Response to Jim

This post is a response to Jim’s comments to my previous post, which I have posted below:

Joe -

Is it possible that, once Obama and his cabinet got to their posts, they discovered that there either:

1. Was indeed material that needed to be hidden for the good of the country? Or, that...

2. The nature of what the Bush administration had done was not as bad as they thought from the outside?

Trying to be charitable to the big O.

Jim


Jim,

If 2 is true, there is no reason to continue to invoke "state secrets" or maintain the right to detain terrorist suspects indefinitely without due (or any) process. Obama repeatedly denounced these practices as a candidate. He called them tyrannical and un-American. And he was right to do so.

Obama's embrace of these practices now, at a minimum, needs a public explanation. If he was secretly planning to defend these practices all along while denouncing them as a candidate, then he is an untrustworthy liar. If he is worried about the political difficulties of our coming to terms with what the Bush administration did in our name, then he's not the leader I thought he was. And if Obama is worried that the CIA and/or other intelligence agancies will revolt and expose the nation to harm, then he is admitting that these agencies have become internal threats to our democracy and need to be dismantled.

With regards to point 1, the basic material facts are already public knowledge in most of these lawsuits.

In the telecom lawsuit, the only relevant facts are that the U.S. government intercepted the electronic communications of specific U.S. citizens without obtaining judicially issued warrants. The dispute in the case concerns "standing," or the plaintiffs' ability to prove that their personal communications were intercepted without warrants. This is usually impossible (because the government classifies information regarding whom it illegaly spies on without warrants). But in this case, the government accidentally sent a document to the Plaintiffs proving that they (and their attorneys) were the targets of warrant less wiretapping.

Thus, the only relevant facts needed to prove that the Bush administration committed felonies have already been judicially established. Yet the government argues that these facts are "state secrets" which preclude litigation. The Government even tried to retrieve the document that it sent to the Plaintiffs from the federal judge - the FBI actually came to the federal court and demanded the document! The judge refused and the FBI backed down.

In short, the Obama DOJ, following the Bush DOJ, is arguing that the warrantless wiretapping of particular individuals is a state secret, even though the fact of it is already a matter of the public and judicial record.

What's more, the Obama administration went way beyond the Bush administration's "state secrets" argument (which was itself an abuse of a historically narrow evidentiary privilege). The Obama DOJ argued that the government is completely immune from lawsuits over warrantless wiretapping, as the sovereign, provided that it does not disclose the information it obtained when it spied.

The Fourth Amendment and federal law? Poof! The Obama DOJ's position is that there is no judicial remedy to enforce the Fourth Amendment or federal anti-spying statutes against the government - even though the sole purpose of the Fourth Amendment and these statutes are to restrain the government!

These radical arguments have only one goal; preventing a judicial ruling on the illegality of what the Bush administration did. There is no other explanation. Obama is complicit in President Bush's criminality by covering it up.

The same reasoning applies to the torture lawsuit. Obama's DOJ continued the Bush administration's assertion of the “state secrets” privilege, even though all of the material facts of the case are public knowledge. The CIA used a particular air service provider - the defendant - to transport a suspected terrorist overseas, where he was tortured. None of these facts are disputed. They are part of the public record.

Yet the Obama administration continues to insist that these facts are “state secrets” that preclude litigation. Regarding this absurd legal position, Plaintiff’s counsel put it best when he noted, "it appears that the only place on earth where these facts cannot be discussed is inside this courtroom."

The “state secrets” privilege was, as Greenwald aptly noted, "the linchpin of the Bush administration's radicalism and criminality." It kept them out of court, where their actions and legal rationales would have received scrutiny. But in cases where the requisite facts are already public knowledge, the only explanation for its continued invocation by the Obama DOJ is to prevent a judicial ruling on the government's actions. It is to protect the Bush administration from legal accountability for its torture and warrant less wire tapping programs.

This is inexcusable. I didn't vote for Obama so that he could hide governmental criminality. And I won't (silently) stand for it.


Joe H.

Obama the Tryant?

BTW, I will be returning to the constitutional interpretation argument shortly. I was hoping to get back to the argument this weekend, but was distracted by the Master's golf tournament, and by President Obama's shocking adoption of Bush Administration positions on the State Secrets privilege, the denial of Habeus Corpus rights for U.S. detainees abducted around the world and flown to Afghanistan, and other matters (which I hope to write about soon - but which you can get a full update on at Glen Greenwald's blog at Salon.com). Go back through Glen's posts last week here and here and here and here.

Obama's justice department's positions are shocking - and Obama is clearly a liar. The positions Obama has taken are completely contrary to the positions he repeatedly and emphatically articulated during his campaign for the presidency. Greenwald documents this meticulously. Unbelievable!

I've completely lost my Obama love. And I'm somewhat in shock. Most of the poeple Obama nominated to the highest positions in the Justice Department, including the Office of Legal Counsel, were vehement critics of exactly these same policies - for years and years!

I'm completely at a loss. Either they are hiding massive criminality on the part of the Bush administration (which they mistakenly believe the country cannot bear to learn about) or they are simply liars that need to be removed from power.

