The Specific and the General

Random happenstance led me to read two articles today that have connections in ways I wouldn't have otherwise noticed and both articles are worth sharing. The first is the Specific.

In Chipotle Mexican Grill versus egalitarianism, Stephen Hicks examines the recent case against the restaurant chain for violations of the Americans with Disabilities Act. To sum up, a man in a wheelchair sued because he couldn't see the food as it was being prepared. As Hicks writes:

The justices in the Ninth Circuit Court agreed, writing in their decision that Chipotle’s counter “subjects disabled customers to a disadvantage that non-disabled customers do not suffer.”

Let’s set aside some secondary matters to get to the key issues. So set aside the large majority of restaurants at which no customers can see their food being prepared. Set aside the children under four feet tall who can’t see their burritos being assembled at Chipotle. Set aside Chipotle’s offer to bring sample spoonfuls to their wheelchair customers.

Here are the key issues decided by the case, one ethical and one political:
Ethical: Customers should have equal food-ordering experiences as a matter of moral principle.
Political: We must use the law, i.e., physical compulsion, to enforce such an important moral principle.

What follows is a nuanced examination of how the ADA and the court enforce a bastardized form of the concept of "equal," one championed by egalitarianism where "to put it in metaphorical terms: they treat equality as a Procrustean Bed." The take home message is that the rights of Chipotle are being trampled upon by the implementation of bad philosophical principles.

As I was cleaning off my desk today, I came across a print out of the article I refer to as the General.

What happens to a society when it is being eaten alive from the inside out by countless examples like the one above? Billy Beck wrote about that nearly a year ago, and his words are even more relevant now:

This is my working concept, now: that it's over, and that all that's left are the particular details of collapse. That will be a rich story in itself, for sure, but we are living a truly unparalleled tragedy. It is unparalleled in that this was the first country in history founded on rational ideals of individualism (even accounting for the original sin of black slavery), and it is a tragedy in that it has been destroyed from within.

...Their grandfathers could build houses if and where they wanted to once they had accrued the moral authority (that's "money", kids) to do it: these people can barely un-flatpack a bookshelf, but at least they wouldn't have to beg zoning permits for that.

Even as it slides, though...they will notice the cold bite of the state. These are special generations -- the earliest of them just passing now and the last of them alive in albums with long hair and bell-bottoms -- who can see it all freezing right in front of their eyes. Their children are groomed to the cold from birth now. All the time, they know less and less about the sheer gaiety of life that once was this country, and what it took to produce that. They take for metaphysically-granted political (and their consequent cultural) structures emergent right in front of them that were once the stuff of "fevered McCarthyism". The worst part of that is the complicity of their parents, who should know better because they actually lived a great deal of what's been lost, now.

If it's not clear why I draw the connection, read both posts for yourself, especially Billy's. I'm no longer able to marshal arguments against Beck's overall assessment of America. Hick's particular example is one of seemingly infinite reasons.

In light of that, Beck's mention of "the complicity of...parents, who should know better," and that "their children are groomed" to accept the all-powerful state struck a chord. As a parent of young children, I struggle with this daily. How do I open their eyes to the fact that omnipresent government is not a metaphysical absolute, that men can deal with each other voluntarily without a statute or regulation (replete with taxes) to govern it, and that amazing prosperity and happiness are the result, without also passing on my own profound anger at it all? Right now, the anger may be all they understand, really, and that's no way to raise a reasoning, happy child. This is a battle I fight constantly, raising my wondrous, beautiful little humans in this time of decay.

Saxby v. Sunstein

"Sen. Saxby Chambliss (R-Ga.) has blocked President Obama’s candidate for regulation czar, Harvard law professor Cass Sunstein, because Sunstein has argued that animals should have the right to sue humans in court."

Chambliss is holding up Sunstein's nomination after hearing from agricultural lobbyists, and perhaps because he actually disagrees with Sunstein's ideas. This is all well and good, because the whole animal rights idea is as crazy and wrong as Chambliss asserts. But it completely misses the more fundamental reason why Sunstein is not fit for any post in which he has any political power.

His stance in support of animal rights and against gun rights -- the two most commonly cited issues from the conservative side -- are superficial in light of Sunstein's core positions. They are but an outward indicator of his fundamental view of individuals and their relation to the state. In his voluminous writings, we see a man who views individuals as wards of the state, as "tools" and "resources" to be nudged around in service to the good of society.

