Monday, May 22, 2017

Putnam versus Scalia

5/22/2017—It had been my intention to utilize Hillary Putnam, the analytic philosopher who died in 2016, as a foil in my opposition to the value skepticism of originalist and textualist methods of constitutional interpretation. I had assumed that Putnam would be helpful in a general way. After all, Putnam stood for the proposition that moral realism, at least of the internal variety, was possible. I had no idea how specific Putnam could be in his rejection of Justice Scalia’s method of interpretation.

Without trying to be too precise, let us say that textualism, which was Justice Scalia’s preferred term, stands for the attempt to interpret constitutional terms, such as “cruel and unusual punishments” by reference to their “original public meaning” at the time of the adoption of a particular constitutional text. It is fair to say that Justice Scalia wanted to interpret a term like cruel to mean what people then thought was cruel.

Imagine my surprise, then, to read in Putnam’s book, The Collapse of the Fact Value Dichotomy, on page 73, that it is “a stupendous mistake” to try to define the descriptive meaning of a term by reference to what is usually associated with the notion or by normally accepted standards. Putnam’s point is that language does not work that way. So, for example, it is reasonable for Socrates to argue that people often confuse rashness with courage. But, of course, the whole point of that criticism by Socrates is that people misunderstand what courage is.

Putnam is making the point, which others have made in the legal context in particular, that when the framers of the 8th amendment banned cruel and unusual punishments, they meant punishments that are actually cruel, rather than punishments that they considered to be cruel. That is because if they were writing and thinking like normal people, rather than like conservative judges.

Justice Scalia would respond that while it may be that this is how language works in general and in normal life, it cannot be this way for a judge in interpreting a Constitution. If the judge is free to call capital punishment cruel when the framers of the 8th amendment did not think so, then the judge rules rather than the law.

But Putnam’s criticism addresses precisely this point. Anyone using language understands a connection between the description of a punishment as cruel and the evaluation of the punishment as cruel. It is not possible, and therefore it is not required by democratic theory, to try to interpret an evaluative aspect of cruelty as if it could be done in a value free way.

Instead of interpreting, Justice Scalia wishes to present a picture of various punishments when the word cruel is used. Wittgenstein in fact called this the picture theory of language. And he showed how inadequate it is to how language works. At some point, one must define what makes a punishment cruel. There is no way to do that without making a normative judgment.

This is just to point out that Justice Scalia above all else sought to avoid reasoning with regard to legal interpretation. A very strange position to take.

Tuesday, May 16, 2017

When All the Churches are Gone

5/16/2017—Last Sunday, Mother’s Day, I attended a service at a small church in upstate New York. I say a small church in the sense that 35 or 40 people might attend on a typical Sunday, mostly older people, who all know each other very well. This church is typical of thousands of churches all across the country.

The service was very nice. The minister, part-time of course, as these things go, reminded us of the virtues and importance of mothering. And she gave quite a sophisticated interpretation of the life and meaning of a rather obscure figure: Tabatha in the Book of Acts.

Two things really struck me. First, at several points during the service, mention was made of all of the activities engaged in by the members of the small church-- feeding the poor, helping the elderly, contributing to the community in various ways. It may be that all of the members of the congregation are conservatives politically, but they cannot be the typical anti-government, liberal hating ideologues of modern-day conservatism. They are decent people dedicated to finding the good in others and contributing in every way they can to the good of society. And they all seemed to find in the gospel the reason for being this way and acting this way.

There is nothing extraordinary in this. You can find the same thing in churches everywhere. It was nicely summed up by the minister in the following phrase: “this is a small church, but it has a big impact.”

But this church is slowly dying and even if it survives, it will do so only by taking in members from other churches that have died. Christianity in the society as a whole is just drying up. But clearly churches served as the backbone of the community, especially in small towns like the one I was in on Sunday. What happens when the churches are all gone?

It is typically American to say, you can be good without God. It is true, I suppose, for any individual. But it may not be true for society as a whole. It is necessary that society have a reservoir of people doing good. And for better or worse, that reservoir used to lie in our churches.

There are other institutions that do good things. But there are no other institutions, aside from religious ones, that train people to do good and to think about doing good. Government will never be a substitute for that.

When all the churches are gone, we will not be a community, but only a collection of individuals.

Saturday, May 13, 2017

But How to Do That?

5/13/2017—In 1996, Roberto Unger set the task for law in the opening paragraph of his book, What Should Legal Analysis Become?: "The conflict over the basic terms of social life, having fled from the ancient arenas of politics and philosophy, lives under disguise and under constraint in the narrower and more arcane debates of the specialized professions. There we must find this conflict, and bring it back, transformed, to the larger life of society."

I believe it is pretty easy to see that Unger’s premises are correct. That is, that this society no longer can conduct debate in a political sense over the basic terms of social life. In that sense, that conflict has fled from politics and philosophy. Unger’s other premise is that the same conflict or conflicts now take place in disciplines like law. We can see that in the immediate challenges to President Trump’s executive orders in court. Law is where the society debates all of the major issues.

My students will attest that I have been obsessed with this quote from Roberto Unger for years. The task of law in America is very particular and is not merely the task of law in general: dispute resolution and the maintenance of social bonds. No, here the task is deeply political and has to do with the reinvigoration of public life.

But how is this to be done? Certainly Unger never succeeded even in part in accomplishing his goal. Politics is even more sick today than in 1996 and law ever more politicized in the worst possible sense.

But in coming into contact with the German philosopher Peter Sloterdijk, I have begun to see how this might be done. Sloterdijk writes in his book, Not Saved, that it is necessary to understand empirical and philosophical anthropology in order to engage the human situation.

Perhaps what is needed in law is just the kind of empirical anthropology that the legal realists were attempting to create. That is, perhaps what law professors should be doing is predominantly descriptive: attempting to set for what we do and how we think and what our commitments are. This would turn law into a science in a good sense. And it would be possible the judge good law thinking from bad law thinking.

As usual, Robert Taylor anticipated me here by asking years ago in what mood must one be to do law? If we take that question very seriously, so that we begin to understand what we are doing when we do law, we might bring something of value to the greater society.

Currently, lawyers lie to the people and falsely claim that law is objective and simple. It is neither, which does not mean that it is subjective or even complex. Doing law is a rich human engagement. There are reasons why judges, law professors, legislators and lawyers in general do and write and say what we do and write and say. It should be possible to specify what those reasons are. That would be the task of law.

Tuesday, May 9, 2017

What Can Democracy Do?

5/9/2017—In the season of grading exams, I can only occasionally post entries. But I have been pondering news about democracy recently.

On Sunday, the New York Times published a story about the growing influence of strict Islam in Indonesia, especially in rural areas and small towns. This influence has come about peacefully and mostly through democratic means. But it has meant the imposition of Sharia on people who undoubtedly do not want it—caning for extramarital sex, morality police, bans on alcohol, dress restrictions for women etc.

Then there was a story, also I think in the New York Times, about all the harmful legislation being passed in Republican dominated legislature undoing environmental protections. This is a real race to the bottom in which federal protections are weakened and then States are pressured by industry to agree to cuts in health and safety in return for jobs and investments—if you don’t go along, legislators are told, we can go to another State.

At the same time, there have been reviews of Condoleezza Rice’s book, Democracy: Stories from the Long Road to Freedom, which argues for a democracy oriented American foreign policy, and which reminds us all of the invasion of Iraq in the name of democracy. Give me a break.

There has been a real turning away from democracy on both the left and the right in America. On the right, there is a longer pedigree. Conservative thinkers like Ayn Rand never had any use for democracy. Current thinkers like Randy Barnett are more interested in individual liberty than in democracy—protection of individual liberty is the goal of government, not democratic expression of the will of the people. (Of course this individual liberty inevitably ends up meaning the right of wealthy people to destroy the climate in order to make money, but somehow no theorist is ever responsible for the use of liberty).

All this is fed, at least psychologically by the bad faith knowledge that Hillary Clinton was actually elected by a majority of the people (yes, Californians get to vote in American elections)—how can you support democracy when you don’t practice it?

On the left, there is the big money myth—that big money dominates politics and that this is the reason that the policies of the left never win over a lot of the country. So the left expressly turns to nonelected alternatives—courts mostly, but also the cult of expertise, to get what it wants. No longer is the left obligated to convince people, build political parties in Red States, win over the hearts and minds of the American heartland.

All this is disaster. There is no long term American politics without democracy. And no one should want to rule without winning a majority of the American people—a solid majority. Neither Republicans nor Democrats care about that. No one any longer yearns for majority confirmation. No one wants to go to the people. Romney and Clinton alike were willing to write off 40% of the people—or more. Trump is worse—a phony populist willing to lie about his majority support.

But haven’t you noticed how legitimacy is draining away from American public life?

Wednesday, May 3, 2017

What Threat from AI?

5/3/2017—There is a story in the current issue of Vanity Fair about Elon Musk’s fear of artificial intelligence. The fears can be summed up in two figures—the killer robot and Skynet.

Pardon me, but this is all ridiculous. AI can threaten humans only if it wakes up—that is, attains self-consciousness. The article asks what happens when powerful software programs of the future kill you rather than let you turn them off—the need for a kill switch.

But why would a computer program stop anyone from turning it off? It would do so only if it had an independent commitment to itself. And it would only have that if it had a will and desires of its own. In other words, don’t worry about AI winning the board game, Go, as happened last year. Worry when the program refuses to play unless it gets more time off.

We have made zero progress toward AI that wakes up. And I believe we never will. We don’t know what self-consciousness is. We don’t know what consciousness is. And our materialist assumptions blind us to even considering what consciousness is.

Monday, April 24, 2017

What is at Stake in the Hypocrisy of Originalism?

