The Faint of Heart

Justice Scalia of the Supreme Court of the United States famously admits to being a “fainthearted” originalist, who would hold that the punishment of flogging is “cruel and unusual” and thus prohibited by the Eighth Amendment to the U.S. Constitution, even though, at the time of its ratification, the Amendment was not generally understood to prohibit this punishment. But it occurred to me, when I re-watched Justice Scalia’s impassioned and entertaining defence of originalism in a debate with then-Justice Binnie at a conference a few years ago, that he, and originalists generally, are fainthearted in another, much broader way.

Justice Scalia’s argument for originalism goes something like this. Even if there are right and wrong answers to questions about morality of the sort that arise in judicial review of legislation, questions about the permissibility of abortion or the death penalty, for example, or the extent of the freedom of speech, or of the right to privacy (and he thinks that there are indeed right and wrong answers to such questions, dictated by natural law), we have no satisfactory way of demonstrating that any given answer to such a question is right. Therefore, we cannot pretend that the answers that we give to such questions aren’t political, so that impartial experts can figure them out. There are no “moral experts” who can do that job. In particular, we have no reason to believe that judges are endowed with moral expertise greater than that of “the fabled Joe Sixpack.” They disguise their moral reasoning behind legal forms, but the law doesn’t really give answers to these fraught questions. The only way we have to resolve them is by figuring out what the people think about them, through the political process. So when the people have, through the political process of ratifying a constitution, resolved the question of what rights should be protected against legislative abridgement, judges, entrusted with the enforcement of that protection, should stick to what the people have resolved and go always so far but never further. Because they are not moral experts, judges cannot revise―either upwards or downwards―the protections that the people have granted, which are the people’s own answers to moral questions facing the community.

The first part of this argument is very familiar indeed―from the work of Jeremy Waldron. In “The Core of the Case against Judicial Review,” prof. Waldron too argues that we have no agreed way to determine which answers to difficult questions of political morality are right and which are wrong; that judges, in particular, possess no expertise in these matters; that they do more harm than good in trying or pretending to deal with these questions as if they were legal rather than political; and that rather than trust the judges with moral reasoning, we should let the people, or better their elected representatives, decide.

Prof. Waldron and Justice Scalia part ways in the conclusions they draw from this. Whereas Justice Scalia accepts judicial review of legislation as a given and argues that the consequences of the judges’ lack of moral expertise lie in the realm of interpretive methodology, prof. Waldron takes the position that judicial review itself is the problem and should be abandoned. Since judges know no better than the people what “the truth about rights” is, they have no business second-guessing the people’s conclusions about this matter―not just the conclusions the people reached once upon a time, when they ratified a constitution, but at any given time, whenever they enact a piece of legislation.

I think that, as between these two views, prof. Waldron’s is the more persuasive one. If there is no way to demonstrate that one has “the truth about rights” in one’s possession, then what justifies the people in deciding that they are in fact possessed of that truth and making it impossible for later generations to revise it by majority vote? If we can only answer moral questions through the political process, how is it just to then remove the answers we give to these questions from that process?

And so, I have the impression that Justice Scalia and his fellow originalists are guilty of failing to follow the logical implications of their own views about the nature of the questions that arise in judicial review. They are, I suspect, fainthearted in that way―fainthearted Waldronians.

All this is not to say that the originalist/Waldronian view of the nature of judicial review―the view that it requires answering distinctly moral questions on which the law doesn’t have special insight―is correct. But it is at least plausible, and should not be dismissed lightly. All the more important, then, to be clear about its implications.

Hate and Disagreement

This is the second part of my comment on Jeremy Waldron’s case for criminalizing hate speech, The Harm in Hate Speech. I addressed his attempt to define hate speech as group libel here. That attempt was not successful, I concluded, but that need not mean that we should not be criminalizing hate speech, regardless of its relationship with libel. The core of the case for criminalizing hate speech is presented in chapter 4 of prof. Waldron’s book, “What Does a Well-Ordered Society Look Like”. In a nutshell, the argument is that hate speech must be prohibited in order to provide assurance to all citizens, and particularly to members of vulnerable minorities, that they are and will be treated as members of society, endowed with rights and deserving concern and consideration.

Prof. Waldron starts off by drawing a horrible picture of a society that does not prohibit hate speech:

Its hoardings and its lamp-posts may be festooned with depictions of members of racial minorities characterizing them as bestial or subhuman. There may be posters proclaiming that members of these minorities are criminals, perverts or terrorists, or leaflets saying that followers of a certain religion are threats to decent people and that they should be deported or made to disappear.  There may be banners and swastikas celebrating or excusing the genocidal campaigns of the past. There may be signs indicating that the members of the minority in question are not welcome in certain neighborhoods or in polite society generally, and flaming symbols intended to intimidate them if they remain.  That is what a society may look like when group defamation is permitted.

