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Epistemological Primitivism in Action II

July 20th, 2009 by Jim May · 26 Comments · Politics

In an earlier post, I characterized pragmatists as “epistemological primitives”. Today I have two groups of examples to demonstrate this kind of primitivism in action.

Some time ago, Arnold Kling did so when he proposed that individual states should perhaps “experiment” with government health care — as if  the experiment has never been tried before, all over the world and here in the United States at least twice (Tennesse and Massachusetts), with ample results.

Is Kling an idiot?  Hell no, I wish it were only that!    No, the answer is that Mr. Kling is a pragmatist.  He tells us so himself:

“Suppose that instead of looking at health care policy as a means to push an ideology or score political points, we examine it from a pragmatic American vantage point. What works? What does not work?”

Kling knows all about TennCare, Massachusetts, Canada and the rest of the world.  He is simply unwilling to abstract from those failures the crucial clue that perhaps there is something wrong in principle with government health care, in much the same way that there is something wrong in principle with the notion of perpetual motion machines.

And yet, while the persistent inventors of perpetual motion machines are properly regarded as the crackpots they are, pragmatists like Kling continue making the same proposals again and again, and expect to be taken seriously.  Here’s David Bernstein with a “Serious Health Care Reform Proposal” (linked approvingly as “sensible” by Glenn Reynolds), all suggesting like Kling that the sensible thing to do is to ignore the available data in the burn wards and go right ahead and stick our fingers into the flame to see if it burns this time.

Some might call that insanity; I call it pragmatism.

If pragmatists were the tribesmen in the movie “The Gods Must Be Crazy”, the U.S. Constitution would be the Coke bottle.  One of the absolute worst symptoms of how the primitives are destroying the artifact even as they venerate it, is the attack on the Ninth and Tenth Amendments.

These two Amendments are intended to act as catch-alls; they are the most explicitly principled Amendments in the entire Bill of Rights, notwithstanding their flaws. They plainly mean that any rights not expressly enumerated in the Bill of Rights nonetheless lies outside the purview of the federal government. The Founders plainly intended to address the pernicious arguments of future pragmatists who might attempt to utilize the enumeration of rights in the Bill to claim that what is not enumerated, is fair game for the government. This was important enough for the Founders that they dedicated *two* Amendments to the task.

And that still wasn’t enough.

Here, in the comments, observe how several Leftists blithely insist that the Ninth Tenth Amendment doesn’t mean what the blog author thinks it does. One provides a link.  Then watch what happens when the conversation turns to the Commerce Clause and the Raich decision.

And here, observe a good illustration of the legal doctrine that is used to defang the Ninth Amendment — as approvingly written by a conservative, Clayton Jones (who, tellingly, wrote it in response to Steven den Beste, who correctly notes:  “So where most of the Amendments in the Bill of Rights were quite specific, the 9th and 10th Amendments were intended to make fundamental statements about the basic philosophy behind our government. They were intended as broad guidelines.”)

(and before any of you libertarians start smirking, note that the three men linked in the first part are all well-known for libertarian leanings).

26 Comments so far ↓

  • William T Quick 

    I think you mis-state Clayton’s approach to the Ninth, in that I read his post as a resounding hosanna that the Ninth exists, and an explanation as to why, without it, the state would be free to do pretty much as it wishes.

    Perhaps you should re-read the post, paying particular attention to the last part of the argument.

    And by the way, Clayton is rather more libertarian than you seem to understand. As are the other editors of Daily Pundit.

  • madmax

    Pragmatism is a true killer. It kills conceptual thought and yet it masquerades as reasonable and sophisticated because it isn’t “ideological.” Of course today’s dominant ideologies are all the “isms” under the Leftist umbrella. Pragmatism serves to protect those “isms” from philosophic challenge.

    As for the 9th and 10th Amendments, its amazing to me how they have been completely ignored. They might as well not even exist. But in the end, I don’t think that any wording of the Constitution would have saved us from bad philosophy. The only solution is the cultural ascendancy of Rand’s theory of rights. I got a clear sense of this when I read Thomas Bowden’s latest TOS article on the Lockner decision. What the US courts lacked was a proper understanding of the “police power” and there is no way to get that right without the right theory of man’s rights. As soon as epistemological subjectivism came in via Holmes and Brandeis and others, the flawed but still liberty oriented Enlightenment view of rights went out the window. Now rights are nothing more than government entitlements which is what positivism demands. And of course, today’s conservatives and libertarians are useless to change this. Libertarians are at root subjectivists just like the leftists and conservatives base rights either on god or on traditions. If Rands political/rights theory should dominate then the Constitution of Atlantis will follow quickly.

  • Jim May

    Mr. Quick: I am quite familiar with DailyPundit.

    I would suggest that you are the one who needs to do some rereading — of both this article (in particular my last line), and Mr. Clayton’s.

