In the world of politics, things are not so simple. We imagine that we all have the same objective, but we do not. We don't have unambiguous ways to measure the degree to which we've met even the objectives we agree on. And we don't have ways to identify and measure, with high certainty, the factors that contributed to whatever about the objective we measured.
People choose the reasoning methods that lead to the results that they like. Liberals choose reasoning methods that are likely to support liberal goals. Conservatives choose reasoning methods that are likely to support conservative goals. Before motivated reasoning comes motivated choice of how to reason.
Liberals and conservatives have different objectives. They have different ideas of what a just world would be like. There's nothing wrong with different objectives, as long as we are clear about what those objectives are, and how we go about achieving them.
The notions of contextualism, legal pragmatism which are favored by liberals make it easy to interpret laws flexibly, adapting them to current circumstances, and determining ambiguities and gaps in favor of liberal objectives. The notions of original intent, original meaning, and textualism, which are favored by conservatives, make it hard to interpret laws in those ways, leading outcomes consistent with conservative values and objectives.
I'm a liberal for tribal reasons, for philosophical reasons, and for historical reasons. My choice of how to reason about law and morality is driven by consequential and pragmatic concerns.
1.
Most people would say that one of their objectives is a just world. We assume that when people say they want a just world that they mean the same thing--or something close to it. But people have vastly different and often incompatible ideas of what such a world would look like. Some people are meritocrats: they believe that in a just world, outcomes would be based on the talent that people have and the effort they expend in applying their talent. Others are aristocrats: they believe that in a just world, outcomes should be based on membership in ancient lineages. Others are theocrats: they believe that God rules the world and the world is just because God makes it so; our duty is to follow God's law, and God will take care of the outcomes.
Our intuitions about justice are the result of our upbringing. Most children have the same intuitions as their parents; some are rebellious, and develop intuitions that are in opposition. Some read widely and critically and end up adjusting our views. But we know--those of us who have studied human cognition--that confirmation bias is a powerful force. It's hard to overcome confirmation bias even when you know it exists. Trust me. I've tried and I've confirmed that it's hard. Oh, wait.
Confirmation bias includes the way we evaluate the facts that we already know and the new facts we choose to consider. It also affects the way in which we reason about facts and theories. Even when we agree on the reasoning process to use--say statistical analysis, confirmation bias gets in the way. It's hard to get around it.
To reach the same conclusions people have to have the same data and follow the same reasoning process. To have the same data people have to have the same facts available and the same criteria for determining what facts to accept and what level of credibility to assign to them.
People don't decide what a just world looks like, then independently choose the system of evidence evaluation and the systems of reasoning they will use. Instead, they buy a package: a set of objectives, evaluation techniques that support their objectives, and reasoning processes that lead in the desired direction. It's one-stop shopping. Buy the objectives, and the rest comes for free.
2.
I'm a liberal and like most liberals, I'm a utilitarian and a consequentialist. So I judge an act by my best efforts to predict or assess its consequential effect on human well-being. Sometimes I will be wrong; something that I expected to have good consequences turns out to have bad consequences that outweigh the good. Sometimes there will be consequences that I did not anticipate that reduces the benefit of the good.
Those of us who are not omniscient should always expect unintended consequences. Those of us who have heard of entropy should expect that there will be more bad unintended consequences than good ones because there are many ways to make things worse, and few to make them better. But my intention is clear: to reason about ways to maximize human well-being. I particularly want to choose paths that maximize human knowledge because I believe that is the key to human well-being.
And I want a system for reasoning about legal and moral matters lets me interpret laws and standards as flexibly as possible because it maximizes my freedom to craft beneficial solutions.
3.
Legal reasoning and moral reasoning are different, but people tend to choose similar systems of reasoning for both. The legal reasoning problem easier: given this set of laws, what is the right thing to do. The moral reasoning problem is harder: given the universe, as we know it (including the existence of a deity) what is the right thing to do? The crossover problem is even harder: given our moral sentiments, the existing body of law, and the nature of our fellow citizens, what should the laws be?
There are two major schools of moral reasoning: according to one school, moral precepts are the starting point. The precepts might be community standards, religious doctrine, or existing law. Given the precepts, one has a duty to follow them. An act is judged as moral--or not--to the degree that it conforms. The largest branch of the school is called deontology, from deon, or duty. The other major school judges the morality of an act by its benefit or harms it causes. Utilitarians consider the direct benefits and harms; consequentialists consider longer-term benefits and harms. Some consider benefit and harms to humans; others take the environment into account.
