Wednesday, 24 February 2016
What Was Noteworthy about the Nevada Caucus
The most interesting stat for me is that not only did Trump win evangelicals (as he did in SC); this time he won the self-described "very conservative". The Cruz campaign is about to go into free fall. And the theory that in a two-way race Rubio picks up everyone else's voters and ends up beating Trump 60-40 is going from amusing to sad. Rubio would get slightly better than 50% of previously uncommitted late-deciders, and however many Kasich supporters as could hold their noses and vote for him (i.e. against Trump). And that's it. It's not enough.
Friday, 19 February 2016
How Did Scalia Read the Law? - Some Terminological Housekeeping
The death of US Supreme Court Justice Antonin Scalia has occasioned widely differing appraisals of his judicial legacy. But one difficulty which they all run up against, regardless of their scholarly, ideological, or political perspective, is the vast and pervasive set of ambiguities found in descriptions of Scalia's methodological approach to the interpretation of legal texts - including his own.
Here is an attempt at a bit of housekeeping.
The first point to be made is that we should dispense immediately with the term "Textualism", as it is utterly uninformative.
Progress then depends on clearly drawing a series of distinctions:
Originalism vs. (for lack of a better word) Contemporaneanism
Intent vs. Plain- (or Ordinary-) meaning vs. Audience-understanding
Literalism vs. (again for lack of a better word) Reasonablism
The first two sets of distinctions cut across one another.
We could be Intentionalists, and take the meaning of a legal text to be determined by the linguistic intentions of the text's author(s) - and here is an important and thorny complication, as modern legal texts must be seen as having either group authorship, or institutional authorship, where an institutional author is a kind of fiction - at the time the text was authored (in which case we would be Originalists, and more specifically Intent-Originalists); or, we could take the meaning to be what the author(s) would most probably, on the balance of whatever evidence is available, intend for the words they wrote to mean if they had written them today.
Likewise, we can take the meaning of the text as being whatever its plain meaning was at the time it was written, or as being what its plain meaning is today.
Finally, we can take the meaning of legal texts as being what, on the balance of evidence, their original audience understood or interpreted them as being - in the case of the Articles and Amendments of the US Constitution, that would be the (multiple) understanding(s) of the State legislatures - as groups or as institutions - which ratified them; or, we can take the meaning of legal texts as being whatever a contemporary reasonable and informed person would interpret it as being.
Literalism and Reasonablism are subtypes of a Plain-meaning approach to interpretation, which become relevant when the text to be interpreted is ambiguous or vague - i.e. when it has no plain meaning.
The Literalist will insist (as the moniker suggests) on a (maximally) literal interpretation of the text (however bizarre such an interpretation might be in context), on the assumption that there is always a single (most) literal interpretation, however ambiguous or vague a text may be. This literal interpretation could be an interpretation given the literal meanings of the words used at the time of authorship, or in the present day.
The Reasonablist, on the other hand, will revert to a version of the Audience-understanding interpretive approach at this point, and take the text to mean what a reasonable and relevantly informed person - that is, one who is linguistically informed about the text, who is familiar with any technical or specialized vocabulary, archaic uses and meanings of words, unusual phrases, rare grammatical constructions, etc. - either at the time the text was authored, or in the present day, would interpret it as meaning. Being informed, for the purposes of this interpretive theory, does not extend to having knowledge of the deliberative history of the text's production, the express or implied intentions of its authors, its most likely purpose given the socio-cultural-politico-economic context in which it was written, etc. And, since Reasonablism is a subtype of the Plain-meaning interpretive approach, it conceives of a purely hypothetical reasonable and informed person, and is not concerned with the actual understanding of any person, group, or institution, historical or contemporary - unlike a pure Audience-understanding theory.
A term which is frequently bandied about without being precisely defined is "Strict Constructionism". The closest we can come to a precise definition of it is: (a) the approach to the interpretation of legal texts which embraces Plain-meaning interpretation in the absence of vagueness or ambiguity; and (b) Literalism in the presence of vagueness or ambiguity. Strict Constructionists could, in theory, have either original or contemporary meaning in mind, since that distinction is, again, orthogonal to the others.
With all these distinctions in place, we can finally identify Scalia's (purported) approach to the interpretation of law: Plain-meaning-Originalism, Reasonablism sub-type. Whether he consistently adhered to that approach is another question entirely.