    I find it interesting that you attempt to defend Mr. Clayton’s article by claiming that it explains why the state is not free to do pretty much as it wishes, when it in fact it explains one of the key legal arguments used to break one of the key chains the Founders used to constrain the state.

    As Clayton himself puts it: “Not the substantive guarantee Den Beste thinks it (along with a lot of other persons), but a very important limitation upon Congress, just the same.”

    In this context, “substantive guarantee” is a euphemism for what den Beste identifies as “fundamental statements about the basic philosophy behind our government”. In other words, it is a declaration of a fundamental fact — a principle — of American government.

  • Clayton Jones

    And you know this through — what? Tea leaves? “Substantive guarantee” is not a euphemism; it is a term of art in constitutional law, and it is glaringly obvious here that you do not understand it.

  • William T Quick 

    I find it interesting that you attempt to defend Mr. Clayton’s article by claiming that it explains why the state is not free to do pretty much as it wishes, when it in fact it explains one of the key legal arguments used to break one of the key chains the Founders used to constrain the state.

    I see. Pointing out the tactics used by those with whom you disagree is supporting those tactics. Interesting what passes for logic. You did leave out this, from Clayton’s post:

    With the Ninth Amendment, though, the argument ends a lot earlier, and with a different result:

    …CONGRESS: And the rule for an enumeration of exceptions is, those things not excepted were meant to be granted, is it not?

    CITIZEN: That would usually be the case, but the Ninth Amendment forbids your invoking that rule of construction in this instance.

    CONGRESS: We must not have heard you correctly. It does what?

    CITIZEN: Forbids you.

    CONGRESS: We thought that’s what you said. We are unaccustomed to hearing such words.

    CITIZEN: They are true, nonetheless.

    CONGRESS: Why you insignificant, insubordinate little… I oughta… We oughta… [whispers] Damn you! Damn you!

    So there you have it: The Ninth Amendment. Again. Not the substantive guarantee Den Beste thinks it (along with a lot of other persons), but a very important limitation upon Congress, just the same. If experience is any guide, this explanation won’t do the trick, which means I’ll have to try again later.

    And boy, do you ever demonstrate how correct Clayton’s prediction actually was.

    And here, observe a good illustration of the legal doctrine that is used to defang the Ninth Amendment — as approvingly written by a conservative, Clayton Jones

    And the word “approvingly” in this statement simply brands you as a liar outright.

  • madmax

    This seems to me the case of Mr. Quick trying to defend limitations on government power without defending such a thing as fundamental rights and, even broader, absolute principles. This would be consistent with libertarianism, if in fact Mr. Quick is a libertarian. Clayton (the Conservative) seems to be of the Humean variety; ie “there are no absolutes and rights can’t be defended on principle but only on the basis of social traditions” yada, yada, yada. I don’t follow these two but that’s just my initial reaction.

    So on the basis of what I’ve seen from Clayton and Quick, it further underscores the fact that conservatives and libertarians can’t defend freedom and rights in any meaningful way and they are effectively impotent in the fight against the Left.

  • Clayton Jones

    You don’t understand at all, madmax. It is possible for one to be an objectivist without thereby having to swallow the idea that the Constitution was written by objectivists and its interpretation is controlled thereby. Whatever might be the value of the principle May would like to shoehorn into the Ninth Amendment, the fact remains that what the Framers enacted there was something different.

    If you’re interested in investigating the matter yourself, rather than just cheering for the team, I suggest you start with Federalist #84.

  • Jim May

    Some things never change.

    As I’ve seen them do before, our DP visitors argue the same way as always. Mr. Quick plays the bad cop and makes empty “X doesn’t mean what you think it means” assertions (not to mention calling me a liar).

    Mr. Clayton gets a bit ahead of himself by picking on my understanding of particular words in his essay, but then remembers that he first has to try and move the entire discussion into Con Law as it is, so he can simply point out that his opponents aren’t law profs — then pick on the terminology.

    I cited the DP article solely to demonstrate the epistemological primitivism of pragmatism in action. I showed that it is an intellectual affliction common to libertarianism and conservatism (and the Left) alike.

    And what are our visitors focussed on when they get here? Words — whether the DP authors are libertarians or conservatives, “legal terms of art”, and the here-and-now concretes of Con Law!

    I’m going to go out on a limb and suggest that the word “irony” doesn’t mean what they think it means.

    And you know this through — what? Tea leaves?

    You wrote: Again. Not the substantive guarantee Den Beste thinks it . What den Beste thinks is cited right here in my post. I therefore followed the only clue you offered and took “substantive guarantee” to mean what den Beste said about the Ninth (duh!) The plain English meaning of those words fit just fine, and you gave no indication of any linguistic sleight-of-hand substitution of legal jargon for plain English. In an essay that is supposed to be explaining a certain viewpoint oj the Ninth Amendment to laymen, no less.

    I worked with what you put in that essay. So, if I “glaringly” don’t know what it means, you didn’t do your job as a writer. Define your terms!

    And the word “approvingly” in this statement simply brands you as a liar outright.

