Space– what the late Carl Sagan often referred to as “the cosmos”– probably is one of my longest-held interests. Whether due to my age or another reason, I did not watch Sagan and his “Nova” program going up, although as I came to learn about him, I wish I had.
It was with some excitement, then, that I discovered Neil DeGrassse Tyson, the apparent heir to Sagan’s throne as an astrophysicist with a desire to share his passion for cosmology with the general public. Tyson has appeared on programs like The Daily Show, is active on twitter, and generally has made himself a presence in popular culture.
Whether it reflects Tyson’s own personality or is illustrative of the tone of our general, popular conversation, Tyson’s message began to take on a more aggressive stance in defense and furtherance of “science.” I imagine he, like many, believes that “science” is “under attack” from people such as climate change skeptics and those who want Intelligent Design integrated into school curricula. While there is nothing wrong with this general effort, and the following is not a defense of climate change skepticism or the corporate contrivance that is Intelligent Design, Tyson’s approach sometimes leads him to make neat statements that play well in popular media (and not inconceivably are designed for that purpose), but that merit further examination.
Perhaps the most popular example:
By engaging in a modern political debate, Tyson has misstated the fundamental nature of science. In short, “science” is only “true” to the extent it accurately describes the observed world.
Science is not a collection of unassailable “true facts,” but a set of methods for the processing and categorizing of observations. Science is something that is done, not something that is true. At its base, science is an overtly and expressly technical and communal way of telling a story. Mythology is engaged in the same storytelling endeavor. It simply uses different methods.
There is commonality in the limits of science and mythology as well, and, returning to Tyson’s remark, pictured above, what science tells us about unobserved events in the past is no more “true” than mythology addressing the same topic. Both are telling stories, even if, for many, the story science tells may be more convincing for a number of reasons. Persuasiveness and truth are not the same thing, however.
Yesterday, the Supreme Court heard arguments in Hollingsworth v. Perry, a challenge to Proposition 8, a California ballot proposition that amended the state’s constitution to restrict the recognition of marriages to those between heterosexual couples.
During oral arguments, Justice Antonin Scalia and Ted Olson, the lawyer representing the Proposition 8 challengers, had the following exchange:
JUSTICE SCALIA: I’m curious, when - when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became
unconstitutional? Has it always been unconstitutional? . . .
MR. OLSON: It was constitutional when we -as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.
(Emphasis added.) The full transcript from yesterday’s oral arguments is available here.
Scalia’s question is deceptively fundamental in nature, and it (surely unintentionally) raises a practical question about his own approach to civil rights. Summarily, his approach is to recognize as protected only those rights clearly shown to be protected within the Constitution’s text or, in some cases, in (very) long-established tradition. For him, unless a claimed right finds clear, preexisting contemplation and protection in the Constitution, the claimed right does not exist.
One practical benefit, at least to Scalia, of this approach is that it is fairly convenient to operate on the back end– that is, the time when a judge is adjudicating a claim of a right violated. Following the alleged violation, the judge simply needs to look to the Constitution to see whether the claimed right is mentioned or clearly contemplated. If not, the claimant does not have a case. If so, the judge proceeds to determine whether there was an infringement of the established right in that particular instance.
Where Scalia’s approach is problematic, though, is on the front end. While principles of democracy and separation of powers properly keep the judiciary out of the legislature’s policy-making business, the historical fallacy of approaches like Scalia’s is that there was a time in the past when policy makers purposely set forth all the rights of the citizenry. Such an exhaustive effort has never been undertaken at the federal level, yet it would appear to be a necessary precondition for Scalia’s approach to make logical sense. If policy makers never set out an exhaustive enumeration of rights, Scalia would have no such source to which to point and state authoritatively that if the claimed right was not included, it did not exist. (Scalia’s inclusion of longstanding history as, along with the Constitution, the other source of rights, conceptually undermines his position, I think, and is a topic best left for another day.)
As I explained at length here, the Constitution’s Bill of Rights is not such a document. Neither its terms nor the intent of its drafters make any claim to exhaustiveness, and the same is true of subsequent constitutional amendments.
Returning to yesterday’s oral arguments, Scalia’s question– “When did it become unconstitutional to exclude homosexual couples from marriage?”– both deeply illustrates his view of civil rights and exposes the flaw in that view. That an asserted right does not appear on a list of rights that neither is nor claims to be an exhaustive list of rights is not a fully sufficient support for the consequential position that the asserted right does not exist. See generally here.
