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Aristocratic Morality Properly Understood

Washington inauguration

George Washington Delivers His Inaugural Address April 1789, in Old City Hall, New York.

So this is really interesting:  The Court, according to John McGinnis, doesn’t really deliberate about the law when it comes to high-profile cases. It functions instead as a “cognitive elite”— the aristocratic part of a mixed regime.  It’s job, I guess, is to supply wisdom and virtue to counter popular and legislative ignorance and expediency. First off: I don’t know about the virtue part; after all, they were trained to be lawyers and not philosopher-kings. And if what they were doing were “cognitive” in the sense of listening to reason, why do they so often divide 5-4 on the high-profile cases? All reasonable men and women should assent to the truth. when they hear it.

Now, Justice Scalia has complained that the Court too often bows to an elite that’s not mainly cognitive, but one that’s fashionable and, well, just elitist. And we can add that the reason that there is such a strong conservative faction on the Court right now is appointments by the Republican presidents who pledged to reverse judicial activism, which mainly means reversing Roe v. Wade. In this respect, some of the members of this judicial “cognitive elite” were appointed to serve as anti-elitists, to protect popular deliberation against the soft tyranny of schoolmarmish “experts.”

Scalia referred to the elitism that dominates the teaching and culture of our leading law schools.  To some extent, it’s been contemptuous, in the manner of John Rawls, of the ordinary middle-class morality that governs the fairly unregulated market. To a greater extent, it’s the elitism of political correctness that elevates the various forms of personal identity politics over even Rawlsian social justice. In both cases, it would be a reach to identify such elitism with the genuinely aristocratic concerns of either wisdom or virtue; it’s the privileging of the interests of one class over that of another.

We professors of political philosophy, from our highly aristocratic view, don’t think either the Rawlsianism, on the one hand, or the libertarianism, on the other, that are the theoretical foundations of our legal education are capable of pointing our best and brightest students of law in the direction of either philosophy or responsible statesmanship. We even see that the differences between Rawls and, say, Nozick or Epstein are pretty much over details; neither side in that friendly disagreement comes anywhere near ascending to the philosophical heights of our most genuinely aristocratic founders.  But don’t take this criticism very seriously: Nobody really thinks that the point of law school or a legal career is to produce philosopher-kings, and I hope nobody really thinks that our founders thought our justices are supposed to function that way, at least on a regular and predictable basis.

Our most highly cognitive elite, in any case, resides these days in Silicon Valley and believes in a mixture of techno-liberation, crony capitalism, and anti-biological cultural radicalism (that points in the direction of of transhumanism). There’s inconsistent evidence that the Court is lurching in its direction. If it does lurch in the Silicon Valley direction or in that of our politically correct elites, it lurches away from the classy (because classical) aristocratic morality that ennobled our leading founders—beginning with George Washington.

Reader Discussion

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on May 08, 2015 at 09:06:52 am

Has the law become so boringly simple that we have to have these discussions? Read and enforce the law as passed. How often does SCOTUS actually cite the words of the Constitution over on what past high priests have said it says after consulting goat entrails or birds in flight? Justice Thomas understands. I guess one out of nine will have to do.

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Ron Johnson
on May 08, 2015 at 10:07:11 am

The Court according to John McGinnis doesn’t really deliberate about the law when it comes to high-profile cases. It functions instead as a “cognitive elite”— the aristocratic part of a mixed regime. Its job, I guess, is to supply wisdom and virtue to counter popular and legislative ignorance and expediency. First off: I don’t know about the virtue part; after all, they were trained to be lawyers and not philosopher-kings.

I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written upon the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will....

Learned Hand, In commemoration of fifty years of federal judicial service, 264 F.2d xxxvii (2d Cir. 1959).

A lawyer without history or literature is a mechanic, a mere working mason; if he possess some knowledge of these, he may venture to call himself an architect.

Sir Walter Scott

McGinnis heard that justices don’t deliberate much regarding “high-profile” cases, but deliberate more with respect to other cases, and devises a thesis that their decisions regarding “high-profile” cases is driven by politics/ideology.

Perhaps. But what does “high profile” mean? It means cases that involve issues that have received a lot of attention – precisely the kinds of issues that judges would have had time and occasions to reflect upon. We would expect judges to derive less benefit from kicking around ideas that have already been thoroughly kicked around. We just had a discussion about same-sex marriage: Honestly, was anything new said? Did anyone change their mind as a result of the discussion?