For the critic of Scalia's legacy - and I count myself as one - there are four main problems with the corpus of judicial decisions he leaves behind.
The first problem is the incredibly problematic assumption that, when a legal text does not have an (obviously, self-evidently) "plain" meaning, there is such a thing as the interpretation which a reasonable and informed person would give of it. See, for example, Richard Posner's blistering critique of Scalia's interpretation of the word "sandwich".
Understanding the second problem requires one more distinction: that between the interpretation of a legal text (which is all we've talked about thus far), and the application of the text's meaning to a question before the court.
For many legal controversies which were not foreseen by anyone at the time that the laws which would eventually become relevant to them were written - such as the controversy over affirmative action laws and public policies - neither the original plain-meaning of the legal text (if there is one), nor the reasonable and informed person's interpretation of it at the time it was authored (if there isn't), provides anything approaching determinate guidance of how the contemporary question is to be resolved. Accusations of Scalia's pomposity are justified by his capacity to support his (politically or religiously) preferred applications of the law by mere bluster, when the actual results of his (professed) interpretive method are entirely indeterminate.
This is in sharp contrast to other, non-Originalist interpretive approaches, such as Joseph Raz's Moderate Actual Institutional Authorial Intent approach, and Aharon Barak's Purposive approach, for which problems of contemporary application are much less severe.
The third is a problem not with Scalia's method itself, but with his execution of it: the fact that he - like many others - often did such a shoddy job of the historical linguistic work on which that approach depends, in order to create an illusion of legal justification for a preferred conclusion. Nowhere was that unfortunate tendency more egregiously displayed than in his majority opinion on gun control.
The fourth, and largest, problem is a philosophical/normative difficulty with Scalia's theory - a problem from an external perspective, rather than a problem of the theory's internal cogency, its applicability, or his execution of it.
There are good reasons - set out in the works linked to above, among other places, for rejecting the idea that the task of interpreting legal texts is a search for their plain meaning; rather, it is a search for something like their purpose, an understanding of what problem they set out to solve, and why they set out to solve it in that way.
Here is an attempt at a bit of housekeeping.
The first point to be made is that we should dispense immediately with the term "Textualism", as it is utterly uninformative.
Progress then depends on clearly drawing a series of distinctions:
Originalism vs. (for lack of a better word) Contemporaneanism
Intent vs. Plain- (or Ordinary-) meaning vs. Audience-understanding
Literalism vs. (again for lack of a better word) Reasonablism
The first two sets of distinctions cut across one another.
We could be Intentionalists, and take the meaning of a legal text to be determined by the linguistic intentions of the text's author(s) - and here is an important and thorny complication, as modern legal texts must be seen as having either group authorship, or institutional authorship, where an institutional author is a kind of fiction - at the time the text was authored (in which case we would be Originalists, and more specifically Intent-Originalists); or, we could take the meaning to be what the author(s) would most probably, on the balance of whatever evidence is available, intend for the words they wrote to mean if they had written them today.
Likewise, we can take the meaning of the text as being whatever its plain meaning was at the time it was written, or as being what its plain meaning is today.
Finally, we can take the meaning of legal texts as being what, on the balance of evidence, their original audience understood or interpreted them as being - in the case of the Articles and Amendments of the US Constitution, that would be the (multiple) understanding(s) of the State legislatures - as groups or as institutions - which ratified them; or, we can take the meaning of legal texts as being whatever a contemporary reasonable and informed person would interpret it as being.
Literalism and Reasonablism are subtypes of a Plain-meaning approach to interpretation, which become relevant when the text to be interpreted is ambiguous or vague - i.e. when it has no plain meaning.
The Literalist will insist (as the moniker suggests) on a (maximally) literal interpretation of the text (however bizarre such an interpretation might be in context), on the assumption that there is always a single (most) literal interpretation, however ambiguous or vague a text may be. This literal interpretation could be an interpretation given the literal meanings of the words used at the time of authorship, or in the present day.