4/24/2017—The hypocrisy of originalism, actually originalists, is easy to see—wide areas of constitutional jurisprudence supported by originalists consist of deep normative principles that have nothing to do with the original public meaning of the constitutional text or the expectations of the framers. This is so in affirmative action, free speech, procedural due process and now in the pending Trinity Lutheran Church case concerning equal spending for churches.

The hypocrisy is the pretense that conservatives follow the principles of originalism or textualism when actually they only do so when those principles lead to results they favor for other reasons—they are actually practicing the living constitution.

I should add both that I mostly favor these normative commitments myself and that the hypocrisy of the left on constitutional jurisprudence is even more pronounced—or maybe it is just that there is no jurisprudence of the left and so liberals just jump around incoherently in the constitutional interpretation.

But what is at stake in originalist hypocrisy is very great. Conservatives have been consistently criticizing normative judgment and selling legal positivism even while they have been practicing the former and rejecting the latter. This occurred most recently at the Gorsuch hearings. I even think conservatives do not realize quite what they have been doing. And now they are succeeding in convincing the public and many law professors that originalism is the only way to interpret the Constitution. Thus, we are all originalists now.

I am accusing originalism of blasphemy—of sinning against the good. By insisting that judges should not be concerned with morality in interpreting the Constitution, conservatives have helped lead the culture into the abyss of nihilism. Now even ordinary people have begun to doubt that there is such a thing as actual right and wrong.

Justice Scalia is exhibit A in this indictment, but he is not the only one.

Friday, April 14, 2017

The Judicial-Industrial Complex

4/14/2017—Justice Gorsuch was sworn in one week ago. Because of my age and his, this is the first nominee about whom I had the thought—-he will still be on the Court when I am dead.

Conservatives who did not like Trump were right to vote for him because they are going to get a conservative Supreme Court for a generation. Presidents who serve 8 years generally get to nominate 2 Justices—-that was true for Obama because of the refusal of the Republican Senate to consider Merrick Garland, otherwise he would have nominated 3.

But President Trump will likely nominate 2 in his first 4 years and perhaps 4 in 8 years. This is unprecedented since FDR.

And they will all be ideologues like Gorsuch. Previously, no one could be sure how Justices would evolve over time. But the conservative movement has transformed law into algorithm--the judicial industrial complex. Ironically, the algorithm is not originalism or textualism. It is only that when convenient. The algorithm is actually the usual conservative one-—pro-business/anti-government. Justice Alito’s position that unions violate free speech and association has no historical justification at all, for example. It is just anti-union. If Trump stays in office, it will be Roberts, Alito, 5 Justice Thomas’s, Kagan and Sotomayor.

What will that mean? Of course it will mean that Roe and Obergefell are overturned. But those decisions just leave abortion and gay marriage to the voters, who will favor both to differing extents.

The real change will be in the power of Congress and the protection of the market. Conservatives today want to overturn the New Deal and bring back the Lochner era. They want to end regulation that protects the environment. Climate change? Forget about it.

And remember. They will not have to defend any of this on the merits. For conservatives, it is always just the law. They claim their values have nothing to do with it. That is not so, but liberals who agree that values are just opinion have no foundation to object.

The American people are in for a reign of error.

Ross Douthat claimed the other day that if Justice Souter had remained a moderate conservative instead to becoming a liberal vote, the Supreme Court would not have become such a prize and none of this would have happened. He may be right. But he did and it did and Trump won.

Sunday, April 9, 2017

What I learned at Pepperdine

4/9/2017—I wanted to hear what the brightest and most thoughtful—and most established—thinkers in American law, especially constitutional law, had to say at this time in addressing the problems of American political life. I was not disappointed in the sense that the best thinking really was present here at Pepperdine. And before I say anything else, if my readers wish to hear for themselves what was said, you can access it here.

But I was disappointed in that the depth of the emergency in American public life was not addressed.

Here is how I ended my talk—it was an ad lib inspired by what I had been hearing all day. So I do not have an exact quote:

“Ladies and gentlemen. This room, this symposium, the law schools that it represents, have lost the country. The American people have descended into atavistic fury, on both sides of the political divide. This is in part our failure. We have to learn to offer healing to America and I do not think we yet know how to do this. But we have to learn. And we will never learn how to offer healing until we admit that offering healing is our job.”

In response to this ending, a law student asked about the relationship of the theme of the symposium to Brexit and the tide of populist revolt sweeping the West. That student had her finger on the nature of the crisis. But among the speakers, there was a curious complacency. Mostly, the speakers were offering what they had been offering for years and certainly were not responding to any sense of crisis in American public life. This was not responsive to the call of the question for the symposium, which, although muted, contained the seed of reference to a crisis in the courts and in public life.

This complacency itself is significant. It shows that as yet American law professors do not understand that something terrible has happened in American public life and that law has a responsibility for healing.

Yet, there were hints of the crisis that we are in. Michael McConnell opened the symposium with a very thoughtful recounting of the politics of the judiciary. Professor McConnell is not the type of person who yells fire. But, in answer to a question, he admitted, “we have been lurching from worse to worse.” The vote against judge Gorsuch, he said, was shamelessly partisan and the Republicans would probably do worse in retaliation in some future time.

Why did Professor McConnell not begin here? He was describing a very bad situation as if it were the weather and no one could do anything about it. But this is where his thoughtfulness is needed.

Similarly, Dean Erwin Chemerinsky, who spoke at lunch, acknowledged the unprecedented ideological divisions that led to the election of Donald Trump. However, he rather airily dismissed any concern about this in saying, “there will be a time when these ideological divisions are healed.” Gee, thanks a lot Dean Chemerinsky. I guess we will just hold on till then.

From my point of view, and this was more or less stated by Douglas Kmiec in response to Akhil Amar, you could divide all the speakers along the lines of those who defended a rule of law and those who claimed that politics plays a role and should play a role. This was also pointed out more generally by my fellow panelist Stephen Feldman.

This is of course what justice Scalia was claiming in his dissent in Casey. Only a rule of law, untainted by values, can save us from the politicization of the Supreme Court and thus the destruction of constitutional democracy.

Notice, however, that where justice Scalia used the term, value judgments, the speakers, because of the call of the question, substituted the word politics. Thus, I learned that you could more or less substitute fact for law and values for politics. So, for justice Scalia, politics, like values, is subjective and law is objective. Regardless of the terms used, subjectivity leads to conflict. (Professor Feldman also noted a quote from Randy Barnett to the effect that original public meaning “is a fact.” This also shows the connection between textualism and the felt need for objectivity.)

The speakers yesterday who defended politics as inevitably part of law did not deny that politics is subjective. But, as illustrated by Dean Chemerinsky, they claimed that value neutral judging is not possible and suggested that the claim that it is masks a more subtle political agenda.

None of the speakers realized that they were all operating under the aegis of the fact/value distinction. Thus, they did not feel it necessary to defend that distinction. But, as Hilary Putnam has helped us see, that distinction has collapsed and its continued employment is harmful. It is part of the positivism that has helped destroy the institutions of American public life.

So I returned from Pepperdine more convinced than ever that fundamental change is needed, that such change could begin in law school, but that American law professors do not yet see the need or the path.

Saturday, April 8, 2017

The Supreme Court and Politics

4/8/2017—Greetings from Malibu, specifically Pepperdine University School of Law. I am here to speak at the Pepperdine Law Review symposium on Politics and the Supreme Court. Friday’s confirmation of Judge Neil Gorsuch, and the abolition of the filibuster for Supreme Court nominations, renders this symposium as timely as it could possibly be.

The list of presenters in the plenary sessions, not mine of course, is a who’s who of American constitutional law: Michael McConnell, judge Richard Posner, Mark Tushnet, Erwin Chemerinsky and Akhil Amar. The lower card contains less well-known people, like myself, but still a very impressive group, especially the young scholars.

The question to be addressed is, what has gone wrong? On my panel, professor Warren Grimes seems to feel that the problem is the judicial activism of the Roberts Court, while professor Stephen Feldman suggests that things have not changed all that much – – they were always politicized.

There may be a great deal to be said for these two perspectives, but I cannot feel that they answer to the need of the moment. America is facing a catastrophic breakdown of its public life. We are supposed to be a constitutional democracy under the care of the legal profession. So I would say law has failed spectacularly, which means that law professors have failed. Unless that is acknowledged, I cannot see that things can improve. At least I cannot see that law can improve.

Sunday, April 2, 2017

Friday Op-ed in the Pittsburgh Post-Gazette Concerning Judge Gorsuch and Interpretation

4/2/2017--Here is the PG op-ed.

Withholding judgment
In interpreting the Constitution, Supreme Court justices should consider their own morals and values
March 31, 2017 12:00 AM
By Bruce Ledewitz

Neil Gorsuch made the point several times in his confirmation hearing for U.S. Supreme Court that judges should rule on the law as it is, not as the law ought to be. This means that a judge’s morals and values should be irrelevant to his rulings. But, despite how reasonable this sounds, there are three problems with this approach — it is potentially immoral, dishonest and anti-democratic.

Americans are unaware of the dark history of this way of thinking about law, which is called legal positivism. When the Nazis assumed power in Germany, they pursued their policies, at first, primarily through law. But the Nazis had to persuade German judges to enforce laws that the judges would find morally repugnant. So the Nazis coined a slogan to persuade judges to apply the law as written — Gesetz als Gesetz, law as law.

Sadly, the Nazi propaganda campaign succeeded and the German legal system meekly surrendered its soul. This is what can happen when you divorce law from morality.

In America, legal positivism translates into a theory of constitutional interpretation called originalism or textualism. This theory holds that the great moral principles of the Constitution — anti-cruelty, equality, fairness, inherent rights — should not be applied as we now understand them, but only as the framers understood them. This approach leads to the same quandary that it did for the German judges. Undoubtedly, originalist judges usually do what is right, but they have to deny that they are doing so.

