Guns, guns, guns!

Though some argue that the Second Amendment, properly parsed, only confers the collective right to join a state militia, the legal issue presented in Chicago was not, strictly speaking, whether the Second Amendment confers an individual right to bear arms without state or local interference. Rather, precisely the same issue arises when we ask if the First Amendment, which reads “Congress shall make no law…” is violated by the actions of a local school district in requiring school prayer. The question is whether the Fourteenth Amendment implicitly contains such a right, by way of the Privileges or Immunities Clause (as Thomas believes) or the Due Process Clause (as the others in the majority believe).

Since the Fourteenth Amendment was ratified, there has been a debate as to whether it was intended to “incorporate” the protections of the Bill of Rights and apply them against the states. Most but not all such rights have now been held by the Supreme Court to be so incorporated. There is a historical argument for which there is some evidence that the Fourteenth Amendment was intended to confer an individual gun right (as the right to join a state militia in a former Confederate state would be fairly unhelpful to African-Americans under threat from their white neighbors). So while the question of whether the Second Amendment was intended to confer an individual or collective right as against the federal government is relevant to the question of what the Fourteenth Amendment intends, it is not dispositive, as the intent of the drafters and ratifiers of the Fourteenth Amendment are ultimately what is at issue. Yale law professor Akhil Amar has argued in his book The Bill of Rights that the incorporation of the Second Amendment into the Fourteenth had the effect of “individualizing” it. The better argument, though still not perfect, is that there is no more a mention of guns than there is of abortion in the Fourteenth Amendment (I say not perfect because there actually is mention of guns in contemporaneous ratification discussions of the Fourteenth Amendment).

What is a Philosopher? Comment on Critchley (from May 17, 2010)

I am a professor of philosophy. From time to time I have told my students that philosophy is what happens when a person stumbles on an interesting insight, exaggerates it until it is no longer true, and then defends the exaggeration to the death with sophistical arguments. If a professional philosopher is honest with himself about what he sees in his professional community and the tradition he champions, he must have serious doubts about whether philosophy is needed at all, if people aren’t doing just fine without him. This would be true if people had no propensity toward conceptual confusion, no need for a larger picture providing a sense of orientation in the world beyond what can be provided by an aggregate of unconnected facts, and were perfectly capable of managing their personal and collective political lives without advice. But to state these conditions is to reveal exactly why philosophy is needed, however unhelpfully it may be practiced today in the academy. Every day I read at least five op-eds on matters of some public urgency that are shot through with fatal confusion. Every day I see the extent to which people hand over their need for a world-picture to religious and political ideologies hawked by people utterly unconcerned with their plausibility or reasonableness. Every day I hear about someone in therapy, not for some “disease” but for a failure to manage their personal life sensibly. By all means let us mock the professors for their failings. But (as Plato himself said) their failings are not failings of philosophy properly conceived, but the failure to do philosophy properly. And as soon as everyone else shows signs of reasonableness in their personal, political and religious lives, philosophy will no longer be needed. I’m not worried that the need for philosophy will dry up; I worry that my colleagues don’t do enough to meet that need.

Gay Marriage Primer

In my teaching, when we talk about Roe v. Wade, I always emphasize that three questions should be kept separate: whether is abortion immoral, whether should abortion be illegal, and whether statutes restricting abortion are unconstitutional. (It would be more accurate to say “should statutes restricting abortion be held unconstitutional” to distinguish this from “have statutes restricting abortion been held unconstitutional”). My topic today, in wake of Perry v. Schwartzenegger, is whether statutes which do not permit same-sex marriage should be held unconstitutional. And my reason for discussing it is that legal affairs journalism from the MSM is often so weak, and the topic so politicized, that I’d be surprised if other discussions cleanly separate out constitutionality from desirability.

The constitutional question involves the Fourteenth Amendment, which was ratified after the Civil War in response to attempts by former Confederate states to recreate slavery in all but name through statutes regulating freedmen (as they were called). In section one, we find two clauses relevant to our question, the Due Process Clause and the Equal Protection Clause. Both are contained in the following sentence:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

During a period leading up to the Great Depression, there were Supreme Court cases, the most notable of which was Lochner v. New York, in which the Court articulated a doctrine known as “Substantive Due Process.” Ordinarily one would think that due process involves whether the proper procedures are followed. But suppose that there are deprivations of life, liberty or property which are in their very nature so repellent, so wrong, that the proper procedure for doing them is not to do them at all? With this thought, the Supreme Court invalidated various labor laws as interfering with “freedom of contract,” as intolerable deprivations of liberty for which no process could be adequate. At the same time it also invalidated various laws interfering with parenting and the education of children as similarly intolerable deprivations of liberty. In today’s lingo, the Supreme Court was a libertarian for awhile.

The Great Depression changed all that, and the Court backpedalled on striking down economic regulations on substantive due process grounds. Though this was clearly done out of deference to progressive legislation, today’s rhetoric against judicial activism most frequently heard among conservatives had its origins here. The Court’s views on interfering with parenting, however, remained unchanged, leaving the road to Roe open and clear.