In contrast, judges will have given less attention to more obscure issues, and thus might derive more benefit from kicking them around. This is not a function of ideology; it’s a function of diminishing marginal returns.

Nobody really thinks that the point of law school or a legal career is to produce philosopher-kings, and I hope nobody really thinks that our founders thought our justices are supposed to function that way, at least on a regular and predictable basis.

Damn right I do.

(And when you pay the first baseman, WHO gets all the money? Naturally….)

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nobody.really
on May 08, 2015 at 11:41:44 am

Glad you brought up Clarence Thomas, Ron. I actually have heard Thomas, much more than Scalia, publicly criticize "the elites." He puts his money where his mouth is on that score too, being the only Justice who considers taking his law clerks from schools other than Harvard, Yale, and Chicago

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CJ Wolfe
on May 08, 2015 at 15:33:26 pm

The funny thing about this is that, having read a great deal of opinions from Roe V. Wade, to Brown V. Board, to Lawrence et al. V. Texas, it seems that the republican party, and J. Scalia in particular, only seems to complain about "Judicial Activism" when the court's Majority opinion is against republican ideals, and it is usually J. Scalia who must take up a dissent in these sorts of circumstances. To make my point- point to one case in which the democratic ideal was on the loosing end of a decision, in which during the aftermath of the decision being handed down- where the democratic party complained about J. Scalia, along with the more conservative justices, engaging in "Judicial Activism". I'm hard pressed to find one.

I would submit that all of the current justices engage in activism to some extent or another (speaking pre- Kagen and Sotemyeor) with the notable exceptions of J. Ginsburg and J. O'connor. J. O'connor made it clear in her writing that she was generally, perhaps, liberal but then again also was willing to vote with J. Scalia when it came to certain issues of criminal law. J. Ginsburg always seems to be logical and rational in her writing, giving a great deal of weight to precedent- taking, what is in her eyes at least, a compromise view in the initial stages of the case, using the oral arguments to form an opinion of the law.

The point, is that under our constitution, which gives power to the president to appoint justices, to which the congress must confirm, provides a basis of a politically charged environment surrounding the appointment and confirmation processes, which, in my opinion, creates a climate for what can be considered judicial activism, because of the fact that the constitution seems to assume that the same party will most likely never control both the executive AND congress at the same time- Given that if that were the case- we have a democratic appointee being confirmed by a democratic-majority controlled congress- a situation where one can ponder the question: "Where is the check and balance in the appointment/confirmation process?"

To demonstrate what I'm saying we need look no further than Roe V. Wade. We notice that in every presidential election since where an appointment to the bench is likely, we first see the executive hashing out the issue to some degree or another, even perhaps in a concealed form- in the election campaigns. I could even venture to say that this has been the case in every election since Bush- Though it gots shrouded in the Gay rights issue. Republicans such as McCain thought they would use the illusion of "moral values" in order to get the vote, (in their minds hence meaning at least one appointment) with the hopes of supplanting the Wade decision.) Otherwise, why would the senate even be talking about such antiquity of Roe V. Wade when it seems moronic to reverse that decision without dealing a substantial blow to the legal principles involved?

The answer to this- The executive and Legislative branches, in this day an age, see the constitution as nothing more than an IMPEDIMENT to their agendas, whatever they may be. This, naturally, is because the majority of the constitution, if not all of it, deals with what the executive and the congress may or may NOT do- I find very few lines in our constitution that deal explicitly with capping the judicial power in any way, in fact- to begin with the supreme court was not as prestigious of an institution as was originally conceived, being the reason, in fact, that J. Jay turned down his initial appointment as the first chief justice.

In conclusion, what i'm getting at, is that if we are to eliminate every form of what may be in any way so much construed to be "Judicial Activism" we must take the politics out of the man - which is humanly impossible. Thus, given our imperfect system of government, we thus must seek to do what IS possible to remove activism from our courtrooms, which is to educate our law students on the issue- and make them think heavily on what it means to apply our form of law impartially. The first phase of this is getting our public defenders up of their butts and actually conducting jury trials- something that by far doesn't happen because either they aren't competent to conduct a jury trial, or have some other impediment that causes them to take the easy way out of using the plea agreement.

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John Doe
on May 08, 2015 at 20:08:29 pm

Is it just me or are you getting funnier every week? Who needs Dilbert when you have nobody really?

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Scott Amorian
on May 08, 2015 at 20:20:17 pm

I think the post overstates McGinnis' proposition. He was repeating what Kagan said about how notorious cases don't get as much deliberation as normal cases, not that they were not debated.

