Against the Stream

Antonin Scalia, Philosophy of Language, and the Rights of Women

You may have heard the latest falderal about Antonin Scalia's deeply disfunctional approach to Constitutional interpretation, but in case you haven't, here's the story in a nutshell: Asked if he believes that the 14th Amendment garauntees the equal rights of the female half of the human race, he answered negatively.

More specifically, here are his words (and the question to which they were in response):

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

Now, in the first place, I'd say that if Antonin Scalia's interpretation of original intent leads him to these conclusions, then this is on its face a refutation of the theory of original intent. Any judicial philosophy that would lead to this conclusion is clearly not worthy of representation on the Supreme Court (or in any accredited law school).

But Matt Yglesias brings the more philosophically nuanced critique today on his blog:

It’s amazing to me how often allegedly sophisticated jurisprudence founders on really basic philosophy of language questions. It’s probably true that in the subjective understanding of mid-19th century lawmakers “nor deny to any person within its jurisdiction the equal protection of the laws” didn’t contradict legal discrimination against women. That’s because in some sense they didn’t think women were “persons” the same way men are. By the same token, when the framers authorized congress “[t]o establish Post Offices and Post Roads” they obviously didn’t intend, as a matter of subjective understanding, to authorize automatic postage stamp dispensers or bridges strong enough to carry trucks. But we understand today that a well-run post office does in fact include stamp machines, computers, and all sorts of other technology that wasn’t inside the heads of 18th century constitution writers.

The whole reason human communication is possible is that words have meanings that are independent of the private thoughts of speakers. If you compare a 21st century post office to James Madison’s private mental image of a post office, they’re totally different. Nevertheless, if you ask whether a 21st century post office is in fact a post office the answer is yes. By contrast, a 21st century sandwich shop is not a post office. By the same token, a given practice either does or does not afford women the equal protection of the law to which they are constitutionally entitled. Asking what someone was thinking about 132 years ago sheds very little light on this question. Probably a 132 years ago, legislators were thinking about the next election!

Dear Afghanistan

If you're very, very good, we'll let you have permanant U. S. military bases in your country. But only if you're good!

The Military and Notre Dame

Over at Andrew Sullivan's blog, he and his co-bloggers have done a number of posts under the heading "What if the Military were filled with Notre Dame grads," which takes as its starting point a conversation between Colman McCarthy and the President of Notre Dame:

When I suggested that Notre Dame's hosting of ROTC was a large negative among the school's many positives, Hesburgh disagreed. Notre Dame was a model of patriotism, he said, by training future officers who were churchgoers, who had taken courses in ethics, and who loved God and country. Notre Dame's ROTC program was a way to "Christianize the military," he stated firmly.

I asked if he actually believed there could be a Christian method of slaughtering people in combat, or a Christian way of firebombing cities, or a way to kill civilians in the name of Jesus. Did he think that if enough Notre Dame graduates became soldiers that the military would eventually embrace Christ's teaching of loving one's enemies?

The interview quickly slid downhill.

This has produced a series of follow up posts, the latest of which is of particular interest, from a Notre Dame MTS student who went on to become a Marine:

That Fr. Hesburgh would say that Notre Dame’s ROTC was a way to “Christianize the military” falls far beneath his demonstrated moral and intellectual par.

It is a way to get bright, competent and well-intentioned people into the military and thus improve it in myriad ways, but it’s a laughable, un-Christian suggestion that enfeebles the mission of both Christianity and a national military.  I don’t mean to suggest that it is ipso facto un-Christian to serve in the military, rather that a certain amount of compartmentalization and humility is necessary to live with and possibly atone for the lack of concert between one’s religious and worldly commitments.  I think the University would do well to deal with a more tractable moral issue of its ROTC program: that it’s primarily utilized because ND has priced itself out of the reach of most students.

