Normativity Erosion – #Make Norms Normative Again

That time a ‘Constitution in Exile‘ borderline anarchist libertarian and a Catholic integralist wandered into a Twitter thread to discuss political legitimacy, and it crossed neither of their minds it might be a normative notion (rather than a descriptive synonym for power, give or take.)

It’s not complicated: Repeatedly calling the Court illegitimate is an attempt to undermine the legitimacy of the Court. https://t.co/QNyK9cEzdm

— Randy Barnett (@RandyEBarnett) October 7, 2018

Scroll down the original thread for the Adrian Vermeule contribution.

The responses to this miss that in a constitutional democracy “legitimacy” isn’t an objective property like illness; it is, ultimately, a matter of public opinion, which is directly affected by people proclaiming illegitimacy. Tl;dr — you’re right.

— Adrian Vermeule (@Vermeullarmine) October 7, 2018

Sorry I know it’s weird quoting tweets that are, like, days old. But in the old days, things took longer. Like when there was blogging. Speaking of old days: if Barnett ever gets around to rewriting Restoring The Lost Constitution in light of his new-found, neo-Thrasymachian doctrine of ‘legitimacy’, it will, at least, save trees. (And, I assume, the old cover will be replaced with one of those Banksy-fied images that has been been making the rounds. It is, at any rate, new to propose that the Framers were pranksters who implanted a shredder in the frame, to go off in 2018. And we must play along because – originalism?)

It was not ever thus. A guy named Randy Barnett once wrote:

I will contend that, if a constitution contains adequate procedures to assure that laws imposed on nonconsenting persons are just (or not unjust), it can be legitimate even if not consented to unanimously, whereas a constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if consented to by a majority. Indeed, only by realizing that the “consent of the governed” is a fiction can one appreciate the imperative that lawmakers respect the requirements of justice (whatever one believes those to be).

But this is now!

In order for a constitutional order to be legit it is necessary for critics of it to shut up already. Barnett is casting about for mechanisms. He clutches Thrasymachian pearls at the sight of ‘visigoths’, demanding justice. (The notion!)

#Visigoths https://t.co/AOGuLNAXWV

— Randy Barnett (@RandyEBarnett) October 8, 2018

Well, it’s possible that equating desire for justice with barbarism will work, rhetorically.

Here’s another idea. All this noise is wrong because it would have been smarter to ‘woo’ Kavanaugh. But, alas, it’s too late.

An important piece by Harvard Law Professor Noah Feldman buried the lead: Democrats have made a huge miscalculation to drive Kavanaugh to the right rather than wooing him as they did Kennedy. He explains how it’s done better than I could. But no more. https://t.co/FNrWwdFwwD

— Randy Barnett (@RandyEBarnett) October 6, 2018

This wins my vote for most tone-deaf Barnett tweet.

Let’s review. A main concern about Kavanaugh, you may recall, is that he may have held a woman down and assaulted her and, when she cried out, covered her mouth. And then, years later, lied about it, denying he did it. Now, if the thought of such behavior offends against your sense of justice, then Barnett’s suggestion that the prudent (hence proper) thing to do to those who cry out about the one who cried out, and had her mouth covered, is to cover their mouths, so their cries do not further anger Kavenaugh now, causing him to do them harm by his judicial decisions …

Proposing to restage the alleged crime – to inscribe its form, forcefully, into the body of the justice system itself – is … not a great look.

But maybe BK didn’t do it!

That is true.

Let’s review the normative ‘illegitimacy’ charge sheet.

Those who are hopping mad about what happened are not always clear-headed about saying exactly what has got them so mad. This inconsistency can be exploited by those on the other side, making it sound like there really isn’t any coherent critique. But it’s just a case of at least three things seeming ‘illegitimate’, in somewhat different senses.

1) The Garland affair.
2) Brett Kavanaugh.
3) The Countermajoritarian Long Con.

Taking them in order:

1) The Garland affair.

Conservatives have got this thing going about how, actually, they were doing Garland a favor by not giving him a hearing. At least they didn’t drag his name through the mud, like poor Kavanaugh. But this misses the point. The Garland business crossed a line in the following sense: it revealed, in a way that hadn’t been so clear before, that the confirmation process is pure partisan politics. There was no ‘well, if the candidate is qualified …’ pretense. Everyone said Garland deserved it, on the merits. It was nice of them to admit that, in a way. (Nice for Garland.) But admitting that means admitting anything that follows from that.