    I don’t think “liar” means what you think it means, Mr. Quick. I’d have to know the opposite to be true — that Mr. Clayton actually disapproves of that view of the Ninth that he explains in his article — to be a liar, yes?

    Well, I don’t know whether he approves; I infer it from his active promotion of this view (as evidenced by his effort to write “Another Swing”, and his indications therein that he has made that effort before, and is willing to do so again. If he disapproves, why do this? I am genuinely interested in finding out, if Mr. Clayton has actually addressed that question.

    Mr. Clayton: are you up for venturing out of the realm of “what is”, and tell us what you think *ought* to be? Is the legal view of the Ninth that you describe in your article the one that ought to be prevalent? If not, should it be mine/den Beste’s? What do you suppose would change if it were so?

  • Clayton Jones

    Since you are pleased to call me conservative, I shall decline, at least for now. The essence of conservativism is, one must understand and account for “what is” before taking wild swings at “what ought to be.” In other words, you first.

    As to those earlier efforts, here’s one:

    http://dailypundit.com/?p=10592

    Finally, as to what “substantive” means: All laws contain classifications, and then treat things differently according to whether they fall within those classifications or not. The Constitution can interfere here at many points: in the means of classification, or the differential treatment, or in the application of the classifying principle to specific things, or in the process by which the matter is decided and executed, or in the process by which the enactment became law in the first place, or…. A substantive guarantee is one that speaks to what may or may not be used in classification. So, for example, freedom of speech is a substantive guarantee: It forbids any classification based upon speech. On the other hand, the prohibition upon ex post facto laws is _not_ substantive: A law cannot operate upon acts committed before its enactment, period; the attempt is invalid regardless of how it marks out the thing it wants to reach.

    Now for the Ninth Amendment to be a substantive guarantee, you would need to be able to say, in a principled fashion (by which I do _not_ mean, by recourse to Objectivism), of two different claims of right, P and Q, neither of them mentioned in the Bill of Rights itself, which rights are urged in different cases against statutes R (classifying upon P) and S (classifying upon Q), that P is within the protection of the Ninth Amendment, and Q is not, so R should be struck down, and S should stand. As extreme examples, let P be “wearing stripes with plaid,” let Q be “universal free health care,” let R be “An Act for Preventing Broadcast Coverage of the PGA Tournament and Other Eyesores,” and let S be “An Act for the Prompt and Effective Collection of Debts Owed Medical Practicioners.”

  • Jim May

    Mr. Clayton: thank you for the link and additional explanation. The link in particular fleshes out the first article well.

    As for “the essence of conservatism”, I have been examining the ideas of conservatism for some time, and I can confidently say that the essence of conservatism is most certainly not the idea that we “must understand and account for “what is” before taking wild swings at “what ought to be.””

    On the contrary; conservatism specifically holds that reason is limited, particularly that one cannot reason from “what is” (the given facts of reality) to “what ought to be” (what is morally right).

    This core assumption is the root of conservatism’s signature traits. If we cannot use reason to determine what we ought to do — if we can’t trust anything we see looking forward — then one cannot make one’s way forward by reason alone. Therefore, conservatism insists on looking at the past, putting our trust in tradition, and on moving forward only grudgingly, in a rule-of-thumb, pragmatic fashion (“prudence”). They actively distrust “innovation”, particularly those who use their reasoning minds to find and pursue the way forward.

    In other words, the essence of conservatism is the idea that one must understand and account for what was done before before one can take “wild swings” at what ought to be done next. It is not the “what is” of fact, but the “what is” of mere tradition.

    Fortunately for all of us, the Founders were most emphatically not conservatives. They chucked the established political order aside in its entirety in favor of a new nation based on a radical new innovation, an idea as yet untested, but nonetheless moral and right: the idea of individual moral sovereignty as the principle defining the limits on society and its government (as opposed to the traditional view of government and society as a check on the individual).

    Politically, this means that the government is forbidden to act except by specific permission (of the constitution), while the individual is free to act except as specifically forbidden (by the laws) — and the catch-all presumption is that what was not specifically granted to the state in the Constitution, remains the prerogative of the sovereign individual.

    In that view, the *entire* approach to government consists of enumeration of specific powers of the State, an “inclusive” enumeration where it is understood that what is not specified, is excluded.

    And once again, we return here to the original topic of my post.

    Federalist Paper #84 makes it clear to me that the principle behind Hamilton’s thinking was mine: that an enumeration of specific rights of the individual is redundant at best (i.e. why forbid powers that were never granted?) and potentially dangerous at worst — because since the Bill of Rights is a series of amendments, it is fair to presume that it overrides what it amends.

    Here, the implication is that unenumerated rights exist in a different legal space than do the enumerated ones. The Ninth and Tenth Amendments exist specifically to contradict that implication. All of this is noted in Mr. Clayton’s two articles.