Another moment during yesterday’s argument of interest, if of lesser importance, came during an exchange between Justice Elena Kagan and the attorney for the Proposition 8 defenders, Charles Cooper. Keep reading…
Making news today under the sensational headline “Mississippi Finally Gets Around to Abolishing Slavery” is the story of an investigation by two Magnolia State residents that revealed that their state never “officially” ratified the Thirteenth Amendment to the United States Constitution.
Section one of the Thirteenth Amendment provides:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Article V of the Constitution governs the constitutional amendment process and provides two avenues for amending the Constitution: an amendment may be proposed either 1) by two-thirds of Congress or 2) through a constitutional convention on a vote of two-thirds of the state legislatures. Ratification either is by three-fourths of the state legislatures or three-fourths of constitutional conventions in each of the states. Article V appears to leave open the possibility that Congress may prescribe other means by which an amendment may be ratified.
According to the National Archives, Congress delegated the Archives responsibility for administering the ratification process. The Archives describes a relevant part of the ratification process as follows:
When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.
A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.
Assuming these “formalities” constitute legally required steps in the amendment process, a proposed amendment does not become part of the Constitution until three-fourths of the states, acting through their legislatures or constitutional conventions, send a proper copy of their ratifying action to the Archivist.
After a vote of two-thirds of Congress, the proposed Thirteenth Amendment went to the states in 1864. Nearly two years later, when Georgia became the twenty-seventh state to ratify the amendment, the amendment was adopted and became a part of the Constitution. Mississippi did not ratify the amendment before Georgia did; in fact, it, along with other states like New Jersey, Delaware, and Kentucky, originally rejected the proposed amendment.
Over time, states that had not ratified the amendment did so, and those that initially rejected it reversed course and ratified it. Mississippi did so in 1995. As today’s story revealed, however, the Mississippi Secretary of State failed to notify the Archivist of their ratification action under the process described above, leading to the attention-grabbing statement that Mississippi had not “officially” ratified the Thirteenth Amendment and abolished slavery.
That view of this story likely is inaccurate.
First, once Georgia properly ratified the proposed amendment in 1865, the amendment became a part of the Constitution and, as such, the supreme law of the land. See U.S. Const. art. IV, s 2. The stance of the Mississippi legislature with respect to slavery was irrelevant because the Thirteenth Amendment applied in that state, just as it did in every other state, regardless of its decision on ratification.
Second, Mississippi probably did all it needed to do to “officially” ratify the Thirteenth Amendment– an act as symbolic in Mississippi as it was in every other state that decided to ratify the amendment after 1865– when three-fourths of its legislature voted for ratification in 1995. Under the Archives’ own description of the role of the notification procedure in the amendment process, the requirement for notice to the archivist would seem to be extinguished once a sufficient number of states had provided the requisite notice such that the amendment was adopted.
All Mississippi needed to ratify the Thirteenth Amendment was a three-fourths vote of its legislature. Having completed that in 1995, well after the adoption of the amendment, no further action was needed to make that ratification “official.”
Earlier this month, the Supreme Court heard oral arguments in Boyer v. Louisiana, a case that presented questions about the rights of criminal defendants, including the rights to counsel and a speedy trial. See generally here. Whether the case will be of great lasting significance remains to be seen, as the Court will not issue its decision for some weeks. It already has drawn significant attention from Court-watchers, though, for reasons entirely collateral to the merits of the case.
As most people know, Justice Clarence Thomas is not frequently a vocal participant in oral arguments. In fact, that’s probably an understatement: before the Boyer argument, it nearly had been seven years since he last spoke in open court. Back in 2010, I wrote:
This week marks the fourth anniversary of Justice Clarence Thomas’ silence during Supreme Court oral arguments. The last time he questioned an attorney during oral arguments was in Holmes v. South Carolina, 547 U.S. 319 (2006), on February 22, 2006. Thomas had a solid reputation for sparse participation prior to the Holmes argument, and the four silent years since then have only served to solidify it. Observers, close and casual, are mixed on the significance of that silence, however.
Most people I encounter in casual conversation are immediately disparaging when it comes to Thomas, and particularly so regarding his silence. Some consider him a waste of space on the bench, and others suggest it is evidence that he is unqualified to serve on the Court, a charge that sometimes carries implications about his intelligence. Still others believe he simply is close-minded.
Perhaps I limited my survey of reactions to Thomas’ recent remark because of how I had seen him regarded in the past, or perhaps I’m just less attuned to Court-watchers today than I was three years ago (and I am), but I did not detect the same degree of disparagement I did before. More than anything, people seemed to see the happening as a sort of political novelty. Some actually called it “brilliant,” but that seems ridiculous in light of what Thomas actually “said.”
