I'd Rather Be Waterboarding, or, "How I Learned to Love the Eighth Amendment"

Professor Dwarkin disagrees with Scalia's textualism and expresses his stance by examining the nuances within the Bill of Rights.

Dwarkin examines the First Amendment, arguing that the most strict definition of textualism only defends free speech, not freedom in writing, singing, or art. Dwarkin thinks examining legislative intent is far from the "chameleon" that Scalia describes it to be. Rather, he sees it as necessary to keep up with the changing mores of society. In the case of the First Amendment, free speech could - and should - extend to Emails, Tweets, and posts on Professor Hurley's Blog. None of these forums are communicated through spoken word, and no founding father could have intended freedom of speech to cover a non-invented Internet, but the First Amendment clearly extends in this case.

Scalia replies by saying that further freedom of speech outside of the original text, such as freedom of speech on the internet, gets clarified in further statutes that are derived as corollary from the First Amendment (147-148). It seems strange, that if Scalia truly supports textualism, that he ruled with the majority in Citizens United on the grounds that campaign contributions were "free speech."

Dwarkin further examines Textualism in the context of the Eighth Amendment. Dwarkin examines the Eighth amendment by examining the application of the death penalty, but Scalia's response, that capital punishment was in practice during the founding fathers' time, is particularly persuasive to me. I think the ambiguity lies in waterboarding. The founding fathers had no notion of waterboarding and could not have envisioned it as cruel or unusual punishment. Today, waterboarding is not unusual, particularly in Guantanamo bay, so the morality of waterboarding lies in the definition of "cruel."

Scalia would respond to waterboarding much like he responds to the principle of "cruel and unusual punishment." He writes "What it abstracts... is not a moral principle of "cruelty"... but rather the existing society's assessment of what is cruel." (145) Scalia would use the people in a society's judgment to determine whether or not a punishment is cruel.

The problem with Scalia's response is that he leaves a moral question - the cruelty of waterboarding - up for the people to decide. This is incredibly dangerous. If the people change their mind in favor of waterboarding, does it suddenly become permissible? What if California opposes waterboarding but Texas supports the practice, is it now permissible in only Texas? The "societal assessment" is little more than the will of the people arbitrarily making hefty moral decisions.

Scalia's textualism also maintains problems in the specific wording of the 8th amendment:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." That last phrase "Cruel AND unusual punishments inflicted" is sobering. Is a punishment allowed if it's cruel OR unusual? If the government allows police to rip the fingernails out of its prisoners as long as it's common practice (not unusual) does Scalia see a problem? If the government treats people unequally by enacting unusual punishment, is it allowed so long as that punishment is not cruel? After all, the strict text of the 8th amendment is still upheld even in this dystopian society. Scalia's rebuttal is both morally and practically lacking because it is indefensible.

Semantic and Expectation Originalism in Art

Dworkin makes the distinction between Semantic and Expectation Originalism in statutory interpretation and uses the Brown case to illustrate the differences. The former does what the law intends to do and the latter does what the original writers expected to happen. When I was reading these two forms of judging, I started to compare these forms with art interpretation and I came to the conclusion that the two views are not mutually exclusive. As Scalia says in his response, "those two concepts chase one another back and forth to some extent, since the import of language depends on the context".

In art as well, the viewer creates an interpretation of what they think the art represents, but it is impossible to interpret the artwork without knowing the context. For example, lets take Marcel Duchamp's infamous contemporary piece "Fountain" (on side). When you look at this out of context, it is a urinal that is upside-down. It even asks the question whether this can even be considered art. However, once one understands that the artist's intent was to ask the question "to what extent can something be art because of the space (gallery) it is in", the work seems to have meaning and artwork did what the artists intended it to happen. In Conceptual Art, the object or the physical work itself is not as important as the idea/concept behind the work. This is why, if the interpreter is blind of the context and the nature of the conceptual artistic movement, it is hard to truly be able to understand why this piece of artwork is even considered art. In order to be able to get the "true message" you have to understand the context. But, that does not necessarily mean that all interpretations other than the artist's intent are wrong because he did not expect them. In fact, especially in art, the message or the emotion that the viewers receive can be unintended but also valid interpretations as long as they are justified. And sometimes that interpretation can shape the meaning of that piece later on and impact the artist himself. I think this thought process parallels very well with what statutory interpretation is like, and I agree with Scalia in the point that the context matters because it is truly important to understand context in order to understand anything.

