Has Common Good Constitutionalism Anything to Do with Constitutions?

Thursday, 04-09-2020

 

I cannot realistically choose not to be ruled by an elite.  At this point in history I probably cannot even choose not to be ruled by a technocratic elite.  But I do prefer to be ruled by the portion of the elite which is allied with a majority of the population.  That ought to mean a strong role for the elected legislature as contrasted with the unelected bureaucracy and judiciary.  Such constraint, however weak it may be in such times, is helpful, just because it is more difficult for an entire population to lose its common moral sense than for technocrats to lose it.

Complicating the matter is the fact that at present, the legislature is itself divided into two factions.  Both claim to embody popular rule, which in the strict sense is impossible.  But the leftist faction is wholeheartedly allied with unelected technocrats, and wants to employ coercion to displace the traditional morality, while the other faction is merely ambivalent about technocracy and morality.

The idea has been floated that since conservative judges are at last being appointed to the Supreme Court, the conservative commitment to the original intention of the Constitution has “outlived its utility,” and that conservatives should instead adopt something like the leftist idea of a “living” Constitution but turn it to conservative ends.  This seems to imply that originalism was never really about the Constitution but was merely a conservative pretense for gaining power, in the same way that the “living” Constitution has been a liberal pretense for gaining power.

I hope I am reading this new conservative theory incorrectly.  Perhaps no pretense was intended, and if so, I will accept correction.  But I am sure that we should reject pretenses and deceptions of all kinds, even noble lies.

Besides, the notion of a “living” Constitution is hardly more palatable in the hands of conservatives than in the hands of leftists.  It is merely a way to disempower legislatures altogether, so that law is shaped entirely by the executive in alliance with the technocrats.

Granted, it is impossible for a judge not to consider the common good, for if he does, he will be incapable of understanding the considerations of common good that the legislators themselves intended.  And this is important.  But the chief responsibility for considering the common good, along with its relation to natural law, common law, law of nations and the rest of it, lies with those who made the Constitution and laws, to whom, under all but the most extreme circumstances, he should defer.  Judges are not competent to take first place and set policy for the entire country.

 

 

How Will the Coronavirus Change Us? Let’s Rephrase That

Monday, 04-06-2020

 

A great many people are asking how the coronavirus will change us, but that is not the right question.  The only way the virus can change us is to make us sick, God forbid.  Any other changes will come about not because of the virus itself but because of our response to it.  All in a rush, we are making the decisions that will change us right now.  The right question, then, is which ones we are making.

For example:  Maybe not – but families fed up with ever-increasing cost and the ever-decreasing content of college education might demand massive reductions in expensive classroom instruction.  Since the school refuses to refund my kid’s tuition on grounds that he’s still getting the same educational value online, why not teach all courses that way?

Maybe not – but persons whose sense of their faith is already iffy might slack off from the practice of worship and participation in the sacraments.  If even my pastor says I should just watch the service online during the epidemic, why couldn’t I do that every week?

Maybe not – but panicky citizens might stop complaining about governmental interference with religious institutions.  Here and there a few small churches and synagogues have continued holding public worship services, perhaps reflecting that if ever people needed God, they need Him now.  Responding to those few, the mayor of New York City threatened not just to prevent these churches and synagogues from holding large public meetings during the epidemic, or prevent them until the epidemic is over from violating social distancing guidelines -- which would not have been unreasonable -- but to permanently shut them down.  He has no authority to do so, but that does not make it unimportant that he wanted to and thought that he did.  Will such bullying become a precedent?

Maybe not – but fearful of widespread economic collapse, voters might be all too ready to exaggerate the power of government and to think that there is nothing special about a competitive economy free of constant, pervasive political intervention.  How the economy works is not widely taught, and many think “free market” is a synonym for “greed.”

Maybe not – but the shift of power and initiative from the states to the central government, nothing new in itself, might accelerate.  To many people, the idea that the states might be laboratories capable of making their own decisions, perhaps even trying out new responses to the emergency, seems a useless abstraction.  When citizens are afraid, the urge to have the federal government control and direct everything is strong.

