How to Judge a Constitution Properly

[sent to conlaw prof re: whether one should be a formalist or a "policy judge" when making constitutional rulings]
 
... well, one of the things I would ask is why formalism is juxtaposed against "those who see that a constitution is not simply a legal document." It seems to me that Dworkin is the place where non-formalists who still desire better "legal" answers can reside. We wouldn't want to say that rigorous and serious conceptualism would never be part of any epistemological program. And we surely would not want to say -- particularly of American constitutionalism -- that the program shouldn't be justificatory. Surely these are the wrong paths. We would rather want to say that, somehow, the right answer is the intersection between a large policy direction evidenced by the course culture is taking in history (right now), and the reasonable allowances that such is afforded by the formally articulated legality. In other words, if you cheat words, you do it only for large cultural and historical trends and with inferences that do the least injustice to the
words. 

You know, one of the problems with living constitutionalists is that they are very often skeptics without properly knowing philosophy. If, instead of tearing down the idea of structured discretion, they would simply build a program for their desires consistent with it -- like Dworkin does -- the debate would become things like "the Ninth Amendment can be used for ..." rather than "quoting anything is wrong because the constitution is more than words."

And I don't see at all why Americans in particular should NOT accept harsh consequences here and there when the rules of autopilot say so. One of the reasons why is for the same reason that we derive a law-and-society framework -- this is what American culture really is. Have you ever watched how crazy football has become? So much of the game is about whether the rule was followed (replay angles, etc). If the rule isn't followed, the culture cries foul. This is not a natural law culture by any stretch of the imagination, and it also isn't a Rousseauean political culture, no matter what the left thinks.

Now, I am neither a positivist nor a formalist. I think positivism and positivistic culture can be seriously problematic. But what I am saying is that our system is such that judges really can only INTELLIGENTLY innovate (with legitimacy) and that, when they do, they must show how it fits within "core articulated ideas." We can dispute which ideas are core, but we really shouldn't be disputing that (a) the core can be found (in articulated format); and (b) that it must govern.

So much of what the left calls "politics" is nothing but poor epistemology.  

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860

What's Wrong With Quantitative Ideology Models Used by The Political Science Social Club

Hello Ted.

1. I'm glad you share some sympathies toward my orientation. You are not right, of course, if you mean to say that i cannot productively converse on this subject with you (or anyone). Indeed, my contributions would be quite well thought out, and I imagine both of our ideas about the subject would have benefited. I do understand your concerns, however. Talking with a Wittgensteinian can be a headache. 

2. I think the thing that you must understand from my perspective is that I am a philosopher who was trained both as a lawyer and as an empirical watcher of what this group of scholars call (quite colorfully) "judicial politics." Because I am imminently familiar with philosophy of law, philosophy of language, philosophy of science, Wittgenstein, and "the quantitative arts," it bothers me to no end to see the silliness emanating from powerful segments of one social club being repeated by, and incorporated into, another. I am now seeing more often in books here and there, lawyers starting to say things like "segal and spaeth proved this," "martin and quinn measure  ideology," "the attitudinal model says," etc., etc., without the faintest idea of what the proof or claims therein consist of, what is meant in the charge of "ideology," or how any of that is actually accounted for. Truthfully, what happens is this: a law scholar looks for
footnotes because they think it makes for better "scholarship." It doesn't. It makes only a club product.

Listen to me very carefully. What quantitative political science does is it constructs some index and then gives it a NAME rather than a rigid designator, as all other empirical sciences do. They also make-up the index as a CREATIVE act, not from a science of observation. So there is no real science to the instrumentation. All they ever have is a mathematicized rhetoric. They also don't even realize as a social club that science of this sort, if it were to exist, could only observe its index, not the thing they are calling it. And so, you go to these conferences and out they come. "I'm using this ideology measure because it helps me the best," "I'm using the other ideology measure." "I'm using all of them to make people happy." At one job talk where I used to work one person once said (no kidding), "here are the dots. If I was wrong, the dots would be over there." One of my favorite things to look for at one of these conferences is when someone
claims the "attitudinal model" to be an "elegant theory." This always alerts me to the fact that the scholar knows nothing about philosophy and is at the conference for the art of mixing math with rhetoric. (It also reminds me that the club has a "Hell's Angels" component to it).

Not only do none of these indicies actually measure "ideology," very often the speaker doesn't have a refined idea of what this concept entails among its competitors. Lacking requisite understanding in philosophy of law, language and science, the club, nonetheless, produces its books, and they pass this numerology on to one another like communion -- and before you know it, now the lawyers are saying it, too. Now its on Oyez. And then when one of the favorite rituals of these two clubs comes along -- "this one is the liberal one," "that one was active," "this one used his attitudes" "that one cheated because he liked the result" -- out comes the "science" into the carnival.

