Thoughts on the Law, the Legal Process, Constitutional Interpretation, Rhetoric & Evidence, Originalism, and Dobbs

Some thoughts: 

1. Law is a set of codes & standards of conduct enacted through speech. 

2. To be effective, the law must have legitimacy; to wit, people must recognize the validity of the courts & the state in promulgating & enforcing the laws. Of course, force becomes the final arbiter, but every regime needs to economize on the use of force. 

3. In order for a system of laws to be effective, they must be seen as (in some measure) legitimate, just, & predictable (non-arbitrary). 

4. Courts at all levels write opinions or speak from the bench seeking to justify their decisions (at least in American courts). All of these statements seek to justify a decision, from small claims to the Supreme Court. 

5. Decisions must be justified by reference to the evidence in the case (testimony and non-testimonial exhibits) and application of the law(s) to the particular case; i.e., what is the appropriate law to apply. 

6. Our laws come from acts of the legislature (Congress, state legislatures, city councils, etc.) and from judicial precedent (common law). 

7. Every decision requires an “interpretation” of the law to the circumstances; sometimes it's quite simple because the law (precedent or statute) is quite specific, and sometimes the law is frustratingly vague. But each decision requires an act of interpretation and application of the relevant law. 

8. And while there are some principles & maxims about how to interpret & construct the laws, they are few & not often binding; and this is especially so in matters of constitutional law. 

9. In arguing a legal position, a lawyer or judge is constrained only by the rules of sound rhetoric. The judge or lawyer can call upon precedent, logic, experience, common sense, intuition, or other considerations that the decision-maker (the judge or jury for the lawyer; the parties & the public for a judge) considers legitimate and persuasive. 

10. The consequences of a decision always play a role in the decision-maker's final decision; sometimes those consequences are acknowledged and apparent; sometimes consideration of the consequences is sub-silentio. And consideration of the consequences goes beyond the parties to the lawsuit and considers the public and posterity as well. (E.g., What precedent does this set?) 

11. “Originalism” in constitutional law is an interpretive and rhetorical conceit.  Originalism seeks to fix the meaning and application of a constitutional provision to the meaning and intention claimed to have been held by the original drafters of the provision. In some instances, there is no contention about such a provision; for instance, in order to qualify to serve as president, a person must be at least 35 years of age and born in the U.S. The statement of this provision is precise, concise, and utterly unambiguous. As to “right to bear arms,” “due process of law,” and “cruel and unusual punishment,” to take three familiar examples, the issue becomes more complex. 

12. My preferred argument against an originalist-only interpretation and application of the more ambiguous terms in the Constitution (e.g., “due process” and “cruel and unusual punishment”) is that the Framers—and those who later amended the Constitution—were not so foolish as to believe that their words were not open-ended and therefore would need constant interpretation and application. Would they not have known and even encouraged those coming after them to revise, refine, and further elucidate those concepts? Indeed, would they not consider posterity utterly foolish if posterity did not continue the project of building and refining a constitutional order? The ink was barely dry on the original Constitution before Madison (its primary author) drafted a bill in Congress to amend the document (the Bill of Rights). And Chief Justice John Marshall in the early 1800s went about refining and elucidating the Constitution through Supreme Court decisions. To think that the Framers and their progeny, especially the Reconstruction Congress that drafted and sent to the states the 14th Amendment, wanted us to freeze their concepts in time in an insult to those individuals, an unmerited insult. (The 14th Amendment applies “due process” and “equal protection” provisions to the states.) 

15. In fact, for law in general, and for constitutional jurisprudence in particular, there is no definitive mode or method of interpretation and application of constitutional provisions. The standard is one of persuasiveness within the legal and political community and with the public, as well. (The length of Justice Alito’s majority opinion in Dobbs v. Jackson is indicative of the importance and difficulty of justifying the Court’s decision to overrule Roe and Casey. 

