Nihilist Warthogs: A Debate

This is part of a debate I had with a friend named "Tad" a while back. He was arguing the Laurence Tribe side of Constitutional law.

[W]hen the judge is required to make such a moral decision, the judge should make a constitutional decision which best fits with contemporary understandings of the moral principles . . . .

This is very loose. You could even replace the second occurrence of "moral" with "cultural" or "accepted." There is no room for an absolute truth or right or wrong. "Contemporary understanding" leaves too much to the anointed, the self-regarded elite—the gatekeepers of "contemporary understanding." Just because Tribe and his cocktail party familiars may think something is "moral" does not necessarily make it so. Slavery was morally acceptable 200 years ago, but it was never moral in an absolute sense. Maybe Tribe's future twin will find slavery again fits our understanding of contemporary moral principles 50 years from now, requiring repeal of the Thirteenth Amendment—perfectly acceptable to Tad and Tribe. Thus, the moral-equals-contemporary-understanding position is equivocal and unreliable, more of an article of faith than a rationale. Its real purpose is rhetorical, to sprinkle the word "moral" like sugar over the turd "politics."

However, a judge interpreting a constitution will often find that the constitution explicitly requires that the judge make a moral decision . . . .

"Often." Yes! That's the problem. Occasionally, rarely, there are times when a decision must truly be driven by moral considerations, but for some judges these occasions seem to come up quite frequently. So, I agree, certain judges "will often find" the Constitution requires him/her to wet a finger and stick it in the shifting moral wind which—for this type of judge, the Nihilist Warthog—always blows in one direction. Strange how that happens, isn’t it? The moral principles they find to be contemporary always require them to shift the law in a direction that happens to align with their own political views. Amazing. And, look, "moral" and "political" in the same sentence again.

I don't agree with this view [that a judge should attempt to discern the moral principles of the framers that underly the particular constitutional provision], largely because I have real doubts about legislators or contitutional drafters generally intending that their moral views should be binding on future generations when those generations are called upon to make moral choices.

This is wrong. First, men are flawed and naturally self-interested. This is not a shifting “moral view.” Thus, in order to form civil society, there has to be a social contract, and part of that contract establishes some degree of monopoly-like power to enforce other parts of the contract. Unless the anointed (Tad and Tribe) are running things, this enforcement mechanism, run by mortals, is dangerous. So restraints are also built into the contract to protect against abuse. Since abuse can never be completely eliminated, yes, the framers intended to bind future generations. The Constitution dwells on these restraints at length because they are the only thing between liberty and the harsh control of flawed man. What about this changes with contemporary understanding?

Second, much of the Constitution is based on ideas about Natural Law which are, by definition, absolute—or else due process is just another one of your shifting "moral principles.” Third, your concern for the intent of the framers is not credible. Fourth, you use the word "moral" like it magically applies to all Constitutional exegesis. If everything is "morals" based—in your usage of the term—then nothing the framers wrote can be true, right, wrong, absolute, or binding over time. Social contract gives rise to the rule of law. The judges you mention in your third view, the intellectual conservatives, adhere to the text of the Constitution in order to uphold the rule of law, not shifting morality, and that is what the framers of the Constitution intended to be binding on future generations. Out of necessity, then, you implicitly redefine rule of law to be "moral view”; otherwise, there would be no way to support your position that judges often find the Constitution requires “moral” decisions. Such relativism approaches nihilism.

People like Tribe, possibly including you, luxuriate in the reflected light of your own magnificence, consumed with self-regard for your ability to fully understand the extent of man—even from the bottom of your narrow potholes of existence. After all, you have good intentions. Such wise and good demigods would never abuse power. Indeed, you have the ability to legislate fashion laws perfectly on an ad hoc basis merely by studying contemporary “moral” principles. But where do you find these contemporary principles? On the east coast? In your neighborhood? At the cocktail party? At the peace rally, among other libertine socialists? In those “flyover states”? Within academia? As depicted on television? As determined by a fairly recent, perfectly scientific and universally accepted study? Eh, too restrictive for you. In your head. That's it. But you assert contemporary moral principles "have nothing to do with personal political views." Yeah, and I’m a Chinese jet pilot. The fact is Tribe and friends have little regard for the foundation of this country’s long history of liberty and prosperity, the rule of law. This is the only thing that keeps flawed, self-interested, and overly self-assured mortals from quickly encroaching on individual liberty and subjecting others to their superior judgment.

I suspect that, deep down, you and Tribe consciously prefer the idea of molding society to fit your personal understanding of contemporary moral/political principles with little or no rule of law restriction at all—to use the legal system as a tool for imposing good deeds on others at will. This is just a guess, but it can be inferred from 1) the unquestioned self-certainty that loosely defined “contemporary morals” can be accurately divined and then easily fashioned into just and equitable law, 2) a readily apparent religious belief in the conceit that government involvement only assists liberty and prosperity, and, possibly, 3) an apparent unacknowledged fear of “too much” individual liberty. Freedom from government means a lot of scary people running around doing “immoral things” like reciting the Pledge of Allegiance or setting their own rules for private golf tournaments.

Epilogue: No amount of reasoned argument would work with Tad. He had his perceptual blinders on. Whenever he lost a point, he just blobbed over like Jell-O and formed a new one. That is because, unknown to him, he was fundamenally dishonest. That intellectual dishonesty allowed him to adopt any position in the moment, depending upon utility--sort of like those I mentioned above who think like Laurence Tribe.

posted by rdbrewer at 11:55 AM

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