Posted by: captainfalcon | February 25, 2010

What “Originalism is un-American” does*

“Originalism is un-American” indulges in two sleights-of-hand. I’m going to need some help naming these cheats; I think one is a category mistake and the other an equivocation, but I’m not sure. (Equivocation, by the way, should be known as modus punens.)

In case you’ve forgotten, “OIuA” argues that people who are originalists also tend to be American exceptionalists. (On further reflection, one might plausibly go further and say that originalism is often motivated by American exceptionalism.) It then points to a problem: (a) originalists should want a foreign judiciary and (b) American exceptionalists can’t accept that. So, it continues, originalists can’t be American exceptionalists. They must reject what motivated them to become originalists in the first place. Titter, titter, how ironic!

That summary is enough to see the two sleights of hand.

1. The category mistake I make is to conflate an aspect arguably essential to American exceptionalism (call it: nativism) with a con-attitude towards foreign judges. It makes sense that these two will often travel together. But their connection is defeasible. If foreign interference is necessary to preserve the national character, for example, then nativism might actually favor foreign intervention.

This conflation is a category mistake, it seems to me, because nativism and con-attitude towards foreign judges are two different kinds of thing. Nativism is a meta-attitude; it is an orientation toward the world that doesn’t necessarily have to yield any particular set of preferences or values (that is: two people can share none of the same likes, dislikes and values,** and still be nativists, it seems to me). A con-attitude towards foreign judges, on the other hand, is (quite obviously) an attitude.

2. Earlier I said nativism is “an aspect arguably essential to American exceptionalism.” I don’t think it actually is essential. And that is my second mistake. I treated American exceptionalism as having an essence. Instead of allowing that it is a fuzzy cluster of beliefs, attitudes and meta-attitudes (a “family resemblance” term, to use Wittgenstein’s terminology, or an essential contested concept, to use Walter Gallie’s – is the set of essentially contested concepts a subset of family resemblance concepts?), I implied that whether you have a particular attitude decides whether you are an American exceptionalist.

My first mistake was to think a particular attitude decisive of being an American exceptionalist. My second mistake was to think some particular attitude decisive of the same.

General lessons: First, these mistakes seem common enough that they are worth bearing in mind. But, second, they can also be fun to commit. Because concepts, meta-attitudes and attitudes often travel together, a conflation can sound intuitive. And once you conflate, it is easy to make mock of the meta-attitude, etc. Because a meta-attitude is for life; an attitude is (far more) context dependent.

* Perhaps I won’t make a habit of writing secondary literature about (a) posts that (b) are not two hours old, and (c) that I wrote.

** But what about hating America. Surely a nativist can’t disvalue his country and still be a nativist. True, but it is not clear to me that hating America has a definite enough content to even count as an attitude.

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Responses

  1. Are you so upset that there is no debate on the Lure that you’ve descended into debating yourself? I would have read the original post, but it was categorized (not tagged, BTW) as “Nothing to do with Princeton, NJ,” and thus likely had a toxicly high sloppy-joe-to-jughandle ratio.

    I think, however, that self-referential secondary literature is something that should definitely become more common.

  2. Though, having read both, I would definitely agree with your criticisms of OiuA. I thought the same things after reading the primary text.

  3. I’m not sure. I think my criticisms of me are a little misleading. I mean, yes, originalism, the claim that it is a consideration in favor of the desirability of a foreign judiciary and American exceptionalism are compatible. But most originalists, I think, would be extremely uncomfortable with that implication of their theory. Maybe most non-originalists, too. But I suspect originalists would reserve a special loathing for it; a loathing explained by THEIR BRAND of American exceptionalism (which, in turn, explains their commitment to originalism).

    Of course, I’m not really arguing that we should introduce a foreign judiciary. That was just to dramatize my point, which is that originalists should be very skeptical of their own research, because they, more than those who reject originalism, have all sorts of conflicts of interest. I think that’s absolutely right.

  4. I simply don’t think that originalism necessitates American exceptionalism, or at very least the brand of American exceptionalism that would resent foreign interference into American jurisprudence to the benefit of those who prefer a stricter reading of the text.

    They might object to a foreign judiciary on Constitutional grounds (or quasi-sub-Constitutional grounds) but that leaves us with the quandry of venerating a document that disallows us from accessing it dispassionately.

    As for your actual point, and not the silly hypothetical one, yes I agree that originalists will tend to have more contradictions if you reductio their arguments, but I suspect that is because they are simply making a more absolutist argument (which tend to engender absurd conclusions if carried far enough) and not a problem that is specific to originalism.

  5. I didn’t point to a “contradiction” in originalism. This statement could be true: “Originalism is the correct method of interpretation, but it will not be practiced well by any of its most avid [American] adherents.” That is all I argued.

    As far as originalism’s “necessitating” American exceptionalism, I agree. One can be an originalist without being an American exceptionalist. However, in point of fact, many originalists come to originalism because they have a reverence for America’s past / still regard us as a “shining city on a hill.”

    Nor should this come as a surprise. Originalism implies that the Constitutional values worthy of judicial protection are those admired by the framers. To be sure, there are other ways of describing originalism, e.g. it implies that the values worthy of judicial protection are those that, on a plausible theory of interpretation (and originalism IS a plausible – if not correct – theory of how to interpret a text), are expressed by the Constitution. But, even if some originalists are drawn to it by hermeneutical considerations, the fact that originalists tend to be conservatives suggests that many are motivated to adopt originalism by their ethos.


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