Procedural vs. Ideal

Throughout the reading Brettschneider brings up an interesting notion where he distinguishes substantive rights from procedural rights in a theory of democracy. His explanation on the distinction of these two types of rights provide a unique twist to the reading by relating such to human dignity and “metaphysical” qualities.  Nevertheless, before delving into Brettschneider’s argument I would like to first clarify his perspective on The Value Theory of Democracy. In the reading, Brettschneider defines The Value of Democracy as “the core values that require the guarantee of substantive individual rights as well as rights to participate in democratic procedures” (9). By use of the word “substantive,” Brettschneider emphasizes how rights are rather “distinct from democratic procedures but central to the ideal of democracy” (9). Although Brettschneider goes on to elaborate on human and natural rights, I strive to understand what he means by procedural democracy and ideal democracy? How does he determine what is ideal? Is one more structural or mechanical/unnatural than the other?

Equality of Interests and Lebron

            Brettschneider’s first core value for democracy is equality of interests. He defines this as: “[equality of interests] requires that all reasonable citizens be respected as having equal weight. No one person should have his interests counted more than those of any other person by virtue of his social position or class.” (23) The part I find most intriguing about this definition is the second sentence. Thinking about this in the context of Lebron, this means that I, as a white male, should not have my interests counted more than a person of color’s interests. Yet, in the United States, Lebron and Hampton make clear that the color of our skin and the gender into which we are born bears a lot of light on how we can expect to live our lives. To quote Lebron, “Merely being born black is a reliable predictor of one’s future life prospects.” (Lebron 47) The race and gender relationships in our country clearly are exploitative, to borrow language from Hampton, and do not represent an equality of interests. So, if the United States government follows Brettschneider’s Value Theory of Democracy, it has a responsibility to ensure that each of its citizens enjoys real equality of interests, not just formal. To give a specific example (I think this one was brought up last class), a black man driving a Lamborghini shouldn’t have to worry about being pulled over simply by virtue of being black, while I drive by in mine unnoticed – this would be a blatant inequality of interests.

            This is where I begin to have questions for Brettschneider. When talking about the issues of epistemic theories, he states that the government cannot impose a singular ideal, because doing so would undermine democracy. (19) He writes that this could lead to sectarianism. So it seems he would oppose Lebron’s shaming process as what he would call a “nondemocratic procedure-independent standard.” How, then, would he argue for us to rectify the race (or gender, for that matter) relationship in America? In my mind, he would clearly support some changes in the system we have, with the goal of furthering equality of interests, but I think he would also argue that the government shaming people would be overstepping its bounds and making use of an epistemic theory of democracy. Am I wrong about this? Is there a way to make Brettschneider’s argument line up with Lebron’s? What do you guys think?

Democratic Rights and Citizens United

In office hours today, Professor Hurley and I spoke about the Citizens' United case and how it relates to Brettschneider's article. Citizens' United was a Supreme Court case which effectively granted corporations political autonomy that pertains to the First Amendment. In short, corporate funding to Super PACs was protected under the corporation's right to free speech. Corporate and non-profit organizations are therefore allowed to donate an unlimited amount of funds to political candidates. Let's reframe Brettschneider's Larry the Legislator example. Larry the Legislator is under the influence of corporate demands, "locked" by corporate funding. I see the Citizens' United case as further support for Brettschneider's argument that "a society that does not value the rights of addresses of law enough to guard against arbitrary coercion would violate the ideal of citizens as rulers" (31). Effectively, Citizens' United grants rights to "natural persons" (i.e. corporations) which undermine what Brettschneider sees as a core value of democracy--political autonomy--and the ideal of democracy, self-rule (19). In this case, is revoking rights from "natural persons" mandated by Brettschneider's appeal to political autonomy? I see it as such. Perhaps this case is an example of an undemocratic decision. Yet, if those individuals with greater access to capital can undermine political elections and political autonomy, is it mandated under Brettschneider's argument that their right to free speech (as exemplified through donations to political campaigns) should also be revoked?