The Reasonablist, on the other hand, will revert to a version of the Audience-understanding interpretive approach at this point, and take the text to mean what a reasonable and relevantly informed person - that is, one who is linguistically informed about the text, who is familiar with any technical or specialized vocabulary, archaic uses and meanings of words, unusual phrases, rare grammatical constructions, etc. - either at the time the text was authored, or in the present day, would interpret it as meaning. Being informed, for the purposes of this interpretive theory, does not extend to having knowledge of the deliberative history of the text's production, the express or implied intentions of its authors, its most likely purpose given the socio-cultural-politico-economic context in which it was written, etc. And, since Reasonablism is a subtype of the Plain-meaning interpretive approach, it conceives of a purely hypothetical reasonable and informed person, and is not concerned with the actual understanding of any person, group, or institution, historical or contemporary - unlike a pure Audience-understanding theory.
A term which is frequently bandied about without being precisely defined is "Strict Constructionism". The closest we can come to a precise definition of it is: (a) the approach to the interpretation of legal texts which embraces Plain-meaning interpretation in the absence of vagueness or ambiguity; and (b) Literalism in the presence of vagueness or ambiguity. Strict Constructionists could, in theory, have either original or contemporary meaning in mind, since that distinction is, again, orthogonal to the others.
With all these distinctions in place, we can finally identify Scalia's (purported) approach to the interpretation of law: Plain-meaning-Originalism, Reasonablism sub-type. Whether he consistently adhered to that approach is another question entirely.
For the critic of Scalia's legacy - and I count myself as one - there are four main problems with the corpus of judicial decisions he leaves behind.
The first problem is the incredibly problematic assumption that, when a legal text does not have an (obviously, self-evidently) "plain" meaning, there is such a thing as the interpretation which a reasonable and informed person would give of it. See, for example, Richard Posner's blistering critique of Scalia's interpretation of the word "sandwich".
Understanding the second problem requires one more distinction: that between the interpretation of a legal text (which is all we've talked about thus far), and the application of the text's meaning to a question before the court.
For many legal controversies which were not foreseen by anyone at the time that the laws which would eventually become relevant to them were written - such as the controversy over affirmative action laws and public policies - neither the original plain-meaning of the legal text (if there is one), nor the reasonable and informed person's interpretation of it at the time it was authored (if there isn't), provides anything approaching determinate guidance of how the contemporary question is to be resolved. Accusations of Scalia's pomposity are justified by his capacity to support his (politically or religiously) preferred applications of the law by mere bluster, when the actual results of his (professed) interpretive method are entirely indeterminate.
This is in sharp contrast to other, non-Originalist interpretive approaches, such as Joseph Raz's Moderate Actual Institutional Authorial Intent approach, and Aharon Barak's Purposive approach, for which problems of contemporary application are much less severe.
The third is a problem not with Scalia's method itself, but with his execution of it: the fact that he - like many others - often did such a shoddy job of the historical linguistic work on which that approach depends, in order to create an illusion of legal justification for a preferred conclusion. Nowhere was that unfortunate tendency more egregiously displayed than in his majority opinion on gun control.
The fourth, and largest, problem is a philosophical/normative difficulty with Scalia's theory - a problem from an external perspective, rather than a problem of the theory's internal cogency, its applicability, or his execution of it.
There are good reasons - set out in the works linked to above, among other places, for rejecting the idea that the task of interpreting legal texts is a search for their plain meaning; rather, it is a search for something like their purpose, an understanding of what problem they set out to solve, and why they set out to solve it in that way.
Thursday, 18 February 2016
Say it with me now...
Underutilized productive capacity!
(OK, so it's not a great slogan.)
Nonetheless - here's a sharp, intellectually responsible piece on the potential for Bernie Sanders' suite of economic policy proposals to stimulate growth, which makes clear why Gerald Friedman's estimates aren't nearly as insane or magical as so many wonks and pundits seem to believe.
If only we could expect the same from those who disagree - you know, data, analysis, arguments, stuff like that, instead of emotional outbursts and authority-based proclamations.
(OK, so it's not a great slogan.)
Nonetheless - here's a sharp, intellectually responsible piece on the potential for Bernie Sanders' suite of economic policy proposals to stimulate growth, which makes clear why Gerald Friedman's estimates aren't nearly as insane or magical as so many wonks and pundits seem to believe.
If only we could expect the same from those who disagree - you know, data, analysis, arguments, stuff like that, instead of emotional outbursts and authority-based proclamations.
