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. 

The Making of a Counter Culture: Reflections on the Technocratic Society and Its Youthful Opposition (1969)

 

1969 publication; my first reading spring 1972

I first read this book in the spring of 1972 for a course entitled "Introduction to Political Philosophy" (or "Theory" or "Thinking"). The line-up of reading was what you'd expect: Plato's Republic, Machiavelli's The Prince, Marx (Basic Writings, Feuer), Mill's On Liberty, and one that didn't fit the mold: Roszak's The Making of a Counter Culture. All the readings were stimulating and enlightening, but it was Roszak's book that most intrigued me. I was a freshman in college (University of Iowa) from a small town in Iowa. I grew up with parents active in Republican politics, and I'd been to two Republican national conventions by the time I was 16 years old. I knew a lot about American politics and current events, but I'd never thought deeply about the underpinnings of politics and political thought, nor about the roots of what I was beginning to see around me at the University of Iowa. Most of what I knew of the wider world--and the disruption going on within the U.S. and elsewhere--had come to me via television. Roszak's book gave some shape to the hippies, the counter culture, and the politics going on around me. However, Roszak doesn't spend much time addressing politics in his book; Richard Nixon gets little (if any) notice, but neither does Tom Hayden, the SDS, or the Port Huron statement. Instead, it focused upon "technocracy," the "myth of objective consciousness," and thinkers that were critical of the American main stream in which we lived. Heady stuff. 

Earlier this spring I happened upon a copy of the Anchor mass-market paperback and decided to pop for it at the princely sum of $4. Now I've read it, and I now have a sense, reaching back exactly 50 years ago, of why it captured my attention. Roszak doesn't spend much time on the sociology of hippiedom or youth culture. He concentrates on the intellectual foundations upon which this counter-culture was based. Thus, I was introduced to the work of Herbert Marcuse and Norman O. Brown and the "dialectics of liberation;" Allen Ginsberg and Alan Watts and the "journey to the East . . . and points beyond;" Timothy Leary (and others; but no Ram Dass) regarding "the counterfeit infinity and the use and abuse of psychedelic experience;" and Paul Goodman and the "visionary sociology" of "exploring utopia." In addition, in briefer considerations and notes, I was introduced to Jacques Ellul and Lewis Mumford, among others. In discussing all of these thinkers and others, Roszak deals an even hand: he provides a careful and considered exposition of their thinking before undertaking any critique. His eye is at once appreciative and critical. 

In his final two chapters, "The Myth of Objective Consciousness" and "Eyes of Flesh, Eyes of Fire," Roszak lays out his underlying critique of "technocracy" and "the myth of objective consciousness." In a nutshell, the culture that puts an emphasis on efficiency, nuclear deterrence (and thus armament), objectivity, rationality, bureaucracy, and technology is one that stunts the human personality, the complete human. Thus, Roszak's critique points to those who seek to escape this one-sided and ill-formed culture: starting with his quote of Blake and then considering others. But the final two chapters are mostly Roszak's essay that riffs on the thinkers listed above and others like them. 

Does this book still resonate with me? Yes, indeed it does. Early this year I embarked upon Iain McGilchrist's masterwork, The Matter with Things: Our Brains, Our Delusions, and the Unmaking of the World, and as you may discern from the title, it deals with many of the same issues as does Roszaks book: how we perceive the world, interact with it, and mold it. Indeed, when Roszak wrote this first book our greatest threat was that of instantaneous nuclear annihilation. Of course, we still experience that threat, but now we've added the threat of slow civilizational death from climate change and other degradations of the environment. And politically, we've gone from having a man in the White House who had the grace to attempt to hide his crimes that attempted to undermine democracy, unlike the recent one who blatantly trumpeted his crimes. Thus, we live in world where authoritarianism isn't a threat that emanates from a monolithic communist block but is one that arises in the U.S. and elsewhere from indigenous sources. And because all politics lies downstream from culture, we may deduce that our technocratic culture has failed us. We appear as deer in the headlights: frozen, unable to move as multiple threats bear down upon us. The call went out back in the 1970s from Roszak to William Irwin Thompson and others and continues with the likes of William Ophuls and Iain McGilchrist, among the many who have critiqued and warned--indeed, prophesied--as to where we we're headed. Going back to this source of my journey has proven worthwhile. It reminds me that so much remains to be accomplished.