Thursday, August 24, 2006

Record keeping. Same line as the last post, but this from a comment (again) at Balkinization

I have to complain, again, about the side effects of the tendency to naturalize discussions of social behavior and law. It's something that hangs over this discussion even if it is not its subject.

Professor Balkin seems unwilling or unable to make the case for the what almost any historian would claim as the logical basis for his or her chosen field: we can never know the past, but it's nonetheless our obligation to try.
To say that we have an obligation to argument and debate -as a lawyer's obligation is to his client and the court, and not to his beliefs- is not to say that we are not bound by the the text of a law or of the Constitution. Professor Balkin refers to the logic of text and principle, but principle is a weasel word and you can argue all you want but that won't change. If one wants to argue against the over-simple understanding of language that originalists defend, you have to be prepared to argue not only that such weasel words are inevitable -indeed that discussions of value are inevitable- but that our way of government is better served by them than not.

There will be cases when meanings will be stretched. Hasidic neighborhoods have miles of string tied to all the lampposts that are then run to each house so that families will be able to go outside their houses on the sabbath while still being within a symbolic 'home.' Is that following a law or breaking it?
There is no right answer. There is no naturalized epistemology of how we choose to define ourselves and our society.

Women were not fully vested participants in this country 200 years ago. It was not assumed that they were or needed to be capable of independence. Now whether some people like it or not, women need to look out for themselves as much as men do, and they need the protection of (or from) the law due every citizen. That is an argument from a principle in the Constitution, but it is not the only possible one.

The argument between those who would hold one interpretation over another is an argument not about law but how about we define ourselves, by reference to the words on a page. Protestants and Catholics define themselves in argument over the words in the Bible. Constitutional law is no different (and God should she exist has little to do with either). To refer to 'progress' and other buzzwords of naturalism does nothing but contribute to the weakening of democracy by allowing for the belief that the argument will and should someday end.
It won't and it shouldn't.

"To refer to 'progress' and other buzzwords of naturalism does nothing but contribute to the weakening of democracy by allowing for the belief not only that this argument is the responsibility of experts, but also that it will and should someday end."

That's better

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