Senate majoritarianism: Am I a hypocrite?

So, I am back after my finals-induced hiatus. And I pick up not too far from where I left off: the health care bill.

Four years ago, I participated in an interesting sort of protest called the "Frist Filibuster," in which members of the Princeton community "filibustered" by reading aloud from a podium in front of the Frist Campus Center. The protest was in opposition to the proposed "nuclear option," proposed by then–Senate Majority Leader Bill Frist, that would make it more difficult for Democrats to filibuster President Bush's judicial nominees. These days, I join the legions of those in favor of health care reform that day after day demonize the practice of the filibuster as anti-democratic and a danger to this country.

Did something change? Or am I just a hypocrite? Since I would rather believe the former than the latter, I'll try to give some of my reasons for changing my position, and you can tell me if they hold water.

(1) The numbers are different. In an earlier post, I described how filibustering Senate Democrats in 2005 represented approximately 50 percent of the population, whereas filibustering Senate Republicans in 2009 represent approximately 36 percent of the population. Thus, the majoritarian mandate in the Senate now is far greater than it was in 2005. While this is an interesting point, majoritarianism is majoritarianism, and I don't think this gives me much of a theoretical leg on which to stand. Something more is needed.

Same-Sex Marriage: Constitutionally Required

Of the various political issues at issue these days, I think the one that bothers me most is the opposition to same-sex marriage. Part of it is that I simply do not understand why so many people are opposed to it, and it makes me think less of my fellow Americans that they take so much joy in denying happiness to others. Perhaps I'm overreacting on this front, because I feel like same-sex marriage is only controversial among people over the age of 30, and that it will be a non-issue in a few years.

But, in addition to the moral/political aspect of it, what bothers me is that there is no constitutional justification for denying to same-sex couples the right to marry. I mean, absolutely none. Any reasonable reading of the Equal Protection jurisprudence in this country makes it clear that a ban on same-sex marriage is blatantly unconstitutional. (Note: If you think this just means that I haven't heard a good argument yet, please comment and let know).

For people who are interested, here is a primer on equal protection law, along with arguments for why same-sex marriage is constitutionally required.

What Happens When the Law Runs Out?

I've been reading up on the Political Question Doctrine in my Fed Courts studying, and I wanted to share some of my thoughts (this started in an e-mail thread with my study group).

In hard cases—many of the ones that get to the Court—there's a line where the text of the Constitution and the other interpretive tools judges use just run out. Where, in effect, the law has just run out. This is what happened, for example, in Boumediene with the issue of habeas corpus for Guantánamo detainees (once you start discussing "18th-century relations between England and the kingdoms of Scotland and Hanover,"—yes, an actual quote—it's pretty clear that the law has "run out").

However, in such cases Court can't just throw up its hands and say, "Not our job!" We're a Common Law country. "It is emphatically the province and duty of the judicial department to say what the law is." So they just make it up. Most of the time, I'm ok with that; I'm past any problems with the idea that "judges make the law."

The Least Dangerous Chamber?

In the comments of my previous post, Big Jim said that perhaps the composition of the Senate serves an important goal of federalism. If legislation that is not universally popular is hard to push through the Senate, there will be less federal regulation imposed on people who don't want it. Congress, in a federal system, is not where the bulk of legislation is supposed to come from, so impediments to majority rule at the federal level are not a bad thing.

There is another, broader point contained in here, however. As a wise man once wrote:

The Most Dangerous Chamber

The most common criticism of the Supreme Court, and of the judiciary in general, is that it is countermajoritarian. In other words, we let unelected, life-tenured judges overturn decisions of the people's elected representatives. Now, much has been said elsewhere about the "countermajoritarian difficulty," and also why it's not really so much of a difficulty. Today, however, I want to focus on a different countermajoritarian problem: the United States Senate.

