Tenthers, Precedent, and the Conflict of Interpretations

(Cross-posted as a guest post at The League of Ordinary Gentlemen)

Writing at ThinkProgress, Ian Millhiser explained and ridiculed what he and others have taken to calling “tentherism,” the interpretive framework of the “tenthers.” Their label brings to mind birthers, truthers, and possibly scruffy-looking nerf herders. I’d bet a nerf or two these associations are intended. Radley Balko called the label a smear over a year ago, and I agree with him.

According to Millhiser, tenthers are lunatics who hold the radical, absurd, and false view that the Tenth Amendment to the U.S. Constitution was intended by the framers to prohibit the federal government from exercising powers not specifically delegated to it, and that therefore a number of well-established federal programs such as Medicare and Social Security are really unconstitutional. In contrast, Millhiser argues that Article I of the Constitution gives Congress broad authority to provide for the general welfare, so the Constitution doesn’t specifically need to mention healthcare or other matters of the general welfare for Congress to have the constitutional authority to address them.

I’m going to risk a little lunacy by suggesting that the “tenther” interpretation of the Tenth Amendment is not an absurd viewpoint, even if it’s not a mainstream view and runs counter to the history of established interpretations. I’m not interested here in the question of its veracity, though I note that being fridge and being false are not the same thing. My purpose is rather to explain briefly why I find both Millhiser’s interpretation and the interpretation he disparages to be legitimate interpretations despite their being in conflict. I’ll be making some points similar to those made by Balko, though I’ll be coming from a different angle.

There’s no getting around the conflict of interpretations itself. The Constitution, as a text, avails itself to multiple, conflicting interpretations. At the end of the day, its meaning isn’t certain or final, but instead in flux. And its meaning will always be fluid. While there are limits to interpretation, there’s no essential interpretation that exists in the document (or in the sky) by which its readers can judge the ultimate truth of their readings. Beyond the text, we have historical precedent, a history of official interpretations, starting from the founders themselves and going up until today. Historical precedent stands as a guide, but it can also be challenged. The officials establishing the official interpretations were and are, after all, fallible and limited human interpreters.

The question that cuts to the core is whether an interpretation has textual support. Millhiser supports his interpretation by pointing to the text, specifically Article I. Those who uphold the Tenth Amendment as a limit on federal power likewise offer textual evidence: the words of the Tenth Amendment, of course, but also the idea that the Tenth Amendment, in distinguishing between powers delegated to the federal government and powers reserved to the states and to the people, narrows the scope of Article I’s few, enumerated powers. If the federal government has power to promote the general welfare limitlessly, what sense does it make for the Constitution to reserve some powers to promote the general welfare to the states and to the people? Both interpretations offer pretty straightforward textual support. Because both interpretations are interpretations supported by the text, both are legitimate, despite their conflicting differences.

Millhiser calls the Tenth Amendment upholders absurd because their interpretation of the Constitution is at odds with precedent going back to the founders themselves. This conflict may be the case, but it doesn’t render their view absurd. It’s not absurd to dissent from and challenge the interpretations that proved victorious and became established precedent. What some of these dissenters might wish to do in the name of the Tenth Amendment may cross the line into loony land, but the act of dissent is not in itself absurd. Dissent can aid the pursuit of truth, even in law and politics. We fashion an interpretation into a grand unquestionable orthodoxy to our detriment. Interpretations should have textual support, but even the best is not the text itself.

On Charitable Discourse

Is it prudent to adopt charitableness as a general rule for public discourse and argument? Conor Friedersdorf wants to think so, but he isn’t entirely sure. While he admires forceful criticism that nevertheless treats the one criticized charitably, he also finds himself cheering substantial scathing takedowns that are less than charitable, especially when those on the receiving end deserve the hard hits.

As someone who’s frequently called for more charity in public discourse, I likewise want to think charitableness is prudent to adopt as a general rule. I wish we could see an end to the demonization and caricatures employed in our public debates. However, I also see a place for satire, ridicule, and mockery. These approaches have a way of disclosing the truth that can’t always be achieved by a well-reasoned argument. The jesters play a vital role.

Moreover, sometimes public speakers have ill motives and can be shown to have ill motives. Always assuming good motives isn’t an accurate assumption to make, even if it’s charitable.

I’m therefore led to say that it is a prudent rule to begin a debate with a person assuming good motives and treating him or her with respect and charity, particularly if one is unfamiliar with the person. However, if it becomes clear in the course of the discussion or otherwise that one’s interlocutor has no interest in the truth of the matter or has perverse motivations, I think it’s perfectly fine to mention that provided one isn’t engaging in detraction.

