On the Passing of Justice Scalia

Portrait of Justice Scalia
Antonin Scalia possessed a muscular mind, a brilliant style, and, from what I can tell at a distance through his opinions and the news media, a fearsomely big personality. But especially in the last few years he deployed those qualities to code and conceal a retrograde morality with a brittle legal philosophy. The disjunctions revealed in that maneuver were stunning. As he insisted more and more fervently that his views were rooted in reason and principle, the cogency of his reason gave way to embarrassing outbursts of emotion, and the inconsistency of his principles betrayed the troublesome ideology that animated his work.

I am skeptical that the Supreme Court of the United States is a purely legal or purely political institution. As a constitutional court, it stands the uncertain ground between the two and mediates, much as the Legislature occupies its own liminal zone and mediates between war and politics. But while it is relatively easy to understand how the mediation of war and politics, or the sublimation of war into politics, might produce law, it is difficult to understand that the mediation of law and politics by a constitutional court can also produce more law. Maybe that is a moral mystery, or maybe it is just a misnomer. Either way, the justices are political persons—a unique, platypus-like species of the political genus, but political persons nonetheless—whether Antonin Scalia believed it or not.

And that means the deaths of these unique political persons are not just biological, familial, and social events, but political ones, too.

The death of Antonin Scalia is distinct from the passing of Justice Scalia. Mourn the death of the man and feel sorrow for those around him. (And I am sure the sorrowful include his fellow Justice, Ruth Bader Ginsburg, who could hardly be more different, politically.) But I cannot begrudge anyone exulting the passing of the Justice, because the political consequences of that event are real, and belong to us all.

Sunday Morning Thoughts


Here in a civilization that gives so much lip service to the presumption of innocence, it is surprising how often the word “criminal” is applied to supposed members of a vague class of people that have not been convicted of, or even committed, the crimes with which they are identified. (Why should more citizens carry guns? To deter “criminals” from invading their person or property, of course. Except the people that are deterred, by definition, have not committed those crimes. Something else is lurking in the recommendation to arm.)


It ought to be significant that our Declaration of Independence names a right to pursue happiness, and not a right to retreat from fear.


Most people are just trying to get through life to a place of belonging. Nobody should be surprised that people outside of—or excluded from—our systems of mutual benefit feel compelled to scratch their way through by means that those of us within those systems happen to find—or cannot help but find—offensive.

Space, Time & Appearances 

Immanuel Kant, Critique of Pure Reason, translated by J.M.D. Meiklejohn (Prometheus Books 1990), page 42.

That is, and perhaps counterintutively, if space and time are real in themselves, despite being unobservable except through other things, and necessary for those other things to exist, then of course we would slip into idealism and say that everything is a “mere” appearance. Which means, of course, that if things are real, then space and time must only be relations between those things.

Undisguised Interests

“It is only a very vulgar historical materialism that denies the power of ideas, and says that ideals are mere material interests in disguise,” says Isaiah Berlin, in “Two Concepts of Liberty.”

Yes, but some purported ideals really are just material interests in disguise; they are “ideals” or “worldviews” deployed to capture the attention of critics while unexamined values slip silently through a side door. The better ideas are the ones that present with values in full view, so that nobody is able to forget what they are discussing—which is almost always the extent to which we are responsible for the good lives of others.
Guernica by Pablo Picasso

Numbers Only Measure What You Count

In all the tussle over the minimum wage and how it will affect the employment rate, there’s a surfeit of theory and a dearth of data. Maybe the new minimum wage laws in various cities will fix that problem.

Velazquez - The LunchBut speaking of theory, the employment rate isn’t the only number in play. For example, there’s also the income distribution curve, and the curve representing the propensity to spend or consume. If you’re at the low end of the income distribution, you almost certainly have a propensity—a need, really—to spend almost everything you earn, maybe more. If you’re at the high end of the income distribution, you probably have a propensity to spend a much lower proportion of your earnings; instead you’ll save or invest most of what you earn. Is there anybody left in the middle? You could have full employment with a few people earning almost everything and most people earning almost nothing. But what good is that? Odds are you’ll just end up with a revolt and exodus, or maybe a civil war, right? At the other extreme, you’d probably get the same result if you completely untethered effort and reward.

Prices are another number. They depend partly on what people are willing to pay and partly on what people are willing to receive. They also depend on things like the disparity of information between buyer and seller (whether voluntary or not), the raw fear of uncertainty if a deal isn’t done, built-in cognitive biases that distort perceptions of gains and losses, and the willingness to make economic demands on other people without assuming corresponding moral obligations for yourself.

