Cynicism and Its Discontents

I was reading this Times opinion piece, about the supreme court, recent decisions, the idea of standing to sue, etc., and which touches on some issues we have been discussing recently.

I have always kind of liked discussing legal issues, but I also don't really have any legal background to speak of, other than what I've learned from my Dad. I'm familiar with some of the really historically important ones, and some of the history surrounding the court, but I never took that supreme court class at Caltech or anything like that.

There's a lot of sort of high level, abstract stuff about how the law should be interpretted that I think is kind of gibberish. It always seems to piss people off when I say this, but I really don't understand what this "living document" theory is. This idea that a document means anything besides what the person who wrote it thought that it meant, or what the people who signed it mutually agreed that it meant, that it is some how "informed", as these post modernists like to say, by subsequent historical or cultural developments, strikes me as completely insane. I don't want to dwell on the point, and I suppose that different people might have different views on how drastic this new information may be, but obviously the text of the document doesn't change, and if the meaning somehow still changes nebulously while the text remains fixed, then the meaning of the document is now defined in someway that is completely inaccessible to any person, who only has access to the document. So any, alternative notion of meaning suggested by this living document idea is inaccessable to us as humans, inaccessible to the layperson, and thus utterly useless to talk or think about and should be abandoned. I understand if you want judges to have their ear to the ground, attuned to society and cultural developments, but to be honest, culture is not something we can form a consensus on -- different people interpret culture differently.

What I was more interested in discussing is that, the commenters in this piece were extremely cynical about the whole thing. Take #12, Jimmy from NJ:

"I used to care about the Supreme Court when I was a kid in law school---well, a little anyway. But these days, I couldn't care less. Why? Because watching both sides--liberal and conservative--engage in absurd, utterly risible result-oriented analyses was enough to put me off the whole thing. The idea that any of these justices actually believes in any of the interpretive philosophies unto which they ostensibly cleave is pure fantasy. There is no real intellectual debate in the Court. These are political actors making self-serving political decisions to benefit the interest groups who helped put them on the court. It's as simple as that."

I mean I've heard the more typical shrill partisan whining (#9, merits of his argument aside):

"I have no doubts that a Court that can find that a cross is not a Christian symbol, nor that a Justice (Scalia) who finds that women do not have inherent rights in the Constitution, can deal with a trivial matter like standing with ease."

But I'm kind of curious how many students of Biffpolitik view the court as a whole as a fundamentally intellectual, disinterested body, or like Jimmy, think they are obviously just a bunch of posers. Having not really scrutinized a Supreme court decision, is the level of argument really a step up from think tank policy debate? Or is it just more esoteric.


  1. In some sense the courts are our little DNA repair enzymes, our little endonucleases/polymerates/photolyases/telemerases/topoisomerases which are supposed to keep our legal framework in line with the original meaning of the constitution. I know, analogies between society and biology are speculative and strained, but when DNA repair breaks down, eventually you accumulate enough mutations to further impair DNA repair, at which point you've not nothing to stand on : your cell is going to turn into a tumor or have to kill itself, since it utterly lacks any mechanism to recover its original programming. That said, if the courts become corrupt, particularly the supreme court, and start to fail in their duties, its not clear it will even be possible to recover a functioning government, short of revolution, epic levels of organization, or sheer dumb luck.

  2. Head over to Wikipedia.

    It seems like the constitution is a living document in the literal sense since it can be amended. However, "Living Constitution" means something quite a bit more : that we can arbitrarily bend our interpretation of the constitution as we see fit.

    So, if you're uncomfortable with a living document, you have to deal with things like the constitution only extends rights to "men". You can't sit down and say "well what they really meant was human" because no, they meant male landowners. So, does the 19th amendment work ? If you stick with "meaning of constitution can't change" then the 19th amendment granting women suffrage made the constitution self-contradictory. Since the constitution is essentially this axiomatic framework for our government, this is disastrous (if only courts followed formal logic and could derive that everything follows from such a contradiction). The cheapest way to resolve the issue is to just say "ok, well, now man means human". If I were to mandate that the constitution remained internally consistent, but that we not re-interpret its meaning, I'd have to pass another set of amendments crossing out "man" and writing in "human" all over the document. Presumably this hasn't happened because its annoying and time consuming, and takes much too long for something as important as women's right to vote. Now, I guess you could resolve the contradiction by adding a clause like "where a contradiction is found within this document, the most recently penned text shall dominate" ( a clause that, incidentally, would fix up some of the Bible ( I hate it when people are atheists just because of the inconsistencies between the old and new testaments, there are so many better philosophical reasons to be an atheist ( this of course implies that the only theist religion around is Christianity, which was effectively true where I was raised ( but I understand is not true in general ) ) ) )