For example, it concedes Republicans were doing Garland a favor insofar as, if they had been (somehow) forced to give him a hearing, they would have done everything in their power to drag his name through the mud. If you can’t stop the hearing, smear at the hearing. This is the presupposition that is supposed to make Republican look good for not holding a hearing. But, obviously, if the worst you can even imagine Dems did to BK is that they followed the rule Reps themselves follow …?

So the process is pure partisan politics – the Garland business sealed the deal on that. (It’s maybe nice to be able to say, sometimes, it’s not personal, it’s just pure partisan politics. But that’s still partisan politics.) And the nomination process. Obama tried to pick a moderate in Garland. But Republicans will pick the most radical partisan they think they can ram through. The next Dem won’t try to pick a moderate, to woo the other side. There would be no point. So it will go.

It doesn’t follow BK is illegitimate – or that the court is – from the fact that nominations are, post-Garland, completely openly politicized. But it does follow that ‘BK should be given the benefit of the doubt’ is not sensible. No one says ‘should be given the benefit of doubt’ is the standard for a candidate for the House or Senate.

There has been much job interview vs criminal trial back-and-forthing, but a better analogy would be: election. BK got elected by the Senate to the Supreme Court. Each party wants to elect a candidate likely to decide according to that party’s policy preferences (and reject any other candidate.) Now: this does not mean that elected judges will, if they win election, do as they were elected to do by their party. (Why Republicans have had worse luck with judges going rogue – that is, ‘going institutional’, so to speak – is a nice question.) But it does mean it would be odd to expect a SC election process to be less mud-slinging than, say, any other election process.

2) Brett Kavanaugh.

[I don’t know why I didn’t just say: read Henry.]

In his wisdom, Barnett links to this Federalist piece, which is about the thing I just said: the Garland business. Also this:

Kavanaugh, meanwhile, takes his seat amid swirling debates about the Supreme Court’s “legitimacy,” with substantial portions of the population thinking he’s a rapist, or at least that he would’ve been if he weren’t too drunk to pull it off. Justice Clarence Thomas went through something similar 27 years ago, but Kavanaugh’s experience in our new-media age must have been even more searing.

The idea that swirling debates about “legitimacy” caused substantial portions of the population to suspect bad things about BK is, among other strange things, backwards. (And same goes for the Thomas point.) The problem is that a letter came out – and testimony from Ford – making this charge quite plausible. Plausible things are plausible. What are you going to do: repeal epistemology? Political norm erosion may lead to some epistemic erosion, in a descriptive sense – more bias. But it for sure can’t erode it in a normative sense. It is reasonable to suspect that BK did what Ford alleges. There isn’t a force in the universe that can make it not reasonable to calibrate your credence that P to match your estimation of the likelihood of the truth that P. (Anyway, even descriptively, the Federalist cannot reasonably hope to make everyone unreasonable about evidence. Their readership is too small.)

But in what sense does being reasonably suspected of bad stuff undermine BK’s ‘legitimacy’, in either a descriptive or a normative sense?

The descriptive sense is easy: why are people pissed off? (I’ll let you fill that in, to suit your own taste in stating the fairly obvious.)

A harder question is: whether (many) people will be right to regard 5-4 decisions, with BK voting with the 5, as illegitimate – to what degree and in what sense?

Barnett – the old one – had what I think is a pretty good way of framing why we have to ask. Let me quote at some length.

Few stop to consider whether the Constitution is legitimate.

This is unfortunate because if the Constitution is not legitimate, then it is not clear why we should care what it means. And if it is legitimate, we may need to know why before we can settle on how to interpret what it says. The Constitution’s legitimacy cannot, then, simply be assumed. Unless we openly confront the question of its legitimacy, we will never know whether we should obey it, improve upon it, or ignore it altogether. (111)

A following bit is also good and seems relevant as well. Why would, say, a law professor NOT be willing to entertain a facially plausible challenge to constitutional legitimacy?

Perhaps because they seek the obedience of the faithful and, were their delegitimation entirely successful, why on earth would anyone adhere to the commands of a law professor or philosopher or political scientist? For that matter, why adhere to the commands of the man or woman in a black robe, apart from the fact that disobedience is likely to land you behind bars in an extremely treacherous environment? By subtly undercutting the legitimacy of the Constitution while at the same time preserving its much-revered form, a constitutional scholar (or judge) can become the man behind the curtain, which perhaps is every scholar’s fondest wish. Pay no attention to that bookish professor; the great and powerful Constitution has spoken!