Seriously - I am truly shocked.

I believed.

Joe H.

Love the Sinner . . .

The reason I go to such trouble to circulate these kinds of of articles is I think it is important to expose the "love the sinner . . . hate the sin" rhetoric for what it is - guilt assuaging nonsense.

Anti-gay rights activists - and Christian social conservatives in particular - need to come clean. They don't like gays - period!

Joe H.

Why Women Stay in Abusive Relationships

I stumbled upon this article while surfing the blogs this morning. After reading it, I have a much better understanding of why women stay in physically abusive relationships.

Highly recommended.

Joe

And there goes Vermont - and D.C. - UPDATED

Vermont comes out of the closet, along with Washington D.C.

By the way, for those of you who are interested in reading arguments, this link will take you to an interesting discussion of the issue. But be warned, the Christian anti-gay marriage proponent does not, in my opinion, fare well.

That's not his fault - the arguments are against him. I think that's something we all need to get used to.

Joe H.

UPDATE:

The most interesting thing about this new legal momentum is that Gay marriage now seems quaintly normal. Two thirds of Vermont's legislature voted to override their Governor's veto and extend marriage to Gay people. Two thirds of both houses of Vermont's legislature, which are presumably representative of Vermont's citizenry, have gotten past their culturally cultivated and deeply ingrained "ick" responses to do the right thing.

Remarkable!

Additionally, although I'm not the first person to say this, the heavy lifting needed to make gay marriage seem normal was performed by none other than the fiercest opponents of gay marriage. Over the last ten years, religious conservatives were the activists constantly riding their horses through the countryside shouting "Gay marriage is coming, Gay marriage is coming." The issue was their biggest fundraiser and electoral stimulant. They couldn't stop talking about it.

And look what their efforts have wrought. They warned us about Gay marriage so much that people got used to the idea. They made Gay marriage seem normal - it became something you heard about everyday. No amount of logical argument could ever have accomplished that feat.

What a delicious irony!

Anyway, Kudos's to religious conservatives everywhere for all your heavy lifting during the last decade. You made this possible. And don't be too upset with yourself. In twenty years or so you'll look back at your actions and think, "I acted out of ignorance and religious zeal, but God used it for good."

Joe H

Iowa Legalizes Same Sex Marriage.

I just finished reviewing the Iowa Supreme Court's decision legalizing same sex marriage. I highly encourage everyone to read it in its entirety. It is remarkably well written (very accessible to non lawyers), provides a very useful summary of the way American government is structured(at both the state and federal level), and provides an extremely lucid and systematic defense of its decision, based on the the "equal protection" clause of Iowa's constitution.

Of particular interest to us, based on what we're currently discussing, was the Court's citation to a famous U.S. Supreme Court decision in which the Court noted:

"Times can blind us to certain truths and later generations can
see that laws once thought necessary and proper serve only to
oppress" and that "as our constitution endures, persons in every generation can invoke its principles in their own search for greater freedom and equality." Lawrence v. Texas, 539 U.S. 538,578-579 (2003).

And its citation to a previous Iowa Supreme Court decision noting:

"Our constitution is not merely tied to tradition, but recognizes the changing nature of society." Callendar v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999).

The view expressed in these citations is the view held by those who claim that we have a "living constitution." It is best understood, in my opinion, as the view that the dennotation of the concept "equal protection" can change over time, based on the insights of subsequent generations, while the connotation of "equal protection" remains unchanged, and future generations can invoke it in their search for greater freedom and equality.

I'll get to all of this soon, but this Iowa case, in addition to striking a blow for justice, provides you with a taste of the next installment of my argument.

Joe H.

Let's do Some Philosophy Boys and Girls - Constitutional Interpretation 101

To increase readership, I thought I'd go back to my intellectual roots. Hang on boys and girls. Kant's right around the corner.

No, just kidding. its Rorty! Aaaaahhhh!

BTW, the "increased readership" comment is a joke - I'm not delusional. Many of my students refused to read philosophy when they were being graded on it.

At any rate . . .

Conservatives have long made fun of the idea that the United States has a "living constitution" in the sense that the document's "meaning" changes over time. This will be the first post of a two or three post series defending the claim that we have just such a living constitution. In this post I will describe the ways in which the meaning of concepts, terms, statements, and even imperatives, change over time. In an upcoming post, I'll argue that the claim that we have a living constitution fits perfectly with the way language changes over time. In the third post, I'll deal with loose ends and criticisms of my theory.

1. Concept Evolution: Connotation and Denotation

Logicians typically distinguish between the “connotation” and the “denotation” of a concept. By “connotation,” logicians mean the set of ideas that constitute the heart of a concept, or that capture its essence. By “denotation” logicians mean the set of things constituting all the qualifying instances of a concept. Consider the following examples. The connotation of the concept “even number” is “a whole number divisible into two equal whole numbers.” The denotation of “even number” is the set “2, 4, 6, 8 . . .” The connotation of “odd number” is “a whole number not divisible into two equal whole numbers.” The denotation of “odd number” is “1, 3, 5, 7 . . .”

