Saturday, July 02, 2011

Jack Balkin writes a masterly defense of a position while claiming not to be making one. It's an object lesson in the high politics of legal argument. Here's an introductory paragraph and the last
This essay does not attempt to answer these questions in detail; I leave that to a future discussion. My goal here is to offer a basic account of the legislative history of Section 4. This discussion, I hope, will be of interest both to originalists and to non-originalists who believe that text, structure and history matter, even if they are not always dispositive of current constitutional questions.

...Like most inquiries into original understanding, this one does not resolve many of the most interesting questions. What it does suggest is an important structural principle. The threat of defaulting on government obligations is a powerful weapon, especially in a complex, interconnected world economy. Devoted partisans can use it to disrupt government, to roil ordinary politics, to undermine policies they do not like, even to seek political revenge. Section Four was placed in the Constitution to remove this weapon from ordinary politics.

As I wrote in 2003 "The debate between liberals and conservatives, and between all parties in any sort of structured proceeding, is over where to draw the line beween civil argument and civil war."

Posts at Balkinization on Section Four of the Fourteenth Amendment.

Another discussion at NewApps on textbooks in the classroom and whether Philosophy can be called "a 'normal' science." Begun in response to a post on Leiter's page.

The Constitution is a text. Much of analytical philosophy is written in a way so as to pretend that the resulting texts are not texts, or that they follow other rules, but an argument is not an equation. The corollary of a living Constitution is a living Tractatus or the living works of Nietzsche. Leiter writes ex-cathedra as an academic reactionary.

Philosophy is not a natural science and it is not a formal science. All these problems would go away if professional philosophers stopped referring to formal logic as philosophy. It's tempting to say logic is to philosophy as engineering is to architecture but I'm not sure even that holds up.

No comments:

Post a Comment

Comment moderation is enabled.