This is a fraud on the public. (112)

For example, were it ever to happen that someone – we’ll call him Scott Shapiro – challenged the legitimacy of a judge in a robe, and someone else – we’ll call him Randy Barnett – pantomimed total inability even to hear that challenge in a normative register? What a shame and a fraud that would be. I’m sure all reasonable souls agree. (Now, in fairness to Barnett, the original passage contains a complication. Namely, he thinks the real fraud pinnacle is not plugging your ears to all challenges to legitimacy in a normative register, but doing so while insisting the interpretive norm be living constitutionism. We shall return to this point.)

As I was saying, we have to ask; and I think Barnett’s answer has a lot of plausibility as well. He talks about how legitimacy doesn’t imply (hence doesn’t require) consent. Now, that could sound kind of rape-y, so I could be snarky here. But I won’t because that would be entirely unfair (and, whatever else I may be, I wouldn’t want to be the slightest bit unfair to Barnett here.) Barnett’s simply correct, in my opinion. If everyone has to consent, positively and expressly, for the constitutional order to be legit, then – apart from fairly unusual sorts of cases – you can’t get there from here. If you think any constitutional arrangement can be legitimate, in principle, you’d better find some lower-bar way to clear it as such.

Barnett’s suggestion, as quoted above, is that a constitutional arrangement could be legitimate – that is, could generate a prima facie morally binding duty of obedience – if it is, plausibly, just. “Regardless of what conception of justice one holds, so long as one holds some conception of justice, constitutional legitimacy can be seen as a product of procedural assurances that legal commands are not unjust.”

Now, back to BK. The problem with his legitimacy, as a judge – hence the legitimacy of his judgments, of decisions that result from his vote – is that this condition is, plausibly, unmet. (I’m ok with this Barnettesque way of illegitimizing BK.) How so? There are a couple levels to it. I’ll get down to the deeper levels in the next section – the countermajoritarian long con. But first, the personality problems. If BK overturns Roe, pro-choice folks who don’t like that result may reasonably (important normative notion!) suspect the worst: this guy likes to control women’s bodies, against their will. That is, he just isn’t the type of guy who should be given the say-so about this sort of question. That’s harsh but, under the circumstances, kind of unavoidable. Maybe, in fact, he is innocent as charged. Maybe his legal motives and mental moves are on the up-and-up. But, honestly, given what we’ve seen of the guy, we can’t say we’ve seen that he’s a guy who can put his own emotions and partisan preferences aside and be a fair judge. (I mean: maybe what goes around comes around was a drinking game in high school. But it doesn’t sound like it.)

Maybe this is a casualty of the confirmation process being so partisan. It was an election (post-Garland). Everyone elected looks like a politician. Every politician looks like a partisan, not a fair judge. But, either way, it comes to the same: if the legitimacy of BK’s decisions require that they be seen as ‘a product of procedural assurances that legal commands are not unjust’, it’s hard to see how Grassley and Graham and co. ramming the candidacy through, in this manner, clears the bar. And then, ever after, it’s uncleared. (Polls, so far, make it look like people see it this way. Dems hate it, Reps love it, and independents don’t like more than they like. This is descriptive, not normative. But I’ll be it’s descriptive of people correctly perceiving the normative situation: BK didn’t get seated in a way that establishes him as a reliable source of justice.)

There is one element of the scene that is especially bad and – if BK is really innocent, by some chance – then it is the worst moral luck that this gets hung around his neck. Nevertheless, there it is. What is? They didn’t pull him and put in Barrett. Why not? Well, they wanted the base to be happy. In his testimony, after Ford gave her (credible) performance, BK played to the base. Why not? It’s an election (post-Garland). But, then again, why should someone regard a justice who wins election by playing to the conservative base as being the product of procedural assurances of justice? And there’s this. Trump obviously likes that BK was standing up to accusations of sexual assault. It’s not hard to see Trump’s personal motive in shifting the norms against #METOO. So, when reasonable people look at the court and wonder whether its decisions are legitimate, they naturally ask how the judges got there. And, concerning BK, the answer is: in substantial part because Donald Trump wanted to keep the world safe for sexual assault. That’s harsh but simply true. It may not be fair that BK gets wrapped up in that, if – let’s assume so – he’s totally innocent. Nevertheless, that’s the story of how he got there. It’s not a pretty picture. And by ‘not pretty’ I mean: no one thinks judges seated to keep the world safe for sexual assault have been rightly selected. That’s a problem.