When Thomas’ name made its appearance in the transcript, the discussion at hand was about the qualifications of the criminal defendant’s counsel. Justice Antonin Scalia asked whether the defendant’s lead counsel was a Yale Law School graduate. After Scalia received an answer in the affirmative, the transcript records the following:
JUSTICE THOMAS: Well, there — see, he did not provide good counsel.
Everybody but Justice Sonia Sotomayor and possibly the arguing attorney seemed to be laughing at this point at what those in attendance agreed was a joke by Thomas, including Tom Goldstein, who wrote:
Most of the Justices were in a lighthearted mood today. There was a lot of banter between them. At one point, the questioning turned to whether the petitioner – a capital defendant – had “competent” counsel. Justice Scalia made the rhetorical point that his lawyer was impressive because she had gone to Yale. Chuckling, Justice Thomas interjected (as I heard it, imperfectly) that fact might make the lawyer “incompetent.”
Everyone who heard what he said recognized it was a joke. All the Justices laughed to one degree or another. So did the bar and gallery.
The most interesting part is that it isn’t even clear whether Thomas intended to speak into the microphone; some had noticed him passing a note to his neighbor, Scalia, and thought the remark may have been intended to be a private one.
In any event, the context to this remark is simple and should have been immediately apparent to anyone with even a general familiarity with Thomas. He attended Yale Law School himself, so at the very least, the joke was a self-depreciating one. That’s assuming he’s softened his views toward Yale. In the past, at least, he has not been especially proud of his time in New Haven because he believed he only was accepted there due to the school’s affirmative action policy, and he somewhat famously stuck a fifteen-cent price tag on his diploma as a signal of the value he placed on his Yale degree. Some commentators noted that Thomas in fact has been warming up to Yale more recently, but any deep analysis beyond this would not appear to yield anything of great significance.
Instead of moving straight along with things, though, I think this occasion does offer a good opportunity to remember that there were good reasons for Thomas to keep his silence. Beyond the personal ones, which he has clearly set forth in his autobiography and elsewhere, it is helpful to remember that the written briefs, as Thomas has said, are “far more important” than oral arguments, which, nine times out of ten, do not change his position. Naturally, there is reason to believe that he is not the only justice who takes this view, even if he is the only one who will say it out loud.
Silent Justice – My full remarks on the fourth anniversary of Justice Thomas’ silence at oral arguments
My days in the world of condemnation litigation are over, at least for now, but eminent domain issues are not going away anytime soon. See, e.g., here. The notion that a sovereign may take the property of its subjects is an old one, as well, likely as old as hierarchical societies themselves. Our modern vantage point probably obscures our view of the history of this dynamic given the development of the concept of property rights. At least some indigenous cultures had no concept of property rights whatsoever. Even in more developed civilizations, property ownership was not an accouterment of individuals’ initial conditions. Instead, broadening land ownership came as a result of slowly carving away the large holdings of the few.
The earliest exercise of eminent domain authority as we understand it today therefore could not happen until a society had developed to the point that it featured a significant group of private landowners and a sovereign that had at least some conception of limitations on its powers. Compensation, the component so central to our understanding of the exercise of eminent domain authority today, probably came along later, at least as in the nature of an explicit, formal transaction.
The Old Testament Book of Kings, divided into 1 Kings and 2 Kings, describes the approximately four hundred years of Israelite history ending roughly in 600 B.C. Chapter 21 of 1 Kings tells the story of King Ahab and Naboth, the owner of a vineyard near the king’s palace:
Some time later there was an incident involving a vineyard belonging to Naboth the Jezreelite. The vineyard was in Jezreel, close to the palace of Ahab king of Samaria. Ahab said to Naboth, “Let me have your vineyard to use for a vegetable garden, since it is close to my palace. In exchange I will give you a better vineyard or, if you prefer, I will pay you whatever it is worth.”
But Naboth replied, “The Lord forbid that I should give you the inheritance of my ancestors.”
So Ahab went home, sullen and angry because Naboth the Jezreelite had said, “I will not give you the inheritance of my ancestors.” He lay on his bed sulking and refused to eat.
1 Kings 21:1-4. Naboth’s response is the one virtually everyone gives upon first hearing that a government agency wants to take his or her property. The difference for Naboth is that his protest worked. While certain aspects of the scope of the eminent domain authority remain contested today, the government’s power of eminent domain is not subject to serious legal question. (It also is of some note that the interaction tracks modern condemnation law by beginning with an offer, rather than the simple execution of the taking, to acquire the land in exchange for equivalent property or the value of the subject property.)
