Denotation and the SCOTUS

So Fuckface von Clownstick has nominated a person for the Supreme Court, to replace ol’ Tony Scalia.

Much of the discussion of this in the world will be about how utterly hypocritical it is of the Republicans to suggest that there is an obligation for the Democrats to not obstruct the confirmation process, given that just the other day they declared it a positive civic duty to obstruct the conformation of Merrick Garland, and that is quite a valid discussion.  But I’m not up to doing any of that here.

Looking into this Gorsuch person a bit, though, I find that (as well as not being Merrick Garland) he is an “originalist” just like ol’ Tony, and perhaps even moreso (if that’s possible). This inspires me to reach into the archives and reprint here, lightly edited for venue, my ancient piece on why “originalist” is a bad name.

By way of introduction, it’s a bad name because everyone believes that it’s the Constitution’s original meaning that’s important; the division is between those who think the original denotation is important, and those who think it’s the original connotation.  (Where “connotation” is used in its technical Philosophy of Language sense, not its informal “fuzzy subjective meaning” sense.)

The problem with the denotationist position can I think be highlighted by a very small thought experiment: the denotationist is obliged to hold that if we were to hold a Constitutional Convention today, and replace the entire text of the document with an exact copy of itself, the resulting document would be very different than the current one, and a very different set of things would be allowed and prohibited and so on.

And that seems just silly. (Menard’s example notwithstanding.)

But anyway, here is the original post, in the context of Scalia and 2005 rather than Gorsuch and 2017, but Truth is Timeless.

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One of the cool things that Audible does is make certain ‘public interest’ type audio programs available for free. I don’t know if they do this out the goodness of their heart or their ad budget, or if someone pays them to do it, but it’s cool anyway.

One of the free things they have is a talk that Supreme Court Justice Antonin Scalia gave on the subject of Constitutional Interpretation, at the Woodrow Wilson International Center for Scholars last March. (Due to Audible’s bizarre site design I can’t figure out how to give you a pointer to it that will work, but if you search on “Scalia” you’ll probably find it. Although it’s free, I dunno if you can get it if you don’t have an Audible account.)

I’m a bit more than halfway through it, and it’s interesting. I’ve previously expressed the opinion that J. Scalia is a fascist theocratic loon, and I’ve teased him for his defense of state laws against masturbation in his Lawrence dissent; what I’ve heard so far doesn’t make me any more comfortable having him on the high court, but it does give me some additional insight into his character and legal thinking.

Scalia doesn’t like to be called a “strict constructionist”; he prefers “originalist”. His idea is that the words of the Constitution meant something when they were adopted, and that it’s that meaning that we must follow today. And when he says “meaning” he isn’t thinking of the general meaning or connotation of the words; he’s thinking of the very specific denotation of the words: the exact specifics of what they were thought to mean at the time.

So since when the 14th Amendment was adopted in 1868 no one thought that “equal protection” included the right of women to vote, it required a further amendment to give them that right. Scalia says that nowadays we would have done it on 14th amendment grounds instead, and he clearly thinks that that’s a bad thing.

[2017 Note: In fact even back in 1868, lots of people thought that “equal protection” did in fact include the right of women to vote; something that rather heavily undermines Scalia’s point. The fact that when talking about this stuff he apparently never mentioned Minor v. Happersett or the various controversies and demonstrations around it, was one more thing that lowered my opinion of his intellectual integrity.]

Since “originalist” doesn’t strike me as a neutral term (when was the last time you saw “unoriginal” used as a compliment?), let me refer to Scalia’s position as “denotationist”; the words of the Constitution (or any other law) must be interpreted as having the same denotation, as picking out the same parts of the world, as they had when adopted.

(At the extreme denotationist position, if the Constitution had said that the number of Justices on the Supreme Court should be equal to the number of planets around the Sun, then the proper number of Justices would be seven, since that’s what people thought the words denoted at the time. I’m not suggesting that Scalia would actually carry the idea this far, although it wouldn’t surprise me if he did.)

So what’s the alternative to denotationalism? In this lecture Scalia claims that the only alternative is to consider the Constitution not a legal document at all, but just sort of an “exhortation”. He claims that he’s asked all sorts of people at law schools what principle they propose in place of his, and none have had an answer.

