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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, September 20, 2010


[I received a few hits from my comments here, a blog post citing coverage of Breyer's new book. Time to read the book and stop worrying about blog comments regarding it.]

The book Novel History: Historians and Novelists Confront America's Past (and Each Other) has a chapter discussing Gore Vidal's book on Burr (I have not read it) with commentary from Joanne Freeman [see side panel] and a response from Gore Vidal himself. He discusses something that I'm familiar with though not by that name:
The word is Einfühlen. A neologism invented by the German philosopher Johann Gottfried von Herder (1744-1803). The word is often translated as "empathy," but Herder's use of it has far more reverberations than simply being able to put yourself in someone else's shoes. For one thing, the shoes in question are often in the past and the past is a different country with different air and full of people not like us but like themselves, and though we share, perhaps, the same DNA, the worlds back of them and before them are simply not our quotidian world and so it takes a certain kind of imagination and modesty to walk about in those shoes in a physical and moral landscape so entirely different from ours.

Or, "an ability to get into the past, while realizing that it's not just another aspect of the present, with people you know dressed up in funny clothes." The charm of Joanne Freeman's book is in part her ability (or good attempt) at showing us how the world of the 1790s was so much different than our own. To obtain a good sense of the different world of another era is important to obtain a true understanding, one that too often is not done. Another era too often feels too like our own.

Justice Scalia et. al. think they are able to do this. Original meaning of the Constitution, for instance, would tell us that sex discrimination isn't a concern of the Fourteenth Amendment. Does not the Nineteenth Amendment change things some? Now flag burning, surely that is covered. He is willing to follow precedent; well, selectively. He was for cameras in the courts, but now figures people will only get misleading tidbits from them. Unlike newspaper coverage? And, Griswold is a "total absurdity" -- family privacy would surely not be a fundamental liberty to anyone in the founders' generation!

The job of a judge is to interpret the law. It is best that they focus on being lawyers and judges as compared to being historians, which might be above their pay grade. I am about to read Justice Breyer's new book, but he has discussed similar themes before. Active Liberty is a smaller volume that is based on a series of lectures putting forth his "democratic" (small 'd') view of judging. I think it is a bit too limiting (forcing the Constitution into one basic box does that -- see also, Democracy and Distrust), but like that other volume, you can appreciate the journey even if you disagree with some of the conclusions at the destination.

[I started to read the book and the appendixes alone underlines the point. He includes a pictorial history of various moments of court history and then a quite good and succinct summary of what the Supreme Court does. This is all done in a down to earth way, which is impressive if you ever heard one of his law professor-like questions during oral argument. Again, some of his conclusions are questionable, but you can say that about most judges. The way he puts forth his case underlines the charms of his style. As an aside, both he and Scalia have a child who is a member of the clergy! Now, how often did that occur? ]

The discussion seems more honest about what is going on, even if you disagree with various points made.* This includes that judging, for good or ill, is not just about looking at the text or original history. It isn't how it's done, even if you want it to be like that. As Breyer summarizes:
They read the text’s language along with related language in other parts of the document. They take account of its history, including history that shows what the language likely meant to those who wrote it. They look to tradition indicating how the relevant language was, and is, used in the law. They examine precedents interpreting the phrase, holding or suggesting what the phrase means and how it has been applied. They try to understand the phrase’s purposes or (in respect to many constitutional phrases) the values that it embodies, and they consider the likely consequences of the interpretive alternatives, valued in terms of the phrase’s purposes.

Some also break things down into six basic categories, all of which go into the making of our constitutional law and understandings. It isn't just "well, people in 1870 wouldn't have considered gay people as protected by the Fourteenth Amendment." Finding out roughly what they thought, and what went into their thinking (e.g., various racist and sexist considerations that even many originalists are loathe to accept as binding, which would justify segregation and anti-miscegenation laws) is hard and greatly debated. Originalist writings often get it wrong or provide half-ass analysis. Add that interpreting the law means more than that, Scalia's approach (or the approach he claims to follow) leaves something to be desired.

Einfühlen is helpful either way, since history is part of it and it is useful to be able to respond to critics on their own level. It also is important to understand the past in general, putting aside the application to judicial debates of this kind. Let's not even get into the whole "empathy" thing! Talking about interesting foreign words, how about this ancient Greek practice, a possible precedent to judicial review?


* I also thought a few comments found in Drop Dead Diva realistic as well. A lawyer notes the "law never stands still ... it's a reflection of society," it is a type of "smart mirror." Times change, even if certain basic things (thus the Constitution does serve as something of a limit) stay the same: "law is the wisdom of the ages wrapped in the opinion of the moment." This is all very human, imperfect, but realistic. And, honest.

It is also somewhat ironic that Justice Breyer's path is more "democratic" in various respects, including in that the people as a whole support it (if disagree on particulars), while the other side is liable to call his side less democratic. History, they say, restrains them, not their will alone. "History made me do it." Or, "text made me do it." As if others don't claim the same.