Because mathematics is a precise and relatively fixed language, a language unaffected by developments in human knowledge, achievement and culture, its terms and concepts are entirely stable. Neither the connotation nor the denotation of “even number” or “square root” will ever change. But this is not the case with non-mathematical concepts. The vast majority of non-mathematical concepts evolve in response to changes in human understanding and circumstance. Changes occur in both the connotations and denotations of concepts expressed via spoken language, even when the words expressing the concepts remain unaltered.

There are, for example, a variety of “open” concepts whose boundaries are inherently fluid. With these concepts, we see regular change both in their connotations and denotations. Concepts like “happiness,” “success,” and “acting morally,” evolve both in terms of their core meanings and regarding the sorts of dispositions or actions that people count as qualifying instances. At one point, or for some people, “being moral” will connote “obeying God.” But at a later point, or for different people, “being moral” will connote “respecting other people’s rights.” And even within a unified and stable connotation of “being moral,” denotation changes will occur when we change our minds about what God commands, or what rights other people actually have.

However, most concepts are more closed than the inherently fluid examples I just mentioned. By “closed” I mean that they are more stable and precisely defined. Because of this, we mainly encounter change in the denotations of concepts. Technological, intellectual, and social progress frequently forces us to alter our understanding of a concept’s denotation without requiring any corresponding change in its connotation.

Consider, for example, the concept identified by the term “skyscraper.” The connotation of “skyscraper” is something like “an unusually tall building.” That connotation has changed little, if any, since the term was first coined. But advances in human engineering have changed the denotation of “skyscraper” dramatically. Whereas an eight-story building qualified as a “skyscraper” once upon a time, the vastly taller buildings of modern cities have driven small buildings entirely out of the concept’s denotation. By this I mean that most people no longer consider eight-story buildings skyscrapers. Nor do they think of eight-story buildings when they hear the term “skyscraper.”

There are numerous examples of such “denotation only” change as it occurs in concepts governing various areas of human life. Terms like “chic,” “reasonable,” “educated,” “masculine,” and “mid-life,” all identify concepts where changes in human circumstance alter a concept’s denotation, while leaving its connotation entirely in tack. Ordinarily, denotation change is a sub-conscious process that few notice as it occurs, and few object to after the fact. But even when denotation change is conscious and deliberate, we frequently welcome it because the updates allow us to more effectively realize our goals.

For example, when new information forces nutritionists to revise their recommendations for maintaining a “healthy diet,” we welcome the denotation adjustment. A “healthy diet” continues to connote “the regular intake of foods contributing to physical health and long life,” and this connotation stability keeps language usable for thought and communication. But the denotation shift provides us with a more accurate understanding of what a “healthy diet” involves, and this renders our application of the concept more effective. That is, it allows us to eat more healthily.

2. Connotation, Denotation, and Textual Interpretation.

The first thing to notice regarding concept evolution and textual interpretation is that connotation shifts are earth shaking in comparison to denotation shifts. It’s one thing to grasp that the concept “healthy diet” no longer denotes the consumption of a particular type or amount of food. It would be quite another thing to be told that “healthy diet” no longer referred to “the regular intake of foods contributing to physical health and long life,” but instead referred to an entirely new set of ideas. Denotation change usually affects only the outer boundaries of a concept. Connotation change, to the contrary, modifies a concept’s essence. This means that connotation change is a far more radical type of meaning change and, for this reason, usually provokes significant interpretive resistance.

The second thing to notice is that the question “What does that term, (or concept, or statement) mean?” requires additional clarification. This is because “mean” in the question “What does that term (or concept, or statement) mean?” can refer to a concept’s connotation only, its denotation only, or both.

Consider the biblical admonition to “love your neighbor as yourself.” A person asking “what does that passage mean?” may alternatively be expressing:

1. Uncertainty about the concept of “love,” in so far as love can be commanded (i.e., uncertainty regarding the connotation of love);

2. Uncertainty about what “love” requires in terms of their actual conduct towards others (i.e., uncertainty regarding the denotation of love);

3. Uncertainty about whether “neighbor” is to be understood relationally, or geographically, or more broadly so as to encompass community members in general (i.e., uncertainty regarding the connotation of "neighbor");

4. Uncertainty about whether a particular person counts as a “neighbor,” even when the criterion for “neighbor” is specified (i.e., uncertainty about the denotation of neighbor).

Such a person may also be confused about:

5. Any combination of these connotation and denotation issues.

Moreover, there are other possible uses of the term “mean” in “What does this term (or concept, or statement) mean?” For example, when a client posses this question regarding the terms of a contract they have entered, they are asking me about the effects of contract terms on their future business activities, e.g. "what does this mean in terms of what I have to do." “Payable on Demand” neither connotes nor denotes asset liquidation, but it may imply this in a particular circumstance. For this reason, this and other uses of the term “mean” must be included in any comprehensive account of textual interpretation. However, because the point of this series of posts is to argue for the legitimacy of a particular interpretive posture regarding constitutional language, I will leave these and other complexities out of the analysis.

Had enough for now! Okay. Tomorrow (or so) we'll apply this to our understanding of the constitution.

Joe H.