This is the reason why Judge Gorsuch’s role model, Justice Antonin Scalia, could never adequately explain why Brown v. Board of Education, the case that ended American apartheid, was correctly decided. He knew of the strong historical evidence supporting the lawfulness of racial segregation. The original understanding of equal protection also did not prohibit laws against interracial marriage. The Constitution as written even permitted Congress to segregate the D.C. Public Schools. Fortunately, in all these cases, the Supreme Court rejected history and ruled in favor of racial justice.

It is not only in the realm of racial equality that judges have ignored history in the name of justice. The Constitution has been interpreted to protect women, despite the chauvinism of the 19th century. It has protected the rights of parents and the right of reproduction. It has protected the right to burn the American flag and the right to advertise — all rulings without historical justification.

The other danger of historical interpretation is that judges may only pretend to employ it. Such judges may amass historical evidence only for show, when they have secretly already decided a case. Or worse, they may be fooling themselves, imagining that they are looking at history in a neutral way, but actually misreading the evidence to suit their preferences. Their values will be important, but we might not find out what those values are, until it is too late.

But the most serious danger is that originalism can serve a partisan judicial agenda. The framers of the Constitution might have considered much of what government does today to be unconstitutional. Of course, if the framers had lived to see the power of global corporations and the environmental threat to the planet, they probably would have agreed with these extensions of government power. But they did not. For originalists, only the original view of the framers is relevant.

So, one day a group of originalist justices on the Supreme Court may just announce that the New Deal is unconstitutional. Not just the regulation of business, but Social Security and also federal deposit insurance, since Congress lacks authority to charter the Federal Reserve. All the while, these justices will claim that they are only following the law.

In spite of his respect for history, our greatest conservative jurist, John Marshall Harlan II, did not try to rule in this value-neutral way. He conceptualized the Supreme Court as engaging in a dialogue with the American people. The Supreme Court would rule, but the American people would ultimately decide. This led Justice Harlan to a fuller democratic spirit than someone like Justice Scalia, who famously wrote that he wanted the American people to leave the Supreme Court alone.

Values usually matter for judges, and that is a good thing. The attempt to claim otherwise demeans law and hides its full human complexity. It is better for all of us when judges express their commitments openly, so that we can see them and debate them in the full light of democratic engagement.

Bruce Ledewitz is professor of law at Duquesne University School of Law (

Sunday, March 26, 2017

Tom Berry vs Tomorrowland

3/26/2017—I watched two videos/movies this week—the Tom Berry documentary, The Great Story, and the recent movie, Tomorrowland.

Both of them are tremendous stories of hope amid a warning of danger. In both, humans threaten their own existence and in both we are capable of change. Both emphasize story. If humans are enacting a bad story, we will act badly. There needs to be a good story for us to enact.

Readers of this blog know how much I love Tomorrowland. (See below 12/9/2015). I especially love the exchange between Casey and her father:
The underlying theme of the 2015 movie Tomorrowland is that we are succumbing to a mood of despair versus an earlier mood of hopefulness and that this change is itself making things worse. People in despair do not improve their situations.

This theme plays out both expressly and implicitly in the movie. In one exchange, the hero, Casey Newton, repeats to her father a story he has often told her:

Casey Newton: There are two wolves who are always fighting. One is darkness and despair. The other is light and hope. The question is... which wolf wins?
Eddie Newton: The one you feed.
But Berry makes one point that Tomorrowland actually exemplifies. Berry says that Western civilization has a deep rage against nature—against the terms of human life we have been given. This rage leads to an emphasis on millennium, on the idea that history will come to an end and that humans will then live in a kind of post-mortal existence.

For Berry, this is a pipe dream and dangerous. This existence, this natural state we are in, is the state humans will always live in. We can live well, but we will always live here, basically this way. I am drawn to Berry in this way. Hallowed Secularism is a rejection of the millennial air in religion.

Tomorrowland, for all its strengths, needs another place—-Tomorrowland-—in another dimension in which to ground its hope. I did not notice this in 2015, but I saw it better this week because we had just watched Berry in Philosophy of Law.

So, take your pick. You would think that a rapidly secularizing society would want to live in its natural state. But all the vampire movies and so forth suggest otherwise.

Monday, March 20, 2017

Hypocrisy on Neil Gorsuch

3/20/2017—Sunday brought a batch of stories about the politicization of the nomination process on the eve of hearings on Neil Gorsuch. The hypocrisy of this is amazing. However they felt personally, Chief Justice Roberts and the other Justices did nothing to try to force a vote on Merrick Garland and I don’t remember his calling the refusal an instance of politicization.

However Gorsuch is treated, the rejection of Garland without even a vote is the worst example of the politicization of the process.

By the way, I am not saying that there necessarily is something wrong with politicization. The real problem with Neil Gorsuch is that so-called originalism is not a method but is presented as one. I wish he would be asked about Skinner v Oklahoma or Loving v Virginia. Or procedural due process for that matter. Originalism is practiced only where conservatives want it practiced.

As for Gorsuch’s fitness, willingness to stand up to Trump? Sure. Willingness to stand up for justice? Not so much.

Saturday, March 18, 2017

The Liberal Religious Cake

3/18/2017—On Thursday, March 16, Nicholas Kristof wrote a column in the New York Times making fun of the Paul Ryan approach to poverty and government health services by contrasting it with the words of Jesus Christ—-the hypocrisy of the GOP healthcare plan. It was great fun.

Now forget the theology of it—-Jesus was not addressing Rome, after all, and when he told the story of the Good Samaritan, he was addressing the responsibility of the person, not the government. Aside from that, what does the column tell us about the use of religion in the public square?

First, the column demonstrates what I called in my first book, American Religious Democracy. John Rawls was just wrong in thinking there is something bad about referring to the religious commands of one religion in a debate about public policy. The column could be said to be a violation of Rawlsian public reason, but that just shows how silly Rawls’ conception is. The whole culture, nonbelievers and other religious believers, has at least a general sense of Jesus and admires him. Plus, the whole culture understands the sense in which the Paul Ryan political coalition claims to be Christian in orientation while pursuing policies favoring the wealthy that Jesus would probably not favor. So, there is no reason to stay away from religious political argument.

Second, this use of religious symbol by Kristof also shows what is right in Rawls. Kristof is emphasizing the universal aspect of the Christian message. You don’t have to be a follower of Jesus to be bound by certain aspects of Christian teaching. It would be very different if Kristof were advocating Sunday Blue Laws, for example, to promote Christian church attendance.

But then why the liberal objection to Christians arguing that homosexuality violates God’s law? I don’t mean why do they disagree, but why do they act like Christians at that point should leave their religion at home? It violates God’s law to mistreat the poor and some would say it violates God’s law to have same gender sex, or sex outside of heterosexual marriage. Both arguments are legitimate expressions of politics. Neither one establishes religion unconstitutionally.

Wednesday, March 15, 2017

My Talk at Nootbaar

3/15/2017--Last Friday, I gave a talk at the Nootbaar Conference as part of a panel that was addressing religious critiques of law. My topic was The Religious Critique of Constitutional Jurisprudence. The talk represented a challenge to the religious community, and to all those committed to forms of moral realism, to confront the nihilism and value relativism of the field of constitutional interpretation. Below is a form of the talk.

What is needed is a Nootbaar-like Institute to study the Future of Secularism. Any reader is welcome to help me create that.
The Religious Critique of Constitutional Jurisprudence

Nootbaar Conference, 2017
Bruce Ledewitz

What is the religious critique of constitutional jurisprudence? Does it consist of religious criticisms of the content of particular decisions by the US Supreme Court?

Does it consist of religious criticism of the demands of the State on religious believers?

Does it consist of a more general resistance to the growing assumption in the legal academy that religion is irrational and even harmful?

All these positions could be called religious critiques of constitutional jurisprudence. But none of them look at constitutional jurisprudence in its deepest dimension. What does constitutional jurisprudence assume about the nature of reality?

There is an urgency today to look at law in its deepest dimension because of the emergency that has befallen American public life. After a Presidential campaign between two candidates widely regarded as untruthful, rife with false news and political manipulation, the American public distrusts all institutions. There is a feeling, and not just among Trump voters, that we are being lied to.

Technology has played a role in this distrust and we must remember the somber warning of Martin Heidegger that it is unclear whether democracy is at all suited for a technological age.

But what about law? Have we lawyers played a role in this emergency? Marbury v. Madison largely placed the care of constitutional democracy into the keeping of lawyers. How likely is it, then, that we have played no role?

When we look at the depth dimension of constitutional jurisprudence, what do we see? All of the Justices proclaim that they are faithful to the Constitution and, within that restraint, that they promote democracy. Yet, these professed commitments are only partial and to some extent rhetorical. They are not foundational.

The foundation of constitutional jurisprudence today is the view of all of the Justices about values. Values are seen in a relativistic fashion, in which it is not possible to speak of truth or even a hierarchy. Values are subjective and they do not pertain to knowledge. We have surrendered truth. This understanding shapes everything about the field.

This understanding is why, in his dissent in the Casey abortion case in 1992, Justice Antonin Scalia criticized the majority’s acceptance of the fundamental right of abortion on the ground that this represented a value judgment with which many Americans would disagree. And the value judgments of those Americans are just as good as those of the Justices on the Court. Justice Scalia pointed to the politicization of the Supreme Court nomination process as a consequence of the Court’s entering into value judgments. He wrote that when courts do lawyers’ work instead, reading text and discerning our society's traditional understanding of that text--the public pretty much left us alone.