Maybe not – but we might see the yearning to turn everything over to technocrats become even stronger than it already is.  How many times have you heard it said that politicians should get out of the way and let “the scientists” do their work?  But experts are political too, and even if they weren’t, what policies to make in view of competing economic and epidemiological models is a political decision.

Maybe not – but global trade might become even less popular.  I count myself a free trader, but even most free traders can see danger in relying on overseas providers for goods crucial to national health and security – especially when the interests of the countries from which we get them may be opposed to our well-being.

Maybe not – but the configuration of international politics might change, as the statements and declared intentions of the totalitarian rulers of China concerning the crisis fall further into disrepute.

These are only could-bes and might-happens.  In another two years, things will look different.  But we should be thinking right now about what we are doing to shape them.

 

Living and Dead Constitutions

Monday, 03-30-2020

 

Though I disagreed with the late Justice Scalia about a variety of things, I have always liked his quip that he didn’t believe in a “living” Constitution, but in a dead one.

Let’s tweak that a little.  What people mean by a living Constitution is a Constitution with no stable meanings.  If you don’t like what it seems to mean, you can say it means something else.  Its meanings are entirely fluid.

But a living Constitution is dead.  Only a dead Constitution can live, in the only sense in which it ought to.

What does this mean?  Let us remember that the reason for having a Constitution isn’t to chain us to the notions of bygone generations.  Rather it is to prevent rulers from becoming arbitrary, by making it more difficult for them to do certain things they might otherwise do.  If they can make the Constitution mean whatever they want it to, then it can’t do that.

So how is a living Constitution dead?  It is dead in the sense that a document with fluid meanings can no longer function as a Constitution; it cannot keep the rulers from doing whatever they want to.

And how can a dead Constitution live?  It can live in the sense that because its meanings are stable, it can still function as a Constitution; it can keep the rulers from doing whatever they want to.

Thus to have a “living” Constitution in the sense of those who use this expression is tantamount to not having a Constitution at all.

A Constitution is not meant to be a fetter.  Although, for good reason, it cannot be changed as easily as ordinary law can be changed, it can be amended if we are willing to go to the trouble to build not a fleeting majority, but a strong and persistent consensus.  If you’re not happy with your Constitution, go ahead -- try to get it amended.  But don’t treat it as meaning what it doesn’t.

Related:

Which Side Guessed Better?

Whom the Gods Would Destroy, They First Make Mad

What To Do While Trying Not to Overload the Camel

 

What Kind of Progress Does Progressivism Want?

Monday, 03-23-2020

 

As its name suggests, progressivism wants to make progress.  This would seem to mean that it wants to achieve new things that are good, and leave behind old things that are bad.  Who wouldn’t be for that?

But to know whether you are making progress or not, you need an objective standard of what is good.  In short, you need the natural law.

The problem is that natural law is one of the things progressives want to get rid of.  They consider belief in natural law reactionary, because they think all principles of morality and justice are subject to change.  You do whatever works.

But in this case they are trying to progress beyond the very standard by which progress can be gauged.

For without an objective natural law, progress cannot be distinguished from regress.  You can’t even distinguish what “works” from what doesn’t.  There is only meaningless turbulence and purposeless alternation, according to the whims of the moment.

You might, of course, try to rescue progressivism from incoherence by saying that whatever is, is good and right.  This would imply that whatever change is taking place at this moment is good change, just because it is happening.  And it would imply that whatever you are doing to make it happen, is right to do, just because you are doing it.

But that wouldn’t really rescue the cause of progressivism, because it would also imply that whatever isn’t changing right now, shouldn’t change, just because it isn’t.  And it would imply that whatever your opponents are doing to make a different thing happen, is also good to do, just because they are doing it.

If you really throw out any objective standard of good and evil, then you have no reason to do anything at all – nor have you any reason not to do anything at all.  You have no more reason to feed the poor than to starve them, no more reason to champion justice than tyranny.  You have no reason to live, but you have no reason even to commit suicide.

