one could hardly fault Justice Scalia for a certain worldly skepticism. After all, the judges who practiced a jurisprudence of natural rights in the Eighteenth and Nineteenth Centuries understood that their judgments were indeed grounded in "the laws of nature and reason." But where is the discipline that now confines those judges who soar grandly beyond the text, and yet acknowledge no moral truths that could possibly provide a tether for their judgments? Professor Tribe has helped articulate new constitutional rights to privacy and abortion, but he insists at the same time that there are, behind these rights, no moral truths that make them truly "rightful." In place of truths, Professor Tribe can offer merely convictions "powerfully held."[26]
But the obvious retort has been that if these judgments are traceable in the end to no truths, there is no reason why we should be ruled by the convictions "powerfully held" by judges, rather than by the sentiments, firmly held by the people who are ruled by the judges. And yet, even if the judges had detached themselves from the relativism of Professor Tribe--even if they found the anchor of their jural reasoning in moral truths--there is still something that must be said on the side of Justice Scalia, and the occasion for saying it has been provided by Hawaii. There, the courts have been arranging the unsolicited gift of gay marriage. In two separate phases of litigation, the courts have been preparing to extract this novelty in the law from Hawaii's version of the Equal Rights Amendment (ERA).[27] That Amendment barred discriminations based on sex or gender, and the argument played out in this way: The State issues a license of marriage only to a couple composed of a man and a woman. But it will not issue such a license to two people of the same sex. There is a discrimination made then in the laws, and that difference turns entirely on the gender, or sex, of the people composing the couple.
On its own terms, this argument may be plausible, unless there are compelling reasons for connecting marriage to the "N"-word [nature]--the inescapable fact that it requires two persons, not more than two and not less, a man and a woman, to beget a child. Not all loves require marriage for their completion, but marriage does have a distinct rationale as a framework of lawfulness to envelop the begetting and nurturing of children. The purpose of marriage is connected then to the purpose that is marked, in our natures, by the very presence of gender.[28] "Male and female created He them."[29] If the enterprise of jurisprudence could be detached, on this question, from "nature" and the natural sense of a marriage, then the decision churned out by the judges in Hawaii might be an arguable rendering in the current state of the American law. But one flaw in this construction is that this "implication" of the ERA is regarded as bizarre by the people of Hawaii. Even in a State legendary for its tolerance, the surveys reveal that more than seventy percent of the public remain quite opposed to the notion of "gay' marriage."[30] It appears now that this opposition will finally be felt in the laws, or even in the amending of the Hawaiian Constitution. But until that amendment is voted on in November, we are faced with a neat problem in the debate between Justice Scalia and his adversaries. The question may be posed in this way:
The people of Hawaii voted, in an act of sovereign judgment, to amend their constitution and install an Equal Rights Amendment. 'the judges of Hawaii, armed with their juridical science, now find in that Amendment an implication that had not been noticed or advertised when the Amendment had been passed. It would appear that the people who voted for the Amendment never had any reason to suspect that they were voting also to install "same-sex marriage" as part of their fundamental law. Still, the judges advise the public that these implications are indeed contained in the principle that the public had placed in the constitution, and those implications are there quite regardless of whether the public happens to find them congenial.
Fair enough, on both sides: the judges are doing their jobs according to the requirements they find in their profession, and the people, for their part, are now exerting their influence to change the law. But as it was remarked in one of the briefs submitted to the Supreme Court of Hawaii, the judges in the State had taken it upon themselves to impose a judgment that "transforms the oldest institution in organized society in a manner that no civilization since the dawn of recorded history has accepted."[31] The judges were willing to order these changes, in the very matrix of the law, on the strength of a constitutional amendment that never mentioned gay marriage. The public that voted for the amendment never had any inkling that it was voting to establish gay marriage, and it is evident even to the dimmest onlooker that the amendment never would have passed if the public: had any reason to suspect that it was voting for gay marriage. In the presence of these points, I suppose that a judge might be determined nevertheless to "expound" the law with a respect for its own integrity and let other people worry about the fallout. But a willingness to persist marks a willingness on the part of judges to use their leverage, in effect, against the people who form the political community of Hawaii. There must be a willingness to impose on the people the burdens of summoning extraordinary majorities and jumping through a series of legal hoops, simply for the sake of preventing judges from imposing on them an arrangement they find deeply repugnant, deeply at odds with the moral grounds of the law. There must be in all of this a quotient of chutzpah that should make even the most confident judge pause and reflect. He might well consider at that moment whether a sense of propriety in a democracy should induce him to hold back. Is there not at least that lingering respect for a democratic regime that would induce a judge to leave, to the people themselves, the fight to deliberate in public and reach their own judgment on a matter that runs to the very roots of the law in family, marriage, and nature?
But an appeal of this kind to prudence may itself be a tacit admission that there is something tenable in the persuasions on either side, and that the problem can yield only to a sense of moderation. And yet, in the interplay between Justice Scalia and his critics, there is a curious omission of that moderating device in the Constitution itself that was applied in the most compelling way by Lincoln. Judges might indeed be free to expound the law in the style of Professor Dworkin, but that prospect may seem far less threatening if we understand that any extravagant decision by the courts could readily be limited or confined by the political branches. Presidents Jefferson, Jackson, and Lincoln reminded us that presidents and members of Congress bear their own, necessary responsibility to interpret the Constitution, and they may confine or limit the power of the courts through the simple expedient of confining the judgments of the courts to the parties in litigation. "We do not propose," said Lincoln, "that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free."[32] But Lincoln and his party would
oppose that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.[33]
Lincoln would respect the judgment of the Court as it settled the case of the litigants. But the broader principle articulated in the case he would not be obliged to accept until he was persuaded of its rightness. And with that understanding, the Lincoln Administration proceeded to reverse decisions taken in the Buchanan Administration, as different parts of the executive branch showed a willingness to apply the principle of the Dred Scott case even to circumstances quite remote from the situation of former slaves litigating over their freedom.[34] In my own reckoning, I cannot see how Lincoln could possibly have been wrong, and if Lincoln's understanding remains immanently legitimate--and perfectly shaped to the American Constitution--then it gives rise to this possibility: A conservative presidential administration could make it clear that it accepts the disposition of the case in Roe v. Wade, but that it will not adopt the principle articulated in that case in the decisions that come under the hand of the executive. That reach of the executive may be far wider than we suppose, even on the matter of abortion. It may encompass, for example, the question of whether the National Institutes of Health would be free to use in their research and therapies the tissue drawn from fetuses who have been killed in elective abortions. The executive may also have to determine whether abortion should be regarded as a surgery fit to be performed under the authority of the United States in the diplomatic and military outposts abroad.