Tuesday, 16 February 2016
David Brooks on Dealing with "Disaster"
This is utterly fascinating - psychologically, sociologically, anthropologically, economically, and politically. Not for anything Brooks means to say, mind you, but for the fact that he is capable - without effort, hesitation, or detectable shame - of classifying the purposeful structural and institutional consequences of neoliberal capitalism as "natural disasters"; and then suggesting, wholly unselfconsciously, that the sensible way to deal with these "disasters" is to elect a US president who has no interest whatsoever in challenging that ideology.
Monday, 15 February 2016
This time he's gone too far! - No, wait, really, we mean it, this is really it...
It is time once again to wonder:
Does anyone know less about American politics than Yglesias?
Read here to find out who was booing Trump at the debate.
Read here to find out who Trump was addressing and who he cares about reaching (spoiler: not the people who were booing).
Read here for a reminder of the fact that this issue has already come up - 4 months ago - and it made no difference to the GOP primary.
Update 02/18: And indeed, it doesn't seem to be making a difference this time either.
Does anyone know less about American politics than Yglesias?
Read here to find out who was booing Trump at the debate.
Read here to find out who Trump was addressing and who he cares about reaching (spoiler: not the people who were booing).
Read here for a reminder of the fact that this issue has already come up - 4 months ago - and it made no difference to the GOP primary.
Update 02/18: And indeed, it doesn't seem to be making a difference this time either.
Thursday, 11 February 2016
Re-thinking Donald Trump
This is definitely worth taking seriously.
But, if you
(1) don't think he would have any shot in the general against anyone;
(2) do think that he isn't really an embryonic fascist after all, but just playing one on TV until he wraps up the nomination; and
(3) take a moment to reflect on the fact that he isn't just better than Cruz, he's likely better than 10 out of the 16 other past-or-present GOP candidates (including Rubio), who only look like they're not nightmarishly insane/incompetent compared to Cruz, and are probably even more so than Trump once point (2) is factored in;
- then you might want to take this (fairly long but really excellent) piece just as seriously.
For this reason above all else:
"When Trump’s presidential rivals attended a David and Charles Koch retreat, he tweeted: 'I wish good luck to all of the Republican candidates that traveled to California to beg for money etc. from the Koch brothers. Puppets?'"
But, if you
(1) don't think he would have any shot in the general against anyone;
(2) do think that he isn't really an embryonic fascist after all, but just playing one on TV until he wraps up the nomination; and
(3) take a moment to reflect on the fact that he isn't just better than Cruz, he's likely better than 10 out of the 16 other past-or-present GOP candidates (including Rubio), who only look like they're not nightmarishly insane/incompetent compared to Cruz, and are probably even more so than Trump once point (2) is factored in;
- then you might want to take this (fairly long but really excellent) piece just as seriously.
For this reason above all else:
"When Trump’s presidential rivals attended a David and Charles Koch retreat, he tweeted: 'I wish good luck to all of the Republican candidates that traveled to California to beg for money etc. from the Koch brothers. Puppets?'"
Wednesday, 10 February 2016
The Lessons of This Election
"Perhaps the most puzzled by what they’re seeing is the conservative movement old guard who spent decades creating the organizations that in recent years have risen up to challenge the Republican elites for supremacy of the party. They have made great strides, primarying apostates, defeating RINOs and even taking out good conservatives just to show they could. They showed the entire country that they are willing to destroy the government itself if that’s what it takes to demonstrate their commitment to their principles. They take no prisoners, give no quarter. And finally, after decades of hard work and strategizing, they are on the verge of total dominance.
Or they were until Trump came along and proved that many of the people they had been counting on to be the foot soldiers in this conservative revolution weren’t paying attention."
- Digby
Amazingly, there seem to be intelligent, educated, well-read people who don't see this - who don't get that Trump is currently teaching the single biggest and most interesting lesson about American politics today. For crying out loud, pull up a chair.
A significant percentage of the people we thought were principled believers in limited government or constitutional originalism - or steadfast adherents to a strict religious litmus test for politicians and policy - just aren't.
We believed they were because there are small groups of incredibly wealthy people who are these things, and who have been able to prevent an alternative from emerging - until now. Now that smokescreen has cleared. We can see that many people are not who we thought they were. They are something else entirely.
What? I'm not totally sure. Lots of different things. Let's just hope there's something in all that anger that can eventually be redirected towards good. One thing they are is cool with Trump's very unconservative economic views. Another thing they are is in open rebellion against neoliberal orthodoxy, the dominant socio-politico-economic ideology of our time, having finally figured out that its promised benefits will never reach them.