As for justices being philosopher kings, well, they have to be. The first ten amendments define restrictions on government relative to a set of philosophical rights. To adjudicate on those restrictions the justices need a solid grounding in the philosophy of rights.

To make matter more extreme the first ten only make a handful of critical restrictions explicit where they were only implicit before. They are declarative, not constructive. The implication is that a universe of implicit limitations exists along with associated rights. To wade through this, a deep understanding of the philosophy of rights is absolutely necessary.

It is in the differences of philosophy that the court generally disagrees, more than the literal meaning of the text. We are a nation of laws, but laws in the sense of principles, not statutes.

Judicial reform would require a clarification of fundamental principles.

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Scott Amorian
on May 09, 2015 at 09:34:49 am

Scott--

This is really nicely stated.

The 14th Amendment, at least as it has been interpreted in the 20th and 21st centuries, further elevates the importance of the court, since it transfers much of the judicial interpretation of rights from state courts to federal.

Add to this the political assertion of positive rights, not just negative, starting with TR and aggressively expanded by FDR, and it gets murkier still. I am not sure of the degree to which these rights have been tested in law--I would assume not much--but their presence in the larger political discourse certainly complicates things.

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Kevin R. Hardwick
on May 09, 2015 at 16:21:37 pm

"...As for justices being philosopher kings, well, they have to be. The first ten amendments define restrictions on government relative to a set of philosophical rights. To adjudicate on those restrictions the justices need a solid grounding in the philosophy of rights...."

This is exactly where the problem lies. Take the second amendment for example. The text reads as follows:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Where in the second amendment do we see a clause that allows for any limitation of the amendment to any individual? The only negative expressed here, even by implication, are the words "shall not be infringed."
So how then can we make a case for so much as regulating firearms when any regulation imposed would somehow "infringe" on the right to keep and bear arms?, UNLESS, for example, we hold that certain groups don't have constitutional rights at all. But yet nowhere in second amendment case law was the court prepared to state such a proposition outright, though that was, in fact, what was implied- the idea that once convicted of a felony, the second amendment magically just simply no longer applies. Prohibiting a person who committed a gun crime from possessing a gun for a period of time is one thing- it has a rational basis. But prohibiting a white collar criminal from possessing a firearm and then shielding the government from liability (via several immunity doctrines, which have no place in our constitutional government whatsoever) - how then does the government remain accountable for its actions?

I could go to first amendment law with the same tact: if the court decides a constitutional amendment applies to something- it either applies or it doesn't. Note that we DO NOT see the word "except" or any other similar clause in the first amendment. So when the court decided pornography was protected under the first amendment, how then can we arrive to a conclusion that child pornography is not protected by the first amendment, given that amendment itself has no exceptions, either explicitly nor implicitly, UNLESS we are to say that pornography is NOT within the perview of the first amendment text PERIOD- unless and ONLY UNLESS we take the tact of INSERTING CLAUSES to the amendment that ARE NOT in the text of the constitution. This is not to say that the amendment cannot be further refined by OTHER AMENDMENTS, which is what the framers intended for, by leaving the process to propose and ratify amendments open to the people, to use as the device to properly accomplish the Correct means to the end point of whatever is trying to be accomplished.

in conclusion, we have to remember the definition of what we're talking about: Judicial Activism and/or Judicial Legislation. The supreme court's role is to INTERPRET the constitution AS WRITTEN, not to interpret the constitution by coming up with some line of crap that is clearly incongruent with the basic meaning of the text, regardless of to what ends it may be justified.

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John Doe
on May 09, 2015 at 20:48:41 pm

All in all the bottom line is that the Constitution is as dead as the Dodo Bird and that we live in a society of what ever legality fits into the tempo of the present time. A nation of interpreted man made laws and not a nation of objective rights. In the end we are numbered,walking corporations that instead of having a right to do something we have to ask for permission. The Founding Fathers must be spinning in their graves.

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libertarian jerry
on May 11, 2015 at 10:46:30 am

Actually, the 1st Amendment does not provide an absolute license to utter or print.
Consider that the founders recognized both libel (certainly a form of speech) and also patent law (again another restriction on speech / print).
Thus, something must be informing the meaning of the 1st Amendment.
Nobody argues that per Learned Hand (what a wonderful name, I wonder did his wife invent the name?) Justices must be philosopher kings. I think not - but they must be a) aware of historical / philosophical / moral traditions and b) must use that to help determine what is intended by, and within, the text created / drafted by the Founders.
This is different than our current belief that the Judiciary should serve as the Lawgiver based upon some deeper understanding of what is proper. Nobody really believes that, do they?