A turn of that kind might be quite startling in our current politics, and yet it would not be in the least novel, and it would require no changes in the Constitution. That Professors Dworkin and Tribe are not drawn to this solution can hardly be a surprise. But the curious point is that even conservative jurists such as Justice Scalia and Judge Bork have not been drawn to that modulated scheme, taught and practiced by Lincoln and other presidents and judges both before and since. Judge Bork has flown instead to a plan of having decisions by the Supreme Court overturned by the vote of a majority in both houses of Congress.[35] But a plan of that kind is bound to be seen as radical and threatening, and one must wonder why even conservative jurists would rather leap to a measure so unlikely to be enacted or used, rather than a far more modest measure that requires not the least change in the Constitution, and promises to yield a far more dramatic result. An old saying has it that the silence of a wise man is always instructive. In this situation, the notable silence of conservative judges may be a telling sign that even they have accepted a certain preeminence for the judges in fixing the meaning of the Constitution without the interference of the political branches.
What could be said, however, on behalf of Justice Scalia is that the "interference" of the political branches is already incorporated in his understanding of jurisprudence and the vocation of judging. When judges work under a discipline of restraint, they leave power in the hands of others. When they show the gravest reluctance to remold the meaning of the Constitution, they manifest their willingness to be governed by the design and understanding of the Founders. At the same time, they would preserve for the people themselves the main authority to decide just when that design will be amended. And when the judges show a certain fastidious concern to stay close to the statute as it was written, they show a willingness to be guided by the legislators who drafted and enacted the law.
A judge who constitutes himself in this way may not cultivate a reputation for inventiveness or originality, but he will be positioned to see several "home truths" quite clearly. For one thing, he will be utterly clear, along with Justice Scalia, that what is enacted is the statute and not the legislative history. In our own time, as Justice Scalia has pointed out, a virtual industry has sprung up to write legislative histories.[36] Speeches may be planted in the congressional record, reports may be spun out by staffs, sounding themes that can be cited later by judges as they are invited, in effect, to remold the statute by choosing the meaning they prefer. But we do not know who has read these reports or been moved by the speeches. We know only the language which the legislators were finally willing to vote upon. Justice Scalia, anchored as he is, can see remarkably past the fashions that have distracted many Washington hands and recognize that legislators legislate only the law. At the same time, he can draw the simple but telling corollary that "[t]he legislative power is the power to make laws, not the power to make legislators. It is nondelegable."[37] It is not within the power of legislators to shift the legislative power to others--to councils of businessmen and unions (as in the days of the New Deal), to staffs, to administrative agencies--in short, to people who bear no direct responsibility to the public. Under those conditions, small clusters of groups may be freer to vote their interests--and impose those interests .on the rest of the community with the binding force of law.[38]
Justice Scalia recalls one lawyer artless enough actually to say, in a brief, that the legislative history of a certain statute was rather murky, and so he would turn instead to consider the statutory language.[39] That state of mind may explain why Justice Scalia can survey the field and find, in the profession, no settled canons for the interpretation of statutes. The application of statutes forms the work of most lawyers, most of their days, and yet it has become clear that lawyers do not take their main bearings these days from the language in the statute. If this situation were suddenly viewed from the outside--from a "comparative" perspective on law--the conventions that have grown familiar to us might be seen more truly as striking. Or to put it another way, they may be seen for what they are.
That perspective was supplied in A Matter of Interpretation by Professor Mary Ann Glendon, who has encompassed in her own work the comparative study of divorce and abortion in Europe.[40] From the angle of the comparativist, Professor Glendon weighs in with the most powerful reinforcement for Justice Scalia: America was supposed to be the land in which the rule of judges would be supplanted by the rule of statutes. Instead of judges wielding vast discretion, inventing the law from case to case, the judges would be guided by statutes, enacted by legislators, elected by the people, and more sensitive then to the range of interests in the community. Yet the study of statutes and their drafting has nearly vanished from the training of lawyers, along with the study of canons of interpretation, just as the study of the Constitution itself, in its text and structure, has receded into the background in the study of constitutional law.[41] In a curious inversion, the new legal ethic, promised in the New Land, has been cultivated more fully in the Old World, or the Continent. There, the tradition has been dominated by the code law, with judges fixed on the reading of statutes.[42] But now, judges on the Continent are trying to flex some new-arts, in expounding the principles that lie behind the code.[43] In the meantime, in America, the professors of law fly from one affectation of "theory" to another, to schemes even more exotic: from Marxism to deconstruction and "literary theory," and then onward to "feminist epistemologies" and "critical race theory." As the professors soar beyond the world that most of us inhabit, they well understand that the purpose of their flight is to detach themselves from those "laws of reason and nature" that provided the anchors of our law in the past. But the practitioners of the new law may not entirely understand that they detach themselves at the same time from the protections that the law used to provide. In her culminating lines, Professor Glendon warns, with Tocqueville, that "[t]yranny ... need not announce itself with guns and trumpets. It may come softly--so softly that we will barely notice when we become one of those countries where there are no citizens but only subjects."[44] And as Justice Scalia warns now, judges swollen with the most benign motives, animated by the most tender sentiments, determined to open vast new regions of rights, may nevertheless have acted, unwittingly, to convert a nation of citizens into a settlement of subjects. In order to create new, unpopular rights in the days of the Warren Court, the judges had to detach their decisions from the text of the Constitution and from the discipline of fixed jural truths. Indeed, the judges had to take it as part of their mission to detach the public itself from any lingering reverence for the truths that used to stand behind the Constitution and confine the power of judges. Justice Scalia now registers his own lament for a public that may be detached from these ancient, wholesome prejudices. That may be a public less suited now in temperament, less disposed now in conviction, to accept the moral restraints of a Constitution. After all, the judges have fashioned a new law, in the image of an "autonomous" man, who trumps, with his autonomy, the claims of traditional morality. A public tutored in these new maxims may will that same autonomy for itself; it may be less inclined now to indulge a naive reverence for a Constitution that would cast up barriers to its wants. Justice Brennan and his colleagues in the 1960s and 1970s were no doubt bent on improving the republic, but the project may have run quite beyond them, until it changed the regime itself. And along the way, the judges managed to cultivate a people far less willing to abide the constraints of lawfulness.