I mean, really. One ought to film the thing and put it in Seinfeld or something. 

Regards, Ted, and go Steelers.           
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860

Martin Quinn Scores and Ideology

Ted, since you seem to know about this, can you tell me what these scores actually say about "ideology" and how you think they have anything to do with the discussion of who's more liberal and so forth? I'd really like to hear someone explain that to me. You know, for the life of me, I never understood why Oyez uses these scores as an indicator of "ideology," other than the fact that the owner of the site doesn't know anything about them. So maybe we can get all of that cleared up in here right now.

Ted, why do these scores map "justice ideology" and what in creation are you talking about when you say that? Who's left and right. Can you actually be left one day and center the next (doesn't that change the sense of talking)?

Because it seems to me that the scores are a kind of casuistry differential index of only dispositional choices. And that they are quite different from what other indicies say, and that, to declare them "ideology," one has to adopt a rather peculiar vernacular. (To say nothing, of course, that, when mapping "casuistry space," any set of choices one makes gets mapped. There is no way for the justice to not have "ideology"). So, what relevance does this have to the "who's the real liberal" pie-throwing ritual that one so often sees? More importantly, what relevance does it have to ANY discussion in jurisprudence?

Here's what I am saying to you,  Ted, and to the rest of the lawyers who know where the web site is. If Martin Quinn scores estimate anything, it would more be in the neighborhood of a set of a mathematicized choice-differential evidencing, perhaps, a sort of IDEATION, not ideology. You might say of these scores, "oh look at justice x's ideating pattern relative to y on the issue of every disposition (affirm/reverse)."  (Of course, even this is problematic because there is no measure of ideation, there is only a set of scores generated from a set of choices. You have to infer from the choices that a ideating path of some sort accompanied the choice).  

So now, tell us how this plugs into the prior discussion, because I can't see it.

Political Science and "Measuring Liberalism"

[sent to conlaw prof re: whether quantitative measures for "liberalism" really compare whatever it is that "liberalism" refers to when talking about justices. Oh brother].  

... I doubt they actually have done that. What I bet they have done is invent something that they say does that, which is then passed to law professors as something that "the scientists did." The whole idea of "comparing liberalism" with an index -- especially across time -- is so fraught with pseudo science that it any conclusion you would draw about it would be limited only to the construct itself.

The mere fact that you can't TALK clearly about the subject in ordinary language is evidence that you really can't properly bring quantitative science to bear upon the subject. One wonders what would happen if they created an index showing a justice's integrity. Compare: "index shows justice X higher than Y on the integrity meter."

Concepts like integrity, ideology, character, or virtue are not like, say, "inflation" (which itself has computational issues). You really ought to let statistics be applied to natural commensurable and stochastic phenomena and stop trying to say "the political scientists have measured their liberalism"

They haven't and they can't.

Comparing So Called Justice Liberalism Across Time

[sent to conlaw prof re: whether Stevens, Ginsburg, etc, are moderates or "liberal"]

 
... I find it interesting that many in the academy are ready to say that the "Court has shifted to the right." If you would list the things that right wing justices agree with today and compare them with what right-wing justices believed in legal culture in the 1950s, I bet one would say that conservative justices themselves have shifted slightly to the left. All that really happened is that during the Warren era and in the 60s, America went through turbulent social and cultural progression. Why the 60's should be the focal point and not an outlier is something only that a liberal academy that lionizes this era has to explain. Now that the innovation is over, you have more pragmatic-oriented judging all across the line, that's all.  It's not that people "aren't as liberal" -- it's that what is "liberal' was always dependent upon historical circumstance to a large extent. When Marshall and Brennen and Douglas died -- their peers,
generation and world died out somewhere along the way, too.  There is no "that is liberal" apart from these things. All that one could properly say is that the current justices aren't New Dealers with the goal of retro-fixing the liberty state so that it isn't antiquated  anymore. Not that they are not "liberal" once these transformations have occurred.   

The comparisons of views across epochs are difficult because the facts change on the ground. If the crime problem develops into semi-automatic weapons and areas where police don't even drive anymore, well, your framers' idealism really has an implementation problem. So you get pro-police state decisions until the facts on the ground change again, in which case you get some sort of a new synthesis in another direction.

It isn't "liberal," its culture, generations, facts and pragmatism -- all mixing with a judge's psychology and his or her doctrinal construct.  I don't know how fruitful it is to compare this stuff across time. I think the only people who would really know this properly would be biographers. Only they can really compare psychologies and intricacies at a rich level.