Legal arborism

One of the blawgers at Double Aspect, Leonid Sirota, asks if “living tree” constitutional theories can explain the grounds and consequences of their views in the context of jurisprudence in Canada. (Sirota and his co-bloggers seem to occupy an interesting intellectual space, being McGill educated, working abroad, but whose philosophical jurisprudence seems mainly influenced by the American tradition.) Laid against that background, he asks a bevy of questions, and invites some answers. I’ll give it a shot.

(Style note: because I’m tired of writing “living tree doctrine advocates” and its long-winded cognates, I’ll call this position legal arborism. And, full disclosure: my sense of the views of legal arborism in Canada are deeply influenced by a course I audited with Wil Waluchow at McMaster, and so are tilted in favor of his own living tree constitutionalism. His kindness, patience, and scholarly acumen have influenced me a great deal.)

To give you an idea of my own perspective, allow me to say a few words about my intellectual background. My research focus is on informal promulgation, or the publicity of law (understood as a phenomenon deserving of explanation by collective social epistemology). On the one hand, my views on the written/unwritten distinction, at least at the level of discernment or court interpretation, are something of a mixed bag; I don’t know if I would consider myself a legal arborist, if only because I am wary of having my intellectual life bewitched by the power of a metaphor. So, because I am a philosophical eccentric in this and other ways, I do not think I am a thoroughly disciplined advocate of the “living tree” doctrine, and my answers will likely be inadequate. That said, I see an awful lot of merit in the arborist’s point of view of common-law — so much so that I would be far more sympathetic to the legal arborist’s general conception of law than the depiction of law provided by originalists. So, I’m with the Ents.

“1) Do you think that the linguistic meaning of the constitutional text changes over time after its entrenchment?”

This is a complex question. The question presumes that there is a distinction between linguistic and application meaning, or sentence vs. use meaning — usually captured by the distinction between semantics and pragmatics. But, as a commenter on that thread notes, many of us would dispute the application/linguistic meaning distinction, insofar as it is supposed to help us sort between two piles of content ascriptions that lawyers and judges would care about (i.e., concerning different kinds of legal effects, the constructive and the merely interpretive). And by ‘us’, I do not just mean legal arborists. I mean, ‘us’, as in virtually everyone who works in philosophy of language who was educated in the last half-century. Indeed, in my view, the best originalists don’t even follow through with the pragmatics/semantics distinction in their considered accounts. So, e.g., I’ve noted before that — aspirations to the contrary — Lawrence Solum’s “semantic” originalism is nothing of the kind, since it asks us to enrich communicative content (meaning, strict entailments) with cooperative implicatures when such are required by the method of triangulation. Solum calls it a semantic theory, but he is mis-stating (indeed, understating!) the powers of the actual theory that he advocates.

But this is easily fixed; a better presentation of the originalist argument is possible. Such an argument would either have to admit the pointlessness of appeals to textual purity, and confess that it invites relatively obvious widenings of the scope of the “semantic” theory (to include near-side pragmatics); or, it would have to advocate a Copernican revolution in semantic theory, forcing it to include extra-semantic elements; or, it would have to articulate the aims and motives behind the triangulationist method in extra-semantic terms, e.g., in terms of the political value of publicity. (FWIW, I think that in the long run the third option is the smarter move, though it would take an essay to state why.)

“2) Do you think that governing bodies should have a power to modify or override the communicative content of the constitutional text in response to changing circumstances and values?”

I think, to this question, the answer is an incorrigible ‘yes’, provided that we identify the right linguistic context that is responsible for the change in content. So, notice that there’s a difference between communicative content that changes because of a corresponding change in background conditions which affect the interpretation of statute or caselaw (i.e., related to global changes in perspective and fact), and a change in content that is merely determined by the intentions of the Court with respect to the proper aims of statute or caselaw.