This strikes me as baffling, since the answer is so obvious. Rather than interpreting the words of the Constitution according to what they meant when adopted, we should interpret them according to what they mean now. If we’ve discovered since 1789 that there are really nine planets, or since 1868 that equal protection does mean the ability to vote regardless of gender, then that’s what the Constitution should be read as saying.

(Jim points out a possible circularity here, so let me say explicitly that the view I’m outlining here isn’t the tautological “the Constitution means today whatever it means today”; I mean something more like “the words in the Constitution mean today whatever the same words mean outside the Constitution today”. Modulo politically irrelevant typographical shifts and so on.)

I’d like to call this alternate view “connotational”, in contrast to Scalia’s denotationalism. And it seems to me highly unlikely that no one has ever suggested it to Scalia, or that he wouldn’t have thought of it himself for that matter. Scalia seems to have an enormous blind spot where differing opinions are concerned; not only does he disagree with non-denotational views of Constitutional interpretation, he doesn’t even see those views. At one point in the speech he says that he would have decided a certain case in a certain way based on the original meaning (“meaning”) of some words in the Constitution, whereas the court actually decided the other way, “based on — well, I don’t know what!”

He’s obviously a smart guy, but apparently there’s a filter between the part of his mind that is sharp enough to understand arguments on both sides of an issue and the part that consciously notices those arguments. (Jim points out that Scalia wouldn’t be the only one with this problem.)

Another possibility is that Scalia is simply a propagandist, and that pretending that the other side has no argument at all is just a rhetorical device that he likes to use. That’d be a pity.

So anyway. The denotationist view says that when the Constitution uses phrases like “due process” or “equal protection” or “freedom of speech”, we should consider those phrases to be convenient shorthands for whatever set of things people thought they meant when the words were adopted. If it wouldn’t make the Constitution implausibly long, we could replace each one with a list of all the things that people at that time thought the words referred to.

The connotationist view, on the other hand, says that “due process” means the processes that are due, the proceedings that are appropriate, and if our opinion about what is appropriate has changed since 1798, it’s our current opinions that count. Similarly, “equal protection” means protection that is equal, and if people in 1868 didn’t notice that disenfranchising half the country didn’t constitute equal protection, so much the worse for them; our current government should be guided by our current understanding.

(Now in practical terms it’s nice that we have the 19th amendment there making it explicit; but I do think that a 14th amendment case for female suffrage should in principle have had a very good chance of success.)

So Scalia’s basic theory isn’t particularly inconsistent or anything; I just strongly disagree with it. His inability to acknowledge the very existence of alternative theories is a flaw, and not one that makes me fond of him.

What else? Scalia’s theory leads him to say some odd (or at least odd to me) things about the Constitution’s role in protecting minorities. At one point he says that protecting minorities from the whim of the majority is one of the most important things that the Constitution does. But because he’s a denotationist he sees it as protecting only those particular minorities that the Framers would have wanted to protect (or that the adopters of later amendments would have). So Catholics, for instance, are protected (hem, hem), but not people who want to make love to people of the same gender.

(Sidenote: Scalia always refers to male-male sex as “homosexual sodomy”; a little subliminal reminder that the Lord has destroyed whole cities over the issue; ref “theocratic” supra.)

The equal protection clause can’t allow people of the same gender to marry, because when the clause was adopted people didn’t think it meant that. A connotationist can say that we’ve decided since then that equal protection really does mean that; but Scalia doesn’t even consider that as a possibility. It’s not simply wrong, it’s just not on his radar at all.

If we want to provide equal protection or due process or freedom of speech outside the original denotation of those terms, he says, what we have to do is persuade our fellow citizens to enact the appropriate legislation or Constitutional amendments. Which is to say, if we want to protect a minority that wasn’t popular back in 1789, we have to persuade the majority to play nice. Which of course seems completely wrong to me, given the whole “Constitution protecting the rights of minorities” thing.

The Framers were large-minded folks; I think that when they said “due process” or “freedom of speech”, they didn’t just mean the things that those words meant in the 18th century, but that they meant whatever those words might turn out to mean as the species matured.