    ok... I guess I wasn't going anywhere with that, other than ... the course seem to think its reasonable to ignore the constitution when it conflicts with the prevailing social norm for what is "right". This is an efficient way of making sure laws that everyone hates don't stick around forever, and the only alternatives involve actual editing of the constitution which is so time and energy consuming that its not really an appropriate recourse for things like human rights violations, which need to be rendered illegal as soon as possible.

  3. I mean thats a reasonable point... I don't know if people really argue that, that the document really means men when it says human, or that it really means human but was just wrongly interpretted by jerks for years.

    Maybe the most reasonable thing is to get all Foucault and be like, look guys, a document can't mean anything objectively, or at least, it is surely divorced from what the writer thought it meant, since this notion is just as inaccessable to us as the notions of culture etc. But while thats reasonable its not very useful.

    Mike, I think when a contradiction is found, it is usually interpretted as new text appealing old text. But sometimes I guess a foundational principle overrides or guides the interpretation of a vague new addition.

    How come these issues of, whether a document can objectively mean anything, never arise in math but constantly arise in all these other fields?

  4. Because none of the other fields are Math. Math is the construction of that language which is objectively verifiable.

  5. I have seen math defined as "those memes whose properties are reproducible and which are self-correcting."

    As for the Constitution -- I think at this point it's not much different from the British constitution, more a set of traditions than a document. One can argue about whether this is a good or bad thing, and I don't actually like thinking about law very much (maybe because I never had a lawyer for a dad.) Certainly I would like a new one to be written, if only because the electoral mechanics is so outdated. But it's so hard to write constitutions these days, because you have to please everyone (who has money.) Just look at the EU.

  6. Beck, hold onto your hat. The Supreme Court has been a controversial and political institution since the creation of American. Judicial Review, the belief that the courts have the ability to determine the constitutionality of laws, is not in the constitution, but was established by a Supreme Court decision. (Marbury v Madison). The vast regulatory powers held by the Federal government today are a consequence of consequence of judicial decisions, decisions which were justified by obvious failures of regulatory power blamed on limited decisions by the courts. In the 20th century, landmark decisions in the Civil Rights Trial and Roe v Wade have made it clear that the Court can set policy as an independent body.

    The courts have traditionally been a check on the most idiotic and odious decisions of legislatures, from both sides of the aisle. The problem is when a minority party turns to the course as a recuse for legislative weakness.

    Strict originalism only works if the law exists in a vacuum, if the only valid reference to the law is the law itself. But law exists in a social and technological context, it applies to a world that has spaces that founders would not recognize. A case that makes it way to the Supreme Court can rarely be decided simply by applying the Constitution, it exists in a legal gray area. We ask the Justices to navigate in fog, hoping that they have wisdom to make proper decisions. A myopic focus on the 'original wording' denigrates the work of judges, and acts as cover to shield what has been a blatantly politicized court that has aligned itself not with a party, but with a conception of an America controlled by shadowy interest groups, rather than public representatives.

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  8. I would say that "living document" is not accurate so much as "living context." Any law or policy is inherently going to be interpreted in the context of the current social climate, and this interpretation is always going to be colored by the temperament, values, and political leanings of the most dominant generation of collective individuals.

    Also, just looking at the debate from a pragmatic standpoint, a "living constitution" makes more sense. Flexibility derived from somewhat open-ended interpretation gives the document which lays out the basis of organization for our government, and therefore the government itself, the extremely beneficial ability to better adapt to new political situations, technological innovations, and cultural mores that might develop over the course of the future. This flexibility should be even more salient given society's tendency to almost reverse moral direction each generation in rebellion of the preceding one.