Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Saturday, July 12, 2014

Tragedy and Irony: Constitutional System, Political Suasion, and History (ADDENDUM Appended)

Here's another one for the Berg-DeGirolami exchange on the subject. For previous entries, see this, this, this, and this from my buddy Tom, and this and this from me. This post focuses on matters of constitutional system, political suasion, and my own appeal to history. 

But before getting to that, I want to address the much less central attitudinal or dispositional point about clever detachment. Tom's interlocutor interprets the passage I quoted from Shaffer in a very creative and appealing way, and Tom also notes that the ironic disposition can be turned inward as well. I don't wish to contest any of these points. I am not a Niebuhr scholar, and these are elegant defenses against my criticism. I guess the reason for my criticism is that I thought it was an important part of the ironic approach to point out to others that that their viewpoints and outlooks are partial and often incapable of seeing what's really true, that they have missed some self-deflating hypocrisy in their own position, and that if they only saw the missing piece, they'd be much more reasonable and would probably alter their views on some deeply held matter. If I have stated this view correctly (Tom, please tell me if not), whatever its merits, this is different than a tragic approach, which begins with the presumption that differences of opinion on deep questions among contestants really are what the contestants say they are, and then goes about explaining why they are so intractable. But I am happy to accept the rejoinder that tragedians can exhibit their own sins. Almost certainly one of these is a too-quick-and-easy pessimistic retreat. 

Onto more substantive matters.

1. Constitutional System: the Abstract and the Particular.

You say that you doubt that a tragic approach reflects "our constitutional system." The reason is that there is a shared, core consensus about certain basics of constitutional rights. Of my skepticism about deep, shared attachments, you write: "The same things could be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other side's ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise?" 

It is instructive (and sad, at least to me) that you must move so quickly away from religious freedom and to the freedom of speech. That move suggests that perhaps the ambit of tragedy is expanding, as the common core that you reference inexorably diminishes seemingly by the year. And for the first time at least since I have been writing (not a long time, I admit!), I am seeing serious arguments made by serious scholars who are contesting the core values of the freedom of speech as well. In a very few years, I would not be surprised in the least to see that these arguments (like those about religious freedom) have become more mainstream as well.

But I think I can agree with the basic point you are making, even as to religious freedom, if phrased in something like this way (I make the fuller argument in Chapter 4 of my book): It is quite possible to decide whether a certain set of values corresponding to a constitutional right (like the freedom of speech) is good in the abstract, without being able to decide in advance whether it is powerful enough in a specific situation to defeat another conflicting value. But it is only in the value's embodiment in a particular, real-world struggle that we can make judgments about how strong it really is. Take values like equality, law-abidingness, autonomy, the authority of conscience, liberty, and tolerance.

Everybody might agree that these values are good in the abstract. Almost everybody might further agree that each of these values should have some salience and force in particular cases of legal conflict, as and when they apply. And yet it is only when the values are cashed out in particular cases of conflict that we can truly see how powerful they are. Because these values often clash, and because we nevertheless value each of them in the abstract, this is an important reason *not* to make judgments about their relative power in advance of consideration of particular conflicts.

This is the model of the Bill of Rights in the US Constitution, as I see it. It sets out certain semi-permanent ideals in abstract form (semi-permanent because subject, of course, to Amendment). But it does not declare in advance of a particular case of conflict which of these abstractions wins. The reason to refrain from making absolute and abstracted judgments about which value should take precedence over others is that different people will reasonably judge differently in particular occasions of conflict. "Reason" will admit a plurality of responses in many such cases. The tragedian does not want to cut off the possibility that a value that has salience in one context will have less (or none) in another.

But all of that means that for the tragedian, the true arena of contestation about principles happens in the realm of the particular, where combatants dispute that a particular principle applies at all, or if they agree that it might, they nevertheless assign very different weight to the values (in fact, the metaphors of "weight" or "balancing" import erroneous assumptions about the commensurability of the values at issue, something I struggle with getting over in the book). So when you write about constitutional "commonalities," I can certainly agree: there are such commonalities, and they are especially evident in the abstractions of principle enshrined in the Constitution or derived therefrom. It's just that the power of those abstractions can only be truly measured by examining their fate in particular cases of conflict. And there, once so considered, the abstractions interact with and often run up against the sort of deeper commitments that pervade the contestants' views of the human good and the moral life. The abstractions are always interpreted and applied against that backdrop, and it is there that their strength is truly manifested and tested. In the end, I think that the tragedian's approach is entirely consistent with our constitutional system and structure.