Here's a simple example showing the difference between deontological vs consequentialist reasoning. If the rule is simply "do not kill," a deontologist argues that killing is wrong, period. Circumstances don't count. But a consequentialist argues that even though the rule clearly states "do not kill," sometimes killing is the ethical thing to do. It is ethical if the expected consequences of killing are judged better than the consequences of not.
The real world is too complicated for a simple rule like "do not kill" and deontologists understand that. Killing in self-defense is a rule that makes an exception to the "do not kill" rule. And there are cases in which the self-defense exception might itself superseded. But no set of rules can possibly cover every contingency. The deontological view is to limit interpretive flexibility. If there are gaps or ambiguities so that an act does not closely match a rule then use the next highest level rule. If the highest level rule in law is: "do nothing" then do nothing.
Consequentialists also see that there will always be gaps in the rules. Even rules that grant exceptions have gray areas. Consequentialists use laws as guiding principles to be applied in context. If there are extenuating circumstances, ambiguous rules, and circumstances that the rule makers did not anticipate then judges should "do what makes sense" according to the consequences of what you decide.
4.
Liberals like me are consequentialists. We choose a legal framework that lets us interpret ambiguous parts of the law to will maximize what we think will be beneficial consequences. If the people who wrote a law did not anticipate a future circumstance in which that law would be applied, we want to weigh the consequences of various ways of reading the law and choose the one that seems most likely to serve those beneficial goals.
Conservatives tend to be deontologists. They choose legal frameworks, like textualism and originalism and strict construction, that lead to their preferred outcomes: less intervention; stability; traditional forms; preservation of existing rights, rather than the creation of new rights.
Liberals are interventionists. On liberal theory, if something is wrong, unjust or unfair, and the existing system of laws permits--but does not mandate correcting it--then it should be still be corrected as far as the law allows. Conservatives point out that interventions have unintended consequences. Of course, they do! And the unintended consequences are bad. Of course, they will be bad! But not intervening has unintended consequences, and these may be worse. The question is: are the intended, beneficial consequences greater than the unintended, harmful consequences.
Consider pollution laws. The intended consequences have included fewer poisons in the environment, fewer birth defects, fewer cancers, and so on. But there are unintended consequences, of course. Some polluting industries didn't clean up their act--as intended. Instead, they moved to pollution-friendly countries taking both their pollution and their jobs. Neither was intended. Another consequence was more research into pollution-removal and pollution mitigation, which created new jobs, though probably not as many. Both of these things might or might not have been foreseeable, but they were not intended. But doing nothing about pollution also has unintended consequences. The poison stays in the air, babies are born with birth defects, people get cancer. No one who opposes pollution control would admit to intending those consequences. Yet they are the foreseeable, unintended consequences.
Bad unintended consequences is not an argument against action. You can find any number of cases where a liberal interpretation had worse consequences than a conservative interpretation would have had--according to agreed-on interpretive frameworks. You can also likewise find any number where the interpretations had better consequences. On the whole, liberals tend to believe that the unintended negative consequences are a fair cost for the intended positive consequences of a liberal interpretation and conservatives the reverse. In some cases, that's because the objectives that they have are different, and in some cases, it's because their criteria for judging the consequences is already tuned to their favored outcome.
5.
But there's another problem that conservatives point out. Who judges the expected consequences?
A liberal would argue: people generally know right from wrong and will make the right decision more often than the wrong one. They will choose good judges more often than bad ones, and the good judges will make good decisions more often than bad ones. Liberals acknowledge that from individual to individual and time to time they will decide badly.
A conservative would argue that judges are human, and humans are flawed, and judges with too much power to interpret the law will be corrupt or be corrupted by outside forces. Thus they will make harmful decisions more often than good ones. We are better off sticking to the rules than allowing interpretation.
This seems reasonable, but it's ironic. The system of reasoning that rejects the consequential interpretation of laws seems forced to justify itself on consequential grounds. If we avoid consequentialism I think the argument is "You follow the rules (law) because there's a rule (originalism) that says that's what you do." Regardless of the consequences of any particular application.
The underlying assumptions I think are these: it's easier to corrupt a judge in a lower court than in a higher court and it's more likely that a judge in a lower court will be ignorant than a judge in a higher court. So all sides, I think, agree that this system of error correction makes sense and--with exceptions--will work well.
Liberals like me argue that the marketplace of ideas is also self-correcting--although there will be market failures from time to time. If the market works as intended, then better ideas will win. Failures are notable and regrettable, but over greater spans of time, and larger bodies of government, the consequences of liberal interpretations will be more beneficial than harmful.
6.
Then there's history.
If you examine the historical consequences of following the rules you'll see some patterns. In the pre-civil war Deep South, the political and economic system was unjust and corrupt. I hope we can all agree on that. A hundred years later Civil War the people who had been removed from power regained it. They consolidated their power by changing the system so that Negros could not vote and convincing the remaining voters (whites) to vote to maintain that system. I hope we can agree that's what happened.