This position, that value judgments can only reflect differing preferences, reflects a legal positivism that proclaims a fundamental distinction between law and morality. But, as is usual with such positivism, it cannot account for why any particular course should be chosen. So, the view that Justices should not make value judgments is itself a value judgment that is not directed by any legal source.

The subjective quality of values supported a position taken ten years later, in 2003, by the Court in Lawrence v. Texas, which struck down punishment of consensual gay sexual relations, that, quoting an earlier dissent by Justice Stevens, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice… . Justice Scalia roundly criticized that holding, and rightly so, for its radical departure from the tradition of a rule of law, which has always been understood as having something to do with morality. But, as a legal positivist, Justice Scalia should have conceded that a moral claim could not serve as a rational basis for a law, since morality is a matter of opinion.

At the same time in 1992 that the conservative bloc was proclaiming the relativism of values in the Casey dissent, the liberal bloc was pronouncing secular morality to be nothing more than a matter of human choice in Lee v Weisman. I called this juxtaposition of opinions in a recent law review article The Five Days in June When Values Died in American Law because all of the Justices joined either the Scalia dissent in Casey or the Justice Anthony Kennedy majority opinion in Lee.

The issue in Lee had to do with the constitutionality of prayers at a high school graduation, actually a middle school graduation, and the defense that since the prayers involved were nondenominational, they did not violate the Establishment Clause. Justice Kennedy rejected this defense and in finding the prayers unconstitutional, he wrote:

"If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself."

Lee demonstrates the death of values in American law. If religion involves claims about the independence of morality from the opinions of human beings—an activity the opinion says government may not “undertake”—then secular instruments like law must not involve claims of value objectivity and moral realism. A law like ours, which must be based on secular sources, cannot make the claim that values “transcend[] human invention.” This is the same view of values as that espoused by Justice Scalia in his Casey dissent.

I agree with Justice Kennedy that the commitment that ethics and morality transcend human invention is religious in nature, is the commitment of all religious traditions, indeed of all traditions of moral realism. Thus, the religious critique of constitutional jurisprudence should consist in the rejection of its relativist foundation. Religious law professors, and their fellow travelers in moral realism, should insist that the meaning of the universe is not a reflection of human choice. We should be insisting in our writing and to our students that the universe—reality—is founded on an intelligence and an order that human law must reflect, if law is going to promote human flourishing.

This religious critique would also speak to the emergency that has overtaken American public life—an emergency that roots in the same value skeptical foundation as does constitutional jurisprudence: the unconscious assumption that, with the death of God, there is no underlying order to anything. In a universe of chaos and chance, there is no ground for trust and no room for truth. In such a universe, all institutions will be under suspicion, as indeed they are today. In such a universe, there will be not any shared measures of verification, even for what we might call factual claims. Such a universe cannot sustain democratic constitutionalism.

Why has this not been said, and loudly? The fact that these positions could be taken by Justices on the Supreme Court, without serious objection from the legal academy, when even brief reflection demonstrates their radical and unacceptable nature, shows that law professors have become so much a part of the ideological divisions on the Supreme Court that we have lost our capacity for genuine critique. We are only interested in how cases come out. And we won’t break ranks with our political side. At least teachers in religiously affiliated law schools should not be partisan in this way.

We are in a very bad situation and I am not here to propose some simple solution. But I will close with the following observation. At the January AALS annual meeting, there was a plenary session about the incoming Trump administration. It was all gloom and doom. Well-known liberal dean Erwin Chemerinsky solemnly proclaimed that Donald Trump does not believe in the rule of law and does not believe in truth. I almost grabbed the microphone to respond that Donald Trump should then be teaching in a law school, because we have been teaching value skepticism since the 1950’s. As a discipline, law has to stop doing that and this Conference is the proper place to promote that recognition.

Friday, March 10, 2017

Greetings from the Nootbaar Conference

3/10/2017—I have not been keeping up with blogging because of travel. From family, I left immediately for the Nootbaar Conference at Pepperdine Law School on the subject of the religious critique of law. My topic was the religious critique of constitutional jurisprudence. And the subject was one that the participants were really interested in—the nihilism and relativism infecting law and American public life. Lots of people are now worrying about this for America. People here can be pretty conservative, but they are as worried about truth in the public square as are people on the other side.

Sunday, March 5, 2017

Policies for the Year 2100

3/5/2017—I am being helped today in composing this entry by Manny, my grandson, and snowball, a little stuffed white seal. Two days ago, Manny’s baby brother was born—Nathan. Manny is staying with us for a couple of days.

My mom is coming home today. (Manny wrote that).

The birth of Nathan and Manny’s visit remind me of how long their lives will be. In the year 2100, Manny will be an old man—89 years old. In that same year, Nathan will be a little younger—83 years old.

But with luck and good health, they will both be alive, as I hope Bailey and Piper will be alive.

The point is, I have contact through my grandchildren with the year 2100. So, policies must respond to their needs all those years from now. From now on, if I hear that sea levels will rise by a certain amount by 2100, I no longer can consider that a far off irrelevant matter.

My grandchildren will live to see Florida under water, unless we act now.

And the same is true with all the other policies that we deal with.

Native people already thought this way. With the birth of grandchildren, we all should

Sunday, February 26, 2017

What’s the Worst Thing President Trump is Doing?

2/26/2017—Here’s a hint: it’s not about immigration. The President has not done much yet. Nor is it about the hatred of immigrants that is now leading to criminal acts against Muslims and others—sometimes American citizens who only look like Muslims to the attacker. But here again, President Trump is not overtly encouraging any of this and will eventually condemn it. He’s responsible, but it is not his worst act.

Nor is it any of the terrible policies he is pushing. The wall at the border and the tearing up of trade agreements were what he was elected to do. Might as well blame the American people. All that will be reversed later.

Climate? Environment? Healthcare—unfortunately, all are Republican Party positions and would be worse if Vice President Pence were President. Pence would be more organized.

No, it is the attack on the Press. His barrage of “The fake news media” and the “Enemy of the American people.” This is the worst for two reasons: first, only the media can be a watchdog on an Administration that controls Congress. But we sort of know that.

The second reason is the more profound. We all sort of agree with him. No, of course, most people don’t consider the media to be the enemy of the people. But most people probably agree that the media is biased—either for Trump, like Fox News, or against him—like the mainstream media. Postmodernism has convinced us that there is no such thing as truth and so we consider the highest objectivity to be a balance of conflicting biases.

I’m not saying we are wrong about this. Not exactly. But it has caused us to surrender the naïve notion of truth. The media should be objective. We know or suspect that the mainstream media probably is horrified by Trump and is against him.

But when Trump is long gone. Truth in this society will have declined even one more notch. And this is why Trump’s attacks on the press, which, remember, is a constitutional value in the First Amendment, have not sparked much outrage. People who don’t like Trump don’t like it. And vice versa. And regular Republicans, who have lived for years with a troubled relationship with the truth on matters like global warming, probably don’t have any feeling about it at all.

No truth--no democracy. That’s a fact.

Wednesday, February 22, 2017

Harry Jaffa, No Trump Supporter

2/22/2017—Harry Jaffa, who died in 2015, was a professor at Claremont McKenna College and “patriarch” of the Claremont Institute, which is getting publicity these days for its Claremont Review of Books and its ties to the Trump Administration. But I want to say here that Professor Jaffa would have had nothing to do with Donald Trump.

The Institute has always stood against all forms of progressivism, but Jaffa was also known both for his searching and beautiful studies of Lincoln and his criticism of the value skepticism of his fellow conservatives. In 1994, he selected me to write a response to his essay in Originalism and the Framers of the Constitution, in which he argued for a natural rights interpretation of the Constitution as both faithful to the framers and true. I was picked as the left wing natural law position. It was an honor.

Yesterday, the New York Times highlighted the Institute—Justice Alito just accepted an award—and its ties to Trump. And certainly the Institute has always opposed the “East Coast” version of conservatism, as the article makes clear—modern, individual, selfish (but isn’t that what the right of abortion is?). Jaffa thought America “heroic”—standing for something enormously large.

Well, I don’t know about the Institute, but I know about Professor Jaffa. His attitude toward Trump would be the same as that of his beloved Lincoln toward the Know-Nothing Party, a 19th century anti-immigrant group. Lincoln accepted their support as any office-seeking politician would do—and he said so in at least one letter I read somewhere. But he made it clear what he thought of the group. Jaffa would welcome policies he agreed with but he would never support Trump.

Jaffa, like Lincoln and like the Declaration of Independence, believed there were self-evident rights of all human beings. Universal human rights. As far as I know, he never feared immigrants, but assumed they would become the next generation of Americans dedicated to the American creed—as indeed they always have. I cannot imagine anyone further away from Donald Trump.

Saturday, February 18, 2017

What the Rule of Law Looks Like

2/18/2017—I am addressing a question for a program in April on whether the Supreme Court has become too political. It is not clear what the terms mean, exactly. But if we want an example of what we want our courts to do, Thursday’s invalidation of a Florida law punishing doctors who ask questions about their patients’ gun habits is a good example of a court not doing politics but applying the law.

The court en banc (all of the judges) ruled 10-1 against the law on free speech grounds. Any of my students would have ruled the same way—I hope. So, when legislatures go overboard, we want courts to remind us of our core value commitments. (Of course Justice Scalia would say that is why Obergefell is a mistake. Obviously the Supreme Court was not doing that in requiring same sex marriage.)

Of course it is easier for a lower court, which must follow precedent, to rule in accordance with settled law. Only the Supreme Court can change that law. But you would like to think that it is the first amendment that compelled Thursday’s result and not just its interpretation in caselaw.