    And this is where we differ. I see the Ninth and Tenth together as seeking to explicitly re-establish what had been implicitly established by the original Constitution, only to be “de-implied” by the Bill of Rights.

    Now let us examine how Mr. Clayton summarizes it in his second article above:

    It is a view of the Ninth Amendment a strict constructionist (such as myself) can embrace: it states a definite and meaningful point; it covers all the parts of the enactment in question, as well as the discussion which surrounded its enactment; it accomplishes something not already accomplished elsewhere; it addresses a real concern of the Framers (that the Federal government shall be limited in its powers); and it does all this without handing the Federal courts an enormous undefined power to make whatever policy pleases them. Also, it has the advantage that it was the generally accepted view of the Ninth Amendment from 1791 right up until 1964, when Griswold v. Connecticut dangled in front of the academy a reason to pretend otherwise.

    In order of appearance of my emphasis above, here’s what this tells us:

    1. That is Mr. Clayton’s “approval” of the “construction” view of the Ninth he explained in his first article I linked. That makes my inference thereof correct, and makes a liar out of Bill Quick.

    2. Mr. Clayton correctly notes that the Ninth Amendment was intended to explicitly restore what had been implied, and then “dis-implied”: that the power of the State should be limited. But by what, one asks? Mr. Clayton does not answer. An Objectivist knows that the answer is: individual rights. So would most libertarians. But a consistent conservative can’t, and won’t — not without admitting the un-conservative (that is to say, liberal) ideological foundation of the American polity.

    3. Here’s that characteristic conservative bugaboo: “judicial activism”.

    4. But the significance of #3 only becomes clear when we examine the case cited above: Griswold vs. Connecticut. In short, this is the case where the Supreme Court first declared a “right to privacy”.

    Now, operating from the principles described above by both myself and Alexander Hamilton, the right to privacy does exist; it is one of those other rights “retained by the people” — as is the right to manufacture, sell, buy and use contraception, for that matter.

    But Mr. Clayton is a pragmatist.

    Griswold is the case from whence “penumbras and emanations” originates, terms that are ubiquitous in conservative rants about the Court. Notwithstanding that these words are about as apt a description of the pragmatist mentality, an examination of the opinions is indeed very revealing: the majority opinion actually does come to the correct view of the Ninth as a reaffirmation of the principle of limited government — that the State cannot move (i.e. make any law) unless expressly granted the authority, which necessarily implies that the individual, being sovereign, retains the final right of free choice in any realm of action not so granted.

    That is the Supreme Court doing its job — however fuzzy its reasoning (in particular this notion of “fundamental” versus non-fundamental rights), the Court did it’s job in Griswold, by properly invoking the Ninth as effectively “enumerating” the unenumerated. There is no grant to the State of authority over contraception, nor of right of access to information about individuals, in the Contitution — ergo, the contraception law was unconstitutional.

    And yet Mr. Clayton, in Orwellian fashion, attempts to characterize this action as “the Supreme Court [tucking] whatever it pleases into the Ninth Amendment” and “handing the Federal courts an enormous undefined power to make whatever policy pleases them.”

    Say what? No policy was “made” in Griswold — as in, no law was passed. A law was struck down, and the government — not the individual — was constrained. As it ought to be.

    So, if Mr. Clayton is indeed concerned with overreaching or “legislating from the bench” by the Supreme Court, that was definitely the wrong case to cite. Griswold was plainly not a “power grab”, but a rollback of power. It happened to be one that conservatives don’t like.

    Such are the contradictions of pragmatism, and why someone’s protestations of fealty to liberty are of no consequence compared to where his ideas actually lead. In this case, conservatives’ picayune preoccupation with controlling reproduction, originating in Christianity’s ancient hatred of sexuality, is more important that a fundamental fact of Americanism: the open-ended nature of individual rights.

    Of course, there was a time when it was the other “side” saying it… but that just goes to show what I said in the original post: pragmatism is constant across the political “spectrum”, and is a key intellectual threat to the preservation of freedom.

  • Clayton Jones

    I notice you ignore the difference between the Federal and State governments. I also notice you skipped the challenge. Under your reasoning, please identify a possible claim of right, not enumerated in the Bill of Rights, that is _not_ then automatically present in the Ninth Amendment.

    Here’s what you’re desperately trying to ignore: The government in this country is the people itself, and, according to the Constitution the Framers gave us, a majority is entitled to govern, through its representatives, provided only that no _constitution_ forbids the thing it would do. And Objectivism is not a constitution. You don’t trust such government. That’s fine, so far as it goes: Neither do I. But rather than accept the burden of vigilance, you’re looking for a framework in which error and injustice are impossible, in which such government is automatically prohibited from doing everything it should not do, and automatically compelled to do everything it should, when there is no such framework. You’re also floating an astonishing amount of trust on the idea that it’s your philosophy such a government would choose to follow, whereas we have the experience of the past two centuries to show us, governments that take on the challenge to make themselves over from philosophical first principles generally choose the total state over individualism, and turn themselves into manufactories of corpses.