They argued that policies of segregation, poll taxes, unequal schooling, unfair literacy tests, and worse were States Rights. They argued that the Federal government had no right to intervene under a strict reading of the Constitution.
This changed because a liberal Supreme Court interpreted the constitution according to liberal principles and held that these practices had to stop. A conservative Supreme Court would likely have found otherwise--and conservative justices voted to try to preserve what I think we all see as injustices. The Constitution says nothing forbidding States from charging poll taxes, so poll taxes are fine. In Harper vs the Virginia Board of Elections the Court found the state's poll taxes unconstitutional. Three conservative justices (one a Southern Democrat) dissented. Justice Hugo Black, the Southern Democrat dissented "mainly on stare decisis basis. As a textualist, he also criticized the majority for expanding the meaning of the Fourteenth Amendment by using what he called the old "natural law due process formula". He emphasized that new meanings can be added to the Constitution only through amendments."
And of course, they can be. But let's remember how the Fourteenth Amendment was passed:
State legislatures in every formerly Confederate state, with the exception of Tennessee, refused to ratify it. This refusal led to the passage of the Reconstruction Acts. Ignoring the existing state governments, military government was imposed until new civil governments were established and the Fourteenth Amendment was ratified. It also prompted Congress to pass a law on March 2, 1867, requiring that a former Confederate state must ratify the Fourteenth Amendment before "said State shall be declared entitled to representation in Congress"And then there's the Thirteenth Amendment, the one that freed the slaves, which was passed by skirting around states-rights objections and selling the idea that the rights of the newly freed slaves could still be constrained by the states--a gigantic loophole that the Fourteenth Amendment closed and the reason it took draconian measures to pass it.
The Thirteenth and Fourteenth Amendments would not have passed without such liberal interpretive Shenanigans. Suppose that the liberals (Republicans, at the time, curiously) had not gotten away with it. Would we still have slaves if states had the right to decide? Would parts of the South still have white and colored restrooms, ridiculously unequal public schooling and other services, and all sorts of institutionalized discrimination upheld and protected by State and local government? I think the answer is, yes.
The liberal Supreme Courts of the 1960's eliminated many of the vestiges of the Old South. As a result, some Northern businesses relocated or expanded into the South. They brought prosperity and liberals with them. Without those changes, the South would have continued to be as impoverished as ever But the people in power in the South would not have cared. They have continued to remain in power by convincing sufficiently many white voters: "Things may be bad for you, but at least you're not a nigger."
8.
The way that liberals and conservatives reason about law and morality is not abstractly correct. It's a chosen mode of reasoning. In the liberal case, it's helped bring about a world that's closer to the one that liberals viewed as good and just--one without slavery. With greater equality. The way that conservatives reason about law and morality has helped bring about (or tried to preserve) a world that's closer to the one that conservatives view as good and just. One with less government intervention and greater individual freedom.
I agree with conservatives in some cases, but I don't entirely share their view of freedom. You might be free to vote, but if you can't take the time to get to the polls, or the lines are too long, your freedom doesn't mean much.
History leads me to see the conservatives of the South--once Democrats, now Republicans--as the enemies of fairness, justice, and even freedom as I conceive of them. Overt racism doesn't play well in public, even in the South, and some accusations of signaling are unfairly made. But racism is alive and well and so is signaling.
I amid viscerally disliking Southern conservatives. It comes from my understanding of history and my lived experience. In the '60s, when I was working for civil rights I read a pamphlet from a Southern racist group--maybe the KKK, maybe not. It explained that things in the South were just fine. Colored folk and white folk got along great. Because colored folk knew their place. Then that changed. Why? Because outside agitators started stirring up trouble. And who were those outside agitators? Jews. Jews were the enemy. Jews and communists--who were all Jews. See George Lincoln Rockwell at the end of this post.
I didn't much like them before that. I liked them a lot less afterward. Some, I assume are good people. But en masse they were a vile bunch who elected vile people who pandered to and further inflamed their vilest sentiments.
I've got plenty of complaints about the behavior of some of the people who call themselves liberals today. And I did back in the day when left-wing bombings, and occupying and trashing university offices were the thing to do. Still, when I was in college we were generally the ones who wanted to make our voices heard and they were the ones who were shouting us down. Sad that we've adopted their tactics.
Conservatives are not all alike. The conservatives of the West have different values than the conservatives of the South. But they have made common cause with them, and that matters. What do I make of that? If the enemy of my enemy is my friend, is the friend of my enemy my enemy?
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