Between common form and private reason: the debate's going to become much more clear, even or especially to the people making the arguments.

Leiter sends us to Posner

THE CONSTITUTION of the United States has its passionate votaries—none more so than Akhil Reed Amar of Yale Law School—as does the Bible. But both sets of worshippers face the embarrassment of having to treat an old, and therefore dated, document as authoritative. Neither set’s members are willing to say that because it is old, and therefore dated, it is not authoritative. Some say it is old but not dated; they are the constitutional and Biblical literalists. But most of the worshippers admit, though not always out loud, that their holy book is dated and must therefore be updated (without altering the text) so as to preserve its authority. They use various techniques for updating....

Amar’s method of updating, which is also the one the Catholic Church applies to the Bible, is supplementation from equally authoritative sources. The Church believes that a Pope receives divine inspirations that enable him to proclaim dogmas that are infallible and thus have equal authority with the Bible. Jesus Christ’s mother does not play a prominent role in the New Testament, but she became a focus of Catholic veneration, and in 1854 the Pope proclaimed the dogma of Mary’s Immaculate Conception (that is, that she had been born without original sin). This and other extra-Biblical Catholic dogmas, such as the Nicene Creed, which proclaimed the consubstantiality of the Son and the Father, form a kind of parallel Bible, equal in authority to the written one, which reached its modern form in the third century C.E.

This is the line taken by Amar. Alongside the written Constitution is an unwritten constitution. They are consubstantial. The Constitution, like the teachings of the Catholic Church, is a composite of a founding document and a variety of supplementary practices and declarations (many of course in writing also). No matter how wild Amar’s constitutional views may seem, he claims that they are in this two-in-one constitution; that he did not put them there.

Actually, despite the book’s title, it is not two in one—it is twelve in one. There is not just one unwritten constitution, in Amar’s reckoning; there are eleven of them. There is an “implicit” constitution, a “lived” constitution, a “Warrented” constitution (the reference is to Earl Warren), a “doctrinal” constitution, a “symbolic” constitution, a “feminist” constitution, a “Georgian” constitution (the reference is to George Washington), an “institutional” constitution, a “partisan” constitution (the reference is to political parties, which are not mentioned in the written Constitution), a “conscientious” constitution (which, for example, permits judges and jurors to ignore valid law), and an “unfinished” constitution that Amar is busy finishing. All these unwritten constitutions, in Amar’s view, are authoritative. And miraculously, when correctly interpreted, they all cohere, both with each other and with the written Constitution. The sum of the twelve constitutions is the Constitution.

One is tempted to say that this is preposterous, and leave it at that.

Leiter adds: "Needless to say, Judge Posner does not leave it at that, and the criticisms seem to me mostly quite sound."

They aren't.

Democracy is the public argument over the meaning of words. The existence of founding documents means only that official arguments becomes more focused. Replace the word "Constitution" above with "Hamlet", "Macbeth", "Ahab", "Lincoln", or "Jefferson" and see how obviously stupid Posner's argument becomes. There are as many Hamlets are there are actors who've played the role.

Leiter imagines himself a leftist in the manner of Chomsky, whose political philosophy is as simplistic as Posner's, but he's closer intellectually and socially to the Posners, father and son.  All have faith in their own capacity for rational action. Chomsky defends the weak as Posner defends the strong while Leiter defends a notion of academic high-seriousness to the point of tautology: seriousness is worthy of respect because serious. What lies within and beyond the pale is measured by his own level of embarrassment. He'll defend philosophers of religion as a group, thus defending the academy, but ridicule any one of them for making any concrete and inevitably stupid arguments.

They all ignore what they want to ignore about themselves and others. None of them understand democracy.

See also the penultimate paragraph of the previous post.