Now, the Senate is elected by the people, and Senators have to face re-election every six years, so nothing about the body is particular countermajoritarian, on its face. But, in many respects, the body is highly countermajoritarian. The current Democratic caucus of 60 senators represents about 64% of Americans, and yet even with a Democratic president it is enfeebled by senators representing the other 36%. Now, before people start yelling about Bill Frist and the "nuclear option," note that even at the current Republican Party's height of power in 2005 and 2006, the 55 Republican senators represented 50% of Americans (my best estimate, to two significant figures). The current Republican party's power derives from the Great Compromise that allowed small states to ratify the Constitution. Each Democratic senator represents 3.2 million people; each Republican senator represents 2.7 million.

So, what is the problem with this?

The Slave of the Passions

Because Dworkin stamped on my ideas in class today, I feel the need to explain my Humean view of motivation in some amount of detail.

I am not a motivational internalist. What this means is that I do not believe normative judgments are motivating. The judgment "I should do x" does not motivate me to actually do x. It's just a judgment; it exists in a vacuum. "Reasons" for action (as in "I should do x") are parasitic on desires.

Here's how it works: I have a Subjective Motivational Set (SMS) which consists of all the desires I have, {D1, D2,..., Dn}. These desires can be specific ("I want chocolate cake") or general ("I want to be a good person") or anything in between.

These desires form goals or ends for me. The goal of the above two desires are actually eating chocolate cake or being a good person. What reason does is tell us how to get there. I have a reason to go to a bakery only insofar as it gets me chocolate cake. I have a reason to give to charity only insofar as I desire to be a good person. The reasons are parasitic on the desires.

What's the Value of Democracy?

Ronald Dworkin posed an interesting hypothetical in class several weeks ago, and I think it's worth discussing. Imagine a country where there are no elections, but every two years a computer picks 1000 citizens at random, and those citizens become the national legislature for those two years.* Assume the system had adequate constitutional safeguards to prevent the legislature (who would not care about reelection) from becoming tyrannical. Assume further that all of the people chosen were capable of serving as legislators.

Such a system would, in all likelihood, have a legislature much more representative of the people and their views than any democratically elected legislature. Still, such a system would probably not be deserving of the name "democracy." The question I pose is: Should we care? Such a system would probably meet all the criteria for self-government, as I described it in my previous post. The governors would be under the control of the people (at least under the conditions I've stated), and the system, at least ex ante, treats all people as equals. So, is there anything worse about this system than a democratic one? If so, what is it?


*For a more ad absurdum version of this proposal, consider the Isaac Asimov story "Franchise," in which a supercomputer selects the most representative person in the country to be the elector for that year; based on the person's answers to a series of mundane questions, the computer figures out who the country "elects."

Self-Government as Non-subordination

I'm in the process of trying to develop a final paper topic for Dworkin's seminar, and I've been bouncing around an idea about self-government as non-subordination. Here's the idea; it's not fully formed yet, but if you have any comments, I'd be happy to hear them. In the presentation that János Kis gave on judicial review, Kis discussed two components of his definition of self-government. First was the idea requirement that the law treats all members as equals, including—but not only—as participants in the system. The second was that the community must be in a special relationship with its officials—namely, that it exercises some degree of control over them. What I am most interested in is the first criterion. What does it mean for a society to treat all its members as equals?

One can conceive of equality in a purely procedural way, as equal ability to participate in the legal and political system. This view of equality recommends a Ely-esque view of judicial review: The institution should be used to protect the ability "discrete and insular minorities" to participate equally in the political process.

However, what if we put some substantive flesh on these procedural bones?

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I apologize for not posting for the last week. Law Review editorial work comes before blogging, unfortunately. I'll have more to say next week.