P.S. Shout-out to Isabella for helping me type this out. I was in urgent care today and the doctor gave me something called a "GI cocktail" without mentioning the unbelievable amount of Benadryl contained within the mixture. I want to apologize in advance if some of these points are unclear.

Reciprocity and the "Reasonable"

Brettschneider posits that one of the core values of democracy is reciprocity. To Brettschneider, reciprocity is “the notion that policies governing citizens’ treatment must be defensible by appeal to arguments that reasonable citizens can accept” (25). I take issue with Brettschneider’s appeal to reasonableness to justify reciprocity as a core value of democracy. While the core values of democracy are upheld, including equality of citizens, political autonomy, and reciprocity, citizens might have differing views regarding “reasonable” policies and treatment. Due to these differing views, wouldn’t there need to be some sort of principle to reconcile citizens’ differing conceptions of the reasonable? Brettschneider claims that his value theory of democracy is superior to other democratic theories, as it does not impose one comprehensive view, or one conception of the good, in the name of democracy. Brettschneider sees a problem in proposing one conception of the good as superior to all others as it would subordinate democratic institutions “to one particular comprehensive view…[and] would impose external rule on citizens who, reasonably, did not share that view,” thus going against the ideal of democracy, self rule (19). However, I see an inconsistency in his argument once Brettschneider introduces the third value of democracy, reciprocity, and its definition. Again, how would Brettschneider think one should deal with the differing conceptions of reasonableness? If he proposes one ideal of reasonableness that all citizens should follow, wouldn’t his claim that his value theory of democracy is superior to all other democratic theories thus be void? 

Larry the Lobster

Brettschneider's account of a value theory of democracy is fascinating!

I want to challenge Brettschneider's Larry Legislator Example.

Brettschneider sets up the example such that representatives like Larry, "due to an ancient tradition," are required "to be locked in a cell during their term in office" (31). He uses this to "illustrate the importance of grounding the rights of addressees outside of democratic procedure" (31). Brettschneider argues this is undemocratic because "the conditions that coerce Larry in every ... area of his personal life" besides "his political rights as a maker of law" are inconsistent with his "status as a citizen" (31).

Importantly, Brettschneider argues "when the state coerces citizens arbitrarily, it trivializes political rights such as participation by denying their competence as decision makers" (31). Yet, isn't Brettschneider, by advocating standards outside democratic procedure, denying the competence of democratic decision makers to not agree to a set of rules that imprison their representatives? If rights, by their very nature, are the most important matter in our lives, then shouldn't it follow that, by democratic procedure, democrats ought to be capable of and responsible for making decisions that could, in the long run, uphold or undermine their own rights?

The value theory of democracy imposes a set of liberal constraints on democracy because, despite his argumentation to the contrary, it doesn't absolutely respect the status as rulers of citizens. What if the prisons were really nice and everyone was comfortable? How can Brettschneider simultaneously respect the status of Larry as a ruler while denying his ability to rule he is happy by dictating a 'better' set of values?

 If I am ruler of myself, why can't I hit myself with my own hands? I am both ruler and addressee of myself. If I don't hold the same core values as Brettschneider, what is to protect me from hitting myself other than a constraint?

Certainly Brettschneider cites the numerous precedents and intuitions accumulated in the United States -- from ex post facto laws to bills of attainder to freedom of speech/press/conscience -- but, these have been democratically adopted. Even the Constitution and the Bill of Rights, which outline some of these values was ratified and has a procedure to amend it. What would Brettschneider argue if, democratically, the United States amended the Constitution to eliminate the 1st amendment? What about the 2nd amendment? It seems more like a constraint on democracy than respect for the status of citizens as rulers to argue that the representatives we elected are barred from altering the very core values that Brettschneider is upholding in a democratically legitimate way.

To be clear -- I think Brettschneider's world is a better world -- constraints on democracy are a good thing. Democracy isn't the best system -- it's why we have all sorts of checks and balances on it. But, to argue that democracy, in its essence, must abide by certain rules independent from and unchangeable by the procedure of democracy seems fickle. Just like you can't have your cake an eat it too, you can't have your democracy and constrain it without calling it constraints.