More on "limiting principles"

Sandy Levinson

Needless to say, I think that Jack's posting is brilliant. One response I've had to the search for limiting principles is to feel that I'm stuck in a Philosophy 101 class full of bad first-year undergraduates in philosophy 101 who believe that there is one and only one correct way of confronting the world and that competitors can be defeated with a single knock-down example. So, for example, there's nothing more to say about utilitarianism once one points out that under some formulations, that allows the torture of babies. Or Kant is sent to woodshed once someone can't explain why we can’t explain why we can’t like to Nazis asking where our friends are hiding. Isn’t life more complex than that? (Isn't one common feature of Ronald Dworkin, Charles Fried, and Robert Nozick, for example, that they all turn into Schmittians when a "catastrophe" threatens. I.e., they're not willing to adhere to their favorite single principle if the heavens really would fall (unless one can make a plausible argument that the principle is so completely important that it's worth the destruction of the world, which returns us to Philosophy 101 and the question whether one would commit incest in order to repopulate the world after a nuclear attack or some such absurd hypothetical). I assume, incidentally, that all of the Republican
Five reject Isaiah Berlin and other pluralists who find it impossible to reduce the world to a single dominant principle that one applies to the bitter end.

Consider Justice Stone’s canonical dissent in US v Butler:

A tortured construction of the Constitution is not to be justified by recourse to extreme examples of reckless congressional spending which might occur if courts could not prevent—expenditures which, even if they could be thought to effect any national purpose, would be possible only by action of a legislature lost to all sense of public responsibility. Such suppositions are addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern. Congress and the courts both unhappily may falter or be mistaken in the performance of their constitutional duty. But interpretation of our great charter of government which proceeds on any assumption that the responsibility for the preservation of our institutions is the exclusive concern of any one of the three branches of government, or that it alone can save them from destruction is far more likely, in the long run, “to obliterate the constituent members” of “an indestructible union of indestructible states” than the frank recognition that language, even of a constitution, may mean what it says: that the power to tax and spend includes the power to relieve a nationwide economic maladjustment by conditional gifts of money.

Would Stone recognize the current majority as the “worthy” successors of the Four Horsemen? And, frankly, doesn't the demise of the ACA, if it should happen, expose us as a more truly ungovernable country than was the case even during the heyday of 1936-37.

Once more on "limiting principles": If there is no way, as Rick Santorum suggests, to stop short ofsupporting bestiality if one supports same-sex marriage, is there any way to stop short of the state's assigning us marriage partners once we allow it to restrict the "marriage market" at all by telling us we can't marry a variety of people? Why is it only proponents of same-sex marriage who have to answer all sorts of absurd hypotheticals and not proponents of restricting the market. Presumably, the latter would offer the "practical" answer that we still have, say, 5 million people availble to us instead of 6 millions, but what PRINCIPLE says that that is legitimate. What if it were only 4 million, 2 million, 100,000, or 25?

Is the Court going to return us to the old days of John Marshall and the use of categorical rule-like on-off switche?. If, after all, "the power to tax is the power to destroy," why does the state have the power to tax/destroy anyone at all? That's really a stupid slogan, since, as Holmes said, taxes are the price we pay for civilization (even if we recognize the possibility of taxes being excessive). Don't we have to live in an unfortunately complex world?
Posted 6:13 PM by Sandy Levinson [link]