In essence, Sunstein sees no inalienable right to life, liberty, or property, and no way for jurisprudence to uphold them objectively because there are also no objective truths. Anyone who claims there are is an extremist, and he has advocated actively for such views to be restricted by law. That he has backtracked from that outward position is irrelevant. Instead of openly supporting such ideas, he has taken to surreptitious and indirect attacks on "group polarization" and "extreme views," always stopping short of voicing a "final solution" but leaving the logical conclusion unavoidably obvious.

While I applaud Chambliss for blocking the nomination -- at least for now, because he said he wants to talk to him before lifting his blockade, as "He has not had the opportunity to look me in the eye," whatever good that will do -- because he has not done so in any principled fashion and has picked one of the least substantial and wackier of Sunstein's positions (and thus likely easier to be casually brushed aside as "academic rambling") Chambliss' stand will very likely end in compromise (i.e. failure).

Such is the inevitable outcome of Republicans' inability to understand or stand for individual rights. Unless and until they do, they will continue to fail.

Rule of Law Takes a Back Seat

This video from WSJ.com is a month old now, but the discussion still applies to everything the Obama administration is doing now. The commentators discuss how the administration is strong-arming California to sweep away bipartisan legislation for state budget cuts in favor of a union. To this, Dan Henninger said "they are trampling the idea of federalism." Then they discuss how the administration and the Democrat-controlled Congress are ignoring Article 1 of the Constitution and bankruptcy law precedent by placing the UAW's claims above those of Chrysler's preferred creditors. Henninger said, paraphrasing, that the Obama administration considers the rule of law just one issue on the table equal to social justice and the public good, that it often has to take a back seat to those considerations, and that they consider this a "legitimate theory of operating the government." Shaking his head, he said that if the courts uphold these actions, "then we're living under a new system." Indeed.

My one gripe is that, though one of them did mention property rights, they didn't take the next necessary step and discuss how the administration's actions constitute a fundamental violation of individual rights and that the "new system" we'll soon be living under is full-blown fascism. As Ayn Rand said, "Under fascism, men retain the semblance or pretense of private property, but the government holds total power over its use and disposal."

Bait and Switch? Sunstein for Sotomayor?

As I contemplated the growing mobilization of conservative opposition to Sonia Sotomayor's Supreme Court nomination, I had an interesting and worrisome thought: what if Sotomayor was a sacrificial lamb of the Obama administration, set out to satiate the GOP wolves, allowing someone Obama really wants to be nominated in the aftermath? What if this was all a ruse to get Cass Sunstein onto the court?

Because Obama will likely have at least one more nomination to make in his time in office, I didn't give much credence to my conspiracy theory. As I said a month ago,

With the imminent departure of Souter from the Supreme Court, Sunstein is also being discussed as a potential candidate. He has for months been my dark horse pick for one of Obama's nominations to the Court, but I don't think it will be now. To satisfy the race- and gender-based factions of his party, I predict Obama will pick a woman or a non-white first. Because of course the skin color or gender of a person means they will be more fair minded or some such nonsense.

However, it turns out I'm not the only one with sneaking suspicions about motives and aims of the current administration. Someone under the pen name M. Abramowitz at a blog I'd never heard of called The New Majority (a conservative blog edited by David Frum, trying to "fix" the Republican party with a toxic mix of religion and environmentalism, with a little limited government thrown in) wrote a post about the very bait and switch I was thinking of. Abramowitz comes up with some interesting ideas to ponder, suggesting that a "multi-actor repeated game" could describe what is going on.

First, by emphasizing empathy and by so conscientiously touting the judge’s biography, the President has assured the terms of the debate and radicalized his critics. ... The President has thus created a “heads I win, tails you lose,” scenario. Sotomayor will either be confirmed over the protests of those who diminish the relevance of her personal history, but who are heard by the masses as diminishing the history itself. Or she will be defeated or withdrawn, ...leaving the President the opportunity to choose perhaps a less biographically-impressive but more intellectually-formidable nominee.

This points to why the Sotomayor nomination makes sense in the context of a repeated game. Chances are the President will face two or three vacancies during his first term. And let’s say that he really wanted to nominate to the Court his close friend and now head of the Office of Information Affairs, Cass Sunstein... What would be the best strategy to get Sunstein on the court?

Would it be best to nominate him first, when interest groups, ginned up to oppose the first person down the pike, would comb Sunstein’s scholarly works for evidence of immoderation and turn the already hot Washington summer into a referendum on jurisprudence? Or would it be better for Obama to make a “biography pick” first, expose himself to the charge that he’s only interested in identity politics on the Court, and answer those critics when the second vacancy appears by nominating an ivory tower Jewish male? Resistance will nonetheless be fierce, but opponents will be in a weaker position for having shifted strategies, whereas the President will be in a stronger position by appearing to have addressed the previous concerns. [bold added]

I hope you'll forgive the long quotation, but I cut out as much as possible while leaving the core of the arguments in tact. This is a compelling line of reasoning, and not only apparently fits in with game theory -- of which I know little -- but also with the manipulative nudge and Alinsky-type strategies employed by the left.