The appeal of the military for many Catholics is obvious: we like rigor and pageantry.  We also take seriously the call to put our faith into action.  In light of our current wars, I now more than ever question the legitimacy of acting out one’s faith in military service—though I cannot bring myself to pacifism—but I think that it’s a decision best left to each individual and his or her conscience.  Mainly, I decided to join the Marines because I thought it afforded me the opportunity to make a positive impact in the world in  ways that pursing the life of an academic ethicist wouldn’t.  Ultimately, even though my job now is very different than the one I would’ve had had I managed to make it through OCS, undoubtedly I’m still in the same predicament I would have been in: hoping but unsure if what I’m doing is making the world a better place.

This is the perennial problem of Christian ethics when it comes to war, isn't it. On the one hand, the pursuit of national security and the protection of the innocent is a moral good. On the other hand, the nature of warfare is such that it dehumanizes all who fight it. Very little done in the context of any war, modern or otherwise, can be justified on Christian moral grounds, even if the general principle of national defense can be justified.

While I can't quite bring myself to embrace pacifism as a position either, I think that there is a lot of integrity to the pacifist position when understood as a witness to a greater moral reality than the one in which we live. However, the default pro-military position that is held by many Americans can't be justified on Christian terms. The most you ought to be able to support is the general idea that some (very few) wars may be necessary (though still evil) some of the time (though exceptionally rarely). In contrast to the just war position, which is limited by its default presumption that warfare can be made to be moral, I prefer to think of myself as a prima facie pacifist. Which is to say my default presumption is deep skepticism of all war, which can be overcome in certain rare cases by a compelling set of circumstances.

The harder question is: What are those circumstances. It seems to me that this must always be at least partially ad hoc. It would be difficult to say in advance what kinds of circumstances would convince me to support a war. I can point to particular paradigm cases -- genocide in Darfur perhaps, or to repel an invasion of the United States -- but to say that I can lay out a set of general critera would likely be a fool's errand. I like how H. Richard Niebuhr once described himself. He didn't like the idea of "conscientious objector" which after all assumes that war is justifyable by default, but "conscientious participant," which take the anti-war position as the norm.

New Article: The Need for An Augustinian Left

My article, "The Need for an Augustinian Left" was just published in the online academic journal, Politics and Culture. Check it out!

My New Year's Resolutions

Well, here it is, January 1st and I'm left to consider just what I'm going to try to do with myself in the coming year. So, here are some of my New Year's resolutions, with commentary:

1. Blog More. I feel like I need to remind myself periodically that this blog exists and that I need to pay it some attention. I'm not sure why that is, since once upon a time it was my major source of public commentary. I suspect that Facebook has detracted somewhat from my blogging, since it has become my default method for sharing my two cents with the world. Beyond that, of course, my books and articles tend to be where I do most of my "serious" writing. So blogging seems to have fallen through the cracks, but I don't want to give it up entirely, since I think it's an important venue for a kind of medium-form writing that I don't have a lot of other outlets for. Not to mention, when I can be disciplined about my blogging, it means I'm writing more in general, and that leads me to my second New Year's resolution ...
2. Write More. Given the number of writing projects I've got queued up, I really need to develop a discipline for writing more than just a few pages a few times a week. I'd love to be able to say that I will commit to writing five pages a day, every day, all year long, but I'm not quite ready to commit to that level of intensity at this point, so I'll just sick to commiting to writing more than I already do.
3. Exercise More. My family got a Wii for Christmas, and along with that, Wii Fit. While it may not actually do much to help get my back down to my college weight, I'm hoping it will contribute to at least helping me think more about getting into shape. It wasn't that long ago that I ran the Chicago Marathon (or at least attempted to!), so I've got to think that getting back down to 175 lbs. is an achievable goal for me. And now that I now have to start writing my age with the number 4, I suppose it's as good a time as any to really think about getting back into shape for the long term.

Well, that's probably a pretty good set of New Year's Resolutions. There are a lot of other things I probably should be doing, but if I can successfully do those three, I'll be pretty pleased with my results. We'll see how it goes.