2. Political Suasion and the “Open-Minded Middle”

Tom argues that moral appeals—appeals to principle and to humility—can have the effect of changing people’s minds about the human good and the moral life. He points to the example of Dr. Martin Luther King, Jr. I have no quarrel at all with the view that such appeals can sometimes be effective in changing people’s minds about important moral issues.

Two points here, however. First, I wonder whether in the main this is the proper function of constitutional law, or whether a more modest moral function is in order. Tom jumps immediately to the morally clear-cut issue of race, but there are many other issues of constitutional weight, including many of the issues of religious freedom that we discuss at Mirror of Justice, whose moral resolution is far less clear-cut. Is it the role of constitutional law to resolve those difficult and contested moral issues by appeal to a single moral principle? For the tragedian, the answer is no, because there are competing moral visions with different anchors in constitutional text and history that ought not to be destroyed by the constitutionalization of any single and exclusive moral principle. For the tragedian, the text, structure, and social and doctrinal history of the Constitution set the outer limits of the permissible. But for many of the pressing issues of our day, the Constitution does not and should not resolve moral controversy.

Second, and moving away from constitutional law to the issue of political suasion, I agree again with Tom that sometimes moral arguments of principle can have the effect that he describes. And, as I have said before, I admire the efforts of many to press such arguments. But I wonder about Tom's appeal to the “open-minded middle” as the principal audience for such arguments. I have before expressed doubts about the psycho-political underpinnings of the theory on which Tom relies, as I have about the stability and depth of the commitments of the popular constituency that Tom is targeting. At the very least, this is an empirical debate. Is it really true that, once one has defined exactly who belongs to the “open-minded middle,” that those folks are swayed by the sorts of arguments Tom and others have been pressing with such grace and power? Even if it is true, how important are such arguments to moving the open-minded middle in this or that direction? Is the open-minded middle more like a herd, moving hither and thither as powers quite apart from moral argument are exerted on them? And even if moral argument does have some persuasive power, do emotion, the desire to go along and get along, and other political and legal forces wield much more?

I do not have the answers to these questions. But I wonder whether one would need to have some answers to them before being confident about moral suasion of the open-minded middle.

 3.   History

Last little point. Tom questions at the end of this post whether there is a “necessary” connection between a tragic approach and a historical sensibility that is attuned to past historical settlements as a guide for decisionmaking. I agree with Tom that there is no necessary connection. Indeed, other scholars who have written positively about the tragic view (Paul Horwitz is one, for example) do not adopt the sort of historical approach that I do. And some scholars who are oriented toward historical approaches to constitutional interpretation do not take on the tragic points of view.

But I do think that even if there is no necessary connection between tragedy and a historical approach, and even if there is nothing absolutely binding about historical settlements on a tragic account, there is a natural connection between the two that suggests something about the presumptive value of the latter in an account of the former. Without getting too deep into this side-issue for purposes of tragedy and irony, here’s a small part of the argument I make in the book about the value of doctrinal and social history:

Against the background of [tragedy], an acknowledgement of the wisdom of precedent represents a recognition of the multiplicity of ways in which courts have struggled with the irreconcilable conflicts of religious liberty. It is a link with the legal past. Legal precedent is the blending and accretion of ‘reason-in-custom’—constituted by the engagements of common lawyers grappling with the common details of innumerable predicaments and particular conflicts. A commitment to doctrinal history…is an associational acknowledgment of common struggle with problems often incapable of systematic resolution, for this is the only way that a core range of conflicts of religious liberty is decided. It is the method of the common law filtered through the lens of the tragic theses….

The past lies in us and is constitutive of who we are….This point serves as the connection to social history. If the doctrinal negotiations of the past are worthy, though imperfect, counselors for the predicaments of the present—if they are that which we know, and their memory is that which we have—then the objects of these negotiations deserve attention as well. Political communities are not a-temporal or static associations. They are trans-generational enterprises that depend on the transmission of political and social histories.

4. ADDENDUM: In What Ways is Irony Superior to Tragedy?

I wanted to append this addendum because while on most days I probably am more of a tragedian than an ironist, I think irony has a great deal of merit and is in some ways superior to tragedy.

In fact, there are probably a number of such ways. But I think one of the most important ways in which irony may be superior is that it is more hopeful about human nature and the possibility of human reconciliation than is tragedy. Though I do not think tragedy is without resources in this respect, this is a major virtue not only of irony but of the good will in which it issues in good men like Tom.

One last thought. Probably there is truth in both views, at different times and in different ways. The interesting thing about these archetypal views is that neither ‘wins’ or ‘loses’ decisively. They are hearty perennials that survive cycles of spring and winter over the course of the generations!


DeGirolami, Marc | Permalink