Suppose, for the sake of argument, that the latter is faulty on broadly conservative grounds — because “activist judges”, etc, etc. Fine. It is nevertheless true to say that in the former context, an apparent change in linguistic meaning is both legitimate and hard to deny, even when we go about mere interpretation of what is said in the text. So, e.g., to take Waluchow’s example — in the infamous Persons case, the meaning of “person” is radically different in 1945 as opposed to 1845 because many substantial background assumptions have changed (e.g., about property ownership, theories of sexual psychology, etc.). Our global background conditions make it absurd to read “persons” as meaning “men” alone and pretend to be doing it in good faith. So, it is not just that the Privy Council found the caselaw disagreeable or unjust according to their personal moral convictions. It is that there has been a change in stable meaning, owing a change in the background of interpretation.

The best version of the originalist intuition rests on the idea that true expressions are stable, or built to last. So, there is at least one important difference between “2+2=4” and “The duck-rabbit illusion depicts a rabbit”: you can count on being able to get away with asserting (and assenting to) ‘two and two make four’ tomorrow, but you can’t count on being able to even assert or assent to “The duck-rabbit illusion depicts a rabbit” in the next breath, since a Gestalt shift can take it all away. The presumption of future ‘stickiness’, the idea that legal rules are going to be a going concern, is a truth-maker in law. Which is to say that legal truth implies stability, at both the level of meaning and the level of politics, and this stability across contexts helps to satisfy the need for presumptive guidance to private actors.

There are two kinds of things you have to say about the originalist’s attempt at assuring stability in this way. First, it must be noted, and emphasized, that cross-contextual meaning is itself deeply and richly dependent upon an array of assumptions or givens which give it content. This is true for both partial expressions and sentences. The very idea of a “quark” is unintelligible in the context of an epistemic community that lacks a rich set of judgments about the behavior of particle physics. The sentence, “I want to cut the sun” (John Searle’s example) is sufficiently strange as to be almost unintelligible, given that there are no feasible means (open to our current imagination) that would make that sentence true. Cross-contextual content depends on a network of beliefs, judgments, and capabilities, and any change in these implicit background conditions can lead to explicit changes in meaning. That just seems to be a fact about how meaning works. Significance wanders.

Second, where they get off track, at the level of politics, is the sense that the only factor which provides that stability is strict fidelity to fixed intentions of original speakers. But what they are actually seeking is equilibrium, and a sufficiently large change in context very well might demand a new equilibrium.

To see why the originalist approach to stability is misguided, let’s consider a parable. Suppose someone were to say: “I must build my home on solid ground.” That seems like a reasonable thing to say. Now suppose they encounter a man who has built a boat, and lives their life at sea. “That’s silly, you get knocked around a lot,” says the man who built their home on solid ground. Then a hurricane comes and washes the house away, while the boat (though battered) survives. Question: whose home was more stable? Answer: it depends on your context and background assumptions. The house on land was stable in one context, but the house on the sea was stable in another. With the predicted rise of the sea, the rule, ‘build your home on solid ground’, is not going to provide anything like the need for presumptive guidance to private actors.

Publicity, associative reasons, and legal systems (I)

John Rawls was the best kind of programmatic philosopher. This was not a guy whose output could be reduced to a single thought-experiment or evocative illustration; you can’t appreciate him as a philosopher unless you can see his systematic design. But that’s got a downside. The thing is, when you’re a programmatic philosopher, a lot of your output can be difficult for others to follow. Everyone understands a view best when they can see contrasts, objections, and alternatives, yet the programmatic philosopher’s prose is often impassively self-referential. So, for instance, when Rawls talks about reason, then you’d better be alert to the special ways that he defines the terms elsewhere; and woe be to the reader who thinks they can deduce the meaning of any single one of these concepts {“reasonable”, “public reason”, “acceptable”} from the others. (Meaning: intellectually accountable, common reason for the commons, and accords with convictions under wide equilibrium, respectively.)

So, I think it’s easiest to appreciate the best parts of Rawls’ theory of justice once we accept his broader political vernacular, but also to extend his analytical tools in ways which let us articulate conceptions of political justice that he does not accept. I have an ulterior motive for wanting to contrast his approach to justice to others, since I am interested in how theory of justice relates to general jurisprudence and legal theory as such, which means I’m obliged to do a compare-and-contrast exercise between different incommensurate moral and legal theories.