Again, I have difficultly believing such Machiavellian tactics are actually being used, though I admit that I could be suffering from naivete. Still, Abramowitz's conclusion is worth noting whether or not this is all a grand conspiracy, for even if it isn't, the scenario could certainly fall out this way if the Republican attack dogs follow this trail:

Considering this context, the optimal strategy for conservatives most concerned about the eventual appointment of a Sunstein-like figure to the Court (and his likely far greater influence on the law than Judge Sotomayor) would be to avoid any debate about the relevance of her biography and keep their focus on competence, judicial experience (of which Sunstein has none) and jurisprudence. Doing so may be impossible in the current environment, for playing identity-politics, both on the Right and the Left, is a heck of a lot easier than debating judicial philosophy. [bold and italics added]

Now, taking a step back from this particular case, I'd like to point out that I find this perspective refreshing, especially from a conservative blog, because the author seems to recognize the intellectual bankruptcy of the right; namely that they likely won't be able to avoid the "he said, she said" of identity politics.

But his call to focus on jurisprudence begs the question: what is good jurisprudence? Does he fall into the Originalism camp with Scalia? This seems to be what conservatives tend towards, but as demonstrated by Tara Smith (see my two previous posts), the lure of Originalism is ultimately undercut by its lack of objectivity. As Smith wrote in the conclusion to her paper in a Duke law journal:

The appeal of Originalism rests primarily in its presenting itself as the champion of objectivity. It retains this appeal, despite incisive criticisms, because the alternatives seem wobbly in comparison, distinctly lacking in objectivity. And here, appearances are not deceiving: Each of them offers merely a different form of subjectivism. Originalism seems to provide the only refuge. Its professed objectivity is illusory, however. For Originalism mistakes the intrinsic for the objective. And because objective meaning does not, in fact, simply inhere within words, Originalism collapses into subjectivism, the very thing it means to overcome.

Obviously, the full and exact nature of objectivity is a huge subject in itself. I hope that my proposal that the reining theories of judicial interpretation offer two ends of a false dichotomy will stimulate further examination of objectivity in this context. Each side of the debate has the story partially right, detecting something that is defective in the other. ... Originalism has not died, in other words, because both sides labor under erroneous conceptions of objectivity. As long as we lack an accurate understanding of what the objective application of laws is, we cannot expect to have it -- which means that the rule of law and the protections it affords are precarious. Even well-intended interpreters trying to uphold the rule of law will not be in a position to do so.

I hope Smith continues this work to flesh out a new school of objective thought in Constitutional interpretation, or that other scholars take up her call for "further examination of objectivity in this context." Until then, "even well-intended" people like M. Abramowitz, in calling for a focus on competence and jurisprudence, will be on shaky and ultimately unsound footing, open to attacks from all sides.

Kos Proves Smith's Point

As if responding directly to the commentary by Tara Smith I quoted in my last post, the folks at Daily Kos dredge up all the same old fallacious arguments about judicial activism, saying it's not the liberals who are the worst, but instead it's the conservatives. This is the perfect example of what Smith meant when she wrote:

Each camp has its list of outrageous court decisions, which it denounces as deliberate distortions of law, cavalierly imposed by “judicial activists.” That epithet has become little more than a verbal grenade, hurled, too often, simply to impugn any decision with which one disagrees.

To support their view of the playground politics of the Court, they quote two different surveys by legal scholars that seem to show that the more conservative justices are consistently "more activist." One of the surveys, in fact, comes from Cass Sunstein.

In a July of 2008 piece, Sunstein hands out his cheekily-named "judicial partisanship awards" by surveying "well over 20,000" judicial decisions to find out which justices were the most "activist." It is important to note that Sunstein's definition of activism is partisanship, and more importantly, voting to strike down regulations proposed by the legislature or executive.

With this measure, he found that the arch-conservative Justice Scalia was the "most activist."

Whether or not Scalia's particular decisions were the right ones, this metric highlights two important points made by Smith. She noted that activism on the bench, in and of itself, is not a negative, and the opposite of judicial overreaching is not the complete absence of action. She said, "Judges are not to be passive spectators; adjudication is an activity, calling for the exercise of careful, objective judgment."

