Textualists Should Not be Supreme Court Judges

I note that the Jesuits supported Kavanaugh in an editorial, dated July 9, 2018, in America - The Jesuit Review. Their support was based on the fact that “ Judge Kavanaugh is a textualist who is suspicious of the kind of judicial innovation that led to the court’s ruling in Roe.[1]”

Now the magazine is reversing its previous stand for the following stated reason:

Evaluating the credibility of these competing accounts is a question about which people of good will can and do disagree. The editors of this review have no special insight into who is telling the truth. If Dr. Blasey’s allegation is true, the assault and Judge Kavanaugh’s denial of it mean that he should not be seated on the U.S. Supreme Court. But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

Their decision to withdraw their endorsement was a wise one.

My problem with both editorials is the writers’[2] blind adherence to textualism as the central principle of statutory and constitutional interpretation.

I thought the Jesuits were smarter than that.

Textualism, as practiced by the late Justice Scalia, and presumably Kavanaugh, has been shown to have no scientific validity whatever. The last forty years of research in the fields of linguistics and cognitive science have resulted in more progress in understanding language than in the past 3,000 years. The reason for this progress is the development of scanning devices that can look into the brain and tell what is going on. This includes PET, MRI, fMRI and CAT scans.

One discovery is that the decoding model, which forms the theoretical basis for textualism, ranks with the Ptolemaic astronomical model as a plausible theory that, in the light of subsequently discovered facts, turned out to be false. The decoding model, in essence, views language as a series of words with established meanings, and that humans comprehend sentences and paragraphs by taking the common and ordinary meaning of each word and arrive at the meaning of the whole by putting together, “decoding,” their meanings using rules of grammar and construction.

Gordon Christy explains why this doesn’t work:

Textualism rests on the undisputed fact that words, phrases, and sentences can be assigned meanings through dictionaries, certain canons of construction, and statistics based, for example, on the corpus linguistica. Textualism, however, erroneously assumes that linguistic expressions can encode and transmit information and, thereby, erroneously assumes that meanings determined by the means identified in the immediately preceding sentence “convey” information that can be accessed by decoding. Unfortunately, meanings ascertained by the means identified above (1) are not informational meanings and (2) are not the meanings that a communicator means, that is, ultimately desires, intends, expects, and relies on his or her audience to comprehend. The meanings that can be so determined [by the textual approach] are inescapably arbitrary, ideolectical, default, non-informational, starting points for beginning the process of comprehending the meanings qua information that a speaker or writer ultimately desires, intends, expects, and relies on the audience to comprehend. [3]

Textualism leads to all kinds of absurdities in legal interpretation. At worst, the Humpty Dumpty[4] school of linguistics prevails.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, ”it means just what I choose it to mean–neither more nor less.“

”The question is,“ said Alice, ”whether you CAN make words mean so many different things.“

”The question is,“ said Humpty Dumpty, ”which is to be master–that’s all.“

At best, the interpreter (often a judge) is free to assign any meaning he chooses to a word or a sentence. In particular, he may assign a meaning that reflects his own prejudices or advances his own private interests. This is the Humpty Dumpty theory of interpretation dressed up in fancy clothes.

From this discussion on textualism, it should be obvious that this writer would never vote to confirm an appointee of the textualist persuasion. Textualism is an intellectual scam that allows a judge to twist words as he pleases. In fact, I would go even further and state that any judge that professes to believe in the primacy of textualism is not fit for the bench.

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1. Roe v. Wade, 410 U.S. 113 (1973),  ↩

2. I assume that the writers’ position reflects the position of the Jesuit order. That may or may not be true.  ↩

3. J. Gordon Christy, “Why Should None of Us Now Be Textualists (abstract)”, p. 3, Manuscript is in the possession of the author.  ↩

4. Carroll, Lewis, Through the Looking Glass, Chapter VI, accessed 9/29/2018  ↩

Crashing on a Comet

Watch this great documentary relating the last hour of a 4,595–day journey of the unmanned space craft Rosetta to the Churyumov–Gerasimenko (67P) comet - Rosetta Grand Finale (It’s a little over an hour long.) I came across this video on the way to somewhere else and watched it through its controlled crash landing. By the time I finished watching, I was unable to recall what I was originally looking for.