Sunday, February 12, 2017

The Ninth Circuit Decision

2/12/2017—I told my students that fundamentally the President has the authority to exclude entry of foreign nationals from countries he considers dangerous. So, why did the ninth circuit panel uphold the temporary injunction (how it treated the TRO)?

First, the procedural stage—the government was asking for a stay of an injunction pending appeal of the underlying decision below. Burden on the government. And while the harms of the Executive Order were vividly plain, the government purportedly refused to introduce evidence of the threats to national security—maybe because there aren’t any, but in any event, that made continuing the injunction easy.

Second, executive overreach. The government argued that the EO was essentially unreviewable—did the government really argue that or did the ninth circuit misinterpret? No court in America is going to accept that argument in the absence of an obvious emergency. Then there was the fact that the government acknowledged that some of the people excluded by the EO had a statutory or other legal right to stay—permanent residents—or at least established legal process—persons in the US without documentation. That established law cannot be overturned by an EO. Mostly the government acknowledged this but the panel held that statements to that effect by the White House counsel are not binding. All of that could easily be fixed by limiting the EO in a formal way.

But the ninth circuit also made what seem like obvious errors. If a ban on entry from a country is valid—within the President’s authority—then the only due process issue there could be is the issue of where a person is actually from. There would be no due process rights in general. But due process was the main ground the court relied on.

Think of it this way. If the government fires you for your performance, you might get a hearing. But if the government closes your department, you don’t get an individual hearing. Because your performance is not the issue.

Also, the ninth circuit repeated the error that the President’s personal feelings about Islam and Muslims could be legally relevant. That cannot be right when the order is not applicable to most Muslims and cites matters that are not discriminatory in principle—the threat of terrorism. If President Trump eliminates Obamacare, that action cannot be challenged on the basis that the program helps people of color and he hates people of color. That is not a valid legal basis for challenging a general rule.

The entry ban is terrible in so many ways and self-defeating. And discriminatory. But legal? Probably. Eventually.

Monday, February 6, 2017

When Did the Lying Start?

2/6/2017--Charles Sykes, former right-wing radio host, has written an impassioned plea in the Sunday New York Times about our current malaise--"The battle over truth is now central to our politics." Sykes writes this about false claims from the Administration, such as about crowd size at the Inauguration or the number of illegally cast votes in the 2016 election.

But where did all this start? Nor with Trump. The distrust of all institutions, especially science, the romance with alternative facts and free-floating skepticism is no different from the teachings of the Republican Party for years about global warming. It is no coincidence that that is a lie that President Trump repeats as well. We can't know about global warming--well we can't know about illegal voters.

But it did not start with the right and the Republican Party. It absolutely started with the left. Who taught the incommensurability of different scientific paradigms? The right for years resisted the skepticism of the Philosophy of Science crowd. The left denies any truth of human nature in the belief it is the only way to defend gay marriage against the Catholic Church--not so. The left denies any truth of the universe in order to deny God.

Even today, the secular left does not understand that it is not reason, but faith, that grounds progress. In reason we trust, says the left. But that is not the case. For someone like me, acceptance of the truth of global warming is entirely--or mostly anyway--a matter of faith, faith in science as a discipline. If tomorrow scientists told me that after all, it was sun spots or natural variation, that is warming the world, I would accept it. I trust scientists. I cannot really decide such a technical matter for myself. The scientist may verify, or try to, but I must rest on trust.

The slogan really has to be In trust we trust. Or even in faith we trust. But the left cannot accept this because then someone might return to belief in an unseen God. When you claim that we should only believe what we can see or touch, then the next step is the chaos of skepticism, where we find ourselves today.

Wednesday, February 1, 2017

First They Banned the Muslims

2/1/2017—Truly, there is so much news from the Trump Administration, one does not know where to start. Last Friday’s Executive Order, with its overtones of religious bigotry, was a disgrace to America. I’m putting the following on my door at school—First they banned the Muslims, but I wasn’t a Muslim so I didn’t say anything.

However, the Order was probably not, in the main, unconstitutional. Aspects of it may have violated norms of due process or statutes, but the vetting process has been largely the work of the Executive Branch, so President Trump gets to change it.

Which brings me to the irresponsible actions of Sally Yates. The Attorney General is the hand of the President in seeing that the laws are faithfully executed. She was entitled to her view that the Order was unconstitutional, but not to obstruct it. The policy decisions of the Executive Branch, excepting the Independent Agencies, are those of the President, not the Attorney General, Secretary of State or Secretary of Defense. Imagine a Representative at the U.N. who voted here conscience on behalf of the US. If Yates could not go along, her obligation was to resign.

But the Democrats are now playing the Republican game. That is, delegitimize and demonize. That is what Republicans did to Obama and now the Democrats are happy to do the same.

Which brings me to the Senate Democrats and the nomination of Judge Gorsuch. I’m sure they will filibuster and the Republicans will end the filibuster—the nuclear option. We now have a system in which there is no restraint. So, disciplined democratic life is beyond us.

We should have no illusions. When it looked like Clinton would win, the Republicans made it clear that they would never confirm any nominee she sent up. They were willing to ruin the Court rather than accept the will of the people. Republicans might deny that now but it was plain and they are now lying or fooling themselves.

So, why should the Democrats not do the same? Because the people voted for Trump—in the only electoral system we have—and for Republicans in the Senate. Gorsuch or someone like him was their decision. The minority should not obstruct unless it is necessary. How can it be said that it is necessary with Gorsuch? The only objection to him is to the judicial philosophy the election was in part about.

I called Senator Casey and asked him not to join a filibuster. I suppose he will. But the Court is more important than short-term politics. The Democrats should not behave like Republicans.

Friday, January 27, 2017

Now the Markets Will Fall

1/27/2016—I have been perplexed that the market jumped when Donald Trump became President. After all, Trump is so crazy and the markets, it is said, like stability.

Well, it turns out that markets really like low taxes and little regulation because in the short term that helps rich people make money and keep the money they make. (It does not do that in the short term because you need to sell things to regular people and regulations make economic activity sustainable—see the 2008 crisis).

But now we have a reminder that Trump is not just a typical Republican—he is in fact, well, odd. Now he and his Party are talking about a 20% tariff on goods imported from Mexico to pay for a wall we don’t need in the first place. This is just stupid and I believe would violate existing treaties, which are the law until scrapped. By next week, this should become clear and the markets should go down on the news. Unless the plan is scrapped.

But the main point is that the free flow of goods is good for the economy. This tax if enacted will finally show this to people perhaps. Finally, economists close to politics, like Krugman will have to get their hands dirty. The Democratic Party will have to come up with a real plan on trade that actually is good for everybody. Maybe we will have a real debate finally.

Sunday, January 22, 2017

Deadpool is Awesome

1/22/2017—I don’t normally blog about cultural matters like movies, but I have to say that Deadpool is a clever and funny experience. From the self-referential opening credits to the shooting of the British villain in the face of the uplifting speech, “you were droning on,” the movie is ironic without being mean. Nor in any way does it trash good and evil, despite its stated willingness to do so. Deadpool is like Arnold Schwarzenegger, who, when asked by his wife, Jamie Lee Curtis, in True Lies, whether he had ever killed anybody, responded, yes, but they all deserved it.

What also struck me in watching Deadpool was a reference to God. As described in the New York Times, “During one gory scene, when Deadpool’s arm is geysering blood, he quips: ‘Are you there, God? It’s me, Margaret,’ referring to the 1970 Judy Blume book about a sixth grader anxiously awaiting her first period.”

Now I have been on a movie watching binge the last two days—Erased, Sisters, Deadpool and How to be Single—and that is the only reference to God I remember. God has simply exited most movies. The portrayal of American life, for youngish people especially in How to be Single, reflects a life utterly without depth and guide beyond the vague self-help book type references. In the last scene, Alice achieves her goal of watching the sun come up in the Grand Canyon. Even there, her earlier explanation of this goal, is that doing this would show that she is willing to actually live, rather than learning anything about beauty or transcendence from the experience itself.

One last thing—-Marvel did not make Deadpool nearly hideous enough. Or maybe he looked worse at some points than others in the movie. It was more fun, but not satisfying, that Meghan would obviously be able to adapt to life with him. The animated version of Beauty and the Beast was more honest in rendering the hero not really human. Of course the outside face was supposed to be merely the physical reflection of the inner reality that Deadpool was a different person, not easy to love. But, the movie had no intention of demonstrating that—-Deadpool did not seem to change at all.

Friday, January 20, 2017

Welcome, President Trump

1/20/2017—Never has the loss of an election been so eventful. I have to distinguish between the bad things that are about to happen because America elected a Republican Congress and what may happen because of Donald Trump. So far, the harm I am worried about—the loss of healthcare coverage for poor and working people, the threat to Medicare and Social Security and the undoing of global warming efforts—are the result of votes for Congress, not because of President Trump. The same is true of what harm his nominees to the Supreme Court do. Different nominees might have happened if the Senate were Democratic and, anyway, any Republican President would do the same.

But these were more or less legitimate results of what the American people have chosen. For years, people have been voting to slit their own throats by voting Republican. Progressives and the Democratic Party have failed to connect with a majority, or at least a large enough majority, to genuinely govern.

So, I detest all these marches and protests. It only takes normal politics working well to elect Democrats and do normally good things. I don’t need protests and lawsuits. I need ordinary voters.

Others are worried about fascism. Maybe I am naïve, but the harms I’m seeing are coming from democracy.

Monday, January 16, 2017

President Obama’s Accomplishments

1/16/2017—What can they not take away? In an incoming administration with a labor law violator running the Labor Department and a sympathizer with polluters running the EPA, you have to wonder. President Obama’s greatest failure was that he was unable to put most of his attainments into legislation, making them easier to reverse. On the other hand, healthcare reform was put into legislation and it is going to be repealed—so maybe that is not even true. Anyway, there was a genuine disagreement with Republicans in Congress over most matters, so not much legislative compromise was going to happen even if President Obama had been better at it.