  • Jim May

    I notice you ignore the difference between the Federal and State governments.

    I also ignored the difference between the number of Congressmen versus the number of Senators, how a bill becomes a law, etc.

    I do that because those are all details of implementation. I would say that whatever those details happen to be, I ask only that they be derivative of, and constrained by, the principle of individual rights. This principle is no more contingent upon how a government is implemented, than the second law of thermodynamics is contingent upon how an automobile engine is assembled.

    Under your reasoning, please identify a possible claim of right, not enumerated in the Bill of Rights, that is _not_ then automatically present in the Ninth Amendment.

    I do not see this challenge in your previous comments, but it’s a fair question.

    The answer is: none. As I’ve said already, the Ninth expresses in law the open-ended principle of individual rights. As such, it is a “catch-all”. That all rights are included under the umbrella of individual rights is a tautology.

    But rather than accept the burden of vigilance, you’re looking for a framework in which error and injustice are impossible

    This does not follow. I ask that you or any commenter to indicate where I have presumed any sort of infallibility, or lack of need for vigilance, in here. On the contrary — what good is vigilance, without a principled grasp of what it is you are watching for?

    I can tell you that the Founders didn’t presume any infallibility; that’s what “checks and balances” are for. No need for those if people are infallible.

    You’re also floating an astonishing amount of trust on the idea that it’s your philosophy such a government would choose to follow

    First: I have already explained why a conservative might find the notion of “trusting an idea” – any idea — as astonishing, and why he would see this trust as “floating”. The Founders actually went ahead and did trust *their* idea…. because they knew that it was solidly grounded in the facts of reality.

    Second: A properly constituted government does not “choose to follow” any idea, let alone individualism; it has that idea imposed upon it by the people. The people — i.e. a society of individuals — are sovereign, and the government operates by their revocable consent.

    (And you say *I’m* the one “desperately ignoring” that point!)

    we have the experience of the past two centuries to show us, governments that take on the challenge to make themselves over from philosophical first principles generally choose the total state over individualism, and turn themselves into manufactories of corpses.

    And now we come full circle: as I wrote before: any sufficiently advanced product of principled thought is, in the eyes of pragmatists, indistinguishable from luck.

    I mean, look at that sentence, Mr. Clayton; you just told us that “governments that make themselves over from philosophical first principles generally choose the total state over individualism” — while the one exception happens to be the one government whose first principle WAS individualism.

    Isn’t that a kicker? I have argued solely from epistemological and moral first principles, without citing history or current practice once… and yet, history backs me up anyway. You said I “floated an astonishing amount of trust” on my philosophy… but there is nothing astonishing about it. I *am* an Objectivist; I can raise no higher stakes on this bet than that.

    This post was an attack on a particular *epistemology* — pragmatism. I wrote it to document the sort of blindness it creates. It has done so in spades.

    The reason I asked you to put forth what you think *ought* to be true, was not a rhetorical trap of some sort to “score points” and try to make you look bad. When you make the sort of bets on ideas that I do routinely, there’s no point to that sort of penny-ante action.

    It’s subtler than that. I want to see how you approach normative questions, both in general and in regard to law. My epistemology predicts that a pragmatist cannot deal with normative questions rationally without ceasing to be a pragmatist — even if only briefly.

    While that is the way I’m betting, based on the evidence (which is why I see you as a conservative, though that certainly does not “please” me… why would it?), I’d be fine with losing this bet.

  • madmax

    “…governments that take on the challenge to make themselves over from philosophical first principles generally choose the total state over individualism, and turn themselves into manufactories of corpses.”

    This sounds exactly like Burkean skepticism to me. That a society that relies only on “man’s unaided reason” must end up in (liberal) totalitarianism. Reason is limited and must be supplemented with faith, traditions, naturally evolving “organic” institutions, etc.. And all of this is part of the Conservative belief that all “man-made” thought systems are “ideologies” because they ignore the “spiritual realities” of being and that man and society need to be grounded in divinity. So the problem with socialism, fascism, welfare-statism, leftism, secularism, is that they are all products of “unaided” reason.

    Rand called Conservatives out on this 40 years ago in “Conservatism: An Obituary”. I’ve read that essay a dozen times and each time it amazes me how right she was.

  • Clayton Jones

    Hey, bub, you started this fight. You chose to take a post about constitutional law, rip it out of its context, and call it and me names.

    I do that because those are all details of implementation.

    No, it’s a crucial distinction. What difference it makes, though, is something you’ve never once managed to touch upon. The Federal Government is one of limited, enumerated powers; the State governments, on the other hand, have general authority (the “police power” madmax misunderstands above) to legislate on whatever topics they please.