1. See THE FEDERALIST NO. 78, at 468 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
2. Id.
3. THE FEDERALIST NO. 81, supra note 1, at 484.
4. Id.
5. Id.
6. 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *67.
7. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3-47 (Amy Gutmann ed., 1997) [hereinafter A MATTER OF INTERPRETATION].
8. Id. at 25.
9. Id. at 26.
10. Id. at 17-18.
11. See ARKES, GEORGE SUTHERLAND, supra note *, atvi.
12. Laurence H. Tribe, Comment in A MATTER OF INTERPRETATION, supra note 7, at 65, 83.
13. Id.
14. Ronald M. Dworkin, Comment, in A MATTER OF INTERPRETATION, supra note 7, at 115, 127.
15. Id.
16. See Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that there exists no constitutionally-protected right to engage in sodomy).
17. 410 U.S. 113 (1973) (holding that there exists a constitutionally-protected right to have an abortion). Regarding the number of abortions that have occurred in the United States since Roe v. Wade, see ALAN GUTTMACHER INSTITUTE, FACTS IN BRIEF: INDUCED ABORTION 1 (1997) (stating that over 31 million abortions occurred in the United States between 1973 and 1994); NATIONAL RIGHT TO LIFE EDUCATIONAL TRUST FUND, ABORTION IN THE UNITED STATES: STATISTICS & TRENDS (1997) (estimating 35.3 million abortions in the United States between 1973 and 1996).
18. See Lee v. Weisman, 505 U.S. 577 (1992) (holding that the First Amendment prohibits public schools from including clergy who offer prayers as an official part of graduation ceremonies).
19. See United States v. Eichman, 496 U.S. 310 (1990) (striking down an anti-flag burning statute on First Amendment grounds); Texas v. Johnson, 491 U.S. 397 (1989) (holding flag burning is "speech" protected by the First Amendment); R.A.V.v. City of St. Paul, 505 U.S. 377 (1992) (holding unconstitutional on First Amendment grounds a city ordinance prohibiting the display of symbols, including swastikas and burning crosses, that one knows or reasonably should know arouse anger, alarm, or resentment on the basis of race, color, creed, religion, or gender).
20. Tribe, supra note 12, at 81.
21. That must also stand as the telling sign of a certain obtuseness in Chief Justice Warren when he remarked, at the beginning of Loving v. Virginia that "[t]his case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment." 388 U.S. 1, 2 (1967). The Court had never addressed discriminations based on race? Or restrictions on marriage? The observation, offered by Chief Justice Warren, becomes comprehensible only with the recognition that in the host of cases dealing with racial discrimination--and including, most famously, Brown v. Board of Education, 347 U.S. 483 (1954)--the Court never did manage to explain what was wrong "in principle" with segregation, or with discriminations based on race. On this matter, see HADLEY ARKES, THE PHILOSOPHER IN THE CITY 223-58 (1981) [hereinafter ARKES, PHILOSOPHER].
22. One of my own students expressed puzzlement over this point: Justice Scalia had found no such lurking principle of moral relativism in the First Amendment when it came to protecting people who engaged in nude dancing or lewd entertainments. In Barnes v. Glen Theatre, he thought that the legislature could properly "enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified." 501 U.S. 560, 575 (1991) (Scalia, J., concurring). In that respect, there did not seem to be much question for him that the legislature could act, not merely for the sake of dealing with the "secondary effects" of lewdness, but for the sake simply of conveying a moral understanding--that certain acts were "contra bonos mores," or immoral. Id. But in that event, my student was moved to wonder just why a local legislature might not find something comparably "immoral" in an attempt to terrorize black people through the burning of crosses, a gesture that was long understood in our common usage as a gesture of assault and threat. Under the traditional doctrine of 'fighting words," it had been possible, after all, to recognize certain forms of expression that constituted assaults, and it was possible to restrain those modes of expression without interfering in any way with the freedom of people to make substantive arguments. For an extended treatment of this problem, see ARKES, PHILOSOPHER, supra note 21, at 23-91.
23. 403 U.S. 15, 25 (1971).
24. See, e.g., Skokie v. Collins, 439 U.S. 916 (1978) (denying certiorari and allowing a Nazi parade to march in the village of Skokie, Illinois); R.A.V., supra note 19; ARKES, PHILOSOPHER, supra note 21, at 63-74.
25. See CONG. GLOBE, 39th Cong., 1st Sess. 505 (exchange among Senators Trumbull, Fessenden, and Johnson during the debates over the Civil Rights Act of 1866); id. at 600 (exchange between Senators Trumbull and Davis). This early understanding was also incorporated in some early cases testing the laws on miscegenation under the Fourteenth Amendment. See In re Hobbes, 12 Fed. Cas. 262 (C.C.N.D. Ga. 1981); State v. Gibson, 36 Ind. 389 (1871); State v. Hariston and Williams, 63 N.C. 451 (1869); Lonas v. State, 50 Tenn. 287 (1871).
It is worth noting that we would not have discovered, in our own time, an understanding of the principle that was not already grasped in the Congress that passed the Fourteenth Amendment. Indeed, this more exact implication of the principle in the Fourteenth Amendment was drawn out by legislators who had sought to resist a sweeping principle of racial equality in the laws. And so Maryland's Senator Johnson pressed this argument in the face of Senators Trumbull and Fessenden: "Now there is a State law which says to the black man, 'You shall not marry a white woman.' and so to the white man, 'You may.'" Id. at 505. It seemed to Johnson that this arrangement ran afoul of a new law that barred discriminations based on color. Senators Trumbull and Fessenden appeared not to credit that argument. Whether they were sincere or not, it could hardly be argued that our own generation discovered a principle that was not evident to legislators even at the time.
* 26. See LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 5, 6, 8 (1985).