16. Originalism is a fig-leaf that seeks to conceal the pre-determined result position in the case of Dobbs v. Jackson. Overall, originalism is a tool that works to roll back the expansion of constitutionally guaranteed rights established by the Supreme Court in the 20th century. 

Hacks, Climate Change, Science & Decisions

Charles Krauthammer, hack writer

I don't often read Charles Kruthammer. I perceive him to be a hack, a tool, a shill--in a word, predictable. I say that with some hesitation because I stopped reading him years ago. I now only glance. I don't want to call people with whom I disagree hacks or other demeaning terms because we disagree. After all, I could be wrong. I can fail to learn by ignoring new information and perspectives. But some writers on both the right and the left are too predictable. They bend the facts to fit their perspectives. We all do that do some degree, but at some point, you just have to stop reading. So why did I read Kruthammer today? 

For reasons that sometimes escape me, our local paper of choice, The Hindu, carries columnists from the NYT & WaPo. Do Indians really get Maureen Dowd? In any event, today I read Krauthammer because I suspected he was full of baloney when I read his title: "The myth of settled science". Here's his opening: 

I repeat: I'm not a global warming believer. I'm not a global warming denier. I've long believed that it cannot be good for humanity to be spewing tonnes of carbon dioxide into the atmosphere. I also believe those scientists who pretend to know exactly what this will cause in 20, 30 or 50 years are white coat propagandists.

Let's unpack this. Healthy skepticism, open-mindedness, continuing inquiry: all are hallmarks of good science. However, this scientific agnosticism, like patriotism, if often the last refuge of scoundrals. Flat-earthers and creationists love to spout it, along with climate change deniers. There is a huge body of science upon which we can have no rational disagreement. Science lives in a double-world: both agreed and open to revision. We have to use sound judgment to distinguish the two. 

In matters concerning global climate change and human carbon-loading of the environment, we have to maintain both attitudes. However, we do have to choose on the basis of the best evidence. We have to make decisions on what we believe to be the truth based on empirical evidence. From this we have to discern  the hypothesis most likely to approximate the truth (facts) that will arise in the future. When it's the future we're considering--and it certainly is in this case--we have to constantly revise our theories and understanding. Double that thought when we're talking about the uber-complex world of the biosphere, perhaps the ultimate complex system that evolves over eons and that fluctuates moment-to-moment. 

Krauthammer unleashes a shotgun spray of arguments in an attempt to hit Obama on this issue. We can't know for sure, so we can't say that "The debate is settled. Climate change is a fact."

Yes, we can. 

It's true to say that we're not sure of how fast change will continue to come, how it will affect weather patterns, and so on. We don't know these things with a high degree of certainty. So does this prevent us from acting? No, we act, regardless. We only can choose whether to act in ignorance or by informed and educated science. We are now acting, only foolishly. What Obama and a decisive majority of the science community are recommending is that we act rationally based on the strong consensus of the scientific community. (I know about Freeman Dyson, but isn't there one in every crowd? Einstein didn't accept quantum theory, either. Even geniuses make mistakes.) Climate change is undoubtedly occurring, even though we don't know with certainty its parameters or trajectory.

We need to act according common law standards for torts (harm to others with whom we don't have a contractual relationship). In other words, we need to gaudge the liklihood of harm, the magnitude of the possible harm, the cost of avoiding the harm, and act accordingly. Climate change-deniers (yes, an apt name for them) ignore the context that we should apply to this type of issue and attempt to make it an all-or-nothing proposition. Nice work if you can get it, but don't expect it in serious issues about the future.

We should recall that we on planet earth are running an N=1 experiment. In doing so, we need to remember that we can't run it again, at least not in this iteration of the universe. Therefore, we ought to be pretty damn careful. I don't like the thought of using less energy--energy is eternal delight. But I don't want to mess up the planet permanently. Especially if we do so by paying attention to hacks like Charles Kruthammer.