But let’s leave BK behind. He’s just a guy, although one whose bad judicial philosophy is going to wreak havok for decades. This third item is the big ticket, in a normative, legitimation sense.

3) The Countermajoritarian Long Con.

Dems are talking court-packing and other extreme measures. They are protesting the undemocratic quality of the situation. Justices nominated for life by Presidents who didn’t win a majority, then confirmed by a Senate majority that didn’t win a majority. There is a non-trivial chance that the Republicans will retain the House, the Senate, the Presidency and the Supreme Court, without being able to claim legitimacy any any case, based on a Democratic majority. If the Dems manage to take the House, as they probably will – but probably not the Senate – then it’s a little less bad. But the strikingly un-democratic character of the conflict is the same either way. Barnett and other conservatives are telling jokes, as is their wont and their right. Here’s one that Barnett retweets:

But Trump did win the popular vote. In fact he won 30 out of 50 popular votes. It wasn’t even close.

— 5Rings RogerThat (@MVPTB12) October 8, 2018

One could point out that this isn’t what ‘popular vote’ means (as various people did.) But, honestly, you know where that kind of quibble gets you? You can’t refute a joke. And that’s fine. But the fact remains: when your best bet for answering critics is deflecting with jokes, maybe your position is a joke. Normatively. Not descriptively.

But what about the standard, civics class answer about why the thing is set up this way to keep those who have the advantage, in this system, from getting hypothetically steamrollered by big population California and New York, under some other scheme?

The problem is that, although that is a descriptively true account of why the system was adopted, it is not true that, simply because, in a flood, a firehose would be counter-indicated, therefore in a fire, you shouldn’t use a firehose to put out the fire with water.

But these are the rules!

That’s fair. But only up to a point.

Here, let me help: in politics, messed up stuff happens. Parties and candidates have advantages, and those advantages are clung to, until they slip away and things change. 10 years ago it was Dems riding a wave of demographic destiny. Now Republicans are in the cat-bird’s seat and so it goes. You win, you lose. Losers whine about it until, someday, they win again. There’s wisdom in that, even a kind of normative legitimacy, plausibly. (Justice is balance, and teetering back and forth is a poor man’s balance. But sometimes if it weren’t for poor justice, there would be none at all.)

The problem here is really what the Republicans are aiming at – what their strategy is, their best-case where-do-we-go-from-here. There is often a kind of symmetry between Democratic and Republican efforts. Which is, all the same, morally asymmetrical. Republicans try to suppress votes. Democrats try to register lots of folks to vote. Both sides are trying to win. Nevertheless, winning by forcibly depriving people of their rights is worse than winning by nudging people to exercise their rights. (Unless you want to argue otherwise.) Trying to build a new, emergent majority is morally less problematic than trying to be a permanent, governing minority that can ignore what most of the country wants.

Don’t think I couldn’t go on and on about the thorough-going badness of what Republicans are hoping to bring about, to let them cling to power! But the bottom line is: they will succeed or fail, their power holds or doesn’t. But, either way, it won’t be plausibly legitimate, in a normative sense, if justice is needed for that. If anyone wants to argue otherwise, you are welcome to try. I can’t think that you will do much better than Hugh Hewitt – “Trump May Be Outside Our Norms, But He’s Succeeding For Us All” – and that seems ‘pay no attention to the man behind the curtain’ bad enough, on its bare face. (Again, argue otherwise if you think you can.)

But suppose Barnett wants to cling just to this bit – very first lines from Hewitt’s op-ed:

As President Trump’s first two years in office come to a close, we’ve seen two originalist justices confirmed to the Supreme Court, 26 originalist appeals court judges confirmed, 10 more nominated , and 41 new district court judges on the bench and dozens more pending.