The story is not exactly “breaking” news, but it’s worth watching.

The rest of the world seems to be passing us in science and technology. The European Space Agency (ESA) sends a spacecraft on a voyage of several billion kilometers and for the first time in human history crashes it on a comet. Our recent contributions to the world are Facebook, Twitter, Roundup, military pizza field rations[1], burpless cucumbers, instant grits, and Donald Trump.

I can still remember how disappointed I was when Congress shut down the Apollo project several missions before it was finished. It was inexplicable to me at the time, but now the pattern is obvious; war is more profitable than space exploration. Why go to the trouble and expense of discovering new worlds when you can make more money blowing up this one?

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1. https://www.nytimes.com/2018/09/20/us/army-pizza-mre-field-rations.html. The pizza is reputed to remain edible for three years. Could they be bringing back formaldehyde as a food preservative?  ↩

Professor Bill Mitchell on Modern Money Theory

This article is linked to a YouTube lecture on Modern Money Theory. Professor Bill Mitchell demonstrates in simple terms how language, especially metaphor, molds our thoughts and beliefs to accept Neoliberalism as the dominant economic and political paradigm of the United States.

The advent of neoliberalism as an accepted policy can be precisely determined as January 20, 1981, the day Ronald Reagan became president. Reagan (or his friends) appointed as his advisors economics professors sympathetic to the Chicago school, so labelled because some of its key exponents held academic positions in the economics department of the University of Chicago. As the unofficial policy of Reagan and his successor presidents, it has guided economic decisions through both Republican and Democratic administrations.

Neoliberalism, for all Americans not in the top income brackets, has been a dismal failure. In spite of that failure, those who have benefitted from neoliberalism policy—the superwealthy, in other words—have had the power to suppress alternative paths that lead to a more equitable and just society.

Neoliberalism has as its theoretical underpinning the neoclassical school of economics, which was started by Alfred Marshall (1842–1924), English Economist, as a response to Henry George (1839–1897), who proposed a land value tax in place of all other taxes. Almost all economists in government and academia today subscribe to neoclassical economics. If a candidate for an academic position is critical of its validity or its ability to predict future economic events, the candidate is simply not hired. Economists who subscribe to MMT (Modern Money Theory) cannot get their work published in prestigious academic journals. The profession has worked diligently to keep them non-persons.

There are scholars who fortunately have refused to drink the Kool-Aid, and one of them is Australian Bill Mitchell. His talks on YouTube are clear and understandable expositions of how the economy really works. His Australian accent is occasionally hard for Americans to follow, especially his vowels, but it’s not difficult to translate. Listen and learn.

Luca Ciarla, Violinist

This morning, as I was sampling old bookmarks from a folder named “Stack” which I started around fifteen years ago, I came across a link to violinist Luca Ciarla’s website. Born in Termoly, Italy, he performs and composes with an extraordinary breadth of style and expression, especially classical and jazz. He received his violin degree in 1993 and then studied at the Fiesole School of Music and the Scuola di Alto perfezionamento of Saluzzo. He has a masters degree from Indiana University and a doctorate in violin from the University of Arizona, where he taught for several years. He studied jazz with David Baker at Indiana.

This short introduction does not convey the delight Ciarla’s music inspires in both his live and media audiences[1]. His website, which contains several of his recordings and performances is www.lucaciarla.com. Many of his performances are posted on YouTube. (Search for “Luca Ciarla”)

Listen to this guy; his music is amazing.

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1. In my case, envy. My training is classical and I never took the time to learn to play jazz. That’s one of my few regrets in life.  ↩

Recent Thoughts on the Future

Earth’s biosphere is amazingly resilient. Nature has worked out a multitude of checks and balances that stabilize the environment and protect it from excesses, including changes in climate, population, and availability of food. If a change occurs, for instance an increase in solar energy reaching the earth, the earth will warm up a bit, plankton in the sea and green plants on land start pulling more carbon dioxide from the atmosphere and replacing it with oxygen, thus reducing the greenhouse effect and cooling the Earth. If the temperature keeps rising, however, the negative feedback loops [represented by the plankton in the ocean and greenery on land] will eventually cease to absorb atmospheric carbon dioxide. The biosphere will no longer be able to compensate for the rising temperatures.

