Worthy Reads: Wake Up and Smell the Ashes
Worthy Reads for May 2023
Welcome to Worthy Reads, where I share some articles (and other things) that I think are worth your time. It’s always one of De Civ’s most popular features. It’s also the only one with any kind of paywall: everyone gets half the items, but only paid subscribers get them all. Retweets are not endorsements.
It’s been a while since the last Worthy Reads, so there are a few extra reads stuffed into the article, both before and after the paywall.
“Originalism and the Meaning of ‘Twenty Dollars’: A Response to Heaney,” by Michael L. Smith.
This is Professor Smith’s response to my recent article, “I Know What $20 Means,” which was my response to an article by Smith, which was his response to an idea by Lawrence Solum:
Throughout his essay, Heaney's discussion is thorough and approachable, and I think his answer regarding the meaning of twenty dollars is well-argued (although I'm not sure it is the correct answer as I remain unconvinced that there is one correct answer). I do have some qualms with some of his arguments, particularly his characterization of nonoriginalists and their critiques. To this end, I offer the following reactions to Heaney's discussion:
First, in his discussion of Paulsen's argument and his critique of the "Eric Segall school" of originalism critiques, Heaney falls into a common trap of assuming the undertheorization of nonoriginalist interpretive methods. This approach to nonoriginalism to portray it as atextualist purposivism (as portrayed by Paulsen) or as little more than the notion that judges should decide cases based on their value judgments. When Heaney isn't using this characterization, he resorts to a near-parodical version of atextualist purposivism in summarizing Paulsen's discussion of nonoriginalist methods. […]
Second, in Heaney's critique of Eric Segall's work, he seems to downplay the importance of transparency in constitutional interpretation. As I tend to see things (and as Segall sees things as well--based on what he says in about every other episode of his excellent podcast), value judgments are already doing most, if not all, of the significant work in decisions that are purportedly originalist or based on history and tradition. The difference between originalism and an explicitly value-based approach to interpretation is that the originalists hide behind a smokescreen of purportedly neutral historical analysis while reaching outcomes indistinguishable from those an explicitly value-based method would reach. I examine this contrast in the context of common good constitutionalism at a bit more length in an essay here.
Third, while Heaney argues that originalism still does meaningful work by narrowing a range of potential interpretations, this work still leaves much to be desired by legal actors who must arrive at a single outcome. Originalism is a textualist theory, and the text does some work. I'll readily admit that originalism tells us that "twenty dollars" does not mean something like "armadillo," "Belgium," or "courage." But this work isn't enough, as it still leaves the litigant or judge with a range of meanings extending from twenty dollars to $7,000--not the most helpful situation for interpreters. And it's unclear what work originalism does beyond ahistorical textualism other than exacerbating uncertainty. Finally, I suspect that the range of potential interpretations may become even harder to work with as the provisions at issue become more morally loaded and abstract.
Fourth… Heaney argues that the present public meaning approach may lead to absurd results, highlighting the Article IV, Section 4 guarantee of "a Republican form of government." Heaney argues that this clause, under the present public meaning approach, could be read as requiring the federal government to ensure that the Republican party remains in control of governments at the state level. While I'm still thinking through this particular argument, I think that the argument about reading provisions in context--an argument I make in response to a similar potential argument involving the same clause's mention of "domestic Violence"--likely forecloses Heaney's hypothetical interpretation.
I have to give Smith a great deal of credit here: he typed up this 2,600-word reply in, I believe, two days flat. He did this during grading season. I am not a professor, but I am the son of professors, and I have no idea how he did this. Grading season is when college professors pay for the flexible schedules they keep the rest of the year—and, friend, they pay. Had I realized it was grading season for U-Idaho, I would have held back for a couple of weeks, because I wouldn’t have expected Smith to read my article, much less reply to it. Kudos. (Clearly, I felt no such compunctions writing my reply.)
This conversation is now five levels deep—which I know strains your attention, dear subscribers—so I will keep my responses to his responses crisp:
First, Smith is certainly right that I was unfair to anti-originalists. (I acknowledged in my post that I was venting.) Even beyond my frustration, it is quite possible that I am just not well-enough acquainted with the theoretical underpinnings of various anti-originalist theories. I have, perhaps, been too preoccupied with originalism. I have not read Justice Breyer’s Active Liberty; I have read only enough reviews of it to be conversant at parties.1 I have not read Dworkin; I have not read the Strauss book Smith recommends. Perhaps, if I cracked these open (and, really, I ought to), I would be impressed by the underpinnings of these competitor theories.
Still, I think Smith slightly misses my point. Let us suppose that at least some competitor theories are grounded in enough theory to be both (a) internally consistent and (b) capable of narrowing the range of plausible interpretation as much or more than originalism. I take this to be Smith’s claim here, and I think it’s more than plausible. (Indeed, the “present public meaning” approach he offers does a really neat job of both.)