And in the context of the vague, absurd, rights-violating laws passed by the legislative branch, and the vague, absurd, rights-violating regulations enacted by the executive -- most of which, from both branches, serve to abridge our liberties -- the court is put in an untenable position, even assuming for the sake of argument that it was made up of truly objective thinkers. As Smith wrote, "Much of the responsibility for the eventual court rulings that often strike us as judicial overreaching, in other words, actually stems from those who have irresponsibly crafted our laws and left courts in a 'damned if they do, damned if they don’t' position."

I think that if I were on the Court, I'd be voting to strike down most of the things that passed my bench too, using individual rights as my standard. Would this be overreaching, or the only rational course of action? As I said previously, I'm not defending Scalia himself, as I haven't followed his career closely enough to say one way or the other. I simply use this example to show that having a penchant for striking down laws in this environment is not necessarily a sign of "Justices Gone Wild."

In the end, DailyKos and Cass Sunstein unintentionally prove Smith's points, that an active (but objective) judiciary is desirable, especially when the dross created by the other two branches is so pervasive.

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For a detailed look at the dominant schools of though in Constitutional interpretation, see Tara Smith's paper in the Duke Journal of Constitutional Law & Public Policy:

"WHY ORIGINALISM WON'T DIE -- COMMON MISTAKES IN COMPETING THEORIES OF JUDICIAL INTERPRETATION"

Profile of Professor Pragmatist

The details of President Obama's time as a law professor never fully came out during the campaign, as far as I saw. Perhaps now that he has been elected, more of his former students and colleagues are willing to talk, as evidenced by this fascinating article in the New York Times, "As a Professor, a Pragmatist About the Supreme Court."

It is an admiring piece, digging into Mr. Obama's views on the Supreme Court and Constitutional law, as well as how his thinking and past decision making might influence the choice he has now: to make a nomination for the soon-to-be vacant seat on the Court. It is this detailed look at his temperament and thought process that is illuminating.

This may be his distinguishing quality as a legal thinker: an unwillingness to deal in abstraction, a constant desire to know how court decisions affect people’s lives.

“The University of Chicago was and is full of eminent theorizers who wrap up huge areas of the law by applying some magic key,” said David Franklin, a former student. “He didn’t do any of that; he wasn’t interested in high theory at all.” [bold added]

By the rules of pragmatism, this is the perfect attitude. Why deal in "high theory" if there are no priniciples, no objective facts of reality? It is only the impact on people, the thoughts and feelings of others, that is real.

Former students say that Mr. Obama does not particularly prize consistency or broad principle. Adam Bonin arrived in Mr. Obama’s class with the firm belief that drawing districts to ensure minority representation should be illegal. “It struck me as wrong that the legislature should pick and choose what interests should be represented in the legislature,” Mr. Bonin said.

“What I took from the class and the reading materials was the reality that unless these voices are physically present in a legislature, they won’t be heard,” he said. “As long as everyone is grabbing for power, members of racial minority groups ought to do the same.” [bold added]

Principle: 0. Power-grabbing: 1. True to the second-handedness of his views, political power -- inevitably, the ability of one group to impose its views on another -- is more important than anything else. The important thing is that the process is democratic. One can presume, based on everything else we know about the man, that individual rights are not the key concern, but the deliberative nature of democracy, and that everyone feels like they have a say.

“He sees the political process as the place that a lot of these large, difficult public policy questions ought to be resolved,” said Richard Pildes, a professor at New York University law school whom Mr. Obama met through their mutual interest in election law.

Even as law review president, Mr. Obama de-emphasized his own views and instead made himself a channel for those of others. His decision making was “about the group sentiment and what the group majority might agree to,” said Nancy McCullough, a fellow editor. [bold added]

What if, after the majority rules, it's not what he thinks represents social justice?

Mr. Obama often expressed concern that “democracy could be dangerous,” Mr. Stone said, that the majority can be “unempathetic — that’s a word that Barack has used — about the concerns of outsiders and minorities.”

This is why the behavioral economist brain trust of Cass Sunstein, Dan Ariely and others, is so valued by Mr. Obama. By nudging, he and his administration can ensure that his deeply held progressive ideas can be implemented without hurting anyone's feelings, or his having to come out and say anything definitive. With the Democratic majorities in the Congress, he has less to be concerned with in terms of righting social wrongs imposed by elected officials, but I'm sure it's a nice cushion to have. He can even nudge in support of the progressive policies enacted by Congress, a perfect one-two punch, knocking out liberties in favor of entitlements to the oppressed.

I highly recommend reading the full NYTimes piece. During the Bush years, it was important to understand his thought process or lack thereof; it's hard to call "having a personal conversation with Jesus" actual thought. It is similarly important to understand Mr. Obama's thought process, and this article is quite informative in that regard.