There is a possibility that higher temperatures will change the makeup of the biosphere so that it will reach a stable state, much in the way strange attractors form in a dynamic system. The problem with having a stable state at a significantly higher temperature is that it will probably render the biosphere unfit for human habitation.

Suppose that the average temperature of the Earth rises 10° Fahrenheit from its base level and then stabilizes. The sea will rise until all the ice melts, and then start falling, as it will be evaporating at a higher rate.

Water vapor is a greenhouse gas, an increase of which increases the heat retention of the atmosphere. At some point the oxygen-liberating plankton In the oceans will quit doing their job, so that the CO2 level in the atmosphere rises.

Some plants will survive, but it Is likely that new species will evolve to accommodate to the changed environment. Some of the plants will be nasty. Plants, especially food plants raised in traditional environments, will likely die off or evolve in such a way that they can no longer serve as a principal source of food for humans. Perhaps new plants will evolve as substitutes, but that is uncertain.

The tropics will become uninhabitable. Millions of refugees will migrate in desperation into what are now called the temperate and frigid zones. That will lead to fierce conflict between refugees and natives, especially after the food supply diminishes in the temperate zones. A substantial part of the world’s population will die from either starvation or war.

There is no assurance that a society stressed beyond its limits will not resort to nuclear weapons.

Until recently, I have been optimistic about humanity’s ability to put its environmental house in order, but with the Trump administration and the substantial following that has supported Trump no matter what he says and what he does, I am not quite so optimistic.

We live in apocalyptic times. Societies constellate apocalyptic archetypes but usually emerge from them, transformed into a radically different civilization. During the apocalyptic phase there are upheavals and general disorder. A large part of the human race will be seized by a destructive madness.

The poet Yeats summed it up:

Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

We are in the middle of apocalyptic times. The difference this time around is that we have the power to end humankind. A narcissistic fool has become the most powerful human being on Earth with his finger on the nuclear button. He is being either served or humored by a legislature that, having taken over the government, has become a wrecking crew, destroying or dismembering public institutions painstakingly built over 200 years by dedicated statesmen working for the common good.

It appears that no branch of the government, legislative, executive or judicial has any long-range plans for the future. Their absence of concern for climate change, nuclear war, pollution and extinction of species will, if it continues, destroy us in the not too distant future. This is a form of madness, especially among the misguided citizens that support the present regime.

The dangers that now confront the entire World can be ameliorated only by concerted action by all the nations of the World. Sadly, the United States has turned out to be the most uncooperative nation of all. If we are lucky, we will emerge from this convulsion before the biosphere has reached the point of no return, that we will have not waged war with nuclear weapons, and that we will have gained a modicum of respect for the Earth, our island home.

But don’t bet on it. Our capacity for self-delusion has no limits.

The British Labour Party and MMT

Both Bernie Sanders (like Obama) and Britain’s Labour leader Jeremy Corbyn (like Cameron and May) have painted themselves into an economic corner that they will be sorely taxed to escape. All of their political lives they have used the budget deficit to chastize their conservative and neoliberal counterparts as either budget busters or austerians. Having recently been introduced to MMT (Modern Monetary Theory), however, they are finding themselves unable to reverse themselves and tell the public that a governmental budget is not the same as a household budget and the government is not in any danger of going broke.
MMT economist Stephanie Kelton, Professor of Public Policy & Economics at Stony Brook University and an economic advisor to Sander’s 2016 presidential campaign, reports that although Sanders is convinced that MMT is the way to go, he dared not change his anti-deficit position because he risked political blowback[1].
Jeremy Corbin, while in a similar position, is apparently being advised by neoclassical economists advocating a continuation of the Conservative Party’s austerity policy. If he becomes prime minister, a real possibility, but fails to make good on his promises to restructure the British economy and make it fairer to the working class, he could easily relegate the Labour Party to a long period in the wilderness. Of course, he has the same problem as Sanders—reversing himself after decades of bashing Conservative, Liberal, and even Labour governments for balancing the budget on the backs of workers.
U.S. Republicans, however, have screamed about budget deficits for decades, but every time they took control of Congress and the presidency, they invariably increased expenditures and reduced taxes on the rich, creating deficits that dwarfed the deficits of their Democratic predecessors. In all but one case—Richard Nixon—the deficits did not lead to inflation, and to be fair, Nixon inherited a war that was itself inflationary[2].
The best political strategy for both Sanders and Corbyn is probably to mute their balanced budget talk during their campaign and change policies only when they get into office. Corbyn should have some serious talks with Ann Pettifor (a member of the Labour Party’s Council of Economic Advisors), and Steve Keen before he goes any further.

