Stathol wrote:
Sigh. This just isn't working. I don't know what the deal is, but I suspect that it mostly boils down to this:
Diamondeye wrote:
Whether any of them is rationally correct I don't really see as a relevant question.
We are simply creatures from a different planet. In my world, the idea that good government must be rational is a fundamental "a priori" kind of thing. In yours, apparently it doesn't matter. That difference is so significant and so ...
core that the results are too alien for me to understand. I don't know how to bridge that kind of gap.
You know, it's amazing that you can make this statement after complaining about me supposedly not reading what you have to say. I mean, truly amazing. I would have expected this from quite a few people here, but not you.
I already explained that while I understand that something utterly irrational is
theoretically possible under what I've described, as a practical matter it won't happen because judges are not irrational people. They do not get appointed or confirmed (or elected in the case of non-federal judges) by having a life history that includes wildly irrational thought, and if they were judges or lawyers, by a case history that includes that either.
Contrary to what's often bandied about here without any real evidence, I do believe that the vast majority of politicians and judges do, in fact, want what's best for the country or at least for their particular subsection of it. Not all. Some become self-serving by misunderstanding what the limits are in their pursuit of what they consider good, or because they've become too used to the political atmosphere, but even those types at their core think they are doing right. Some are totally self-serving, but they are the minority.
So therefore, I really do not consider the rationality of a decision to be of any real import because I don't see any real likelyhood of truely irrational decisions. Suboptimal decisions, sure, but what is optimal is often a matter of dispute anyhow, and I have no regard whatsoever for the idea that the only rational decisions conform to one particular philosophy.
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Simply put, I don't get it -- especially as it pertains to the Constitution. Our form of government is one ostensibly shaped and limited by the text of a single document. If linguistic, textual analysis has no objective or rational basis, then the consequences for our form of government are total nihilism. Since the purpose of the Constitution is to bind multiple individuals together into an agreement, then there really is no difference between "the Constitution's meaning is subjective" and "the Constitution is meaningless". If each member of society can interpret the binding document however they please (whether rational or not), then it has no value as a binding document between them.
None of this is really true. The Constitution has been functionally subjective for 230 years and yet nihilism is not the result. "Subjective" moreover is not a synonym for "meaningless". Whether music is good, for example, is subjective, but I cannot take the sound of the white noise form an unused TV channel and call it "good music" with any real credibility. It makes no sense at all to say that textual analysis must be valid or the consequences are nihilism; this simply imposes a level of precision on the meaning that was never present in the documents construction, and appeals to consequences to justify it.
In any case, as I pointed out before, it's really amazing that people are now complaining about the consequences of lack of objectivity in the Constitution when any claim of objectivity by Monte met with lengthy lectures on why objectivity isn't something humans can access.
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Now I suspect that your answer to this dilemma may be "ah, but the Constitution appoints a system of courts to be the authoritative arbiter of what the Constitution means". But this is where subjective nihilism kicks in. If it is true that textual analysis of the Constitution is a purely subjective endeavor, then the idea that the Constitution creates such an authority is, itself, just a subjective opinion about what the Constitution means. So from whence do the courts derive their authority? From the Constitution? By whose interpretation do they have the power to interpret the Constitution? Yours? The interpretation of the courts themselves? Surely you can see the paradox here.
Not really. Again, ultimately there must be some authority that determines what the Constitution means. Textual analysis simple moves this from the court to acadamia, and I frankly see no advantage whatsoever in that, and several disadvantages.
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Beyond that paradox, there are a couple very simple and pragmatic argument against that idea. First of all, the Constitution is the defining document for our form of government, and the judiciary is merely but one part of that government. In fact, the word "constitution" literally means just that: the document constitutes a government. Simply put, the Constitution created the courts (and everything else in our federal government). Therefore it existed before the courts or any of their judicial precedence. And, therefore, it must have had meaning before the process of judicial review.
This is a rather silly argument given its well-known ratification process. The document specifically said that it entered into force when nine states had ratified it, meaning that its provisions creating a judiciary took force at that time as well. The document existed before then but it had no force and so that fact is irrelevant.
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Secondly, from a purely historical point of view, it is quite clear that the people responsible for the creation of the Constitution set forth to establish a limited form of government. Indeed, what else is the Constitution but a enumeration of the powers of the federal government, and a system of checks and balances aimed at keeping it from overstepping the bounds of its authority. It would be entirely self defeating, then, both in terms of the overall objective of the Constitution as well as the specific methodology of divided government, for them to vest one branch -- and worse, even one specific court -- with the absolute power to change the meaning of the core governing document in any way that suits their fancy. If that was truly the form of government intended by its authors, then the Constitution was an enormous waste of their time. They could, instead, have simply appointed a panel of ministers to rule over the people without all of the unnecessary pretense of limited power, checks and balances, and government by consent of the people.
They could have but they did not. The Courts can only rule on cases that come before them, not on any matter they simply take a fancy to. If they were to begin to act in a truely egregarious manner, ultimately their legal power grants them no physical protection. The other branches or the people could simply remove them, and appoint new people who would have an object lesson about making irrational or abusive decisions.
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