* 27. See Baehr v. Lewin, 852 P.2d 44 (1993) (remanding case questioning constitutionality of prohibition of same-sex marriage with instructions to decide using strict scrutiny standard); Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996), appeal docketed, No. 20371 (Haw. 1997) (holding that a prohibition on same-sex marriage fails strict scrutiny under the Equal Rights Amendment to the Hawaii Constitution).
* 28. For the way this ancient understanding had to come into play recently in the argument for the Defense of Marriage Act, see Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 87 (1996) (statement of Hadley Arkes); Hadley Arkes, Odd Couples, NAT'L REV., Aug. 12, 1996, at 48.
* 29. Genesis 5:2 (King James).
* 30. See David Orgon Coolidge, Same-Sex Marriage: As Hawaii Goes. ... FIRST THINGS, Apr. 1997, at 33; Hadley Arkes, Gay Marriage in 1996?, AM. ENTERPRISE, May/June 1995, at 57; Hadley Arkes, Questions of Principle, Not Predictions: A Reply to [Stephen] Macedo, 84 GEO. L.J. 321 (1995).
* 31. Brief for Defendant-Appellant at 1, Baehr v. Miike, appeal docketed, No. 20371 (Haw. Apr. 27, 1997).
* 32. Abraham Lincoln, Sixth Debate with Stephen A. Douglas, at Quincy, Illinois (Oct. 13, 1858), in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 255 (Roy P. Basler ed., 1953).
* 33. Id.
* 34. For a discussion of these cases and Lincoln's understanding of them, see HADLEY ARKES, FIRST THINGS 416-22 (1986).
* 35. See ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 117 (1996).
* 36. See SCALIA, supra note 7, at 34 ("One of the routine tasks of the Washington lawyer-lobbyist is to draft language that sympathetic legislators can recite in a pre-written 'floor debate'--or, even better, insert into a committee report.").
* 37. Id. at 35.
* 38. For a fuller statement of this problem, arising from the litigation and controversies of the New Deal, see ARKES, GEORGE SUTHERLAND, supra note *, at 103-10, 159-75.
* 39. See SCALlA, supra note 7, at 31.
* 40. See generally MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW (1987).
* 41. See Mary Ann Glendon, Comment, in A MATTER OF INTERPRETATION, supra note 7, at 95, 96-97, 111.
* 42. See id. at 97.
* 43. See id. at 102-03.
* 44. Id. at 113-14.
~~~~~~~~
By HADLEY ARKES
HADLEY ARKES, Hadley Arkes is the Edward Ney Professor of Jurisprudence at Amherst College. His most recent book is THE RETURN OF GEORGE SUTHERLAND (1994) [hereinafter ARKES, GEORGE SUTHERLAND].
Make Love to the Wind: the limits of subjectivism
Hadley Arkes critiques Justice John Marshall Harlan II's opinion in Cohen v. California (1971)
"Liberalism and the Law", New Criterion (Jan. 1999)
"Liberalism and the Law", New Criterion (Jan. 1999)
Harlan assumed that the speech emblazoned on Cohen's jacket had a claim to constitutional protection because it was "political"; it conveyed a sentiment dealing with a matter of public controversy. According to Harlan, what Cohen was doing with his jacket was "asserting [a] position on the inutility or immorality of the draft." There was a point to be made by taking Harlan at his word and asking just which one, exactly, he thought Cohen meant. Was "F*** the Draft" merely a shorthand expression for: the draft is "inutile"? Or that the draft was "immoral"? It is worth pointing out that the message did not mean either. The profanity on the jacket was meant to mock with its grossness; it conspicuously lacked the precision of analytic prose, particularly when applied to matters of public policy.
Nevertheless, Harlan's reading was in one respect correct, but on grounds that contradicted his argument at the root. What we knew of Cohen's message was that it condemned or denounced the draft, and we knew that mainly because he had drawn upon a word that was established in ordinary language as a term of condemnation, derision, insult. We knew it, that is, because the meaning of words was not subjective and arbitrary. And in the same way we knew that he was referring to the military "draft." Someone who had taken Harlan's argmnent literally might have turned around and insisted that all the words were entirely "subjective" and asked how we could know that Cohen was not referring to a "draft" in the sense of wind? How did we know then that Cohen was not enjoining us, perhaps in a spirit of paganism, to "make love to the wind"?
Saturday, November 14, 2009
An Unsettling Hallelujah
Read this interesting interpretation of Handel's Messiah as a glorious response to deism and Jewish unbelief in 1700s England. Read into the Hallelujah Chorus a lenten celebration of Christ's justice in using Rome to "dash [Jerusalem] to pieces like pottery" (Ps. 2), foreshadowing his ultimate judgment of all the nations and his universal, omnipotent reign. Of course, the actual words of the Hallelujah Chorus come out of Revelation 19 etc., celebrating the ruin of Babylon and the bloody defeat of all the nations that rebelled against the Kingdom of God. Can we then stand up and wear it like a badge, sing it like a madrigal until we hear the chorus swell... and still weep for the Jews like Jesus did?
Is God's justice on the dead even a motivation and tool for witnessing to the living?
Michael Marissen, New York Times, Unsettling History of That Joyous ‘Hallelujah’ April 8, 2007
HT: Jonathan Edwards, History of the Work of Redemption, for mentioning Richard Kidder's Demonstration of the Messias, which the libretto for Handel's Messiah was based on.
Is God's justice on the dead even a motivation and tool for witnessing to the living?
Michael Marissen, New York Times, Unsettling History of That Joyous ‘Hallelujah’ April 8, 2007
HT: Jonathan Edwards, History of the Work of Redemption, for mentioning Richard Kidder's Demonstration of the Messias, which the libretto for Handel's Messiah was based on.
Friday, November 13, 2009
Virtue through irony
Reinhold Niebuhr, The Irony of American History, p. 63
The final wisdom of life requires, not the annulment of incongruity but the achievement of serenity within and above it. Nothing that is worth doing can be achieved in our lifetime; therefore we must be saved by hope. Nothing which is true or beautiful or good makes complete sense in any immediate context of history; therefore we must be saved by faith. Nothing we do, however virtuous, can be accomplished alone; therefore we are saved by love. No virtuous act is quite as virtuous from the standpoint of our friend or foe as it is from our standpoint. Therefore we must be saved by the final form of love which is forgiveness.