Hm, I’ll bet we might even be able to find some writing of the Framers that say that! I wonder what Scalia would do then…

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And that’s that reprint from 2005; May 16th, 2005 specifically. There were at least a couple more weblog entries on this general subject, based on reader comments and other events of the day and so on, but that’s enough for now for here.

Maybe I should find some of Gorsuch’s writing, and see if he’s usefully interpreted as a denotationist (with an inability to even conceive of connotationism) like Scalia, or if he’s different in some interesting way.

But probably I’ll just get caught up in von Clownstick’s steady assault on the very idea of democracy, instead…

So many all sorts of things!

This is another of those posts that starts out all meta, noting how long it’s been since I posted last (and in fact meta-meta, since I’m talking about being meta (and in fact…)).

So much has been occurring!  I’m sure there was some stuff longer ago that I could mention that I’m forgetting, but we went to foreign countries!  Which is not a thing we do very often.

First M and I went to “England” for a week (“London”, in particular).  Here is a picture of Buckingham Palace:

and if that doesn’t give you the full flavor of the experience :) M has done a great thorough set of writeups on every day of the whole thing (with perhaps more stress on yarn and fabric, and less stress on random blurry things, than a hypothetical similar series here might have offered).

Then after that, M went back home, and I went to “Dublin”, in “Ireland”, on business.  Here is Ireland (it is green):

All I saw was Dublin, mostly the “Silicon Docks” area and the part of downtown in front of Trinity Library, and the 20-minute walk between them.  But it was cool.  I was there entirely by accident on Bloomsday, and saw some people dressed all memorably, although I was not forward enough to take pictures of them.

Another notable fact is that a vast alien mothership has landed in the middle of the city, and apparently there is some mind-control field that prevents anyone but me from seeing it.  Here is a picture (although if the mind-control lasers have gotten to you also, you may just see an ordinary little line of Irish flats):

(Not Photoshopped, promise!)  So that was notable.  Various random things:

• We stayed in a tiny flat off of a garage off a a mews just North of Hyde Park, which was pretty awesome.
• There was a local pub right on the corner, The Mitre, which was very genuine (in the sense that for instance if you just wander in as an American there’s no clue what you’re actually supposed to do in terms of sitting down, obtaining goods and services, and so on), and (once we figured it out) had good Guinness and Fish-and-Chips, and all like that.
• We saw All The Things, Big Ben, the Eye (from below, we didn’t go up in it), Westminster Abbey, Trafalgar Square, the Tower, the East End, big famous stores and shopping streets and things whose names I’ve forgotten (see link to M above who covers these things coherently).
• The Underground is great, if confusing compared to say the NYC Subway.  When you land at Heathrow, they will make it Very Very Easy to buy a ticket into London on the Heathrow Express, which is very convenient and fast, but costs basically infinitely more than the Piccadilly line in the normal underground.
• The Underground is not great in that figuring out how to pay for things is Incredibly Baffling.  Again the NYC Subway is a model of simplicity here: you get a Metrocard of any kind at all, and you pay either nothing (if you have an unlimited card) or $2.75 to get into the subway system.  And that’s it!  In the Underground you can buy either a ticket or an “Oyster” card, and the “Oyster” card can have a TravelCard “on” it in some logical sense, and there is a deposit associated with the card that you can get back only after the card has expired, and you can get it back from a machine if it’s under a certain amount, and otherwise you have to take it to a hidden office in the London Sewers that is open only alternate Wednesdays in February.  Your Oyster card is charged (or not) both when you enter the system and when you leave; if you don’t have enough money on it to leave, you can still leave, but you can’t enter again until you “top up” the extra amount from when you left.  They have people stationed at every set of payment machines, who attempt to explain to tourists and Londoners alike how much it will probably cost them to do various things, but those people seem only slightly less baffled than the people they are advising.
• Although you aren’t supposed to take pictures in Westminster Abbey (for reasons I can’t really understand), my phone seems to have accidentally gone off a few times, and I have some pictures of M’s feet standing on various famous names in Poet’s Corner.
• Lots of other stuff.
• The last day, when I’d dropped M off at Heathrow and had a couple of hours to get to London City Airport (the London Docklands is a really interesting area!), I went and sat in Hyde Park in one of the folding chairs that are all over the place, and as it was raining lightly (we had great luck with the weather, that was the only rainy bit) I put my umbrella up over me, and just sat there watching people go by for awhile.  That was nice.
• After awhile of that, there was this very loud noise out in the street of chanting and marching and things, and eventually this roused me and I went up to the street and there were all of these Hare Krishna folks marching and singing and dancing and conveying a big colorful float, and a smaller float with a loudspeaker, and satellite folks going among the people on the sidewalk giving out literature and taking donations.  They were, it seems, going to Trafalgar Square for an annual vegetarian feast and festival.
• So I ended up with a Hare Krishna book and have read much of it.  It starts out well, with good basic spiritual insights about the world and stuff, but then goes off the rails (as so many do) about how true knowledge can be obtained by chanting certain words, and we should believe specific things because the Vedic Literature says it, and anyone who believes otherwise are Lower Than The Beasts and blah blah blah.  Which was sort of sad.
• And many many other things.