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1. Stephanie Kelton Has The Biggest Idea In Washington  ↩
   
2. Nixon did err in repealing a 10% surtax on income enacted by the Johnson Administration to curb inflation. Almost immediately, inflation started rising. Nixon attempted to impose price contrals late in his first term, but they had no teeth and were for the most part ignored. Gerald Ford, Nixon’s successor, engaged in persuasion, to include distributing WIN (Whip Inflation Now) buttons, without result.  ↩
   

We Have an Existential Threat and it's Colored Orange

The last two weeks are hard to believe. It seems that each day brings new surprises, each proving to be worse than before[1]. Special prosecutor Mueller indicts nine Russians for hacking into U.S. computer systems with the intention of affecting the presidential election. Since they live and work in Russia, there is no possibility they will be extradited to the U.S.

Monday, July 16th, Trump and Vladimir Putin met privately for several hours in Helsinki, Finland, discussing the relations between the U.S. and Russia. Afterwards, both of them held a news conference. Trump’s remarks provoked a firestorm back in the U.S. There have been calls for his impeachment from both Democrats and Republicans. Senator John McCain tweeted “Today’s press conference in #Helsinki was one of the most disgraceful performances by an American president in memory.” In a full statement, he wrote “President Trump proved not only unable, … but unwilling to stand up to Putin. He and Putin seemed to be speaking from the same script as the president made a conscious choice to defend a tyrant against the fair questions of a free press, and to grant Putin an uncontested platform to spew propaganda and lies to the world.”

I went over a transcript of the news conference several times and it was what I expected. Putin delivered a level-headed speech that was appropriate for the occasion. Trump started better than I expected. It seemed to me that the speech had been written by someone else, perhaps someone in the Whitehouse.

But midway through his remarks he switched gear and began pandering to his ”base,“ accusing ”partisan critics, or the media, or Democrats“ of wanting to do nothing but ”resist and obstruct.“ Later, in the question and answer period, he returned to his normal amalgam of subjects, insisting that he easily beat Hillary Clinton in the general election and that there was no collusion with Russia during the election:

There was nobody to collude with. There was no collusion with the campaign and every time you hear all of these you know 12 and 14 - stuff that has nothing to do and frankly they admit - these are not people involved in the campaign.

But to the average reader out there, they’re saying well maybe that does. It doesn’t. And even the people involved, some perhaps told mis-stories or in one case the FBI said there was no lie. There was no lie. Somebody else said there was. We ran a brilliant campaign and that’s why I’m president.

This was vintage Trump. It was surprising that Putin defended Trump when it was his turn to speak:

As to who is to be believed and to who is not to be believed, you can trust no one – if you take this — where did you get this idea that President Trump trusts me or I trust him?

He defends the interests of the United States of America. And I do defend the interests of the Russian Federation. We do have interests that are common.

We are looking for points of contact. There are issues where our postures diverge and we are looking for ways to reconcile our differences, how to make our effort more meaningful.

We should not proceed from the immediate political interests that guide certain political powers in our countries.

We should be guided by facts. Could you name a single fact that would definitively prove the collusion? This is utter nonsense.

Just like the president recently mentioned. Yes, the public at large in the United States had a certain perceived opinion of the candidates during the campaign. But there’s nothing particularly extraordinary about it. That’s a usual thing.