    I do not see this challenge in your previous comments…

    Then you didn’t read very carefully. “Now for the Ninth Amendment to be a substantive guarantee, you would need to be able to say, in a principled fashion (by which I do _not_ mean, by recourse to Objectivism), of two different claims of right, P and Q, neither of them mentioned in the Bill of Rights itself, which rights are urged in different cases against statutes R (classifying upon P) and S (classifying upon Q), that P is within the protection of the Ninth Amendment, and Q is not, so R should be struck down, and S should stand.”

    The answer is: none. As I’ve said already, the Ninth expresses in law the open-ended principle of individual rights. As such, it is a “catch-all”. That all rights are included under the umbrella of individual rights is a tautology.

    Fair enough. Here are your results. There is nothing that cannot be made into a claim of right. Whether you agree with the claim, whether you approve of it, is a different matter. There is no law that cannot be contradicted by someone making a claim of right about something. All such claims, as you have it, are present in the Ninth Amendment; therefore there is nothing that the Ninth Amendment does not prohibit; therefore there is no law that can withstand the Ninth Amendment. Therefore there is no law, period. Congratulations, bub, you just plumped for anarchy.

    I mean, look at that sentence, Mr. Clayton; you just told us that “governments that make themselves over from philosophical first principles generally choose the total state over individualism” — while the one exception happens to be the one government whose first principle WAS individualism.

    I don’t suppose you’ve ever read the debates of the Convention of 1787, have you? Can you cite any passages supporting your point?

    Here’s the way I’m betting: that a philosophical enthusiast is incapable of understanding that the law is a separate discipline with its own rules, much less that he would take the trouble to understand anything about the subject before he charges forth to opine on it.

  • Jim May

    madmax: yup, I’ve got that covered in the first half of comment #10.

    Hey, bub, you started this fight. You chose to take a post about constitutional law, rip it out of its context, and call it and me names.

    I identified you as a conservative, and a pragmatist, based on evidence at hand. These are “names”? You’ve shown no evidence of antipathy for, and every indication of adherence to, these ideas.

    As for invoking “context”, that’s really rich — as I will demonstrate.

    No, it’s a crucial distinction. What difference it makes, though, is something you’ve never once managed to touch upon.

    It is a crucial historical and LEGAL distinction, yes. But it ought to be clear what I think of it; just apply the principle of individual liberty. Why didn’t you just do that?

    That’s been the topic of this post all along, by the way: pragmatism as being necessarily silent on such matters. You have not contradicted this claim despite the ease and surfeit of opportunity.

    (Psst, that was one just now.)

    The answer is: No government, at any level should “have general authority… to legislate on whatever topics they please”. That is the signature of tyranny, and was no small part of the rationalization for slavery.

    All such claims, as you have it, are present in the Ninth Amendment; therefore there is nothing that the Ninth Amendment does not prohibit; therefore there is no law that can withstand the Ninth Amendment. Therefore there is no law, period. Congratulations, bub, you just plumped for anarchy.

    Did you imagine that you were springing something on me there? Nope, this one’s old hat. This does not follow, and here’s why that claim breaks at the first “therefore”.

    The logic of this syllogism assumes that “open-ended” means “infinite” and/or “unlimited”. This stems from an error in the mainstream understanding of a concept implicit in how principles work. That concept is “absolute”.

    Here are the relevant definitions from Google’s online dictionary:

    1. something that is conceived or that exists independently and not in relation to other things; something that does not depend on anything else and is beyond human control; something that is not relative;…

    2. not capable of being violated or infringed; “infrangible human rights”

    The first one is the error we are dealing with here. While it’s been around for millenia, its current form originates with Immanuel Kant. Here is his famous example of whether one should lie to a murderer, which illustrates why this view of “absolute principles” is horribly broken, if your purpose is to live on this earth — or found a government.

    Principles are not “absolute” in the Kantian meaning of that word: “unlimited” by anything, bearing no relation to any other facts — i.e. context-free. Rather, principles are absolute within a context.

    This correct view of “absolute” is implicit in a well-known saying about individual rights: “Your right to swing your fist ends where my nose begins.”

    Note that this limit is NOT imposed by society or government, but by the logic of the principle itself; Its own nature defines its boundaries. The laws of a free society merely acknowledge these boundaries, and attempt to fix them as precisely as possible via application of the principle in law.

    You can see why, given the Kantian view of principle, the second definition above would equate to “anarchy” in the mainstream mind; this is where the idea of “acceptable limits on freedom” come from; this view conflates “freedom” with mere physical capacity, and that’s where absurdities as “the freedom to kill” find their origins.

    Fix that, and now we know where the real limits of the Ninth Amendment should be: at the edges defined by the nature of liberty itself, and in connection with the specific powers granted to government for the narrow purpose of securing this liberty.

    Now we see the irony in Mr. Clayton’s first and last claims.

    Mr. Clayton: It is not I who have taken your article “out of context”. It is YOU who insists on taking the entirety of law itself out of the moral and epistemological context upon which it depends — declaring that “law is a separate discipline with its own rules”.