Outside of us travelling about wildly, other things have happened that you may have heard of from other sources:

• omg #LoveWins.  What a world!
• And Tony Scalia has completely jumped the shark; I really ought to write a weblog entry about that.  Ages ago I used to grudgingly admire him for at least being consistent and mostly rational, if from odious underlying assumptions and principles.  Awhile after that I wrote about how I’d become disenchanted, noting that his not even acknowledging the possibility of (rather obvious) alternate views was either oblivious or hypocritical of him.  And now he seems like just a frothing loony.  (And given the “applesauce” and “jiggery-pokery” in his latest, one has to wonder who in the world he hangs out with.)
• Also ObamaCare is still legal and all, which seems good (I am such a Progressive these days!).
• The Republicans continue to be the Party of Crazy.  I still think we will probably get a Clinton vs. Bush in 2016, with a close Electoral College and a Democratic popular vote.  But Jeb has been pandering to the loonies more than I would have expected, and I’m not sure what that means.  (Trump!  Christie!  hahaha!)

Other things I would like to write about someday:

• All of these tabs that I have open on my phone and in Chrome (both to talk about them, and to write them down for myself so I can close some of them!),
• The Monty Hall Paradox thing, for which I have what I think is a very insightful observation that doesn’t seem to have been made much, that explains why it generates so much strong feeling and all.

But not tonight!  :)  In fact I think I will post this without even a thorough proofread; enjoy the typos!

Greece v Galloway: well that’s annoying!

You can tell I’ve been busy because I failed to notice this last month:

Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court. — Greece v Galloway

Basically the Supremes were given the chance to say that sectarian prayer (“we acknowledge the saving sacrifice of Jesus Christ on the cross”), or even prayer in general (“blah blah blah God blah blah”), is out of place in government contexts since some of the salient citizens could obviously feel excluded; and they did something close to the opposite, on the amusing and infuriating assumption that this stuff “unites” us in our “common effort”.

There is good coverage of this on Friendly Atheist and very good analysis on ScotusBlog.

Justice Kagan gets it just right in this bit of dissent:

Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans.

but also disappointingly does exactly the same thing herself in writing

None of this means that Greece’s town hall must be religion- or prayer-free. “[W]e are a religious people,” Marsh observed.

Not assuming that the word “we” refers to all Americans, eh, Justice Kagan? Hem hem!

The conservative Justices are saying, as conservative Justices tend to, “people like us have no problem with this, and people who aren’t like us don’t really matter much.”

And that’s always bad.

But it’s sad that, as ScotusBlog notes, even the dissenters seem to assume that government prayer is just fine, and the only thing that might make anyone feel unacceptably excluded is if it’s the wrong kind of prayer.

Phht.

What a lot of things

So a ridiculous number of things have been happening! And I have been too busy (digging big soothing pointless caverns in Minecraft, for instance) to research them and write down Wise Things. I will therefore just Briefly Note them.