The problem I was ranting about is that—it seems to me—non-originalist theories don’t do a very good job of (c): explaining why judges have a democratic mandate to wield these theories against legislatures in the first place. One can level a “dead hand” objection at originalists all day (twice on Sundays)… and, given that the tens of thousands of electors who voted2 for ratification of the Constitution are almost exclusively white, male, and dead, this objection is not without force. But, in my experience, exponents for other theories do a poor job explaining why we should find originalism objectionable, but then simultaneously submit ourselves to the dead hand of the five guys in robes who wrote Miranda v. Arizona—who are also white, male, and dead. The root of my frustration is not that non-originalist theories are (merely) undertheorized, but that they don’t do a very good job explaining why the judiciary should be independent of the legislature in the first place.
Again, I acknowledge that perhaps I have not read widely enough. Following a lot of non-originalists on Twitter is not the same as reading their books. I’ll work on it and see whether I feel the same way.
Second, I don’t agree that I am downplaying the importance of transparency. Segall does indeed (constantly) argue that originalists are just making “smokescreened” value judgments. I don’t agree with him about this, but let us concede the point arguendo. Segall contends that it is better to have judges who transparently impose their value judgments on the nation than to have judges who impose their value judgments on the nation through a “smokescreen” of historical analysis. I think that’s true, as far as it goes, but it’s rather beside the point; if Segall is right, then it is obviously better to not have judges at all. If we’re going to impose value judgments either way, let’s have the elected legislature impose value judgments instead of some dudes in robes.
Third, I don’t think we can ask any theory of textual interpretation to eliminate all ambiguity in a text. Language is too supple for that. The shortest verse in the Bible tells us “Jesus wept,” which seems clear enough, but then you wonder: Was this a few tears and a sniffle? A full-body shuddering ugly-cry? How long did it last? Did His nose run? Were they tears of desolation, or of joy? Did the divine personality participate in the weeping, or only the human personality? (They had like four ecumenical councils just about that last one.) I think the most we can ask for from any given theory of textual interpretation is that it narrow the field of plausible textual interpretations more than the competition, and provide facially neutral guiding principles for selecting among remaining plausible alternatives. That originalism does not yield a single, determinate, absolutely certain meaning of “twenty dollars” is a disappointment, but is not a strike against originalism unless other theories do a better job at (first) narrowing the field and (second) providing neutral guiding principles for choosing between the remainder. I don’t think originalism’s typical competitors do a better job on either count. (However, as I said at the time, I thought present-public-meaning textualism, despite other problems, actually did a really good job on this score.)
Fourth, I still don’t think the “Republican form of government” clause can be read “in context” the way Smith proposes here. I think I considered the points he raises here in my earlier piece, and I think I had good reason for drawing the conclusion I did anyway. I think the only way out of his quandary is to fall back on some form of originalism, whether explicitly or implicitly. However, I will look forward to reading his next thoughts on the subject, in three to eighteen months!
“Moral Injuries,” by Will Selber:
“Shock and awe.” Twenty years ago today, that was the phrase everyone kept saying as America invaded Iraq. There will be lots of analysis on this anniversary, discussions about what happened, why, and whether or not it was worth the cost.
But this is something different.
I spent nearly 1,500 days downrange in Iraq and Afghanistan, and I am still unpacking my own experience. Those memories are not pleasant, especially those from the Summer of Death in Baghdad, when destruction, futility, and defeat hung in the air. For me, there is no way to get over it until I go back through it.
[…]
We watched in horror as Iraqi society devolved around us. Al Qaeda in Iraq would conduct a suicide bombing in a Shia neighborhood. Shia militants who had infiltrated the police would go into predominantly Sunni communities and kill people at will. It was common to find the dead bodies of children on the side of the road. Shia militias, almost always tied to Muqtada al-Sadr’s Jaysh al-Mahdi, often raped children or other loved ones in front of parents and family members before killing them. Finding children raped, gagged, and killed in this manner is an indescribable horror. No training in the world can prepare you to deal with it.
And we saw it too often to forget.
I supported this war. Loudly.
Our boys didn’t directly cause the horrors in this article (not most of them, anyway). And Saddam Hussein was a monster who gassed kids, whose sons had a license to seize any woman they fancied and rape and torture her to death. It’s good that Iraq is governed by something kind of like a republic today, not by Saddam Hussein. We did that. A lot of the pre-war arguments against the war were tosh and nonsense, and still are today.
And yet.
I was fourteen years old and pro-Bush. I thought about dead kids in the abstract, weighing the expected number of dead kids in Scenario A (where we left Saddam in power) versus the expected number of dead kids Scenario B (where we invaded). I may have even judged the scales correctly in the abstract. But I didn’t really consider what a single mother’s scream of anguish would do to the whole world, and what it would mean for my country to be responsible for it. For me to be responsible for it.
This article doesn’t let me shy away from that, and shouldn’t.
“Lost Innocents: Photographs,” author anonymous:
It can be worrisome thinking about retrieving your baby for burial. One of the problems is knowing what you’re looking for. If your baby is sixteen weeks gestation then there’s no problem recognizing him. It’s a different story if you’re six weeks. Looking on the internet for photographs to aid you is a sticky business because you’re likely to come across things you’d rather not have seen. Initially, I culled the internet for some photographs of babies at each week gestation, but since then women have volunteered photos of their children for me to replace the “stock photos”. I have included sizes if the baby is not in a recognizable context, such as in a parent’s hand. A heartfelt “thank you” to all of the women who have graciously allowed me to post photographs of their babies. [If you have natural photographs of your baby and would be willing to include them on this page, I would be grateful to hear from you.] If the baby also has a story on the Your Stories page it is noted.