You might also try another way of rescuing progressivism from incoherence.  You might say that whoever wins is right.  And you might do whatever it takes to win, because then winning would make you right.  That describes a lot of progressivism pretty well.

But in this case, you haven’t escaped from belief in an objective morality after all.  You have merely tumbled into the belief that the one and only thing that is ultimately right and good is power over others.

 

Bad Reasoning about Hard Choices

Monday, 03-16-2020

 

Query:

A fireman races into a burning medical clinic.  He finds there a flask of frozen embryos, but also a five-year-old child.  He can’t carry them both.  Who should he save?  Most people – including most pro-life people -- would say “the child.”  According to abortion advocates, this proves two things.  First, it is supposed to show that not even pro-life people really consider an unborn child equivalent to a born child.  Second, it is supposed to show why killing unborn children is okay.

Something is wrong here, but I can’t tell what.  Can you help me think this one through?

 

Reply:

Sure.  Both inferences are false.  To begin with the second, what is done in this scenario isn’t analogous to an abortion.  In an abortion, you are deliberately killing someone.  In the fire in the clinic situation, you are saving someone, but you can’t save both, so you have to choose which one to save.  So what we think of story of the fire tells us nothing about what we should think about abortion.

As to the first inference, it isn’t even remotely true that if you choose to save the five year old, then you must consider an embryo to have less value than a born child.  To see why not, consider several alternative scenarios.

Scenario 1.  A fireman sacrifices his life to save a five-year-old child from a burning house.  Most people would say he did the right thing.  Does their judgment imply that they think the life of a fireman has less intrinsic value than the life of a five-year-old?  No.

Scenario 2.  A father rushes into a burning house occupied by his little girl.  As he rushes down the hall, he realizes that his daughter’s playmate is in the room next to his daughter’s.  The house is about to collapse, and he cannot save both of them, so he saves his little girl.  Most people would say he did the right thing.  Does their judgment imply that they think the life of his daughter’s playmate has less intrinsic value than the life of his daughter?  No.

Scenario 3.  There has been a battle, and many soldiers are injured.  There is only one doctor, and not enough medicine for everyone.  So the doctor divides the injured into three categories.  In category 1 are those who are so gravely injured that they will probably die no matter what he does.  In category 2 are those who have intermediate degrees of injury, so that they will probably live if he gives them medicine, but not if he doesn’t.  In category 3 are those who have light injuries, so that they will probably live no matter what he does.  The doctor decides to give medicine only to the persons in category 2.  He will try to make the persons in categories 1 and 3 comfortable, but will not give them medicine.  Most people would think he did the right thing.  Does their judgment imply that they think the lives of mortally injured and lightly injured persons have less intrinsic value than the lives of persons who are seriously but not mortally injured?  No.

What did happen was that although in each case, every human life was equally precious, not all could be saved, so in order to make the choice, other factors had to be considered besides the intrinsic value of human life.  In Scenario 1, the additional factor was vocation, for saving life is a fireman’s calling.  In In Scenario 2, the additional factor was relationship, because all other things being equal, our duties to our offspring are greater than our duties to others.  In Scenario 3, the additional factor was who can be helped, because not all of the soldiers were equally injured.  Many such things come into play in hard choices.

And of course none of these cases is like abortion.  In every abortion, innocent life is taken deliberately, something that is intrinsically wrong.  By contrast, in the scenarios I’ve spun, no innocent life is taken whatsoever.  The fireman in Scenario 1 does not commit suicide.  The father in Scenario 2 does not murder his little girl’s playmate.  The doctor in Scenario 3 does not kill any of his patients.

For a clincher, several pro-life writers have pointed out that the original story – the one about the little girl and the flask of embryos -- can be modified so that even the advocates of abortion tend to make the opposite judgment.  Suppose there has been a worldwide super-pandemic, and the flask of embryos is the human race’s only chance of survival.  In this case, wouldn’t most abortion advocates say that the fireman ought to save the flask of the embryos?  Now ask:  Would their making this judgment imply that they think the lives of embryos are intrinsically worth more than the lives of born children?