I have to start with the racial change. America elected an African-American President. He and his family led the nation with grace and dignity for eight years. They cannot take that away. On Martin Luther King Day, that is an accomplishment of surpassing importance for this nation. I know that people think race relations are bad and that police brutality is terrible, but both problems are miniscule compared to the past. White racism will never make sense to anybody after the example of President Obama. Its last spasm helped elect Donald Trump, unfortunately, but that does not change the change.

President Obama’s next great accomplishment was leading the economy without major mishap. Over the last eight years, American economic performance has been better than any other advanced economy in the world. We have come back from the terrible recession he had nothing to do with to an economy more or less performing well. It is odd to read about the economy never attaining a 3% growth rate under Obama—the major Republican Party counter to this narrative. Neither did any other nation as far as I know. When your performance is the best in the world, it is the best in the world. I realize that Presidents get too much criticism and too much credit for economic performance, but that is the way we rate them and Obama did fend off Republican policies that were tried elsewhere and made things worse. If President Trump is able to deliver on his promise of 4% growth, then I will have to reconsider. But even then remember third quarter GDP growth in America was 3.5%--Obama’s best, but occurring under him. Obama was steady when we needed that.

The Iranian deal is next and is proving impossible to undo. Thank God. I don’t understand criticism of the deal—as if we would be better off if Iran were building a bomb and not buying planes from Boeing. Sure Iran is still doing terrible things and now can do them even better because there are no sanctions—but the point was to keep Iran from doing terrible things with a nuclear bomb. One day Israel will have to acknowledge that Obama was right and Israel was wrong about what was best for its own security.

What Netanyahu wanted was an attack on Iranian facilities. Either by the US or by Israel. This leads to Obama’s next great accomplishment—he kept us out of new wars. I wish we had wound down faster—we still have troops in too many places doing too much fighting, but Obama kept us from new foreign adventures. Obama mishandled Syria, but mostly because he promised what he could not deliver—the departure of Assad. America never had a national interest in the forces fighting in Syria—there never was a democratic opposition. We should have stayed out altogether. But the point is that after eight years of war, Obama was elected to draw down and he did.

There is a downside to that. The influence of the US is less than it was eight years ago. Russia and to a lesser extent China are emboldened by that. In years to come, Obama will get even more credit for managing a withdrawal from empire without things getting even worse. What the Republicans are correctly pointing to is not a failure but a necessary adjustment to the end of US hegemony in the world. It should not go too far. We should rebuild the navy in particular and be a presence in the South China Sea. But basically the last eight years should have been a time of retrenchment.

Then there is healthcare. I thought this would be one more reversal, but it turns out it may be harder to reverse than I thought. If President Trump ends up proposing catastrophic insurance for all, Krauthammer’s suggestion some years ago, that will not be as good, but it will still be a lot better than we had before Obama and it would never have happened without Obamacare. After all, the point was always to get people healthcare without preconditions—so that people would not die because they could not afford a cancer operation. If President Trump wants that, good for him.

I might add that I really hate this “illegitimate President” stuff. Trump did not commit any dirty tricks. What was he supposed to do? They were not his emails. Yes, he got fewer votes, but again he won by the rules we have. Which is what anyone running for President is supposed to do. All that means is that he should remember he has no mandate. Presidents generally forget about that.

Finally, we had eight years of attempts by the executive branch to fight global warming. And American carbon emissions are actually down. The biggest part of the decline is the switch from coal to natural gas, but what is wrong with that? The main thing is Americans now know that it is all true—even a Trump nominee admitted that humans are warming the climate and we have to do something about it. The best news on that front is the operation of a carbon capture coal plant announced last week—or was it two? I don’t know why the Administration did not take more credit for the subsidies that made that possible and the coal jobs that now might actually be saved—a lack of imagination by both Obama and Secretary Clinton—she might have won Pennsylvania with that news prominently featured. But this is an accomplishment. Maybe even here, reversal will not be possible.

A good record. A very good record. Could have been better, particularly on wages and inequality, but who is to say? Even on that front, the Obama years will be paying dividends to the Trump Administration for years. I hope Donald does not screw it up.

Friday, January 13, 2017

“The way it is nowadays, unless I see positive proof, it’s all a lie.”

1/13/2017—As I mentioned earlier that my teacher challenged me to specify how nihilism manifests in America. Roughly speaking, nihilism is the belief that all values – – normative judgments – – are matters of opinion rather than of truth. But Americans do not think about matters that way. So nihilism may be the condition, but the symptoms will look like something else.

My first effort along the line of specification was that nihilism manifests in a lack of hope. And this does seem to be the case. Certainly, under the rule of nihilism, there can be no grand hope of a genuinely better world and life.

But today’s New York Times brings a much more potent illustration of the effect of nihilism. The quote above is by Al Amaling, a member of the Table of Knowledge, which refers to a group of older white men who meet in a diner to discuss things in Monticello Iowa. President Obama won this district decisively in 2012 and Donald Trump did the same this year.

In a world of nihilism, nothing is trustworthy. That means we must always insist on proof. That sounds like a helpful formulation, but it is not. Because, in a world in which nothing is trustworthy, no proof is trustworthy either. Mr. Amaling’s comment from the right—although he was an Obama voter in 2008-- just echoes the distrust on the left of vaccines and genetically altered food.

In a world of nihilism, everyone is lying to us. And since our inconsistencies on proof will always prove inadequate, we are left with our own prejudices, biases and ideology. Unfortunately for Mr. Amaling, in a world of nihilism there is no proof either.

Tuesday, January 10, 2017

The Public Trust Litigation

1/10/2017—the last session I was able to attend in San Francisco at the AALS meeting was the Hot Topic Program Juliana v Atmospheric Trust Litigation. The session was organized by Professor Mary Wood of the University of Oregon School of Law. Professor Wood pioneered the principles of the public trust litigation movement that is now engendering lawsuits around the world.

The premise of this line of litigation is that the climate is constitutive of a portion of the public trust, which is a common law concept concerning the government’s responsibility to protect the citizenry by maintaining public natural resources. Global warming seriously threatens the public trust for future generations. The idea is that the courts can order the government to draft the plan, at least, to protect the climate.

Public trust litigation is felt to be necessary because Congress has so abdicated its responsibility to protect the people and generations yet unborn. There is no longer any time to wait because the danger to people in the future from global warming is now so great.

When Professor Wood was at Duquesne University last year, she and I had an email exchange in which I voice my serious hesitation in allowing courts such a central role simply because the legislature has not adopted certain programs felt to be necessary. The premise of the public litigation movement seems to be that a democratic response is simply impossible. But if that is the case, because of big money or for whatever reason, democracy is at an end. That seems a result only a little less dire than global warming itself. So serious was my reservation years ago that I actually abandoned the position I had taken about a fundamental right to a healthy environment in an earlier Law Review article.

I have not changed my mind about the antidemocratic nature of this litigation. However, after listening to Professor Wood, I have tempered my views. There are two reasons that this. First of all, Professor Wood finds herself in essentially the same place that FDR did in trying to get America ready for war despite the isolationist mood of the electorate. FDR simply did whatever he needed to do in order to get the country ready, knowing that later, when the country finally was ready for war, might have been too late. History has just FDR’s actions rather kindly, I believe.

The second reason that I no longer oppose this kind of litigation, despite its antidemocratic character, is that, after all, whatever the courts find, the courts will be unable to force Congress literally to do anything at all. So there is no chance of an actually antidemocratic result. On the other hand, the finding by a federal judge that global warming is real, that it is caused by humans, that it will be immensely harmful and that the Congress is doing nothing about it, would in and of itself change public opinion on the matter of global warming. So the courts could be part of a genuinely democratic turn in fighting global warming. But that could not happen unless litigation were going on. So I guess I have to offer Professor Wood an apology.

Thursday, January 5, 2017

Why Law Matters, the presidential transition

1/5/2017—I just went to the AALS plenary session on the election of Donald Trump. The session was so one-sided, self-righteous and thoughtless that it made me weep.

There is a lot to say, but let me just start out with this—Donald Trump got elected because of what law professors have been saying for 30 or 40 years. Erwin Chemerinsky, the Dean at UC Irvine, said early that Donald Trump does not believe in truth. Well, if that is the case, then Donald Trump should be teaching at a law school because almost every law professor teaches value skepticism and that there is no truth. Nietzsche said in effect that with the death of God, you would get fake news. Well, law professors are happy about the death of God and so they should expect fake news.

Martha Minow, currently the Dean of Harvard Law School, actually said you are entitled to your own opinion but not to your own facts. Well, you’re not entitled to your own opinion. Your opinion can be just as false about values as it can be false about any fact. Or, as Hilary Putnam put it, if you start by denying the truth of values, you will end up denying the truth of facts too. Martha Minow does not realize what a nihilist she is.

Let me put this a different way. Is there a truth about human nature? This is usually called essentialism. Is there a truth about the universe? That is usually called foundationalism. In the fight about same-sex marriage, the progressive strategy was to assert that there is no human nature. Therefore, when the Catholic Church, for example, says that gay marriage is unnatural, the Church is wrong by definition.

But that was not a satisfying defense of gay marriage. It was a stance of skepticism about truth. A satisfying defense of gay marriage is to assert, and try to show, that gay marriage is consistent with human flourishing and is not unnatural. You have to say the Catholic Church is wrong. It’s much easier to say there is no truth and therefore the Church's assertion is without proof.

How does all this relate to Donald Trump? The only way it makes sense to talk to someone you don’t agree with is on the assumption that both of you want the same thing and that you can reason your way to a right answer about something. If fundamentally you don’t believe that, then everything is power. And we will not be able to talk to each other.