So here’s the shtick. I assume you’ve basically got the idea of Rawls’s theory of justice under your belt. Now, in the next few posts I’m going to tell a dogmatic story about how legal systems are best understood in terms of non-public reasons. To do that, I’ll use Rawls’s seminal “The Idea of Public Reason” (in Political Liberalism) as reference point. The story unfolds in three chapters. First, in this post, I’m first going to offer a sympathetic rereading of Rawls’s idea of public reason in a way that makes the most sense of the idea of publicity. My aim is to do justice to the attenuated sense in which associative reasons are publicized. In the next post I’ll compare Rawls’s theory of justice to a charitable rereading of Thomism. Then I’ll conclude by offering a few idiosyncratic complaints about the Rawlsian outlook.

Public reason is the expression of a modern liberal political conception of justice, and since liberalism is a relatively new political phenomenon, public reason is a newcomer on the historical scene. In contrast, associative (“social”) reason is as old as rocks, and an enduring feature of societies, i.e., communities structured by status. Because associative reason is more common, it is easier to understand public reason in contrast to it, rather than vice-versa. Associative reason is the clearer concept of the two, easier to grasp as the historical rule than as the exception. (I will use the term ‘associative reason’ here, which is my own term, not his. Instead, Rawls prefers the term ‘social’ or ‘nonpublic’ reason. I do not join him in his usage because the very idea definition of the social is contestable, and his formulation of ‘nonpublic’ reason is something I will take issue with later.)

As I have argued elsewhere, the most plausible mainstream theories of law in the Western canon have all held that law is necessarily promulgated to be law. Publicity is a criterion for legal validity. Suppose that’s so. It follows that, if associative reason is a legal universal, then we should expect it to be public in some sense or other. And indeed it is universal, in the minimal sense that every reason to adopt a policy that is open to view in public discourse is at least an associative reason as opposed to a private reason. A potential for contradiction lurks here, since associative reason is not ‘public reason’ by definition, but is public. But the air of paradox is resolved by noticing the equivocation at work in the word ‘public’. Associative reasons are not public in Rawls’s sense of ‘public reason’, since Rawls’s use of the phrase concentrates only on reasons that are public qua public — i.e., those reasons for policy that are aimed at achieving a reasonable overlapping consensus among the free and equal citizenry. That is why Rawls thinks that associative reasons do not play a just role in legitimate democratic institutions — they are not public in the maximal sense of being common reason for the commons. In this, Rawls is articulating a model of legitimacy as consent of the governed analogous to other well-known social contract theorists — e.g., Rousseau’s sense that civic participation should be aimed at the general will.

I hope you’ll let me rehearse the idea of public reason one more time, because it’s especially important to a guy like me who cares about the importance of publicity to legal theory. Rawls tells us that the aim of public reason is to establish the constitutive features of a democratic system, especially those features related to political and legal standing of free and equal citizens. His way of speaking entails that public reason is public in the pure sense of being reasons directed at the commons, and not in the mere sense of just being public-facing, i.e., mere attempts to resolve collective action problems. In Rawls’s theory of justice, a public reason is an attempt to arrange our plans in a way that is conceived of through the original position — i.e., a device of representation where hypothetical future participants of a society establish the principles of the political order they would like to live in despite being ignorant of their own rank and status in the future order. It is not just reason open to view, but reason that happens in the commons for the commons.

Yet, although we can distinguish between publicity and public reason, we should not ignore the relationship between the two concepts. For Rawls — and for many of us — strong, justifiable rationales are a part of public reason. This is a point that Rawls makes explicitly in his astute formulation of the publicity condition elsewhere in Political Liberalism (Ch.2, s.4). (If we are feeling especially Whiggish, we might even go so far as to say that the teleological point of publicity is to, eventually, recommend that we adopt public reason as a model of legitimacy, and hence that honoring the ideal of publicity in tyrannies shall eventually bend politics towards the cause of democracy, though these speculations are not ones that I am eager to endorse.)

A final word, ending the setup of the discussion of public and associative reason. When we are thinking about political affairs, we are generally interested in two major topics, which are the requirements of practical justice and epistemic justice. Practical justice is made up of a statement of (a) basic rights in principle (i.e., an articulation of the sense in which citizens are free and equal), and (b) the assurance of means to use those rights in practice (i.e., equity and matters of distributive justice). Public reason is political in the sense that it is directed at the basic structure of society, i.e., the society’s main social, political, and economic institutions, conceived of as a single system of cooperation. Epistemic justice sets guidelines for inquiry, e.g., rules of evidence and process at trial and by police. Because these considerations mark off constitutional essentials, they must be justifiable to all citizens with different ideas about how to live the good life.