It’s not exactly uncharitable to show with evidence and argumentation that a propagandist, for example, is knowingly and willfully deceiving his or her audience. Debate should generally focus on the arguments and ideas discussed, but sometimes the core problem isn’t with what’s said, but with the one saying it.

Aristotle, Friendships, and Social Networking Sites

Philosopher Brian Treanor thinks about the three. His conclusion:
The question is whether or not [social networking] can serve “friendships” other than the useful, friendships of pleasure or genuine friendships. Here I’m more skeptical. And if my skepticism is warranted, it should influence the way in which those tools are used. I think it’s worth considering what we lose in depth–of friendships or information–by spending so much time on breadth.
It’s not that I spend much time on social networking sites, probably no more than a few minutes a day. As most of my “friends” will attest, my activity on Facebook consists almost exclusively in posting environmental or political news. Academia is less of an issue since I don’t spend any time looking at it (no doubt to the dismay of the developers) and it does not pretend to be anything other than a professional networking tool. It’s best to keep in mind that social networking sites are, and should be used as, social networking sites rather than social networking sites.

Drawing a Line

The competing interpretations of the U.S. Constitution mostly center around what the founding document allows and doesn't allow the government to do.  It is a text designed to define the powers of the federal government, though its definitions remain fluid given the history of how judges, lawmakers, and others have interpreted it.  Jason Kuznicki asks a prudent question that really should be raised to candidates, politicians, and pundits who propose new or defend old federal government programs and policies:
When you offer a theory of federal power, ask yourself: Under this theory, what can’t the government do?
As Kuznicki notes, if you cannot give an answer to this question, then you haven't sufficiently thought through the ramifications of your interpretation of the Constitution, and the theory of power you are advancing may well be detrimental to the type of society the founders envisioned. 

Rethinking Our Educational Paradigm

Is our paradigm of public education taking us in the wrong direction because it is rooted in social, economic, and culture conditions that are no longer a reality?  Making the case that such is the case is a short animated video brought to my attention by E.D. Kain.  Like E.D., I found myself generally nodding in agreement with the observations and conclusions of the video's narrator.  While society is better served with a system of public education than without one, the system itself, having arisen out of the Enlightenment and the Industrial Revolution, has failed to meet students where they are in our technologically-advanced postmodern world.  Our current industrialized paradigm stresses standardization and conformity of mind and upholds textbooks and established answers as the gospel truth.  Our typical response to distracted children is medication, rather than, say, exposure to aesthetic experiences that awaken the soul with wonder and excitement.

I taught for a time at a remarkable private college preparatory school modeled on Aristotle's Nicomachean Ethics, specifically on the idea that the physical, intellectual, and moral virtues could be taught.  This model is probably one if the finest I've encountered, and it has proved very successful, but it remains but a step in the direction education needs to go to meet the obligations we as a society have to our children and to ourselves. Moving away from the model of "schools as factories" would also take us a step or two in the right direction. 

Personally, I'd like to see much more leeway given to public and private schools to experiment, not merely with new educational strategies, but also with fundamentally new (or old) paradigms.  In our Internet Age, it would be relatively easy for the world to see what many schools throughout the land are doing differently, what works for them and what doesn't, what successes might be applied elsewhere and what practices might be better kept to the local institution. 

Anyhow, here's the video:

Incompatible Figures of Evil and the Plurality of Truth

Even within a single faith tradition, the accepted, "orthodox" symbols, figures, and images will have a degree of incompatibility due to all figurative language having creative and productive aspects. For example, the Christian conception of evil as a stain or blemish that the cleansing waters of baptism remove envisions evil as a kind of thing, as something with being, and yet, in the same tradition, evil is also considered as a privation, as a lack of a good that ought to be there, as not a thing at all, as not having any being. These two conceptions of evil aren’t entirely compatible, and yet both are very much at home in the same faith tradition. 

What can we conclude from this?  Ultimately what we know about evil, or anything else that we use figurative language to conceptualize, cannot be made into a single, coherent, all-encompassing conception.  It's truth is not one, but many, at least in so far as we have its truth figuratively in mind.

The Warrior God

A commenter on my guest post at Per Caritatem questions whether the Old Testament imagining of God as a “mighty and violent warrior” can be discredited by the New Testament figure of Christ when the old image is “one rather large chunk” of scripture.

I don’t have a problem with the “large chunk” of scripture that depicts an almighty, violent warrior God. That understanding of God makes sense given the culture of those who conceptualized him thus. The symbols, figures, images, and myths about God have developed over time. Some have been figures of violence and war. As they are a part of a text I believe to be God’s Word, I don’t think they should be dismissed or discredited, but understood both within their proper context and in light of the revelations of Christ. Like any image of God, the warrior God both reveals and conceals. I may not take it literally, but that doesn’t mean it doesn’t disclose to me a truth about God that God wanted revealed.