    And where do you suppose those rules came from? Tea leaves? Law is dependent upon a wider moral and epistemological context — which is where I’ve been sitting all this time. It does not exist in a vacuum detached from the rest of human knowledge.

    And don’t be attempting to cite “history” as “context” here; without a principled approach to history to see what it means — e.g. understanding *why* America succeeded where other “re-imaginings” of government led to tyranny — history might as well be just so many tea leaves.

    much less that he would take the trouble to understand anything about the subject before he charges forth to opine on it.

    I don’t need to know the innards of your automobile to be able to tell you with certainty why it won’t run on the water you’re putting into the fuel tank, Mr. Clayton. All I need is a basic grasp of the principles involved (chemistry and thermodynamics) to know how far you’ll get.

  • madmax

    “And where do you suppose those rules came from? Tea leaves? Law is dependent upon a wider moral and epistemological context — which is where I’ve been sitting all this time. It does not exist in a vacuum detached from the rest of human knowledge.”

    Jim, this is an excellent point and the whole exchange between you and Mr. Clayton is helping me to see how Conservatives *must* yield to Burkean tradition worship. If you deny that principles can be derived from concretes because you hold to a Kantian (or Humean I think) view of absolutes then you will not believe that any absolutes exist (at least outside of a supernatural realm). Then you will have to look to history or traditions to find your “acceptable rules of conduct.” Thus law becomes something derived from a people’s customs and habits instead of rational principles derived from the facts of nature. Thus you will have no use for the concept of a “fundamental right” or the 9th and 10th amendments which were meant to protect them.

    And what amazes me is how all these problems vanish once you understand Rand’s theory of concepts and contextual absolutes. So really, prior to Rand there was just no way for anyone to fully and competently defend individual rights. It was basically impossible to the second half of the 20th century.

  • madmax

    Mr. Clayton,

    Could you describe for me what you mean by “police powers” and what their limitations are. I think that would be very illuminating.

  • Clayton Jones

    madmax —

    In the context of law, “police power” has nothing to do with the police. It is the name given to the general power of a legislature to legislate, assuming that legislature is possessed of general powers. It might help if you think of the underlying word as being “policy.” The limitations upon this power, if any, are the specific prohibitions of the constitution under which the legislature has its being: e.g., the bill of rights in a state constitution. Under the Federal Constitution, the Federal government is not possessed of a police power, having instead the limited and enumerated powers of Article I, Section 8. As a practical matter, however, the Supreme Court has conferred one anyway, most notoriously through the uncritical presumption that pretty much everything is related one way or another to interstate commerce, and therefore reachable by Congress.

    By the way, guys, my last name is Jones.

    I identified you as a conservative, and a pragmatist, based on evidence at hand.

    No, you thought my post was handy for an unrelated point you wanted to make. You did not trouble yourself in the slightest to discover anything about my political philosophy before declaring what it must be. Here’s news for you, bub: I’m an objectivist. I am not one of those, however, that pretends that Objectivism must reach into every possible discipline of thought and refashion it de novo, much less that it is justified in the attempt, and I have nothing but contempt for its attempt to refashion law without first bothering to understand what it is doing.

    Here are three contexts: politics, philosophy of law, and law. They are not the same thing. In the context of politics, one discusses what policy ought to be and how best to go about realizing it. In the context of philosophy of law, one discusses how the law ought to operate, what its first principles ought to be, and what its materials are. In the context of law, however, there is only the law itself, starting from its own first principles, reasoning upon its own materials through its own methods to its own conclusions. Far from being deplorable, this is necessary, in order that the law be knowable. Objectivism itself declares openly that the law ought to be knowable, but it has never troubled itself overmuch about what this actually requires.

    You want to debate politics, well and good. That does not mean that everyone else is debating politics all the time. You took for your own purposes a post of mine in the context of law and tried (and tried, and tried, and you’re still trying) to force it into the context of policy, where it does not belong.

    The legal term for what you want to debate, by the way, is “natural law.” Much as it might shock you to discover it, the idea that there is an extraneous body of principle to which government itself must bow is nothing new. All that ever changes is the choice, which body of thought should be invested with that authority. You think it ought to be Objectivism. Under the English common law, it was the Bible. There are those who prefer the Koran, or The Communist Manifesto, or…

  • madmax

    “The limitations upon this power, if any, are the specific prohibitions of the constitution under which the legislature has its being…”

    Mr. Jones,

    You gave exactly the answer I thought you would give. You’re view of state’s rights brings to mind Ayn Rand’s response to the whole notion of state’s rights, namely that it advocated “50 dictatorships instead of one.”

  • madmax

    “In the context of law, however, there is only the law itself, starting from its own first principles, reasoning upon its own materials through its own methods to its own conclusions.”

    NO. This is worse than wrong. You’re making the law an exercise in rationalism, totally divorced from the more fundamental intellectual principles that make it possible. Law is *impossible* without deeper ethical precepts which are themselves impossible without some epistemological methodology and an (at least) implicit metaphysical foundation.