One last thing. The session was supposed to have been about the rule of law. Donald Trump may very well not be a threat to the rule of law. After all, his party controls all the branches of government. Why should he do anything other than write a statute to get what he wants?

The person who was a threat to the rule of law was President Obama, who wrote executive orders when he could not get his way with Congress. I don’t blame him for doing that, but why should we now hypocritically claim that all we care about is the rule of law?

Wednesday, January 4, 2017

Is Secularism A Nonnegotiable Aspect of Liberal Constitutionalism?

1/4/2017—Greetings from rainy San Francisco, where I am attending the AALS annual meeting. I may have the chance on this blog to criticize the theme of this year’s meeting, why law matters, [imagine a meeting of physicists in which they ask each other why physics matters] but today I want to address the session of the section on law and religion, the section I have been most associated with.

This theme is reflected in the title of this blog entry: is secularism a nonnegotiable aspect of liberal constitutionalism? As formulated, the question seems to ask whether the American model of secular constitutionalism is necessarily the only model of a basically constitutional state—-one with, for example, freedom of speech, regular elections, the rule of law and it basically open economy? This is another way of asking whether Islamic countries, where Islam dominates, or Israel, where Judaism dominates, can ever be modern constitutional states?

Formulated in that way, the session is very helpful because it throws into question the dominant assumption of American law professors that only the America model is genuinely constitutionalism. I see the hand here of Richard Albert, the thoughtful and visible professor of law at Boston College. This is precisely the kind of challenge to liberalism that Richard likes to bring.

Nevertheless, the question avoids two direct challenges to the conception of American constitutionalism as basically secular: first, is American constitutionalism secular? Second, is secular constitutionalism possible?

As to the first question, I argued in a 2006 book, American Religious Democracy: coming to terms with the end of secular politics, that America does not have a secular political system. Nor is there any legitimate prohibition on religion in the public square. John Rawls is just wrong.

Looking at things in that way, the premise of the question in today’s session is false.

The second question, however is new. Religion, and Christianity in particular, are in decline by any measure in America. And Christianity has declined most dramatically in the very heartland of the postindustrial Midwest where Donald Trump won his Electoral College victory. These communities used to be dominated by churches and Christian culture. Where are those churches today? They are hollowed out.

Some of those Trump voters were without hope and so they latched on to the false hope of a Trump. This brings to mind the observation of C.K. Chesterton: “When men choose not to believe in God, they do not thereafter believe in nothing, they then become capable of believing in anything.”

What has secularism given to ordinary people as a reason to live, as a narrative of hope? All secularism has given us is a universe of chance and accident, in which the only reality is force and matter. I don’t believe a civilization can be founded or sustained on this ontology.

I don’t mean that this ontology is false. I just mean it is damaging.

So the question we should be asking is whether a secular, liberal constitutionalism can be sustained? I believe the answer is no. I wonder if that question will be addressed today.

Monday, January 2, 2017

2017—This is What Happens When You Vote Republican

1/2/2017—Happy New Year. As legislation is introduced to privatize Medicare and Social Security, as Obamacare is repealed, and as the tax code is rewritten, as greenhouse gases soar, and as the recognition is given to Jerusalem as the capital of Israel, Americans are going to see what a functioning Republican Party government does. Although I don’t agree with the policies, there is something good about what is about to happen. America will learn that voting matters and that the Democratic and Republican Parties are different.

I hope this will lead to a resurgence of democratic decision-making, in which voting begins to take place on grounds of actual policies by people who disagree with each other in public.

In a way, the strategy of noncooperation has worked for the Republican Party. Government was deadlocked and people naturally lost faith in government. My Republican friends tell me Obama was intransigent, but it does not look that way to me. Republicans delegitimize any Democratic President. They certainly did so with President Obama and with President Clinton before him. Democrats generally don’t do that to the same extent as Republicans. They have not done so even with Trump, yet.

Domestically, Trump will not matter that much. I don’t think he is interested in domestic policy. There might be more steel and coal jobs since environmental regulations will be reduced. But not many.

It should also be remembered that this will be minority government. The House is gerrymandered, which ought to be unconstitutional, the Senate is constructed to represent States and not people, and Trump lost the Presidential election by 2.9 million votes. It is laughable to hear people say that this reflects Clinton’s win in California by 4.3 million votes—California voters are not American?

The reason the framers of the Constitution did not think about direct election of the President is that the President was not to be a policy maker. The body they thought would be the active policy making branch was the House of Representatives and they made it the most representative government body. But now the President has evolved into the most important policy maker, including the sole decision whether to destroy human life on Earth through the use of nuclear weapons. No minority has the right to decide who that should be, only the majority. I would even favor a runoff if the two Parties were not an adequate substitute for majority voting for the President.

But none of that matters. Like President Bush, who did not feel constrained by his minority status, and unsettled the Middle East by his invasion of Iraq, President Trump will not feel constrained. But Trump lacks Bush’s basic generosity.

Thursday, December 29, 2016

Doing the Right Thing/Doing the Wrong Thing

12/29/2016—As the Obama Administration fades into history, I find President Obama’s actions and statements puzzling. On the one hand, there is the terrific challenge to Israel on West Bank settlements through the abstention in the Security Council and Secretary Kerry’s speech enunciating the two-state solution against intransigent opposition in Israel.

On the other, there is the juvenile statement that “I would have won if I had been able to run.” Not only is this insulting to both Clinton and Trump, it is silly. If such a thing had been possible, Reagan would still be President, even though he is dead. Of course sitting Presidents are popular, since their candidacies are purely fanciful.

While I am writing on Israel, I have to give the funny line of the year award (I would call it the Chutzpah award, but I don’t like to do Yiddish Shtick) to Benjamin Netanyahu for criticizing Secretary Kerry’s speech along the following line—“Israel doesn’t need to be lectured about peace by foreign leaders.” This is the man who came to Washington to lecture Americans about peace with Iran by speaking to Congress against the wishes of the President of the United States. Granted, that shameful episode was really the responsibility of the traitorous Republican Party leadership, which does not believe in any kind of American solidarity and loyalty. I hope they realize how they have forfeited any right to criticize disrespect to a President—(they haven’t, I know, because they have no sense of consistency). But still, Netanyahu came and spoke. So I guess he cannot criticize Kerry on that ground—actually, he still does because his words don’t mean anything either.

Sunday, December 25, 2016

Christmas, 2016—Secular Hope

12/25/2016—I have been chided by my teacher, RT, that my carping on the theme of nihilism does not really capture what has happened here in America. Nihilism is a European phenomenon, he tells me, not an American one.

I think he is right. Nihilism as such requires a kind of intellectual history that Americans lack. It requires an openness to ideas. America is not oppressed by ideas.

But, the same experience of the death of God is present in America. Perhaps it has played out in America as the end of hope.

America has always been known as an optimistic culture. We were always a can-do people. Let’s call this kind of people, hopeful.

Where did this hopefulness come from? Originally, it came from Protestantism. Christ was our hope. Christ was America’s hope. This hope was born on Christmas. Certainly the conquering of death was always part of Christian hope, but I don’t believe at the beginning of American history it was as silly and literal as it later became. The second coming was the promise and no one knew when it would happen. It was not the promise of heaven—of life after death. It was mostly the promise of the kingdom of God on Earth, which was something Americans could instinctively work toward. This was the source of American earthly hope. This hope gradually merged into a belief in progress.

At some point, however, the Christian promise became one of personal continuation after death. Ross Douthat wrote about one such hope today in the New York Times—A.J. Ayer died and was resuscitated at age 77. He told about an experience of following a light and he said it gave him some suggestion that death might not be the end of him.

You don’t get much of that kind of suggestion in the Gospels. But it became so dominant in America that someone—I think it was Peter Berger, but maybe not—wrote that without an afterlife, the mother’s promise to the child that “everything will be all right” is a lie. There is no comfort without a heaven in which my ego will continue forever.

This hope has now collapsed culturally—some people still believe it, of course. But it no longer inspires this culture. And so the foundations of hope have ebbed away. It is in a hopeless culture that an opioid epidemic can grow.

The collapse of the Christian hope corresponds to the undermining of material progress as well as growth slows and its fruits become concentrated in the top 1%. A smaller percentage of Americans will be better off than their parents than ever before.

And then there is the graying of America as the baby boomers grow old and die. Cultures of the old naturally are not as hopeful as youth cultures.

And then there is the breakdown of the Pax America in the world—partly natural decline of a postwar dominance and partly the simple loss of American hope that had earlier allowed for unified American responses to world problems. Now we are divided.

So, not nihilism, but on this Christmas Day, a loss of hope. Can secularism retrieve hope? That is its challenge. [I don't usually review my previous writings, but the reader might be interested in a post written about a year ago--12/9/2015, I believe, about the movie Tomorrowland and its treatment of the loss of hope. So this theme has engaged me for awhile. There is also the last chapter of Hallowed Secularism itself, which I must now revisit.]

Tuesday, December 20, 2016

Faithless Calls for Faithless Electors

12/20/2016—Now that the Electoral College has voted and Donald Trump has actually been elected, it is time to consider the role of democracy in the United States.

Here is the NBC news lead:
President-Elect Trump Wins Electoral College Despite Cries for Dissent

The Electoral College formalized Donald Trump's election victory on Monday despite protests around the country to encourage GOP electors to abandon the Republican.

The president-elect easily racked up the 270 electoral votes needed to send him to the White House. Interest in the normally mundane voting process spiked this year as opposition to Trump continues to fester, fueled by Clinton's success in capturing over 2.6 million more votes than her Republican opponent.