Those are reasons to hold out hope - assuming they can be weaned off the noxious xenophobia of Trump's right-wing populism/nationalism without losing those more open and flexible attitudes towards the structure of the economy and the role of the State, attitudes which the conservative establishment has successfully smothered for a generation.
If Trump loses the nomination and Sanders wins it, this group may prove a surprising source of defectors to the progressive - anti-establishment, anti-Washington-consensus - cause. If Trump wins the nomination, he may even start that weaning process himself among his own original base of supporters, in order to maximize his appeal in the general election. And when he (all but certainly) loses the election, there'll be a large block of GOP voters which, starting in 2017, could find a surprising home in a Democratic Party that manages to move away from present-day establishment orthodoxy. Even if that move is well to the political and economic left.
But that Democratic Party doesn't exist yet. It needs to be built from the ground up starting now. And that's precisely the movement that Bernie Sanders is leading.
If Trump is teaching us a fascinating lesson about right-of-center voters, Sanders is teaching an (almost) equally fascinating and complementary one about centrist and left-of-center ones. Namely, that no one has a goddamn clue what people mean when they describe themselves as "moderate".
Moderate Democrats are voting for Sanders. Conservative Democrats are voting for Sanders. Blue-collar Democrats are voting for Sanders. Independents are voting for Sanders.
Whatever "moderate" means in 2016, it does not preclude favoring a revolution to smash the stranglehold that neoliberal and neoconservative policy thought currently have on the ideas and agendas of both major political parties.
Nate Silver (unintentionally) said it best: What he - and everyone else, myself certainly included - don't get, could fill a book.
Or they were until Trump came along and proved that many of the people they had been counting on to be the foot soldiers in this conservative revolution weren’t paying attention."
- Digby
Amazingly, there seem to be intelligent, educated, well-read people who don't see this - who don't get that Trump is currently teaching the single biggest and most interesting lesson about American politics today. For crying out loud, pull up a chair.
A significant percentage of the people we thought were principled believers in limited government or constitutional originalism - or steadfast adherents to a strict religious litmus test for politicians and policy - just aren't.
We believed they were because there are small groups of incredibly wealthy people who are these things, and who have been able to prevent an alternative from emerging - until now. Now that smokescreen has cleared. We can see that many people are not who we thought they were. They are something else entirely.
What? I'm not totally sure. Lots of different things. Let's just hope there's something in all that anger that can eventually be redirected towards good. One thing they are is cool with Trump's very unconservative economic views. Another thing they are is in open rebellion against neoliberal orthodoxy, the dominant socio-politico-economic ideology of our time, having finally figured out that its promised benefits will never reach them.
Those are reasons to hold out hope - assuming they can be weaned off the noxious xenophobia of Trump's right-wing populism/nationalism without losing those more open and flexible attitudes towards the structure of the economy and the role of the State, attitudes which the conservative establishment has successfully smothered for a generation.
If Trump loses the nomination and Sanders wins it, this group may prove a surprising source of defectors to the progressive - anti-establishment, anti-Washington-consensus - cause. If Trump wins the nomination, he may even start that weaning process himself among his own original base of supporters, in order to maximize his appeal in the general election. And when he (all but certainly) loses the election, there'll be a large block of GOP voters which, starting in 2017, could find a surprising home in a Democratic Party that manages to move away from present-day establishment orthodoxy. Even if that move is well to the political and economic left.
But that Democratic Party doesn't exist yet. It needs to be built from the ground up starting now. And that's precisely the movement that Bernie Sanders is leading.
If Trump is teaching us a fascinating lesson about right-of-center voters, Sanders is teaching an (almost) equally fascinating and complementary one about centrist and left-of-center ones. Namely, that no one has a goddamn clue what people mean when they describe themselves as "moderate".
Moderate Democrats are voting for Sanders. Conservative Democrats are voting for Sanders. Blue-collar Democrats are voting for Sanders. Independents are voting for Sanders.
Whatever "moderate" means in 2016, it does not preclude favoring a revolution to smash the stranglehold that neoliberal and neoconservative policy thought currently have on the ideas and agendas of both major political parties.
Nate Silver (unintentionally) said it best: What he - and everyone else, myself certainly included - don't get, could fill a book.
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