Privileges and Equality: The Double-Edged Sword of the 14th

I've been thinking about an issue I tweeted about last month, the issue of whether the Supreme Court can (or will) incorporate the Second Amendment through the Privileges or Immunities Clause (POIC) (instead of the Due Process Clause (DPC)). Certainly, saying that owning guns is implicit in the concept of ordered liberty is a bit of a stretch. Second, at least one article notes that there is "some evidence that the amendment’s writers specifically wanted the clause to apply to allow freed slaves to have guns to defend themselves." Third, overturning—or at least limiting—The Slaughterhouse Cases would be totally awesome for ConLaw geeks like me.

However, there is one problem with the Privileges or Immunities Clause: It doesn't help everyone. While incorporating rights through the DPC protects "any person," incorporating through the POIC protects "citizens." Noncitizens are out of luck.

Or are they?

The "Madisonian Compromise" is Bunk

This post is specifically for people who are Federal Courts geeks, like me. If you don't know anything about Fed Courts, or don't care, I will not be insulted if you stop reading right here.

My issue is with the so-called "Madisonian Compromise Argument," harped on by originalists and certain professors. The argument goes like this: (1) Under the "Madisonian Compromise," the Constitution created only the Supreme Court, and left it in the hands of Congress to "from time to time ordain and establish" any other federal courts. (2) Therefore, the Constitution did not anticipate there needing to be any lower federal courts. (3) The Constitution should be interpreted in such a way that would be compatible with there being no lower federal courts. This, in turn, leads to all sorts of bizarre interpretations of various constitutional provisions, including the Suspension Clause, the 10th Amendment, and various jurisdictional issues.

There are, as I see it, four reasons why this argument doesn't work.

On Utility Monsters

People who oppose utilitarianism always end up, at some point or another, jumping on the problem of utility monsters. If a particular person has such a steep utility curve that giving him additional resources always gives him more utility than giving those resources to anybody else, aren't we obligated to continue feeding him resources? And isn't this idea morally repugnant?

Traditionally, utilitarians always counter this objection by appealing to practical or empirical considerations: Utility monsters are a theoretical objection that has no bearing on the real world, realities of declining marginal utility will prevent there from ever actually being utility monsters, etc. Of course, anti-utilitarians, stubborn as always, object, "But you have to admit the theoretical possibility."

Am I Bad for Society?

I was talking to a friend of mine the other day who is currently without formal employment, and when I asked him what his plans were, he said that he and his roommate were starting a hedge fund. Now, being pretty judgmental, I viewed his venture as misguided at best, absurd in all reality, and a great way to lose all his money at worst.

But I think what bothered me most is that investing, in my view, doesn't really do anything. This is not an indictment of all finance: A person who makes widgets is producing something, the person who founded his company is the condition on his production, and the venture capitalist who provided that entrepreneur with startup capital makes it all possible. Similarly, banks in general serve a valuable because credit (in moderation) is the lifeblood of entrepreneurship and homeownership.

But somewhere along the line, things get attenuated. Banks sell mortgages to bigger banks to make money; bigger banks sell them to various investment houses to raise their money; and these investors cut them into little tiny pieces and sell them to the capitalist elite who trade intangibles and make gobs of money off them. But I have to believe the trickle-down stops at some point. For every dollar made by a trader who makes money off such esoteric enterprises, how much "value" (defined however you'd like) is added to society? And couldn't that person be much more valuable to society if he became an engineer?

Did the financial system really collapse because the smart people started working on Wall Street?

Note: This is not said without a sense of self-awareness. As a soon-to-be litigator, I know that I, too, will probably take more value from society than I will add to it, but I think my point remains.

Saints, God, and Morality

“It may not, in other words, be so easy to have a satisfactory conception of morality without religion – that is, without belief in an appropriate object of maximal devotion, an object that is larger than morality but embraces it.” - Robert Adams, "Saints"

"He speaks out of love for his friend. Perhaps that love in his heart is God."