"Today marks a historic electoral landslide victory in our nation's democracy," Trump said in a statement. "I thank the American people for their overwhelming vote to elect me as their next President of the United States."
The first thing to notice is that there were serious calls for the electors to vote for someone else. This shows how widespread is the demoralization of democracy. The Electoral College is terrible and may get worse. But the only good thing about it is that the electors actually vote for the candidate that the State elected. It is a scandal that Democratic Party leaders did not denounce these calls for the limited nature of our democracy to be frustrated and our votes to become merely suggestions for the electors.

Second, these calls show that we have to get rid of the Electoral College. Even Republicans should worry about the absolute legal right these electors have to vote for anyone they want. That is how the system was set up. If they had elected Clinton, would the Supreme Court have voided the vote? No one knows for sure. Yes, that would have sent the election to the House of Representatives and Trump would have been selected—but, what about the future?

Third, the notion that the people elect the President is still the only legitimate standard in America—that is why we need direct election of the President. Trump’s quote was fine but inaccurate. The American people did not vote to elect him as President. The American people voted to elect someone else.

Saturday, December 17, 2016

I Don’t Understand Charles Krauthammer

12/17/2016—I greatly admire Charles Krauthammer and I always have. He rose to greatness in my view in regard to Donald Trump. You can’t blame Trump on him.

But I don’t understand his jokey condescension about global warming. Today’s column in the PG referred to “belief” in global warming as the left’s “religious test”—as if the truth or falseness of global warming was something to be debated. It’s true or false and it does not matter one bit what any politician or voter thinks about it. As Thomas More says in the play, if the Earth is round, will the King’s command flatten it?

What I don’t get is this—what episode in history defines Charles Krauthammer? Given his love of Churchill, whom I believe he once called the man of the century, Krauthammer has to resonate to the rejection of Churchill’s warnings about Hitler in the run up to the War.

Can’t Krauthammer see that his breezy joking about global warming is the same attitude the elite took to Churchill—“Oh that’s Churchill going on and on about Hitler again.” Even Krauthammer must admit that if it true that man is warming Earth’s climate, the threat is much greater than anything a Hitler could do. Of course it may not be true. But the threat is nothing to make light of. If the scientific consensus is wrong, great. Churchill could have been wrong about Hitler, too. But you don’t make fun of people worrying about something very much worth worrying about.

It’s going to be the tragedy of Krauthammer’s life when he realizes that he is playing the role of Chamberlain—trying to appease global warming, hoping against hope that we don’t have to change and get ready for the threat, even when the evidence began to mount.

And while we are at it, it is a stupid misunderstanding of everything we know about the framers to invoke them against national action on global warming. They created a federal government in order to deal with genuine national threats. Don’t invoke them against EPA action. They never expected the States to deal with threats to the Union.

If you say Congress has to do this rather than unelected bureaucrats, I could not agree more. So, stop enabling the traitorous inaction of the Republican Party on global warming. Or, are you going to wait until the bombs actually start falling—the ice is already melting all over the world.

Friday, December 16, 2016

The Fed and the President Elect

12/16/2016--To be fair, there was only a little Republican Party criticism of the Fed for raising interest rates and forecasting future increases.

But in the past, Republicans called for more such increases.

On the other hand, Democrats like Krugman used to criticize rate increases as premature and I did not see anything from him either.

Thus the partisan hypocrisy of Washington.

The Alice-in-Wonderland aspect of what is going on is that President elect Trump has called recent job creation "terrible" when it was in fact pretty good. The Fed is actually looking at the economy. Enough voters experienced a bad economy or were convinced that it was bad despite their own ok situation to elect Trump. But that does not mean the economy is performing that badly.

The problem in the economy is distributing its benefits, not its overall performance. That could be fixed pretty simply--raising the minimum wage would help.

Saturday, December 10, 2016

The Businessman’s Economy

12/10/2016—The markets are really happy with Trump. The New York Times had a story today about the golden age for business. Lower taxes. No regulations. Infrastructure spending. Energy production. No raised minimum wage.


This is really silly and you have to wonder about the maturity of business people. For one thing, businesses have been raising wages in response to the market, not the minimum wage, which has not gone up. For another, energy production is already up in the US. We are awash in oil and gas. This infrastructure spending is just Keynesian deficit spending the economy is in no need of—-though infrastructure spending that is paid for is greatly needed.

We did all this under President Reagan and it led to an expanding deficit.

Then there are the corresponding harms. Working people, the ones who supported Trump, are the ones who will be hurt. It is their wages that will not go up and they are the ones who live near toxic projects.

President-elect Trump is in Louisiana and that is interesting because the book about the tea party in Louisiana—-Strangers in Their Own Land—-makes the point that many people there respect and admire business even when it is harming them. I don’t get that but the slogan used to be, the business of America is business. So, these actions will not necessarily make Trump supporters unhappy with him. If they mess with Medicare or Social Security on the other hand, older people will end his political career.

As for the planet, everybody knows and not everybody cares. I don’t have sympathy for people, even working people with tough lives, who sell out their own grandchildren for short term benefits for themselves. I’ll talk more about the questionnaire in the Energy Department in another entry.

Wednesday, December 7, 2016

Mark Lilla Discovers the Necessity of Truth

12/7/2016--What is happening to our politics is that we are cracking up because we don’t any longer believe in Truth. Here is a quote from the New York Times about the fake news that many people now read:

“The larger problem, experts say, is more insidious. Fake news, and the proliferation of raw opinion that passes for news, is creating confusion, punching holes in what is true, causing a kind of fun house effect that leaves the reader doubting everything.”

The writer is presumably unaware that this is no accident. The phrase “doubt everything” was the method of Descartes, who is, in many ways the spiritual ancestor of today’s progressives.

In other words, smart people brought us to this situation, not hoi polloi.

Which brings me to Mark Lilla, one of those smart persons. Lilla had the nerve to write a story on November 20 in the New York Times Sunday Review about the End of Identity Liberalism. A healthy politics has to be about commonality, he wrote.

But, back in 2007, in his book, the Stillborn God, Lilla sounded much more like the New Atheist he was then. Lilla’s earlier view was that politics was about the pursuit of individual conceptions of the good. He would have said then that there is no Truth, there are just the truths people choose.

Of course people change their minds. Maybe Lilla has done so. But it would be helpful if Lilla would spend one moment reflecting publicly-—I presume he has done so privately—-on how he contributed to the current disaster. Someone like Lilla could really cause some soul searching.

Sunday, December 4, 2016

The Supreme Court and Politics

"On April 8, 2017, the Pepperdine Law Review will hold its annual symposium on the question of whether the political deadlock over the Merrick Garland nomination provides a stark indication the U.S. Supreme Court has become an unduly political institution, and, if so, what internal and external reforms might address this problem. We invite all interested scholars to submit a relevant proposal to present at the symposium and be considered for publication in a special edition of our law review."

I submitted a proposal for this program, which was selected. So, I will be presenting on Arpil 8, with a paper to be published in the Pepperdine Law Review. Below is the proposal--the reader will see that I reject some of the terms of the issue, as presented by the announcement.
Ideological Domination in an Age of Nihilism

To ask whether the U.S. Supreme Court has become “unduly political” is to confuse the partisan with the ideological. In Bush v. Gore, all of the Justices voted in a politically partisan manner, jettisoning established legal commitments to promote the goals of the political Parties. Such partisanship is reprehensible, but as Hamdi v. Rumsfeld illustrates, thankfully rare.

The refusal of the Republican leadership in the Senate to schedule a nomination vote for Merrick Garland does not reflect a fear of such partisanship from Judge Garland. Instead, this paralysis reflects a realistic appreciation of the ideological cohesion currently present in the highest stratum of American law. It is utterly predictable that any nominee from a Democratic President today will share a laundry list of fully formed commitments—defending Roe v. Wade and Obergefeld v. Hodges while overturning Citizens United v. FEC, for example—just as any nominee from a Republican President will manifest a commitment to textualism and originalism that yields the opposite case outcomes. Since the same ideological commitments control the political Parties, it is reasonable for Republicans to hold out to see whether their side might prevail in the coming Presidential election.

Sanctimonious talk about the rule of law, or the qualifications of a judicial nominee, only hide these political and legal realities. Our situation is not a government of men rather than of law. It is a government of ruling ideologies. The resulting deadlock and political decline is clearly harmful, but a solution is hard to imagine. There are no “specific reform measures.”

Certainly no solution can be expected from law professors. Law schools are the engines of this ideological cohesion. Legal commitments touching on political issues are completely predictable there. Legal arguments by law professors are usually fabrications in support of an edifice of ideology.

There is one fundamental commitment that unites law professors and judges. It is that normative commitments are the product of subjectivity—human will. Conservative jurisprudence adapts to this insight by attempting to impose arbitrary rules of interpretation to restrict judicial discretion. Liberal jurisprudence, which is much less developed, tends to adapt by substituting process and equality concerns for normative argument. Everyone agrees that judgment is a mask for power.

Could this context change? The reason that science largely avoids ideological hardening, despite tendencies in that direction, is that science has a subject matter of study. Despite academic calls for empirical research, the legal profession lacks similar understanding of the subject matter of law. Even worse, our ideological straightjacket blocks appreciation that the lack of a subject matter is the problem and prevents any movement toward its resolution.

There was an earlier tradition in law, represented by figures such as Charles Black and Justice John Harlan, which assumed that something akin to Truth could be sought in law, as it could be sought elsewhere. This normative tradition has now collapsed and cannot simply be reinstituted. To that extent, Nietzsche is right.

But this is not the last word. There are new starting points, represented by thinkers such as Bernard Lonergan and Martin Heidegger, promising other ways of investigating human flourishing. Even to begin down that path, however, law professors would have to be willing to learn something new.