President Trump, when he was a candidate, he mentioned the need to restore the Russia U.S. relationship and it’s clear that a certain part of American society felt sympathetic about it and different people could express their sympathy in different ways.

But isn’t that natural? Isn’t it natural to be sympathetic towards a person who is willing to restore the relationship with our country, who wants to work with us? We heard the accusations about the Concorde company. Well, as far as I know, this company hired American lawyers and the accusations doesn’t have a fighting chance in the American courts.

So there’s no evidence when it comes to the actual facts. So we have to be guided by facts, not by rumors.

Putin also did his own version of Clinton-bashing:

For instance, we can bring up Mr. Browder in this particular case. Business associates of Mr. Browder have earned over one and a half billion dollars in Russia. They never paid any taxes, neither in Russia nor in the United States and yet the money escaped the country, they were transferred to the United States.

They sent a huge amount of money - 400 million - as a contribution to the campaign of Hillary Clinton.

Indeed, Trump did bash the intelligence community:

So let me just say that we have two thoughts. You have groups that are wondering why the FBI never took the server. Why haven’t they taken the server? Why was the FBI told to leave the office of the democratic national committee? I’ve been wondering that. I’ve been asking that for months and months and I’ve been tweeting it out and calling it out on social media. Where is the server? I want to know, where is the server and what is the server saying? With that being said, all I can do is ask the question. My people came to me, Dan Coats came to me and some others and said they think it’s Russia.

I have President Putin. He just said it’s not Russia. I will say this. I don’t see any reason why it would be, but I really do want to see the server. But I have confidence in both parties. I really believe that this will probably go on for a while, but I don’t think it can go on without finding out what happened to the server. What happened to Hillary Clinton’s emails? 33,000 emails gone — just gone. I think in Russia they wouldn’t be gone so easily. I think it’s a disgrace that we can’t get Hillary Clinton’s 33,000 emails. So I have great confidence in my intelligence people, but I will tell you that president Putin was extremely strong and powerful in his denial today. And what he did is an incredible offer. He offered to have the people working on the case come and work with their investigators, with respect to the 12 people. I think that’s an incredible offer.

When computer security experts investigate an attack on a computer they frequently shut it down and make a clone of the hard disk and RAM. That way, they avoid having to transport the computers to a lab. A clone of the hard disk is, for all purposes, just as good as the original. So we can chalk Trump’s remarks on servers to either ignorance or pandering to his ”base.“

On the other hand, taking the word of any head of state over the advice of one’s own intelligence agents is foolhardy. This is especially true if one announces it in public, because it will make one’s own spooks into enemies. It is common knowledge among security people that no matter how close our allies may be, their officials cannot be completely trusted. Their loyalty is to their own nation and its government, not ours, and conversely.

Trump’s relationship with Putin is hard to explain in the absence of other reasons beyond his desire to improve relations between the U.S. and Russia. His businesses are known to be entangled with the Russion oligarchy, and they have loaned him large sums of money to keep his enterprises going. There is also good reason to suspect that Trump has been laundering oligarchy money through real estate deals.

Trump gets away with these criminal misdeeds in part because he has mastered the art of distraction. Every time damaging information emerges that horrifies knowledgeable persons, he quickly pulls a stunt even more outrageous than the last that draws everyone’s attention away from inconvenient information. His histrionics hide the damage he and his wrecking crews have been doing since he assumed office. His destruction of the Environmental Protection Agency (EPA) and his war on global warming science endangers the existence of human civilization and perhaps the human species.

He is aware of the danger to climate of human activity, but is actively promoting the very activities that are contributing to the warming. Noam Chomsky recently pointed out that Trump has applied to the Irish government for permission to build a wall around his golf course to protect it from the rise in sea level.[2] It would be hard to find a better example of lethal irresponsibility.

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1. I began this article about two weeks ago, but the Trump merry-go-round started cranking up and spitting out more and more ridiculous rhetoric.  ↩

2. Click on this link: Chomsky’s comments begin at 2:48  ↩