The final wisdom of life requires, not the annulment of incongruity but the achievement of serenity within and above it. Nothing that is worth doing can be achieved in our lifetime; therefore we must be saved by hope. Nothing which is true or beautiful or good makes complete sense in any immediate context of history; therefore we must be saved by faith. Nothing we do, however virtuous, can be accomplished alone; therefore we are saved by love. No virtuous act is quite as virtuous from the standpoint of our friend or foe as it is from our standpoint. Therefore we must be saved by the final form of love which is forgiveness.
To get lost is glorious
I wrested the title from Deng Xiaoping's slogan: "To get rich is glorious." Navigation is a tricky subject. When I am riding in a car with someone else, I slouch down and read a book. My dad says, "pay attention to the landmarks... you always should know where you are." But if someone else can do that for me, I can use my mind for other things.
On the other hand, I despise GPS. When I am driving, I can sometimes glaze over on the highway, but on the streets I am always following my nose. If I have extra time, I don't hesitate to try a different way that seems it would logically take me to the same place. I use a combination of maps and logic, because experiencing the route or hearing the directions doesn't cut it for me. That's just my form of intelligence.
And when I'm walking in a new city, it's a lot of fun to walk as far as I can, lose myself, and find my way back. The refrain on my teaching team in Taiwan was "where's Nathan?" And at Costco, I could always be found either in the book section or stalking around to find the people I came with.
Now for the article: "This is your brain on GPS"
Our navigational gadgets, says journalist Alex Hutchinson, could actually be damaging our sense of direction.
G.K. Chesterton once sent a telegram to his wife Frances... "Am at Market Harborough. Where ought I to be?" She wired back: "Home."
On the other hand, I despise GPS. When I am driving, I can sometimes glaze over on the highway, but on the streets I am always following my nose. If I have extra time, I don't hesitate to try a different way that seems it would logically take me to the same place. I use a combination of maps and logic, because experiencing the route or hearing the directions doesn't cut it for me. That's just my form of intelligence.
And when I'm walking in a new city, it's a lot of fun to walk as far as I can, lose myself, and find my way back. The refrain on my teaching team in Taiwan was "where's Nathan?" And at Costco, I could always be found either in the book section or stalking around to find the people I came with.
Now for the article: "This is your brain on GPS"
Our navigational gadgets, says journalist Alex Hutchinson, could actually be damaging our sense of direction.
G.K. Chesterton once sent a telegram to his wife Frances... "Am at Market Harborough. Where ought I to be?" She wired back: "Home."
Thursday, November 12, 2009
'Tis wrote against the spleen: Tristram Shandy 4.22
C H A P. XXII.
ALBEIT, gentle reader, I have
lusted earnestly, and endeavoured
carefully (according to the measure of
such slender skill as God has vouchsafed
me, and as convenient leisure from other
occasions of needful profit and healthful
pastime have permitted) that these little
books, which I here put into thy hands,
might
[ 143 ]
might stand instead of many bigger books
-- yet have I carried myself towards thee
in such fanciful guise of careless disport,
that right sore am I ashamed now to en-
treat thy lenity seriously -- in beseeching
thee to believe it of me, that in the
story of my father and his christen-
names, -- I had no thoughts of treading
upon Francis the First -- nor in the affair of
the nose -- upon Francis the Ninth -- nor in
the character of my uncle Toby -- of cha-
racterizing the militiating spirits of my
country -- the wound upon his groin, is
a wound to every comparison of that
kind, -- nor by Trim, -- that I meant the
duke of Ormond -- or that my book is
wrote against predestination, or free will,
or taxes -- If 'tis wrote against any thing,
---- 'tis wrote, an' please your worships,
against the spleen ; in order, by a more
3 frequent
[ 144 ]
frequent and a more convulsive elevation
and depression of the diaphragm, and
the succussations of the intercostal and
abdominal muscles in laughter, to drive
the gall and other bitter juices from the
gall bladder, liver and sweet-bread [pancreas] of
his majesty's subjects, with all the inimi-
citious passions which belong to them,
down into their duodenums [small intestines].
_______________________________________
A particularly fine strain of humor, with the punchline drowned in medical terms. Perfect for bathroom reading, which is where I stumbled on this chapter. Scroll up and click on the link in the chapter title, and it will take you to a very cool digitization of the text.
Joe Rigney: Stages of idolatry and Staying two months pregnant
Joe Rigney, a professor at the Bethlehem Institute, wrote two articles on stages of idolatry, earlier this year. He explains how we worship God and receive his gifts, then value the gifts for their own sake, then worship other gods while still enjoying the gifts, and finally rebel against God so far that he takes the gifts and idols away. Then we long for the good old days, when we could worship the idols and enjoy the gifts, and we go to God, begging for him to return the idols. In the second article, he links the early stage of idolatry with Red-states and the later stage of idolatry with Blue-states. The trouble is, when you're pregnant with evil, you can't stay pregnant forever. You have to either give birth to death or miscarry.
Go read it.
Stages of Idolatry
Become Two Months Pregnant and Stay There
Go read it.
Stages of Idolatry
Become Two Months Pregnant and Stay There
Wednesday, November 11, 2009
Pelosi visits Seattle
Scott St. Claire reports for the Evergreen Freedom Foundation on Speaker Nancy Pelosi's press conference at Sweedish Hospittle in Seattle. Washington congressmen Jay Inslee and Jim McDermott were also present. This was Pelosi's first public appearance since passing the House version of the health care reform bill Saturday night.
Choice quote:
Choice quote:
Cong. Inslee... said that the number one benefit of the Pelosi plan will be increased wages for health care workers in the Pacific Northwest. Who knew? No more, he said, would they lag behind those paid in other parts of the country – everybody gets a raise!
Chao Yuenren: Life With Chaos
Click to read about Chao Yuenren, another Chinese linguist. His autobiography is called Life With Chaos. Before he wrote it, his wife wrote her story in Autobiography of a Chinese Woman, and said (in a chapter entitled "The repatriation of an expatriate"), "I want to borrow a chapter from Chao Yuen-ren's autobiography. But he has not written any."
They both had wit.
They both had wit.
How could I help thinking of "her"?
I found this man's entry in Wikipedia while reading about his friend Chao Yuenren, who wrote A Grammar of Spoken Chinese (U. California, 1968) and invented Gwoyeu Romatzyh, the geeky Chinese romanization scheme that represents the five tones with variant spellings.