The way the Great Depression changed the Court’s thinking can be seen in the famous fourth footnote to the case United States v. Carolene Products (which was not, however, a Fourteenth Amendment case). There the Court announced that it would presume a statute was constitutional unless one or more of three factors were present: the statute seems to fall afoul of a specific constitutional prohibition, for example, in the Bill of Rights; the statute restricts voting; or affects a “discrete and insular minority.” The first of these is self-explanatory; the other two indicate that the Court will rely on democratic processes except in those situations where they operate to thwart themselves or to oppress a minority. This case brings to our attention the notion of “levels of scrutiny” and makes a first pass at indicating what conditions will heighten it.

Bringing us to the present, the doctrine appears to be that there are three levels of scrutiny possible, triggered by what the statute being challenged does. In essence, a level of scrutiny determines what the government must prove in order for the statute to pass muster, to be held constitutional. No level of scrutiny guarantees that the Court will hold the statute constitutional or unconstitutional, but they do affect the odds mightily.

If no special factors like those mentioned in Carolene Products are present, the Court uses the lowest level of scrutiny, the presumption of constitutionality, which is called “rational basis review.” Here the government need only show that the statute serves a legitimate state interest (does something governments do) and that the statute is a means to that end. However, the Court does not want to second-guess the legislature’s wisdom by inquiring too closely into whether it is a good means to that end, because this strays into judicial activism. It is enough if someone might think it a good means to an end. This will become important later when we return to Perry, because it explains why the state of California argued that it doesn’t have to prove that not permitting same-sex marriages furthers its legitimate interest in making sure there are children, and that the children are are raised happily.

To be continued…

Happy Bloomsday, Apple

My first thought is that this is not so much about censorship as it is about the transition from a dying culture to a new one. Then again, maybe it is about censorship. After all, the people who tried to censor the novel decades ago probably had the same thoughtless, well-intentioned motivations.

“I don’t think the Apple representative that I first spoke with even knew what Ulysses was.”

Would it be too ironic to complain that this is a sign of the decline of our great tradition when the instance of it is the most famous modernist celebration of the everyday in English literature? How fares the modernist agenda? If people who work for a company like Apple have never heard of Ulysses, what does that say about education, and about what we are becoming?

Ulysses as an online graphic novel? Can there be a representation of inner stream of consciousness as a graphic novel? As an iPad app? How are graphic novels and e-reading changing reading? McLuhan only knew television and its  displacement of the written, but what would he have said about the strange new media we have now? And what happens to consciousness when art about consciousness is taken up into, processed and disseminated by the Gestell? In fact, does the kind of subjectivity Joyce sought to celebrate even exist anymore?

Foucaultian questions. “The irony of this deployment is in having us believe that our ‘liberation’ is in the balance.” If about a billion uploads and downloads of pornographic video hasn’t liberated us, I don’t know what will.

Lastly, and I don’t know at all where this goes, I was just yesterday reading the beginning of Ayn Rand’s The Fountainhead, which is also attempting to navigate the tension between the bourgeois novel, sexuality and the advent of modernism. The Fountainhead and Ulysses occupy a common space, which they proceed to explore in as different a manner as can be conceived. And yet given its cinematic dialogue, and its highly visual and objectifying style, the thought of an iPad app graphic novel of The Fountainhead seems like the most natural thing in the world. And to bring our ironies full circle, The Fountainhead’s relentless hostility to the everyday has been embraced by everyday people to an extraordinary degree, while Ulysses’ celebration of the everyday requires a Ph.D. in English literature to fully appreciate.

In any event, wake up and smell the kidneys. Transfigure your everyday. I will. Yes.

Miscellany (from Mar. 31, 2006)

Re-reading my journals of the past five years, I thought I would condense them, selecting out those remarks that might be useful for me to return to. Then I thought, perhaps some of these things would be of interest to others. I begin from 3/31/06.

Two quotes:

“I am not suggesting that we ought to re-read ‘Nietzsche’ and his great politics on the basis of what we know or think we know Nazism to be. I do not believe that we as yet know how to think what Nazism is. The task remains before us, and the political reading of the Nietzschean body or corpus is a part of it.” –Derrida

“Some illiterate Nazis who want to be considered part of the Hitler intelligensia because they once smashed the head of a political opponent with a telephone book claim Nietzsche for their own. Who cannot claim him for their own? Tell me what you need and I will supply you with a Nietzsche citation… for Germany and against Germany, for peace and against peace, for literature and against literature–whatever you want.”–Tucholsky

[What does Nietzsche scholarship look like after proper contemplation of these two quotes?]

We assume that if Nietzsche believed that the will to power is in some sense real (as soon as I know what that means I will know what to think when I hear people deny it) that he had to have a teleological virtue ethic. The unconscious association with antiquity also encourages this thought. But Nietzsche thought the self was a battlefield. How does a battlefield self-actualize? If there are no Forms or Essences to move toward? All we can say is: this arbitrarily circumscribed and identified system on the field is more powerful in some sense. Trying to assimilate this to Aristotle is a mistake.