Ah, the dream! After that exile. I’m not going to ask Barnett to disdain what must look to be, from his perspective, an oasis in the desert of long lost constitutionalism. No one who feels parched can be faulted for lapping at dirty stuff. (I’m not an unreasonable person, I hope.) Yes, I get it that all sane people know that conservatives have dominated the judiciary, especially the Supreme Court, for decades. (All that howling about liberal judicial activists is shameless ref-working. I totally agree.) Nevertheless, Barnett is a total flaming radical, and radicals live in exile and have to feel good when it looks like, crazy enough, some part of their radical dream is actually coming true, coming home.

But what about legitimacy?

I’ve been amused by Tom Nichols twitter, of late. His Atlantic article on why Kavanaugh finally broke him and he’s left the Republican Party pissed off some conservatives, naturally. Now, there’s a big contrast between Nichols’ reasons for regarding both Republican means and goals as illegitimate – meaning: very incompetent and destructive and bad – and broadly leftish reasons for thinking the same. (I don’t mean to imply a false unity to the anti-Trump perspectives.) But Nichols’ way of skewering some of his critics seemed to me quite on-point.

First, the maybe-Trump ‘calling balls and strikes’ metaphor is nonsense. I’ll let him say it:

It's like saying: "My building is safe because the Mafia owns it, so the Mafia is okay sometimes. I don't approve of the Mafia, I just call balls and strikes on what they do, and I'm not going to ask for my building to be *less* secure*, am I?"
Misses the point: the Mafia. /2

— Tom Nichols (@RadioFreeTom) October 10, 2018

And then there’s the upside argument.

Exactly. But no one takes the position of “maybe hurricanes” based on that. Good analogy. https://t.co/MmlYm706fL

— Tom Nichols (@RadioFreeTom) October 10, 2018

Getting back to the judges. If you like ’em, I guess you take them. But, against the backdrop of Trump, it’s hard to see why you would call them ‘legitimate’. It’s a category error. ‘Never let a good catastrophe go to waste’ may be Machiavellian wisdom, but it isn’t a recipe for legitimacy, in a normative sense – just for some accidents you may like. Originalists ought to feel very queasy, to say the least, about getting the results they like in this way. If we recover from Trump, originalism will be tainted by association with him, even though – in theory – the two are distinct. Originalism doesn’t just want to be. It wants to be, legitimately. I take it. That’s a big part of it.

But let’s get back to ‘balls and strikes’. The fallacy here is – I dunno what it is. But I think I’ve got a term for those who commit it. Those conservatives who don’t just view Trump from the sidelines as spectators, vaguely hoping for something they like from the wreckage, but who support Trump, while yet saying they view him like an umpire – balls and strikes – are actually ‘con Hindenburgs‘. (I just named them.) Von Hindenburg actually wasn’t such a horrible guy, you see, although remembered badly because the Hitler thing really didn’t pan out. Von Hindenburg teamed up with Hitler, not to destroy the Republic – but not to call balls and strikes on Nazis either.

Conservatives who support Trump, while viewing him more or less as Tom Nichols does, are not judiciously buying a few good bits. By supporting him, in the hopes of good bits, they are buying the package, hoping for a few good bits, but knowing it could blow up.

Now, legitimacy: no con Hindenburg-types are seriously in a position to complain that the other side is illegitimate, if somebody sits on a statue. Or says a mean thing.

The dilemma for originalists (acute, in the age of Trump) can be stated like this …maybe. Suppose the only way to restore the lost Constitution, just possibly, is to ‘heighten the contradictions’, as they say, by riding the Trump tiger and hoping not to end up on the inside (with some others.)

[Dilemma for textualist originalists, if you prefer. Or ‘lost constitutionalists’, perhaps.]

Originalism is, in a doctrinal sense, not an end but a means to an end: namely, legitimate results. There’s something kind of weird about radical devotion, not to an allegedly legitimate end, but to legitimate means to an end. At all costs?

Are you or are you not permitted to use any means necessary – legitimate or illegitimate: fair or foul – in pursuit of your ideal of pursuing ideally legitimate means to your end? Can the means justify … the means? That would be the pinnacle of living constitutionalism. Sacrificed and raised from the dead, as it were.

Well, anyway, I thought it was funny that Barnett and Vermeule pretended not to be aware that ‘legitimate’ can have a normative sense.

Only time will tell, I guess, whether stumping for Trump, in this way, means going to Syracuse – or only, as it were, transferring to the Syracuse branch of Dunder-Mifflin. Let’s hope the latter, for the sake of the republic.

Was this post too short? Probably not.