Notice that Liu invented the Chinese feminine pronoun... what an accomplishment! I thought the feminine pronoun would have been more organic. I guess Chinese was even less inflected than I thought.
What a way to die, too.
Liu Bannong
From Wikipedia, the free encyclopedia
Liu Bannong (Chinese: 劉半農) or Liu Fu (劉復) (1891 - 1934) was a Chinese linguist and poet.
A native of Jiangsu, he was an important contributor to the influential magazine La Jeunesse during the May Fourth Movement. He began writing poetry in vernacular Chinese in 1917, and was credited with having coined the Chinese feminine pronoun ta (她), which he made use of in his poems. The usage was popularised by the song Jiao Wo Ruhe Bu Xiang Ta (教我如何不想她 "How could I help thinking of her"), a "pop hit" in the 1930s in China. The lyrics were written by him and the melody by Yuen Ren Chao.
In 1920, he left China to study linguistics abroad, first in London, then in Paris. He gained his PhD at the University of Paris, with research done on Chinese tones. During his time in Paris, he compiled Dunhuang Duosuo (敦煌掇瑣 "Miscellaneous works found in the Dunhuang Caves"), a pioneering work about the Dunhuang manuscripts.
He returned to China in 1925, and began teaching in colleges. He collaborated with Li Jiarui (李家瑞) to compile Songyuan Yilai Suzi Pu (宋元以來俗字譜 "The vernacular characters used from the Song and Yuan dynasties onwards"). Published in 1930, it was a key work in the standardisation of simplified Chinese characters. He died of acute illness after a linguistic field-trip, at the age of 44. Lu Xun wrote a short memoir about Liu (憶劉半農君) after his death.
Notice that Liu invented the Chinese feminine pronoun... what an accomplishment! I thought the feminine pronoun would have been more organic. I guess Chinese was even less inflected than I thought.
What a way to die, too.
Liu Bannong
From Wikipedia, the free encyclopedia
Liu Bannong (Chinese: 劉半農) or Liu Fu (劉復) (1891 - 1934) was a Chinese linguist and poet.
A native of Jiangsu, he was an important contributor to the influential magazine La Jeunesse during the May Fourth Movement. He began writing poetry in vernacular Chinese in 1917, and was credited with having coined the Chinese feminine pronoun ta (她), which he made use of in his poems. The usage was popularised by the song Jiao Wo Ruhe Bu Xiang Ta (教我如何不想她 "How could I help thinking of her"), a "pop hit" in the 1930s in China. The lyrics were written by him and the melody by Yuen Ren Chao.
In 1920, he left China to study linguistics abroad, first in London, then in Paris. He gained his PhD at the University of Paris, with research done on Chinese tones. During his time in Paris, he compiled Dunhuang Duosuo (敦煌掇瑣 "Miscellaneous works found in the Dunhuang Caves"), a pioneering work about the Dunhuang manuscripts.
He returned to China in 1925, and began teaching in colleges. He collaborated with Li Jiarui (李家瑞) to compile Songyuan Yilai Suzi Pu (宋元以來俗字譜 "The vernacular characters used from the Song and Yuan dynasties onwards"). Published in 1930, it was a key work in the standardisation of simplified Chinese characters. He died of acute illness after a linguistic field-trip, at the age of 44. Lu Xun wrote a short memoir about Liu (憶劉半農君) after his death.
Tuesday, November 10, 2009
Vindit to self
You're a man, not a victim.
If you were a victim, you'd be a sacrifice.
But if you are a sacrifice, you've long since stepped off the altar.
[equivocation on the meaning of victim]
If you were a victim, you'd be a sacrifice.
But if you are a sacrifice, you've long since stepped off the altar.
[equivocation on the meaning of victim]
Friday, November 06, 2009
In Memoriam: William Empson
I picked up Seven Types of Ambiguity by William Empson off the shelf again today. I got the book a year ago after I first read about him in a survey of modern literary critics. He wrote it at age 22 while studying at Cambridge… it's a "niggling" account of double meanings in all kinds of classic English poems. Sort of a virtuosic experiment in semantics, half factual, half creative.
The way he teases out the things about a piece of writing that give it an ironic effect on certain readers endears Empson to me, especially the care with which he examines so many facts.
There on the flyleaf I read his short biography:
___________
William Empson, born in England in 1906, was educated at Cambridge University. Associated with the Auden group of young poets, he published several volumes of poetry in the 1930s and then turned his interest to literary criticism. He is best known for… etc.
Before World War II he taught English in Tokyo and Peking, and during the war years he was Chinese Editor for the BBC. In 1947 he returned to a teaching post at Peking National University and since 1953 has held a professorship at Sheffield University in England.
_____
Can you imagine my excitement? A young brainy literary hack, who went to China. And during the war years, too… such an interesting time. Could he be a role model for me?
Well, he turned out to be a dogged antichristian, and an enthusiastic bisexual… two things that I have to guard myself against.
What a bummer.
How do I characterize him but as an interesting, gifted, fanciful man, whose life. was. futile?
I dread reading the racy parts in his two-volume biography, but look forward to the parts about typing out a play from Shakespeare for his students from memory during the siege of Peking. How did he do it?
He jostled elbows with Virginia Woolf, George Orwell, and C.S. Lewis. When the Queen of England came to see him at the University of Sheffield, he wrote a masque to be performed in her honor.
You won't see his like again. And my paperback copy of Seven Types of Ambiguity even has sewn binding.
See:
John Haffenden, William Empson: Among the Mandarins (vol. 1)
William Empson: Against the Christians (vol. 2)
Selected Letters of William Empson
Tuesday, November 03, 2009
Abraham's faith: eternal or temporal?
Soren Kierkegaard wrote in Fear and Trembling:
Now that you've skipped down to my commentary, go back up and glance at the words in bold.
Good.
Can you explain to me why Kierkegaard's idea of Abraham's faith sounds like the opposite of that in the book of Hebrews?
Hebrews 11:8-19
This was troubling to me: why is there such an emphasis in the Torah about the worldly benefits of believing and obeying God? The Ebal blessings and Gerizim curses in Deuteronomy 28 are the quintessential expression of this philosophy. If the patriarchs were really looking forward to a heavenly city, then why did God give them all kinds of livestock and servants?