Morality is like law. The legal structure of contracts is like the moral structure of promise-making. Why we have the structure is rooted in agent-relative value, but a principle of maximizing value cannot be identified with or replace moral practices. Even if it is no longer best for me to repay a debt, I still owe one. The practices that determine who owes what are not facts, and they are not agent relative: they are a body of rules. What I owe under the rules is a fact, a fact about my relationship to the practice.

Virtue ethics cannot yield duties.

My idea is to unwind Platonic moral mistakes using Wittgensteinian instead of Nietzschean or Heideggerian tools. But Nietzsche and Heidegger are still right that if you swing the axe precisely here, a very tall tree falls.

The best way to think about the relationship between Sellars and Millikan is that Millikan wants to overcome the manifest image/scientific image distinction. The manifest image is essentially hermeneutical, whereas the scientific image is essentially physicalist. But biology is invisible here. If it is restored to its proper place, this distinction breaks down. Animal behavior is neither devoid of meaning nor rich with meaning.

Review of Jacques Bouveresse’s Wittgenstein Reads Freud: The Myth of the Unconscious (from Jan. 2009)

First, this reminded me of how slippery and difficult Freud, as opposed to “Freud,” really is, and that it is in the clinical, early Freud where the most interesting problems still remain. Second, I think that I am persuaded by the author that Wittgenstein gets Freud right, that his judgment is essentially correct. (My only caveat here is that Wittgenstein’s model of what proper science should be is clearly inspired by the physical sciences, and so it is easier for him to score against Freud; a proper appreciation for the methodological differences biology involves, and Freud’s tacit commitment to being, as Sulloway calls him, a “biologist of the mind” would make some of the charges not stick, or not stick so readily, especially the charge of hasty overgeneralizing). To put it in contemporary terms, Freud was not a scientist exactly, but a subtle reformer of folk psychology. But if we understand folk psychology as Wittgenstein does, not as a theory but as practice, as how we live and talk together, we can see him as inventing a new language game (for example, consider the circumstances in which one says “I was trying to ___,” before and after Freud). My one complaint about the book is that while it is in no way opaque, and it seems to have discussed all the relevant issues pertaining to its topic, the discussions are not tidily organized; I feel I should’ve been taking notes and constructing an outline. Otherwise you find it difficult to say what exactly you’ve learned in the end. Last, one of the little pleasures of the book is the occasional glimpse one gets of how the French so don’t get Wittgenstein, but feel obliged to regard him as an authority anyway, presumably because he is famous and writes beautifully. The author alludes to French commentators who, apparently, have been trying to figure out how to synthesize Wittgenstein and Lacan, presumably because they must both be right (they’re fashionable, that settles it, right?) and because they both talk about language a lot. There’s something wryly amusing about that, but to say more would be rude.

Review of Joan Didion’s The Year of Magical Thinking (from Nov. 11, 2008)

No, this is not a perfect book, though I don’t know what it would mean to write a perfect book of this sort. I think that the most important thing to realize is that there are several possible audiences here. For those who have not experienced the sudden death of a close family member, the purposes of reading such a book could range from intellectual curiosity to emotional voyeurism (one senses that those who complained that the book was not cathartic do not understand that there is no resolution, there is no catharsis to be had, and thus they are looking for a certain kind of emotional stimulation and satisfaction, as opposed to truth, which I’m sorry to say is neither meaningful nor satisfying–they should probably rent Titanic instead). For those who have a certain intellectual curiosity about what the experience of grieving the sudden death of a loved one is like, this is a useful, and I suspect, surprising book. It is emphatically not (as one grossly insensitive reviewer called it) an account of a mental illness or a demonstration of how unfortunate it was that Ms. Didion did not receive professional grief counseling as an adjunct to the other death anaesthetization services our death-denying culture urges on us in order to help support and reassure our fellows that they and those they need are the immortals their unconscious narcissism assures them they are. This is simply how it is guys, period. And fortunately, the book is brief (though in parts repetitive even so) so the genuinely curious can get information here they would not easily get elsewhere without too much investment. The third possible audience is the recently bereaved. Here it is somewhat more difficult to assess the usefulness of the book. There are moments in it that seem to absolutely nail experiences that I’ve seen described nowhere else (all the other texts I’ve seen focus to a remarkable extent on sadness, as if this were the dominant aspect or the worst of it, perhaps because sadness is one of the few emotions which the otherwise incommunicable experience of survival shares with “ordinary” experience). Yet I suspect that survivors will find this book somewhat less useful than they might think it would be, for the simple reason that we know these things already, and there is very little cash value in seeing that one’s reactions are normal. Still… there is great value in the occasional page that captures in words what you have felt that might otherwise seem beyond description. There is perhaps a vanishingly small audience that I should also mention, last but not least, though this is more aspirational than descriptive (there should be such an audience, but probably isn’t). Montaigne said somewhere that philosophy is a preparation for death. The experiences Didion reports are quite awful and yet utterly normal, and whoever you are reading this, the odds are overwhelmingly good that you will experience them eventually. You might want to bone up beforehand.