That God revealed himself as “Father” shows that he reveals himself through partially erroneous and flawed figures. The biological understand of fatherhood at the time of the New Testament’s writing wasn’t entirely accurate, to put it mildly. The father was the source of life; the mother just a vessel. Yet if we want to understand the meaning of God the Father, we have to take a detour through that flawed former understanding of fatherhood. I suspect a similar detour is necessary to understand God through the figure of the warrior deity.

What is It Like to Be a Woman in Philosophy?

A blog, devoted to short observations sent in by readers about life as a woman in philosophy.  A sample:
When I was offered my job four years ago, I negotiated a spousal hire for my husband. I was the only one of us who applied for a job at that institution, the job opening was in my area, not his, and the department was resourceful and enthusiastic enough that they managed to create a brand new position for my husband.

Near the end of my first year, in a coffee shop (that was, incidentally, nowhere near the women’s studies department), I ran into a philosophy grad student that I had seen around the department but hadn’t formally met. He said to me that he had seen me around and wondered if I was a new grad student. (I was/am a middle-aged full professor.) I told him no, I was a professor. He said: “In what, women’s studies?” I said no, in philosophy. He looked confused and said he didn’t know who I was. Just to make small talk (even though I was royally annoyed by now) I told him that I knew who he was because he was taking my husband’s seminar that term. He said, “Oh, you’re xxx’s wife? So THAT’S why you’re here!”

Not Our Own

Darwin Catholic observes a truth about parenthood:
As parents, we are not our own. It would have been a lot easier and pleasanter for us to have taken only the baby, and faster too. But as parents, we gave that up a while ago. Sometimes we need to go the less satisfying route when it's the one which the kids need.

It certainly won't be the last time I learn that lesson. It doesn't come naturally. But although it's often most important to come up with the most efficient and low stress ways of parenting, at others it is important to do things that aren't the most efficient, or that are actively frustrating at the time, and to do them with good grace, because we are no longer our own.

Kermit the Frog Sings Elliott Smith

Something surreal for 10/10/10.



You're welcome.

From the Department of Not Helping

Memo to Richard Curtis: Don't be the Randall Terry of the environmental movement.  Yes, I get that care for the environment and decreasing pollution is everyone's responsibility, and that our failure to do so leads to sickness and death.  That's an important lesson to teach, but creating a short film in which school children, business professionals, athletes, and Gillian Anderson are exploded into bloody goo for not volunteering to participate in one particular campaign to reduce their carbon footprint doesn't teach that lesson.  Instead, it helps confirm in people's minds the unfortunate fiction that environmentalists are deranged fascists who couldn't care less about human life.  Perhaps instead of blowing up Gillian Anderson and gazing with the camera on her messy, drippy remains, you could star her in a romantic comedy.  That would inspire.

Ex-Experts

I have noticed on occasion that those concerned with the spread of Islam in the West will at times support their argument by bringing to the stand an ex-Muslim who has, we're told, seen the light (or, rather, the darkness) and is therefore in a perfect position to educate us non-Muslims about how horrible Islam is deep down where the rest of us cannot clearly see.  I find myself suspicious of these ex-Muslim experts, and, to be fair, ex-fill-in-the-blank experts of any kind.  My reasoning?  It's not that these former believers do not or cannot speak the truth; it's rather that I'd be skeptical of some ex-Catholic or ex-traveler-in-alterity who claimed to have the horrid goods on my beliefs and ways of thinking, and it seems to me that I ought to hold other ex-experts to the same skepticism and not rush to crown anyone of them an authority on matters I little understand.

Joseph Sobran, R.I.P.

Catholic writer, Shakespeare scholar, and sharp critic of power Joseph Sobran passed away yesterday.  He was 64.  I used to read Sobran's columns regularly in my university years, eagerly looking forward to the next issue of The Wanderer.  While I've drifted away from advocating his political ideals, I have Sobran to thank for my lingering distrust of consolidated power and suspicion of those who wield it.  Sobran came to describe himself as a reluctant anarchist, believing that nation states did more harm than good and were ultimately a failed political experiment.  He didn't call for a return to constitutional principles; he considered the Constitution unable to adequately guarantee checked and balanced power.  Instead, he called for thinking beyond the State.  He might have gasped at my saying this, but he had a lot in common philosophically with the "liberals" he so often denounced.  May he rest in peace and find eternal joy.