Moses never said anything about eternal life... he only talked about enjoying long life in the land of one's own inheritance.
Here's the key, I think.
Hebrews 11:39-40
In earlier chapters in Hebrews, it mentions that we have inherited promises better than they had under the old covenant. Could it be that eternal life is only guaranteed in the New Testament, so that only together with us would the patriarchs be made perfect?
Then, the promises of worldly prosperity were types and shadows of the real things which Christ won for us.
But where does that leave Kierkegaard's analysis of Abraham's faith?
Let me look back a second....
Ah, he errs in making eternity with God seem far away. For anyone, though, death could be imminent.
He also errs in making eternity with God seem small. It does seem small and irrelevant, but according to Hebrews, it was the thing that motivated him in all his wanderings. Lest it seem small, compare your perspective on eternity with your perspective on the sky when looking up through a skylight. You might only see 40 degrees of angle, but at night with a high-powered telescope you could see thousands of stars in that 40-degree sweep. Then realize that if you stood on the roof you could see 180 degrees of horizon in all directions. Then realize that it's only half of the dome, since the other half is facing the other hemisphere of the world. So... open your mind.
Third, he is too vague with the idea of "believing in the preposterous". Abraham did have tremendous faith, and he was expecting something preposterous, but only because he considered faithful the One who promised.
But Kierkegaard does get one thing right when he talks about faith for this life. If God promises something tangible, we ought to expect that tangible thing, even when it appears absurd. If not, we are kidding ourselves to think we have really believe the intangible promises.
John 3:12
By faith Abraham received the promise that in his seed all races of the world would be blessed. Time passed, the possibility was there, Abraham believed; time passed, it became unreasonable, Abraham believed....
...Abraham became old, Sarah became a laughing-stock in the land, and yet he was God’s elect and inheritor of the promise that in his seed all the races of the world would be blessed. So were it not better if he had not been God’s elect? What is it to be God’s elect? It is to be denied in youth the wishes of youth, so as with great pains to get them fulfilled in old age. But Abraham believed and held fast the expectation.
If Abraham had wavered, he would have given it up. If he had said to God, "Then perhaps it is not after all Thy will that it should come to pass, so I will give up the wish. It was my only wish, it was my bliss. My soul is sincere, I hide no secret malice because Thou didst deny it to me" -- he would not have been forgotten, he would have saved many by his example, yet he would not be the father of faith.
For it is great to give up one’s wish, but it is greater to hold it fast after having given it up, it is great to grasp the eternal, but it is greater to hold fast to the temporal after having given it up...."And God tempted Abraham and said unto him, Take Isaac, thine only son, whom thou lovest, and get thee into the land of Moriah, and offer him there for a burnt offering upon the mountain which I will show thee."
So all was lost -- more dreadfully than if it had never come to pass. So the Lord was only making sport of Abraham! He made miraculously the preposterous actual, and now in turn He would annihilate it....
And yet Abraham was God’s elect, and it was the Lord who imposed the trial. All would now be lost. The glorious memory to be preserved by the human race, the promise in Abraham’s seed -- this was only a whim, a fleeting thought which the Lord had had, which Abraham should now obliterate.
....Yet Abraham believed, and believed for this life. Yea, if his faith had been only for a future life, he surely would have cast everything away in order to hasten out of this world to which he did not belong. But Abraham’s faith was not of this sort, if there be such a faith; for really this is not faith but the furthest possibility of faith which has a presentiment of its object at the extremest limit of the horizon, yet is separated from it by a yawning abyss within which despair carries on its game.
But Abraham believed precisely for this life,
that he was to grow old in the land,
honored by the people,
blessed in his generation,
remembered forever in Isaac, his dearest thing in life, whom he embraced with a love for which it would be a poor expression to say that he loyally fulfilled the father’s duty of loving the son, as indeed is evinced in the words of the summons, "the son whom thou lovest." Jacob had twelve sons, and one of them he loved; Abraham had only one, the son whom he loved. Yet Abraham believed and did not doubt, he believed the preposterous.
Now that you've skipped down to my commentary, go back up and glance at the words in bold.
Good.
Can you explain to me why Kierkegaard's idea of Abraham's faith sounds like the opposite of that in the book of Hebrews?
Hebrews 11:8-19
8By faith Abraham, when called to go to a place he would later receive as his inheritance, obeyed and went, even though he did not know where he was going. 9By faith he made his home in the promised land like a stranger in a foreign country; he lived in tents, as did Isaac and Jacob, who were heirs with him of the same promise. 10For he was looking forward to the city with foundations, whose architect and builder is God.
11By faith Abraham, even though he was past age—and Sarah herself was barren—was enabled to become a father because he considered him faithful who had made the promise. 12And so from this one man, and he as good as dead, came descendants as numerous as the stars in the sky and as countless as the sand on the seashore.
13All these people were still living by faith when they died. They did not receive the things promised; they only saw them and welcomed them from a distance. And they admitted that they were aliens and strangers on earth. 14People who say such things show that they are looking for a country of their own. 15If they had been thinking of the country they had left, they would have had opportunity to return. 16Instead, they were longing for a better country—a heavenly one. Therefore God is not ashamed to be called their God, for he has prepared a city for them.
17By faith Abraham, when God tested him, offered Isaac as a sacrifice. He who had received the promises was about to sacrifice his one and only son, 18even though God had said to him, "It is through Isaac that your offspring will be reckoned." 19Abraham reasoned that God could raise the dead, and figuratively speaking, he did receive Isaac back from death.
This was troubling to me: why is there such an emphasis in the Torah about the worldly benefits of believing and obeying God? The Ebal blessings and Gerizim curses in Deuteronomy 28 are the quintessential expression of this philosophy. If the patriarchs were really looking forward to a heavenly city, then why did God give them all kinds of livestock and servants?
Moses never said anything about eternal life... he only talked about enjoying long life in the land of one's own inheritance.
Here's the key, I think.
Hebrews 11:39-40
39These were all commended for their faith, yet none of them received what had been promised. 40God had planned something better for us so that only together with us would they be made perfect.
In earlier chapters in Hebrews, it mentions that we have inherited promises better than they had under the old covenant. Could it be that eternal life is only guaranteed in the New Testament, so that only together with us would the patriarchs be made perfect?
