Saturday, August 19, 2006

Comment @Balkinization:

The standard argument for integration, racial or gender-based is that one group can not be assumed to 'speak for' another: men for women or white for black.

As I've pointed out a few times, the debate of Israel in this country is still the debate of Jews and their supporters concerning Arabs. [Here's another good essay from London Review of Books]

So why does the NY Times publish an article with the headline: Experts Fault Reasoning in Surveillance Decision? The answer is that we debate within the parameters of our own prejudices and assumptions. Here's another example from Volokh. What legal realism pretends is that it is possible to assess those prejudices without succumbing to them- to have distance from ourselves- and simultaneously to use our objective knowledge to obtain our purely subjective goals (and satisfy our purely subjective desires).

This is intellectual vulgarity of the lowest order, undermined by the debate as described in the Times this morning. Judge Taylor's decision in this case is surely political, but not entirely so, and on appeal the case will be argued from scratch. Any defense of Bush v Gore as unpolitical is absurd as the justices have admitted. But more importantly, the definition of what is and is not beyond the pale in public discussion is based not on logic but on logic and circumstance: on politics. To refer to Professor Balkin's terminology, "High politics" is the politics of polite disagreement within accepted norms, within the debates among the fully enfranchised. For groups left out of the conversation, such polite discussion with the enfranchised is impossible. [while within the group of the enfranchised, the art of conversation is required] High politics is conversation among equals, and equality is necessary for it to take place.
The vulgarians of legal realism, on the left or right- Posner of Leiter- think art is superfluous [perhaps that it is a necessary craft, but not a defining factor] This is both anti-intellectual and just silly.

I shut down an absurd debate about the roots of secularization once with the simple comment that secularization is the simple result of coexistence: once a Catholic girl fucks a Jewish boy it's the beginning of the end for religion qua religion.
To put it in terms of law: modern democratic justice is a Muslim judge hearing the case of a Christian accused by a Buddhist of robbery, defended by a Jew, with the state represented by a Hindu, before a jury of Animists and Jains. In order to function in such an environment you need to engage it in its entirely; you must answer not to one interest or another but to all. [arguments concerning law involve discussions among realists, formalists and others. What is the nature of that process?] That's how social activity/social life functions. A court of law is a church, a theater and a cocktail party all rolled into one. Realists imagine themselves as bookish wallflowers. But bookish wallflowers, though they are the last to admit it, are 'types' no less than the rest of us. Their lack of self-awareness is the root of their weakness as philosophers. [Communication as social act, bounded by language, manners, and sensibility, precedes communication as idea. The bookish wallflower defines himself in terms of his ideas and his superior awareness while the rest of the world defines him as a wallflower. If he doesn't realize the truth in their perceptions, his superiority is justifiably in question.]
update. August 20 a comment at Volokh:

As I always say in these debates: rather than imagining how the Constitution, or any other text [The Bible? The Qur'an? ] should or should not be interpreted, it helps to know the history of how it has become the thing it is, and then to be aware of how in debating we are doing no more than continuing that process.
The debate is as old as Moses and Aaron. Meanings have always changed, and the one constant is not the meaning of a text but the argument. But the moment you allow argument, fundamentalism is defeated. Scalia's statement "The Constitution as I interpret it is not living but dead" is oxymoronic. [interpretation is the breath of life]

There are no examples in recorded history where attempts to replicate the past have done anything more that codify the interests and preoccupations of the present. I know no one who is prepared to argue that the Pre-Raphaelites made work that looked like Fra Angelico.

Originalism in any form is a rhetorical device; as an ideology it's a force for reaction. The irony of reaction is that like radicalism, it's defining form is an ultra-contemporary, ultra-modern idealization: whether of the past or of the future it makes no difference. [Banality is banality.]

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