No.  Just as before, all human lives are equally precious, but when not all can be saved, we have to consider other factors too.  Inequality has nothing to do with it.  I hope I’ve answered your question!

 

Sickism

Friday, 03-13-2020

 

CNN has reported that the president declared that he was not worried after meeting with a Brazilian official who was reported (falsely, as it turned out) to have tested positive for the coronavirus.  However, CNN now has now released the surprising news that the president does not actually want to be infected.

Health officials are urging citizens not to be tested unless there is actual medical need.  The president has said that he will “most likely” be tested, but no decision has yet been made.  The Washington Post has run a story about “What to do about a president who says he won’t be tested for the coronavirus.”

No matter how you look at it, this matter is very serious.

If the president is not tested until there is actual need, then he is carelessly putting himself at risk.

If he is tested immediately, whether he needs to be or not, then he is setting a bad example by ignoring the advice of health officials.

And if he does not want to be infected, then he is guilty of sickism, the discriminatory attitude of not wanting to be like sick people.

Terrible.

 

Knowledge, Power, and Obsession

Monday, 03-09-2020

 

I have been reading a famous speech of Robert A. Oppenheimer, given in 1945 to the Association of Los Alamos Scientists.  Oppenheimer had played a central role in the development of nuclear weapons.  His speech is one of the most tortuously reasoned documents of its kind that I have read.  However, it is revealing.

According to Oppenheimer, to understand the “real impact” of the invention of the atomic bomb, “one has to look further back, look, I think, to the times when physical science was growing in the days of the renaissance, and when the threat that science offered was felt so deeply throughout the Christian world.”

There is some bad history here.  Were it not for the vision of a universe ordered by Mind, a Mind that does not work capriciously but makes use of secondary causes, and that made human minds in its image so that they can inquire into its handiwork, it is doubtful whether science could have got started.  Please don’t tell me about Galileo.  The Church’s complaint against the poor man wasn’t that he contradicted the descriptions of the cosmos in Holy Scripture, which the Church knew to be figurative, but that he was doing what we now call “science by press release.”  His theory turned out to be true, but the Church protested that he claimed it was proven before it really was.  I don’t think the Church should have poked its nose into the matter at all, but even so, its complaint was scientific, not theological.

But never mind.  I understand why Oppenheimer speaks as he does, because although Christianity doesn’t regard science per se as a threat, it does regard Oppenheimer’s notion of science as a threat.

What vision is that?  Speaking of the development of the Bomb, Oppenheimer writes, “But when you come right down to it the reason that we did this job is because it was an organic necessity.  If you are a scientist you cannot stop such a thing.  If you are a scientist you believe that it is good to find out how the world works; that it is good to find out what the realities are; that it is good to turn over to mankind at large the greatest possible power to control the world and to deal with it according to its lights and its values.”

Read carelessly, the passage thrills.   Read carefully, it appalls.  There are two contradictions:  Between the desire for knowledge and the will to power, and between freedom and blind fatality.  What thrills are the parts about freedom and desire for knowledge.  What appalls are the parts about fatality and will to power.

As to the first contradiction, he starts with the idea of wanting to understand the world.  But the reason for understanding it turns out to be merely controlling it, and controlling it not according to transcendent lights and values, but according to “its own” lights and values.  That means “what we want.”

So.  Science is finding out how to do as we desire.

As to the second contradiction, he speaks of the continual growth of the power to control the world as though it were a kind of liberation.  And yet he insists that it is something the scientist cannot stop wanting, cannot stop gaining, and over which he has no control.

So.  Science is the ungovernable obsession with finding out how to do as we desire.

By contrast, the vision of science that Oppenheimer opposes – the vision of the Church -- is seeking knowledge because it glorifies God and adorns the rational mind, with the chastening reminder that not everything is to be done and not everything is to be controlled.

Put this way, the two visions do threaten each other.  I get that.