There is no more right to remain silent unless you first say some legalistic magic words, thanks to the horrifying decision in Salinas v. Texas, which expands on the prior horrifying decision in Berghuis v. Thompkins. (Source)

The Voting Rights Act has been gutted of one of its more vital pieces (the piece that says that places with a history of vote suppression have to get changes to their voting systems pre-cleared by the DoJ) in Shelby County v. Holder, on the theory that even though that part of the Act has been used many times recently, and voter suppression has seen a big upswing in popularity recently, we don’t need it anymore. Or as this guy puts it:

…it is the opinion of the Court’s majority that the enforcement provisions of the Voting Rights Act worked so well that to continue enforcement under the existing scheme is unconstitutional.

In the ideal world this would not be a big deal, as Congress could just update the formula to determine which jurisdictions have to get the pre-clearance. But given that Congress is currently incapable of doing anything significant, that will probably not happen, and we will be left in this situation (same source):

While preserving the purpose and the intent of the momentous civil rights law—as set forth in Section 2 of the Voting Rights Act (“VRA”) which proclaims that no American can be denied the right to vote based on their race or gender­—the Court struck down the sole method of enforcing the intent of the law.

As well as finding that the federal government can’t meddle so directly with certain state and local voting systems in order to prevent discrimination, SCOTUS also found that the federal government can’t ignore certain state laws in order to further discrimination. Which is to say, DOMA is dead (finally!).

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

That’s Kennedy, for the majority, in United States v. Windsor.

I really need to read these decisions, see who was on which side, why DOMA went down to the 5th rather than the 14th, etc. Attentive readers will note that I myself would tend to support Federal power in the Voting Rights Act, while being against it in DOMA, because for me the important question is not “does this give more or less power to Federal or State governments?”, but rather “does this tend to protect the less powerful from the more powerful?”.

That is probably the thing that makes me a Lefty. :)

SCOTUS also brought back same-sex marriage in California, but on a relatively narrow technicality, so while that’s yay it’s not quite as interesting. At least that’s my impression so far (the actual technical finding is that just because you are the proposer of a ballot initiative, if that initiative is overturned by the courts and the government decides not to appeal, you don’t have standing to appeal it yourself just because of having proposed it in the first place).

NPR has annotated versions of both same-sex-marriage decisions, for your reading and analysis pleasure.

(And remind everyone to say “same-sex marriage”, not “gay marriage”! Bisexuals get to marry people of the same sex, too. Heck, even asexuals and straight people can if they want to! It’s all about Teh Freedoms!)

In non-SCOTUS news, Facebook had a bit of an embarrassment when first they accidentally leaked tons of data about millions of people, and then it turned out that lots of it was data that the people hadn’t even given them. Ooops! It was data harvested from the contact lists and address books and cellphones of “friends” (and “friends” of “friends”, and…) and squirreled away in FB’s vast subterranean vaults.

So basically, if you’ve ever given anyone any information about yourself, chances are that Facebook has it now.

Which you were probably already assuming, but this rather drives the point home. Along with the fact that whatever data they have, they may accidentally release to anyone you can think of in the future.

The xkcd comic “Time” is still going. There are various clever widgets around the Web to let you explore it, view it in time scales shorter than weeks, etc. I like this one.

Relatedly, here is a game in which you can take only one step per day. It is slow! I have moved a few steps to the right so far!

And also perhaps relatedly, I am rather plateaued on Lumosity (up in the “you are extremely awesome” range, natch, but still). I hope they add some more games or something soon.

Second Life, on the other hand, is still going strong, and I am still spending many hours a week there, building buildings, writing scripts, going to art shows, sailing sailboats, and so on. In fact it is having its Tenth Birthday right around now (see Community Celebration page), frequent rumors of its death to the contrary notwithstanding.

And that is all that springs immediately to mind! Now I will try to find time to read at least the most significant of the decisions above, and maybe come back eventually and write another post heaping scorn upon Scalia or something. :)

… to lay and collect Taxes …

It’s funny, normally I would have been quite skeptical about Obamacare, and would have required quite a bit of careful and rational persuasion to get me to like it. But in this case, the utter dishonesty, blatant hypocrisy, and general repulsiveness of the loudest voices raised against it have put me firmly in the Pro camp.

Now I just hope it turns out to be a good thing in fact, and not just, say, a massive transfer to wealth from taxpayers to big insurance companies.

I do like having the kids covered until they’re 26, I admit. We citizens are so easy to bribe… :)

(For light reading, the actual decision.)