"Oh, how convenient—a theory about God that doesn't require looking through a telescope. Get back to work!" - Futurama, "Godfellas"

As I tend to believe that David Hume is right about, well, pretty much everything, I take a Humean approach to moral motivation. Reason is, and must be, the slave of the passions. As I have discussed elsewhere at great length, moral action requires moral motivation, and moral motivation requires moral passion. Psychopaths can understand and describe the rules of morality, but they do not follow them, due to deficits in their "emotional brain," broadly construed.

Consider some famous “saints” of the twentieth and twenty-first centuries. Mother Theresa was devoted to a religious life. Dr. Paul Farmer, who has devoted his life to treating disease in developing nations, subscribes to a particular school of Christian theology. As Adams notes in an article on moral saints, the rhetoric of Mohandas Gandhi was deeply inspired by his faith in God. Zell Kravinsky, the man who has donated $45 million—and one of his own kidneys—to charity, is driven by a strong belief in God as a guiding ethical principle.

Why are so many good people so deeply religious? The answer is simple: because religion—because God—provides such a strong motivation for action. People who believe in God can be passionate about God as an ethical ideal.

As I described in my previous post, I have taken up the moral mantle because I believe it follows from my considered ethical beliefs. But is this enough? Can my logic-derived philosophical precommitments really translate into true moral passion? Can I, as an atheist, ever be as passionate about morality as someone whose moral motivation derives not from philosophical exercise, but from religious conviction? Must one feel the presence of the logos in order to move toward saintliness? Is a philosophical belief in existentialism and equality enough to provide an "object of maximal devotion"?

Ethics or Morality?

I was pleasantly surprised in class recently when I found that Ronald Dworkin agreed with a distinction I've held for some time now: the difference between ethics and morality. Ethics asks the question, "How are we to live?" Morality asks the question, "How should we treat others?" Of course, phrased like this, ethics is a much broader question than morality; indeed, morality is merely one branch of ethics. As ethics is the broadest question I'll discuss here, I'll start with that.

What is my ethical theory? Start with this: A priori, life has no meaning and no purpose. There are no a priori ethics. Ethics is a domain filled only with what you give it. If I choose to dedicate my life to playing music though the world crumble, there is nothing ethically improper about that. I have made my ethical choice. Although I can certainly be criticized from within a system of morality for my decidedly immoral behavior, nothing requires me to notice that system of morality.

Yet, I recognize the existence of others. I have my own desires, preferences, wants, and needs, but others—all six billion of them—have theirs. From the "point of view of the universe," no person’s preferences are any more important than any others. A proper humility should allow me to recognize that my wants and needs are—a priori—no more important than anyone else’s.

So, I am an existentialist and an egalitarian. This recognition lends itself to a particular content for my personal ethics. What kind of meaning would my life have if I devoted myself only to myself? "If we are looking for a purpose broader than our own interests, something that will allow us to see our lives as possessing significance beyond the narrow confines of our own conscious states, one obvious solution is to take up the [moral] point of view.” (Peter Singer, Practical Ethics. Singer actually uses the phrase "ethical point of view," but he is talking about what I call morality.).

So, I want—I choose—to be a moral person. This is the meaning I give my life. So how do I do this? More on this later.

Welcome to Seeking the Logos

So, I've tried this many times before, and never really been successful in updating frequently or attracting readers. Maybe I'll be diligent about it this time.

All in all, I guess Socrates was right that the unexamined life is not worth living (especially not if your head explodes when you try to examine it). So, I'll examine life. And law, and morality, and all of the essentials.

Perhaps with a bogus philosophy degree and only an introductory knowledge of legal philosophy I don't quite have the background to be an authority on moral, social, or legal philosophy. On the other hand, I've always thought that my outsider's view makes me better at seeing certain things. We'll see.

"He would like to think that he has learned something of trust, that he has washed his eyes in some clear spring, that he has polished an ideal or two. Never mind. He may still be only a smart-mouthed meddler, skilled mainly in the minor art of survival, blind as ever the dungeons knew him to the finer shades of irony. Never mind, let it go, let it be. I may never be pleased with him."

Welcome to the site.