ASK AND YE SHALL RECEIVE

After years of resisting the inevitable, Ben Eidelson has finally succumbed to our demands for him to start a blog of his own. Better late than never.

In his inaugural post, Ben considers Obama’s conversation with Joe The Soon To Be Country Music Star in light of Rawls’ veil of ignorance:

Lots of philosophical liberals push the idea that we should endorse whatever social arrangements we would support if we didn’t know who in our society we were going to be. But one concern about these “veil of ignorance” appeals is that they demand an awful lot of empathy. For them to work, those of us who are upper- or middle-class need to be able and willing to abstract from our actual lives and reckon with the possibility that we could have been poor. What’s interesting about Obama’s argument is that it appeals to a similar principle of prospectivity or impartiality, but in a way that’s less demanding. For Obama’s version only calls on us to entertain possibilities we’ve directly experienced: Make policy as if you didn’t know what stage of your life – your own life – you were in. One important limitation of this appeal, though, is that it only works in the context of a society with substantial upward mobility.

As they say on the internets, “Read the whole thing.” Including the comments, which include three Eidelsons and a cast of other characters.

I’ll just add that there’s an interesting study out there arguing that rich people who have moved far up the income scale in their own lives may tend to be more conservative about class issues than their equally rich peers because their own experiences may justify a belief that people as poor as they were could “lift themselves up by their own bootstraps” the same way they did.  It can be easier for these Horatio Algers to disregard claims from the poor or their advocates about barriers to moving up the income ladder – even if those barriers were in fact different, or non-existent, in their own rise to success (like me, Ben may have stories from Jewish day school about discussions along the lines of “Jews came here with nothing and we made it, so why don’t Blacks do that too?”).  Ange-Marie Hancock, in her book The Politics of Disgust, calls this “false empathy” and discusses how public perceptions and public policy about women on welfare got made based on people’s attempts to put themselves in those women’s shoes without noticing they had no soles.  She calls out Senators (particularly women) who supported making moms on welfare track down the fathers of their children for child support as a condition of continued benefits, and didn’t consider the potentially deadly consequences.

YOU’RE SO VAIN, YOU PROBABLY THINK JESUS IS ABOUT YOU

David Brody, blogger for Pat Robertson’s CBN, weighs in on Barack Obama’s legitimacy:

He talks about Jesus and how Christ changed his life. But religious conservatives aren’t convinced at all and think he’s way too liberal to be considered legitimate with his faith talk. I expect the faith discussion about Obama’s Christianity to increase as time goes on. Is he genuine or not? If he is, then he’ll need to figure out a way to defend certain positions (abortion and marriage) that don’t jive with the Bible.

It takes a particular sort of arrogance to take every expression of personal faith by a political candidate as an audition for you and Pat Robertson. And it makes you wonder: How does David Brody know that Barack Obama doesn’t share the biblical position that if a man violently causes a woman to miscarriage, he should be held financially culpable? Nothing there that doesn’t jive with pro-choice doctrine.

This is a good example of why (though contra Rawls, I don’t want to force “public reason” on everyone) we should prefer political appeals to the persuasive power of your religious tradition over political appeals to its authority.

FISH IN A BARREL

Matt Yglesias offers some deserved criticism of Stanley Fish’s peculiar Times op-ed. Fish basically argues that the authors’ “original intent” is the only accepted or justifiable grounds for constitutional interpretation, because words have no meaning apart from the ones willfully imbued in them by writers. For those of you keeping track at home, that’s two false conclusions (everyone believes in original intent, and only people who believe in it are right) based on a false premise (all that’s in my writing is what I intend to put there). As Matt writes:

I write, “I went to the store and bought sex toys.” What I meant to say was that I bought six toys. Nevertheless, I wrote “sex toys” which means something else. There are two kinds of meaning here — the meaning I had in my head, and the meaning of the sentence. We certainly wouldn’t conclude that the sentence as written was meaningless simply because it was the result of a mistake. Indeed, the whole idea that typos, malapropisms, and other mistakes are possible depends on the idea that written and spoken words have objective (or at least intersubjective), public meanings that are distinct from the intentions of the writer/speaker. If the world were the way Fish thinks it is, it would never make sense to say somebody “misspoke” because the meaning of what they, in fact, said would, by definition, be what they meant to say.

While Matt effectively shoots down Fish’s premise, he doesn’t mention what seems to me the most fundamental problem with original intent (as distinguished from the practical, logical, and historical ones): it’s inherently and irretrievably undemocratic.

In a democratic society, the role of a constitution which often exerts a counter-majoritarian check on democratic initiatives is safeguarded by the recognition that that constitution has a democratic legitimacy of its own. Looking ahead, we have democratic means to change the nature of that constitution, though through processes made more difficult by the requirements of that constitution itself. And looking back, the short-term restrictions on our democratic options reflect the long-term democratic choice made by our predecessors to accept that constitution and those constraints. In other words, we accept that the constitution stops us from democratically passing a law granting titles of nobility not only because with a supermajority we could democratically ammend that limitation but also because Americans (the white male ones, that is) democratically chose a constitution with that limitation in the first place.

And what did our forebears ratify? The words of the constitution. Not the original (make that contemporary) intent of its authors. As Frederick Douglass argued 145 years ago, to hold the voters who ratified the constitution – and ourselves – to the “secret motives” of its authors, rather than to the text they ratified, is “the wildest of absurdities.” Even if we could determine what exactly the framers had in mind, we would do well to remember that what the framers had in mind never came up for a vote. And that they had many different things in mind, out of which they compromised on a particular text, likely each hoping it would be understood in a somewhat differently shaded way.

If there’s any original intent that should bear on our reading of the constitution, it’s the original intent of the voters. Here too, though, it bears keeping in mind that a constitution is by nature a democratic compromise among people of differing beliefs to set bounds on future majoritarianism. So while there’s no Rawlsian veil of ignorance in play, there’s at least some haze. In ratifying a constitution, we provisionally inhibit our chances of legislating certain of our majority views in exchange for provisional protection against legislation contradicting certain of our minority views. A, B, and C, for example, may all see fit to paly it safe and ratify a constitution forbidding discrimination against a particular letter, each seeing it mainly as a protection for itself and not for others. To point out afterwards that protecting C may not have been the original intent of 2/3 of voters would miss the point.

We should also remember, sadly, that many of the Americans who for several decades were systematically read out of the constitution were left out of the process of drafting and ratifying it in the first place.