These visible expressions of hatred are “world-changing.” They signal to their targets that they are unwelcome; they make it harder for them to go about their daily lives and to integrate in society. That’s not an accident―it’s the very purpose of hate speech. And so a decent society should not look like that. It ought to make sure that its members know that they belong there and are accepted by all other members. Even if its members do not yet agree on the details of what justice requires, they must agree on the basics,

the most elementary fundamentals of justice—that all are equally human, and have the dignity of humanity, that all have an elementary entitlement to justice, and all deserve protection from the most egregious forms of violence, exclusion, indignity and subordination.

And it is not only the government that must signal its adherence to these principles. Individual citizens share this burden too, because the law depends on self-application by citizens, and knowing that even a few are prepared to break it out of hatred is enough to feel unwelcome, less than a full member of society.

I am not persuaded by prof. Waldron’s argument. Indeed, what I find most striking about it is how it breaks with the usual Waldronian insistence on the pervasiveness of good-faith disagreement and, notwithstanding such disagreement, the trust that we ought to have in our fellow-citizens. These arguments are at the heart of his rejection of judicial review of legislation―and I know, from conversation with him, that he still very much adheres to them in that context.

Yet his dystopian vision of a society that fails to criminalize hate speech is in sharp contrast with his optimism about a “core case” society where, though citizens are committed to respecting each other’s rights even though they disagree about what those rights are. And, importantly, the “core case” society is not a Utopian fiction―prof. Waldron thinks that real polities, such as the United Kingdom, the United States, and (presumably) Canada fit the bill. I’m not sure he is quite right about that. But what I do know is that, despite not criminalizing hate speech, the United States look nothing like the paradise of hatred that he depicts. (Nor does prof. Waldron say that they do, I hasten to add.) To be sure, they did once look a lot more like that bleak vision than they do now. But it is noteworthy that even as they have become a lot more inclusive, they have come to regard the outlawing of hate speech as constitutionally impermissible.

Prof. Waldron argues that a decent society must be unanimous in agreeing on “fundamentals of justice.” So we lose nothing much by making it impossible to have an open and courteous debate between a liberal and a Nazi. Hate speech―statements that deny some people the membership in society―simply does not deserve to be heard or, more to the point, since prof. Waldron is concerned with the written rather than the spoken word, seen. But there are more hard cases than he allows. He says we must agree on the equal humanity of all. But what foetuses? Is the view that abortion should be legal akin to a statement that genocide is permissible? Some people think so. Others don’t. The Waldron of Law and Disagreement celebrates this fact. The Waldron of The Harm in Hate Speech ought, I think, to be embarrassed by it. And things quickly get more complicated if we move from the absolute minimum of agreeing that we are all human to what he said was the purpose of banning hate speech in the previous chapter―a recognition of the high dignity of citizenship. Are calls for making naturalization more difficult attacks on that dignity? What about an argument that convicted criminals should not have the right to vote? We may find such arguments distasteful, but I do not think that they are so beyond the pale that we lose nothing at all by making it impossible for them to be aired.

So I don’t think that we stand to gain nearly as much as prof. Waldron says from prohibiting hate speech. Nor do I think that we stand to lose so little as he believes from doing so. That is especially so because of the difficulty of confining the prohibition to some manageable standard and to avoid having it encompass all sorts of speech we wouldn’t want to prohibit. I will turn to prof. Waldron’s attempt to deal with an aspect of that problem in the next post.

Ideology in Constitutional Scholarship

Is most writing about constitutional law and theory (in the United States, but perhaps also in Canada) “intellectually corrupt”? In a post on the Bleeding Heart Libertarians blog, Jason Brennan, a philosopher and economist from Georgetown, says that it is. But, while his description of constitutional scholarship is, unfortunately, right, his explanation and evaluation of the problem seem too simplistic to me.

The problem with constitutional scholarship, says prof. Brennan, is

that almost everybody does the following:

1. Start with a political philosophy–a view of what you want the government to be able to do and what you want to the government to to be forbidden from doing.

2. Take the Constitution as a given.

3. Reverse engineer a theory of constitutional interpretation such that it turns out–happily!–that the Constitution forbids what you want it to forbid and allows what you want it to allow.