I have decided not to include pictures of miscarried children in this post. There is a time and a place for people to be confronted by images of dead babies without warning or consent, but this post is not one of them. (This post was.)
However, The Guardian and The New York Times, in their fearless and unyielding pursuit of “terminating” children, have no such compunctions. They recently shared images from the partisan outfit My Abortion Network, which purport to show that children in the first trimester just look like clumps of undifferentiated tissue. (You can see the images at The Guardian.)
These images are a lie. No shock: their side lies a lot. The images show what’s left of the gestational sac after a vacuum aspiration abortion (which tears the actual child to unidentifiable shreds) and after the My Abortion Network cleans off the blood. It’s like looking at a few teeth in a cannonball crater, polishing them up, and saying, “Aha! So this is what a human adult looks like!” But they have the ear of the media, so many people hear it as truth.
You have probably seen these images, and, at some level, you may even believe them. (The human amygdala will accept almost any lie if it’s exposed to it enough. That’s why some people still think the 2020 election count was fraudulent!) Hence the Lost Innocents blog: it shows images of dead children from miscarriages, raw and real. It has no abortion-related agenda; it’s a website for helping miscarrying moms, with no interest in depicting anything other than the truth.
The truth is: they don’t really look all that human, especially at the youngest ages! But they don’t look like smeared pale dishes of nothing, either. They look like creatures, perhaps like roadkill—recognizably once living and now dead.
When mom takes the abortion pill, the My Abortion Network will reassure her that her baby, when he dies in the toilet, will look like a pale white cloud. So she’ll be in for quite a shock when she discovers something that looks an awful lot like it was trying to become a baby.
But, by then, her baby will already be dead.
Related read: “What pictures of abortions can and can’t do,” by Leah Libresco Sargeant:
Even though they display some of the same tissue, My Abortion Network carefully rinsed off all the blood, leaving behind a translucent scrim. What they show is gossamer, impossible to hold, easy to lose. What I turned over in my hands was undeniably flesh. It wasn’t particularly comforting to hold, except as a small reassurance of the reality of my loss.
It makes it all the harder to know how to approach the argument over abortion, when the basic, empirical questions about what the body and tissue looks like can’t be a point of agreement. If the basic reality of what can and can’t be seen with naked eye is contested, how can we tackle the harder questions of morals that are at the heart of the disagreement?
Related programming note: I will be at the University Faculty For Life conference in St. Paul, MN this weekend, and I know more than one De Civitate reader will be there as well. If you’re going to be there, I’d love to meet you. I’ll be doing a first table reading of a play at the breakfast on Saturday morning. (I agreed to perform in the play sight unseen, without reading a script or even speaking to the author—I still don’t even know my part!—so we’ll find out together whether this was a good idea or not.)
“Cocytarchy,” by Kulak (all ellipses in original):
The bosses of the prison gangs almost universally reside in SuperMax or some version of administrative segregation. They spend 23 hours in their cells and 1 alone in the grey concrete yard per day... and by and large they are there for life... unable to do... almost anything.
Yet their few necessary orders escape, which aren’t many, since their machinery runs itself... occasionally a more free gang head will be caught embezzling from the gang or conspiring against his “Brothers” and need purging... but those are the bosses in medium or high security, or the few who occasionally walk out... a prison gang head in the open world... the bosses in SuperMax are largely beyond that. Their machinery runs itself.
Their tribute accumulates in their secret hiding places, their trusted confidants still following their orders, they still have one or two avenues to get messages out, at some expense and some effort... but if they want someone dead, a crooked guard or lawyer can relay a short message, or they can slip a sheet of toilet paper to another inmate the 1-2 times a week they see them.
And thus they sit, alone, buried in their cells, maybe the slightest 2-4inch window to let in light but no view, their rare visitors mostly lawyers who files lawsuits trying to define their solitary confinement as torture... and in those dark stone cells they lie... the lords of the underworld.
This article, although its spelling and grammar are a shambles, has really stuck with me. The thesis is that the hierarchy of the criminal underworld resembles the hierarchy of Hell. I don’t think the author actually believes in Hell, so it’s just an illustrative metaphor for him. For me, it adds a whole new dimension to his article: Satan trapped at the bottom of a cocytarchy, most powerful and most suffering.
Phew, that got heavy! Below the paywall, let’s get less depressing and more light and breezy, eh? We’ll have the Video(s) of the Month and more fun in the second half!
But, either way, this is where the paywall hits, dear free-listers. The paid subscribers make De Civ go, and this is their deserved reward. So why not join them? $5 a month—less than one lunch at the corporate cafeteria—buys you the rest of this article, plus every previous Worthy Reads I’ve ever posted, and keeps me writing!
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