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gabe
on May 11, 2015 at 12:50:34 pm

gabe, your exactly right- the founders did recognize such concepts (and I think you meant copyright law, as patent law pertains to inventions, whereas copyright pertains to written materials and A/V media) but this is exactly what I'm leading up to:

I'm sure that we can point to other documents written by the framers of the constitution, or at least contemporaneously to it, that at least point to the means by which they would have interpreted it, which just makes sense in interpreting what the intended protections were, which given history, we see, are rooted in protecting political speech, as opposed to ordinary speech...but even then, in the example given we cannot say something falls within the umbrella of protection and yet what is essentially a variant of the same thing, (i.e. child pornography IS pornography, period.) does not fall within the same framework of protection, unless we are to insert a negative clause in the text, or somehow change the text. The only other option we have, within the given example, is to say that Pornography is NOT within the perview of the first amendment period- which would be the position I would support, personally.

However, with second amendment law, particularly its application within the terminology "convicted felon", we cannot take this route of interpretation because the concept of what constitutes a felony in the here and now is NOT any where near what it would have been at the time our constitution was written- The founders probably would not have considered it rational to revoke a persons right to carry a firearm over possession or use of cannabis, for example, as there is evidence that at least points to the fact that our dear George Washington smoked the plant himself- keep in mind that pro arguendo I am going out on a branch that would suppose that the government has the right under the text to make restrictions that have no base in the historical meaning of the text, nor do they appear in text itself.

This is especially troubling, given the fact that congress has the right to determine what constitutes a felony (some offenses that were only misdemeanors a few years ago are now felonies) - so then congress is thus given the power of interpretation of the law, consequentially. How can this be constitutional given that we have a non-delegation doctrine and constitutional separation of powers in effect, where the constitution itself prohibits the legislature from exercising interpretation of the law in any way, and given the fact that the courts were intended to impose upon the legislature at least to some degree?

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John Doe
on May 11, 2015 at 15:55:03 pm

John:

Fair enough. I was of course referring to copyright law - but also to patent law as much of that can still be deemed to involve speech or written word / code (see S/W patent issues). But no biggie!

As for 2nd amendment, I would agree that it seems that there may be a problem with the "felonization" of America (see the book Three Felonies a Day) with the consequent result that simple *inattention* to some obscure Administrative Code / Regulation may make one a felon and thus denied 2nd amendment rights.
One would not, nor should not, contest the governments ability / power to deny a murderer such rights but to say that a Doctor who may be deemed to have inadvertently misquoted a "disease code" for Medicare reimbursement is to be denied 2nd amendment rights is an egregious overreach on the part of the government.

It seems that is where we are heading.

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gabe
on May 11, 2015 at 17:11:04 pm

That rational seems to assume that the second amendment allows such a prohibition in the first place- the change of the interpretation in the law is only relatively recent- with the first major gun control laws only appearing on the books in the 1970's. There is at least one state I know of (I believe it one of the commonwealth states, though I'm not sure as I only came upon it in passing while looking for something else) which still has a law on the books that actually requires the state prisons to supply a released convict with a rifle. Mind you this law had it's history circa late 1800's during the westward expansion of the states, but the point is that the particular state in question still imposed a duty upon convicts in general to defend the United States against outside invasion- which at that time in history were what ended up being the several Native-American tribes which were eventually granted treaties.

The concept could easily be transfered to the present- as gun laws are clearly ineffective overall- or we wouldn't be seeing the problem and the call for more gun control laws on top of the ones we already have. I submit that first- if one really wants to commit murder they don't need a gun to do it, and secondly, that if everyone in a building has a gun on them, it makes it much less likely that we would have a columbine-type situation. Think about it- they didn't walk into the police station and start shooting everyone- I wonder why? could it be because a large number of people in the building have guns, and thus are able to deal with the threat, as opposed to being a bunch of unarmed sitting ducks, who can really do nothing but, wait the average three to eight minutes for the cops to show up, who aren't exactly going to just run in there and deal with it because they don't know the totality of the situation in the process?

Obviously gun control makes no sense in the first place. And when we add the strong language of the second amendment on top of it- I would find that the framers foresaw the problem here. They didn't have the mass public shootings in that day because everyone had guns in the first place, bearing in mind that Hollywood's portrayal of the "wild-west" is largely historically inaccurate.

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John Doe

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