Marty,

Just to satisfy you, I did listen to the symposium. And you're right. It was a swell gathering. But it interested me for what it skirted.

The back-and-forth over interbranch etiquette – how checks and balances are supposed to work – was edifying in many details and on many levels. But it sidestepped an underlying question: How can such rules of the road work when the views of the most powerful branch differ radically from views fairly entrenched in the other two, and in what passes as our official political culture?

The oddity of the executive branch's view, for purposes of the panel discussion, sums up in its response to the question, "Was FISA a mistake or a necessity?" (A slightly broader version of the question would be, "Did we overreact to Nixon?") We all know their answer.

While everyone acknowledged that it's wrong for the executive to keep its answer a secret, no one asked where we would be if the view were made clear as day, announced openly with all the fanfare of, say, Dred Scott, whose rationale and implications were plain to Lincoln: every white man could own a black man anywhere in the US, and the Declaration of Independence should be revised to apply only to the descendants of Englishmen. If there's a reason for the avoidance, it's that the crisis would be every bit as big for us. Lincoln tried to head his off by stating he would limit that decision to its litigants – a move from outside the judicial branch very like Justice Kennedy's from within – the "use once and throw away" dictum he issued in Bush v. Gore. But the die was cast and the rest is history.

The crisis has a crisp philosophical formulation, though no jurisprudence I know of speaks to it. (Lawyers are rarely philosophers, and while there's little lost there, it shows most when they try their hand at jurisprudence.) It's a recurring theme in high-tradition 20th century philosophy of language and can be summed up well enough to bring to bear on the symposium.

Philosophers – principally W.V. Quine and Ludwig Wittgenstein – succeeded in weaning themselves of the classical picture of meanings that are "out there," existing separate and apart from the noises we emit and the marks we put down, independent of language itself. On this classical picture, speakers evoke and hearers grasp these meanings and in so doing make sense – or not – depending on whether the exchange properly engages these mysterious entities.

The picture is a myth with no objective basis. It seems to have one, but the picture collapses when pressed critically. This is what, in differing ways, Quine and Wittgenstein did, largely in response to the analytic philosophy that was being carried out in their environs, efforts that tapped the myth without probing it and without settling anything, only raising the questions these giants engaged.

It is hard to drop the classical picture without coming to the conclusion that everything we say is nonsense, which is itself nonsense. Postmodernism (and, in jurisprudence, critical legal studies) runs (or ran) foul of that problem, but the point of the critiques is altogether different. The lesson to draw is that language works but does so on account of myriad facts that are not easy to sum up and that are so menial and arbitrary-looking that, once pointed to, they are bound to dishearten and maybe even terrify someone reared on the classical picture (as we all were in some way or other). Objective meaning is not lost but put on a homelier footing than the classical picture would have it. It all depends on lil' ol' us, down here, emitting our noises and putting our pens to paper. In a way objectivity becomes all the more precious because it is the precipitate of so homely a mixture.

As there's no summing up the myriad facts, which are in any case differently cast in Quine and Wittgenstein, I won't try. But for both of them our ability to use language at all depends on things we are trained to do with words and on the bald fact that we come out of this training doing roughly similar things with words in roughly similar circumstances. (And, in case you're wondering, "roughly similar" here is itself bound up with the problem – it has at best scant meaning, certainly not enough to restore anything like the classical picture.) We come to agreement in routine situations; when we differ it's for reasons we can generally pin down and work through; similar things give us pause, give rise to similar responses (emotional as well as intellectual); we can tell what's true as a rule from what's exceptional. And so on. All too plain to have interested any philosophers before the last century.

In general, all goes well. But while the postmodernists go way overboard in dancing on the classical picture's grave, the shift in thinking about language does mark limits that occasionally rear their head in ordinary settings when all is not so hunky dory. And just from what I've said, you can begin to see why I found that the symposium skirted a crisis because, for all the interbranch tensions our system is designed to iron out, it is not up to handling a case in which one branch goes off on its own – whether in secret or openly – and calls into question so much that's been reckoned settled. Madison surely did not address the problem. It's unlikely he foresaw it.

It might do to read parags. 240-242 of Wittgenstein's Philosophical Investigations to see the point succinctly put. I hesitate to quote it here for fear of losing the reader's attention, but the net of it is that, for language to work, there have to be what Wittgenstein calls "agreements in judgment." These go well beyond agreements in definition (and, in a way, constitute them). He makes the point both up high, in mathematics, and down low, where measurements are taken, say, off rigid rods held up to objects or off the face of a clock. The point seems to destroy logic – ironically, since in fact such patterns make logic possible – but that's why it's so readily missed and why myths like that of language-independent meanings hold such sway.

It seems clear to many a watchful eye that we do not have anywhere near enough such agreement across the three branches of the federal government for it to function in the ways it was designed to, and that if the differences were brought to light it would usher in massive questions about the legitimacy of our system of governance, whether anything it is doing adds up to coherent rule, whether we as citizens can take anything it hands down to us at face value.

It also seems clear that nearly every accommodation now in process – in how the judiciary is being trained to issue rulings (and staffed), and in how the legislature is learning to adjust its output and procedures – is bending toward the executive view of the world, of our place in it, and of how we ought to be governed within our own borders. This is a secondary matter, but the nature of the adjustments would be better understood if the crisis were.

Whether such accommodations will eliminate a crisis or just delay it is a still larger question, but what's remarkable is how little notice the panelists paid to how the two weaker branches are doing this, in effect accepting training on how to nod in agreement with the executive. Typically, one who stands in opposition is called a troublemaker by an understandably nervous establishment and accused of bringing on a crisis whereas, all for acting in well-established ways relative to the official political culture. But, for all that, the nervousness is understandable, as in Dred Scott. The path of least resistance is to tamp down the differences.

None of this is to disparage the concrete details the panelists went into. I took it all in. Yes, there's a place for signing statements, yes, there's a place for executive action in emergencies. Yes, yes, yes. But how hard it was for anyone to say anything without having to take it right back, or trail off in a shrug or deftly mumbled qualifier as someone else took the mike. Where the executive issues signing statements that uproot the legislative will, and where emergency measures become not expediencies but a new routine, the ways and means are not doing what they were meant to do.

The breakdown, which I've barely touched on, resembles that of 20th century analytic philosophy in which, as Wittgenstein put it, language went on holiday. Our case, however, counts for a good deal more. And yet we go on acting as though we all knew how our words are to be taken, as though something on high, or in the rails of history, were taking care of matters for us. Unable to control the implications of what we say or to establish foundations for it, we think we need only to be more articulate or forceful, a better debater. In such ways we blame ourselves. We deserve blame, but for other reasons, which are scary whatever your politics may be. It pays to be smart, but sometimes there's no such thing as smart enough.

I'd add as a third point – and more tendentiously – that if the executive viewpoint becomes the one to which most accommodations are made we will end up with something other than republican governance. But the threshold question is whether the wise men and women of Georgetown and Harvard will become clearheaded in ways that the well-grounded philosopher of language standing in the high tradition aspires to be. Ironically enough, Harvard is the unofficial home of these hard won lessons. From which I draw a moral: the lawyers there should meet with the local philosophers now and then.
 

Nice post, oo.

I remember once Bill Buckley asking how we would know if we were descending into a new Dark Age. After all, it's not like the Romans looked around and said something along the lines of "The lights are going out all over Europe."*

I find it pretty remarkable that so many people can be oblivious to the current conditions. If a constitutional crisis falls in a forest and no one hears, is it still a crisis?

*Apologies to Edward Grey.