Then, the promises of worldly prosperity were types and shadows of the real things which Christ won for us.
But where does that leave Kierkegaard's analysis of Abraham's faith?
Let me look back a second....
Ah, he errs in making eternity with God seem far away. For anyone, though, death could be imminent.
He also errs in making eternity with God seem small. It does seem small and irrelevant, but according to Hebrews, it was the thing that motivated him in all his wanderings. Lest it seem small, compare your perspective on eternity with your perspective on the sky when looking up through a skylight. You might only see 40 degrees of angle, but at night with a high-powered telescope you could see thousands of stars in that 40-degree sweep. Then realize that if you stood on the roof you could see 180 degrees of horizon in all directions. Then realize that it's only half of the dome, since the other half is facing the other hemisphere of the world. So... open your mind.
Third, he is too vague with the idea of "believing in the preposterous". Abraham did have tremendous faith, and he was expecting something preposterous, but only because he considered faithful the One who promised.
But Kierkegaard does get one thing right when he talks about faith for this life. If God promises something tangible, we ought to expect that tangible thing, even when it appears absurd. If not, we are kidding ourselves to think we have really believe the intangible promises.
John 3:12
I have spoken to you of earthly things and you do not believe; how then will you believe if I speak of heavenly things?
I want to go to Malaysia. Especially when I hear songs like this. You'll notice some people holding up a sign, "We the Rakyat lah". The Rakyat is the people of Malaysia. Lah is a delightful intensifier originally from Chinese that hops onto the end of every sentence. Also, the three languages rapped are Bahasa Malaysia, Mandarin, Tamil, and English.
Thanks to Malaysian Artistes for Unity for free downloads.
Thanks to Malaysian Artistes for Unity for free downloads.
Monday, November 02, 2009
Playlist
Felix Mendelssohn - Elijah Oratorio, Is not his word like a fire?
Monkey Majik - Change
Ralph Vaughan Williams - English Folk Song Suite
Guang Liang - Tong Hua
Orson Welles, The Mercury Theatre on the Air - The Man Who Was Thursday
Monkey Majik - Change
Ralph Vaughan Williams - English Folk Song Suite
Guang Liang - Tong Hua
Orson Welles, The Mercury Theatre on the Air - The Man Who Was Thursday
A kingdom of priests
1 Peter 2:9
This fulfills the mission statement of the nation of Israel.
Exodus 19:1-6
But you are a chosen people, a royal priesthood, a holy nation, a people belonging to God, that you may declare the praises of him who called you out of darkness into his wonderful light.
This fulfills the mission statement of the nation of Israel.
Exodus 19:1-6
On the third new moon after the people of Israel had gone out of the land of Egypt, on that day they came into the wilderness of Sinai. They set out from Rephidim and came into the wilderness of Sinai, and they encamped in the wilderness. There Israel encamped before the mountain, while Moses went up to God.
The LORD called to him out of the mountain, saying, "Thus you shall say to the house of Jacob, and tell the people of Israel: You yourselves have seen what I did to the Egyptians, and how I bore you on eagles' wings and brought you to myself.
Now therefore, if you will indeed obey my voice and keep my covenant, you shall be my treasured possession among all peoples, for all the earth is mine; and you shall be to me a kingdom of priests and a holy nation. These are the words that you shall speak to the people of Israel."
Sunday, November 01, 2009
Submit your suggestions for the new NIV
Here is your chance to offer suggestions for the new 2011 revision which will replace the NIV and TNIV Bible translations. My family has used the 1984 NIV Bible for as long as I can remember, so this is mildly earth-shattering to me. Have you found a verse that doesn't make sense, or is poorly worded? Post a comment here.
Courtesy of Better Bibles Blog.
Courtesy of Better Bibles Blog.
Are his riches exhaustible?
Speech is the channel of relationships
Language is the study of speech.
Does analyzing language demythologize relationships?
Does it make them any safer? Does it unsheathe those events that we look on with wonder, and pull the meat off of them until we wonder how anyone could fall for those cheap tricks we called love and hate? Is that why I adore linguistics? From now on, any emotional or relational reductionism will come back to bite me. Rats.
Does critical study of the Bible demythologize revelation?
In both language and God's word there remains plenty of mystery for us all. But is it atomistic, emergent, or multi-faceted? If the mystery were atomistic, we'd study phrase by phrase, sniffing out every connotation, and tracing the relations between each phrase. If the mystery were emergent, we'd have to recognize it as it arises from simple parts that emit complex meaning when brought together. If the mystery were multi-faceted, it would be in every aspect, every relation, and then in the discourse styles, and the relations between different texts... in short, everywhere in abundance of complexity, visible tangles or no.
But -- treat your subject arrogantly and you'll be sent away empty, thinking there was nothing there in the first place.
Language is the study of speech.
Does analyzing language demythologize relationships?
Does it make them any safer? Does it unsheathe those events that we look on with wonder, and pull the meat off of them until we wonder how anyone could fall for those cheap tricks we called love and hate? Is that why I adore linguistics? From now on, any emotional or relational reductionism will come back to bite me. Rats.
Does critical study of the Bible demythologize revelation?
In both language and God's word there remains plenty of mystery for us all. But is it atomistic, emergent, or multi-faceted? If the mystery were atomistic, we'd study phrase by phrase, sniffing out every connotation, and tracing the relations between each phrase. If the mystery were emergent, we'd have to recognize it as it arises from simple parts that emit complex meaning when brought together. If the mystery were multi-faceted, it would be in every aspect, every relation, and then in the discourse styles, and the relations between different texts... in short, everywhere in abundance of complexity, visible tangles or no.
But -- treat your subject arrogantly and you'll be sent away empty, thinking there was nothing there in the first place.
Aaron was whose uncle?
Yes, Aaron the high priest and brother of Moses was uncle to Rahab's husband.
And while we're at it, how do you think Amram, Moses and Aaron's father, reacted when he heard that God disapproved of marrying one's aunt? It's possible that Amram was there at the foot of Mount Sinai when the law was given. He lived 137 years, and supposing he had Aaron at age 27 and Moses at age 30, Moses would have been 81 when the law was given and Amram would have been 111.
Lev 18:12 'Do not have sexual relations with your father's sister; she is your father's close relative.'
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