Academic arguments to the effect that something desirable is, unfortunately, unconstitutional, or that something undesirable is, alas, constitutional, are too few and too far between. Scholarship becomes indistinguishable from legal or political argument (these two being the same thing). “But,” says prof. Brennan, “academic legal theory is supposed to aim at truth. Legal theorists are not–or should not be–fighting political battles.”

If a scholar in another field – say in the interpretation of philosophical texts – acted like constitutional scholars act in the interpretation of legal text, we would think them “intellectually corrupt.” So why is it ok for constitutionalists to behave this way? Prof. Brennan claims that

[t]he only real defense of this practice I’ve seen is one that starts by arguing that the law is supposed to be normative and authoritative. However … –the case for legal positivism seems so strong that … this [does not seem] plausible.

In his own view, which he labels as “legal positivist and legal realist,” “laws [are]sociological phenomena, and whether a law is good or just is a contingent fact.” The constitution means what it means, not what whoever is reading it would like it to mean.

Prof. Brennan’s description of constitutional scholars as fighting political battles certainly rings a bell. His post was written in the context of the litigation surrounding president Obama’s healthcare reform, and academic commentary on it was, indeed, largely marked by the commentators’ ideology. But this phenomenon is very widespread. Indeed, what I have seen and heard at NYU suggests that some academics, at least, though don’t know how many, are open about regarding ideological acceptability as a criterion for assessing the value of a theory.

But is constitutional theory tainted by ideology because legal academics are intellectually corrupt, or because they are completely misguided about legal philosophy and fail to recognize the overwhelming arguments in favour of legal positivism, as prof. Brennan suggests? I think that things are much more complicated.

The problem with his explanation is that it assumes that there is a truth of the matter about constitutional interpretation, which a constitutional theory should uncover. But there is no objective truth about what a constitution means. To be sure, some constitutional provisions are clear enough, and one would be hard-pressed to find ideological interpreters disagreeing about their meaning. Many in the United States, especially on the political left, think that the equality of states’ representation in the Senate is morally indefensible, but no left-wing academic will say that the constitution doesn’t require it. But much of the constitution is not clear. Nor is it obvious how the meaning the less clear provisions is to be ascertained. It is possible, I think, to exclude some constitutional interpretations, even of less clear provisions, as quite obviously wrong. Whatever the prohibition on “cruel and unusual punishment” means, it surely makes the imposition of torture as a punishment unconstitutional. But what about death penalty? Different people can have different, reasonable, answers to that question, and they can – indeed they must – argue about which of these reasonable answers is better.

Law, in Jeremy Waldron’s words, is an “argumentative practice.” We argue about what this or that legal rule means – and that is an inextricable part of what law is, not a sad accident. This is especially true of constitutional law, for a number of reasons. One is simply that the stakes it involves are very high. What the state can and cannot do matters, sometimes at the level of policy, sometimes at the level of morality if not in the day-to-day lives of most people, and sometimes both. Another reason for the special importance of disagreement and argument to constitutional law is that constitutional texts are more vague than most legal sources. This is partly due to the need to secure agreement, often a super-majority agreement, on a text despite disagreements over specific rights, and to make that agreement last for decades and even centuries. This is also partly due to the fact that, contrary to what prof. Brennan seems to think obvious, much law – and certainly constitutional law – presents itself as morally good, and quite deliberately speaks in morally loaded terms. The third, related, reason why argument is so important in constitutional law is that it must somehow reconcile an arguably even greater number of competing values than other areas of the law. Democracy, federalism, Rule of Law, separation of powers, and protection of individual rights pull it in different directions. A constitutional text is, at most, a partial arbitrament between these (and other) competing values; it reflects them all, to some extent, and interpretations favouring one or another are bound to be plausible.

And here is where political ideology, which helps order these values, comes in. Constitutional theory, like any legal theory, is different from scientific theory, because it is in some measure argument. And argument about constitutional theory involves values, and hence ideology. It is fair, I think, to call it intellectually corrupt if it is limited to values and ideology and ignores legal sources. Any scholarship that deserves the name must be in touch with the reality it describes, explains, or critiques, so constitutional theory must, so far as possible, be grounded in constitutional text and precedent. But that will not make it free of ideology.

That said, it should still be possible for a scholar to acknowledge that his or her preferred constitutional interpretation is, if not incorrect by some (nonexistent) purely objective standard, unlikely to be adopted by courts (or other constitutional actors). One should strive to be clear-eyed about such things, and admittedly, legal academics often are not. To that extent, their scholarship suffers from a serious weakness.