Well, suppose that’s all good. It certainly seems like an intuitive characterization of justice, as it correctly characterizes the operations of legal systems as we know them as creatures directed to the cause of justice.

It follows that, if the question of what public reason requires of us is pursued sincerely — i.e., by checking off hypothetical opinions of real people in hypothetical situations — then the sense that the basic constitution of the regime is justified will depend on facts we can refer to about how people think about the implicit contract that binds them. Since those facts are known or intuitively knowable, they are accessible; and since they are accessible, they are publicized. In which case, public reason will get away with satisfying the publicity condition “on the cheap”. In contrast, if a legal regime goes about publicity through associative reason, then it will require an activist spirit, swimming upstream against the currents of a community’s considered sense of fair play.

Solum’s mixed originalism

Since earlier this year Lawrence Solum testified before the Senate, now is a good time to read up on his work on constitutional originalism.

Solum (2008, “Semantic Originalism”, SSRN) argues that semantic originalism depends on the ‘clause meaning thesis’. This view states that the semantic content of the constitution is given by its conventional semantics and its pragmatics (context, division of linguistic labor, implication, and stipulations). The conventional semantics is established by its original public meaning (what he calls the ‘fixation thesis’).

The puzzle, for me, is in justifying the label of “semantic originalism”. Why semantic?

Solum makes it clear at the outset that he distinguishes between the semantic, applicative, and teleological senses of meaning, and stipulates that he’s only doing the semantic thing. (p.2-3) And that is fine and well. But then he cashes out the ostensibly semantic project partly in terms of applicative content: e.g., implicatures and stipulations. (p. 5; 54-58) And then he rejects competitor views (like Ronald Dworkin’s interpretivism) for smuggling teleology, consequences, and applications into an ostensibly semantic theory. (p.83)

Obviously this cannot work. Instead, if Solum were articulating a coherent view, he should not be calling his own originalist view a ‘semantic theory’. Perhaps he should be calling it a mixed theory of literal meaning, perhaps of an austere kind. After all, the semantics/pragmatics boundary is only of significance to a particular kind of analytic philosopher who is more obsessed with compositionality. It isn’t interesting to everyone for all purposes, and maybe isn’t even useful to everyone who cares about literal meaning. But then that would require confronting a central dogma in the philosophy of language.

Probably, the apparent incoherence of the paper is mitigated by the fact that Solum’s “Semantic Originalism” is a draft on SSRN. It’s just a draft, and goodness knows I’ve had my share of bad drafts. But it’s still a shame. I prefer long-form articles, where theorists can spell out the authoritative vision in detail, and that breadth of vision is often sacrificed in published works owing to editorial considerations. And the paper appears to be otherwise considerate, nicely written, and well-informed. It is just hard for me to reserve my disappointment in finding out that the entire programme is a house built on sand.

Secrecy and imminent threat

According to US law, “top secret” means “information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security” (1, sic). The Espionage Act, going back to Justice Holmes, and subsequently interpreted by the courts, rebuffs First Amendment arguments through the “imminent threat” standard (previously the “clear and present danger” test) — resonant with the famous analogy that the value of “freedom of speech” does not protect the man who yells “fire!” in a crowded theater.

Yet, reportedly, in recent cases of the Espionage Act, the prosecution has successfully argued that both the actual and expected value of leaked information to the American public are not relevant considerations. [2] By analogy, it does not matter whether the man shouting “fire” in the theater thought he saw a fire (e.g., a hallucination), and it does not matter if a reasonable person in that position would also have seen a fire (e.g., a mass delusion, or hologram). It does not even matter if there was a fire. Evidently, it only matters that yelling “fire” is not the thing to do in theaters because it upsets management.

[1] https://fas.org/irp/ops/ci/franklin0805.pdf
[2] http://nymag.com/…/intel…/2017/12/who-is-reality-winner.html