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.

Thoughts of Venezuela from afar

On the question of what Canada ought to do about the constitutional crisis in Venezuela, I think it’s worth thinking about (a) what the constitution of Venezuela requires, and (b) how the right kind of stability can be produced (i.e., in such a way that democratic rule of law flourishes). I’d like to treat this as an opportunity to think about what constitutional law requires (a), as far as I understand it, and full well knowing that I have much to learn, and that facts may change daily.

The linked white paper from CSIS (a Washington think tank, not the Canadian version of the CIA) is instructive. In it, the author argues that Guaidó, head of the ousted legislature, is the current legitimate interim President and should be recognized as such. (More on that in a moment.) Moreover, he believes that, once Guaidó secures the office, he ought to delay election beyond the constitutionally mandated 30 days. Hence, he believes the shadow government ought to ignore the written Constitution of Venezuela. CSIS thinks a delay in elections would be justified because the country is experiencing extraordinary conditions, which the framers of the Constitution could not have reasonably foreseen. But this does not alter the fact that the recommendation is not consistent with the written constitution of the country.

So, either CSIS wants us to ignore the constitution of Venezuela, or it wants us to respect its unwritten constitution, and thinks the unwritten constitution permits a delay in elections. Since ignoring the constitution would amount to being an attack on the rule of law of that country, so I must assume that they are making an appeal to the unwritten constitution. e.g., by making reference to the political features of the system as such (even though the whole problem is that it is in tatters, with the neutering of the legislature), or by appealing to the conditions for identifying and preserving a system of law, or by telling a story about natural law, or some other thing.

I am personally convinced that there are ways to talk about the unwritten constitutions of civil law countries. But, to be sure, any claims we make about unwritten constitutions depend on substantive theories of law and considerations of public discernment of explicit meaning, which I am still actively wrestling with. Moreover, the standards for talking about unwritten constitutions are seriously constrained in civil law jurisdictions like Venezuela, since stereotypically, civil law fetishizes codes.

Here is the legal case for recognizing Guaidó as the President, as far as I understand it. The Venezuelan Constitution allows for the head of the legislature to take up the office in the “absolute absence” of a President, i.e., someone who is endowed with powers through ordinary processes of succession via election. But then the question is, “what does it mean for there to be an “absolute absence” of a President?”. Guaidó argues that the position is not occupied when the elections are fraudulent. This view is apparently shared by the international coalition. Though perhaps there is no objective third-party consensus that the elections were rigged, many seem to think it is plausible to say that they were fraudulent.

Yet, as a matter of fact, elections were held, and Maduro was sworn in — he is de facto ruler, whether or not he is de jure President. But can the Presidency be “absolutely absent” when there is a de facto ruler who fulfills many, but not all, of the conditions for orderly succession? What does the written law require, and who is in charge of figuring it out?

There’s a vast menu of options. Ordinarily, I’d have thought that this is the sort of constitutional question that needs to be resolved by jurists. But that is bad news for advocates of regime change, for a few reasons. First, there is a strong presumption that we ought to ask the Court what they think “absolute absence” means. Yet in cases of civil law jurisdictions, the rule of interpretation is supposed to be something like, obey the limits of the word. Moreover, since the ouster’s view is that the Court is “on the take”, that won’t be of much use in marshaling a legal case, since presumably, the Court will just vouch for Maduro.

What’s clear to me, though, is that if the election is demonstrably illegitimate — which it might be! — then, from a legal point of view, priority one should be to hold one that *is* constitutionally legitimate. With multilateral observers and all the bells and whistles of a democratic coalition operating in good faith. But that would seem to require holding an election within 30 days, as required by the Constitution. This, unless more is said about the processes for thinking about the supremacy of the unwritten constitutions, in a way that does not introduce uncomfortable questions about how we govern ourselves in our own backyards.

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Those are the sorts of considerations that should be at issue when we think about whether Canada, or the West, ought to intervene. I think my suggestion is a substantive requirement that articulates a few of the conditions for just intervention without being paternalistic or imperial. Venezuela’s democratic sovereignty must be restored along the way to a just peace.

And that position is worth contrasting with the outdated neoconservative approach, which is to back a foreign dissident regime and arm them to the teeth. For example, unconfirmed reports from Democracy Now! give us reason to suspect that the US is smuggling arms into Venezuela. If true, then it signals that the States is ramping-up for yet another proxy war. And it is worth saying this doesn’t work out well for anybody.

If the international community truly worries whether or not the most recent election in Venezuela was free and fair, then a multilateral intervention should investigate. Again, ideally, this should occur at the request of the contesting parties who are looking for legitimacy. What the international community should not do is provoke violent unrest in an already complicated region.

Incidentally, none of these remarks issue from an especially idealistic foreign policy perspective. Even from a cold, reptilian neoconservative point of view, the extensions of the Monroe Doctrine (i.e., policies which ostensibly justify US intervention in other sovereign nations for American interests) are essentially subverted by the potential for blowback by non-state actors. From that same reptilian point of view, “No commies in our backyard” makes some sense when we were protecting from a conventional invasion. But it makes absolutely no sense in the context of arming paramilitants. For confirmation, consider former beneficiaries like Hussein and Bin Laden, and consider how well that turned out. (Please note that I am not making a direct comparison between these guys and Guaidó, except from within the reptilian point of view.)

The upshot for neocons in this new century ought to be something like this. Violence thinks it is intrinsically justified, and if you provide it with unfettered means and it will make itself its own end. Or, to put the point in a more prosaic way, once someone gains power, the way that they maintain their power is by scapegoating outsiders. This has been very successfully done by pointing, ironically, at the guys who gave them the guns in the first place, and saying — “we have to protect you from the meddling of the international bogeymen”.

Les Green on borderline law

Here’s Les Green on the importance of unwritten constitutions.

The main difficulty I have with his commentary is this. I can imagine a critic — Green’s dialectical opposite, Maur Red — saying, “Look, okay, so the US is a borderline case of law. Who cares? It’s still law.” If asked to clarify, Red could say: “What’s at stake here is not whether US law is a form of law, but whether or not it is an exemplar, an instance of the focal meaning of law. These are different issues.“

As I imagine the conversation going, I think Red could then chastize Green for overspeaking when he claims that this entails that US law is not “actually” law, because nothing at all follows from concluding that US law is a borderline case of law. For that is apparently no more defensible than saying, e.g., that penguins are not really birds, given that penguins are a borderline case of birds, or that the half-competent doctor is not really a doctor, given that the doctor qua doctor makes no errors.

What Green should say, instead, is that US law is on the verge of being a near-miss case of law, which is a special kind of borderline case. And Red might concede that that would be worrisome. But then, he might conclude, you cannot infer that something is a near-miss case of law just because you deny that it has the qualities of an exemplar case, any more than you can infer “penguins are not birds” from “penguins are not robins or bluejays (etc.)” Only some borderline cases are near-misses. Others are just odd, ironic, or unexpected.