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.