    This is really the root of all our differences. You’re cutting off the law from its base in the natural world which includes the nature of man. Your method is exactly what is advancing legal positivism and thus collectivist politics.

  • Clayton Jones

    As to #19, you have law confused with politics. As to #20, you have law confused with the philosophy of law.

  • Jim May

    By the way, guys, my last name is Jones.

    Noted, and my apologies for blowing that. At least I didn’t call you Clayton Cramer; I had you guys mixed up for a brief while some time ago.

    Here’s news for you, bub: I’m an objectivist.

    That *would* be news, I’ll give you that.

    I just don’t buy it, in light of that “anarchist” argument in comment #14, that would have flunked you out of your first-year Objectivist epistemology class, if there were such a thing.

    I’m curious to know why, after all this evidence to the contrary, you’ve decided to try putting up this flag now, especially after so thoroughly burying it as a possibility in these comments.

    I cited your article for what it was — a good description of a bad legal doctrine. I evaluated it by its consistency with the wider principle of individual rights, which is the context underlying the context of American law. Context is not only one discipline deep.

    I wouldn’t necessarily have said that you approved of it (or, therefore, that you were a conservative), except that the evidence I had strongly indicated so: you wrote it to argue against the principled catch-all view of the Ninth as put forth by den Beste, and I found it via a link in one of your comments on DP, deployed for the same purpose.

    There is also that American Conservative Party that Quick got started (as for your involvement therein, I only know that you did post on a blog there). That’s an odd name to choose for your new party if you’re an “objectivist”, don’t you think?

    On the strength of that evidence, I added that evaluation in an aside to illustrate the meaninglessness of distinguishing between Leftism and conservatism in the context of discussing bad epistemology and its consequences for America.

    And sure enough, Quick comes flying right in to howl “Hey, we’re libertarians!” like it matters (and “Learn to read!”, making a complete idiot of himself in full view of my last line).

    The funny thing is that it would have been a fair point for you to raise, at least. But you didn’t. Instead, you did your damndest to look, write and think like — a conservative, in exactly the manner I would expect, given the premise that you were one. The only things that have surprised me in all this, is that you chose to do it here (I now know that trackbacks from this blog are set to automatic)… and that after all of that, you call yourself “objectivist”.

    I’ll admit, actual conservatives sure as hell don’t do that every day. But that’s the only bit that doesn’t fit, alas.

    Why not say so right away? If someone called ME conservative, I’d establish my Objectivist bona fides right off; what comes after that is a 99% surefire indication of whether it’s worth pursuing any further (i.e. if the accuser were some idiot Leftist, to whom all dissenters are “conservatives”). I wouldn’t go out of my way to act like a conservative, defending a conservative legal doctrine using conservative arguments, in comments on a blog post that “called me names” (such as “conservative”)!.

    Now, about this business of alternating between blasting me for daring to opine on law without having at least your level of expertise on the matter, and trying to induce me to do just that, with no apparent awareness of the irony — I think it’s time we laid that one to rest.

    Would it make sense to tell a physicist that he can’t know in principle what makes an automobile engine tick, just because he isn’t the engineer who designed it?

    Either of them will tell you that while physics and engineering are distinct disciplines, they are certainly not *independent*. Engineering is applied physics; it is logically and hierarchically dependent upon principles established by physics. Engineering cannot have “its own rules” that contradict those principles; else perpetual motion machines could be built.

    These principles do not tell you what particular bolts to use, or even what specific design to implement; they only set the conditions which must be met for the design to work for the intended purpose.

    In precisely the same manner, law is dependent upon ethics and epistemology. In fact, the discipline of law is the clearest example of applied epistemology around (“rules of evidence”, anyone?)

    So, if you were to say that I could not design better law than the Founders, I’d have said that I would indeed be limited to discussing the law in general, and in respect to the propriety of what details I do know about — just as a physicist could do with regards to a particular engine design when talking with an engineer.

    That does not mean that I cannot identify the relationship of particular aspects of law to the basic principle which I do understand. For example, I know that the military draft is involuntary servitude from first principles, so the current settled law is wrong on that count, no matter the details (and I will note that I am aware of the role therein of that horrid moral concept common to both Leftists and conservatives: the notion of “duty”)..

    As far as redesigning things de novo, I see America as the first fundamentally sound political design in history, despite the flaws in the original implementation, and the horribly wrong modifications done by epistemological primitives to it since (Sixteenth Amendment, anyone?) It is the only country that I would not simply wipe out and start over, were I in charge of any “reboot”; the basics remain sound. It needs repair, or maybe reconstruction on its original foundation — but not outright replacement.

    That’s just not possible without a firm base of validated principles — and you need to be able to think in such terms in the first place, to achieve even that.

    Engineering without a sound physics, is like law without a proper ethics and epistemology: a matter of blind luck, at best. You’ll end up engineering a pile of rubble… or basing a government on the Bible, the Koran, the Communist Manifesto, etc….

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