Given the power dynamics of a premodern, divinely ordained monarchy, it probably is not surprising that Naboth’s bold affront to the king succeeded only temporarily. The story continues, as Ahab’s wife finds the king sulking:
His wife Jezebel came in and asked him, “Why are you so sullen? Why won’t you eat?”
He answered her, “Because I said to Naboth the Jezreelite, ‘Sell me your vineyard; or if you prefer, I will give you another vineyard in its place.’ But he said, ‘I will not give you my vineyard.’”
Jezebel his wife said, “Is this how you act as king over Israel? Get up and eat! Cheer up. I’ll get you the vineyard of Naboth the Jezreelite.”
So she wrote letters in Ahab’s name, placed his seal on them, and sent them to the elders and nobles who lived in Naboth’s city with him. In those letters she wrote:
“Proclaim a day of fasting and seat Naboth in a prominent place among the people. But seat two scoundrels opposite him and have them bring charges that he has cursed both God and the king. Then take him out and stone him to death.”
So the elders and nobles who lived in Naboth’s city did as Jezebel directed in the letters she had written to them. They proclaimed a fast and seated Naboth in a prominent place among the people. Then two scoundrels came and sat opposite him and brought charges against Naboth before the people, saying, “Naboth has cursed both God and the king.” So they took him outside the city and stoned him to death. Then they sent word to Jezebel: “Naboth has been stoned to death.”
As soon as Jezebel heard that Naboth had been stoned to death, she said to Ahab, “Get up and take possession of the vineyard of Naboth the Jezreelite that he refused to sell you. He is no longer alive, but dead.” When Ahab heard that Naboth was dead, he got up and went down to take possession of Naboth’s vineyard.
1 Kings 21:5-16. Easy enough, it ultimately appears, for the sovereign in this case.
While some may believe that, had Naboth been aware of all of the terms of Ahab’s offer, Naboth would have seen it as one he could not refuse, others may see it as a precursor to the Lockean-American notion that a government’s deprivation of one’s life is on par with a government’s deprivation of one’s liberty or one’s property.
Jezebel earned herself a generally negative reputation for behavior like that depicted in the above-quoted story, but, at least in the case of Naboth, she may have been nothing more than a student of history. Cf. 2 Samuel 11 (telling the story of King David, Bathsheba, and Uriah).
As for Ahab (and Jezebel) and the feeling that the end result here is a deeply unjust one, there is some divine, and moderately gruesome, justice to be had. See 1 Kings 21:17-29; see also 2 Kings 9:30-36. It is unclear whether such results obtain today.
One yearTwoThree years ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten:
… Setting aside the notion of persuasion, the judicial posture is a useful one for approaching the world.
On the national level of the American governmental apparatus, judges usually are considered passive entities. A court cannot reach out and take or create a case that is not properly before it, nor can it concoct a set of hypothetical facts and issue a decision based on those facts. Most of the time, courts cannot even rule on arguments or contentions the parties do not raise. This detached position encourages patience and allows one to receive an orderly presentation of considerations before making a decision. And judges must make some kind of decision. Judges are passive in posture, though not in nature. At the very least, they must issue a judgment– a verdict, decision, or ruling. By convention or rule, they need to be prepared to defend their decisions verbally or in writing. This requirement of eventual and substantial action reinforces and enhances the passive phase and its attendant values. Knowledge that one must later decide focuses the passive mind and encourages patience to allow for a full understanding of the matters at hand. There is mutually reinforcing energy between listening and deciding such that nothing is mere talk, and chatter has little purpose. As usual, time is a foundational consideration: listen, then decide, then defend, and then listen again.
Resource limitations are a part of our condition. When we choose to utilize our limited resources, we want to do so effectively. This applies to mental resources as much as it does to fuel and finances. Regardless of a resource’s renewability, other limitations will constrain its expenditure or utilization. Efficacy and efficiency are the best responses to this fact of limitation, here represented by the phrase “in the real world.” Many scholars are feeding their families today because of their ability to operate (in varying degrees) detached from the real world. Ideas are important. Theory is important. That’s the point of what you are reading and will read here. The seemingly unavoidable limitations on resources demand that we root ourselves in reality, while allowing ourselves to discuss, critique, and reevaluate that reality. This is a chance to find out what happens when keeping it real goes right.
What about the questions presented? Wasn’t that where this was supposed to begin? It was, and it is. Justice Scalia and Brian Garner emphasize the primacy of questions presented because those questions shape everything that follows. I’m not exactly sure what will follow, but I have some ideas and I know you do too. It’s time to start asking questions that matter.
My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. With
nearly 3,500over 9,700nearly 14,000 views in the first yeartwothree years, I think we’re off to a good start.
Thank you for your readership and feedback.