You could say that all of those numbers affect each other in complex ways. But that’s not really true. The numbers aren’t interacting; people are. The numbers and equations are just tools to help people think about the consequences of their actions. (Too bad most of us are terrible at thinking in numbers and equations.) And that shouldn’t be surprising, given that economics grew up out of moral philosophy. The problem is not what we can do to ensure that our economy is humming along with the best possible numbers—because there is no guarantee that the economy with the best numbers will necessarily coincide with the happiest group of people—the problem is how to live well together.

I doubt that changing a single numerical parameter of our economy, like the minimum wage, is going to fix many problems all by itself. That seems to me like telling people not to use racial epithets, and then just hoping that racism will go away. There’s probably more work to do, if that’s the goal. But I also doubt that using economic ideas to atomize human society into a cloud of rational, self-interested actors is going to yield a just and happy world where morality is offloaded into mathematical constructs so that nobody has to worry about anybody else. The purpose of experimenting, gathering data, and formulating theories is to enable us to amplify our concern for each other, not to eliminate that concern.

So I hope that, if nothing else, the minimum wage experiments around the country will prompt people to think about each other as people, instead of just competitors, or costs, or consumers. Numbers are helpful, but they only measure the things we bother to count.

On Making and Perpetuating Our Own Problems

“[N]obody feels as much like a nobody as an immigrant does. And you can engage with a great power like the United States simply by throwing a bomb. You can declare war on the United States. And the amazing thing about it is that the United States will accept the declaration of war. We respond to terrorism by treating it not as a crime, but by treating it as war. So someone like Tamerlan [Tsarnaev], who feels small and insignificant, can suddenly claim a sense of belonging to a great, big effort—and a place in history.”

Masha Gessen, Interview with David Greene on NPR.

On Exemptions to Laws for “Religious” Reasons

If everybody were allowed conscience exemptions from ordinary general laws, then exemptions would make sense—but we might as well give up any pretense to the rule of law.

When people are only allowed exemptions to ordinary general laws for “religious” reasons, then either we’re already halfway down the road to giving up the pretense of the rule of law, or we are nakedly giving some people special privileges because they present their moral judgments, and express their moral sentiments, in “religious” terms.

Maybe giving some people that special privilege of exemption is a way of ensuring that only “religious” people have the full array of choices as citizens, while people whose moral sentiment and judgment operate on other terms have some lesser standing within the law.

Or maybe allowing the special privilege of exemption from ordinary general laws disincentivizes the holders of that privilege from engaging, in their capacity as citizens, with the process of shaping public policy. Why bother to express your preferences in the public sphere when you have the privilege of enacting them individually, and without legal consequence, on your own?

There might be some middle ground, by which reasonable exemptions may be granted for reasons that do not require classifying people according to the terms and methods of their morality, and so that exemptions are rare enough that nobody worries about how they affect the integrity of the rule of law. But I have never heard an argument for such a system. Until I do, my lot stays with the opponents of exemptions.


“The activity of thinking is as relentless and repetitive as life itself, and the question whether thought has any meaning at all constitutes the same unanswerable riddle as the question for the meaning of life; its processes permeate the whole of human experience so intimately that its beginning and end coincide with the beginning and end of human life itself.”

Hannah Arendt, The Human Condition (University of Chicago Press, 2nd ed., 1998) page 171.

The Holiday Season

Ryan Bell is “Claiming Christmas for Humanism”: “whether or not Jesus was a real historical person, the legends about his birth and the counterintuitive announcement of peace and human flourishing make Christmas a beautiful humanist holiday.” (Go read the rest.)

Hey, in  a world where people salivate over Marvel, Disney, and Lucasfilm joining forces, with a culture that can support subversively and ironically humanizing phenomena like Comic-Con and Star Wars conventions, and when the ancient tradition of reimagining old stories is chugging along with renewed (rebooted?) strength, there’s no reason why a story involving infanticide, other-worldly messengers, gritty shepherds, exotic magicians, and a subvert-the-powers-that-be vibe can’t be added to the mix.

And for me, Christmas has only improved with distance from the culture of Christianity. There’s no reason to pretend that we’re still using the Christian liturgical cycle to order our society or maintain solidarity, so why not step back and look at what we actually do with Christmas? It’s part of a big, nearly-three-month cycle of U.S. culture that manages to sweep up lots and lots of our culture in a wide array of festivities and contemplations.

It begins in October with a celebration of horror, death, humor, and sex. Interestingly, the family vs. friends dynamic for this celebration is relatively fluid—if you have young kids, you’re with them; otherwise, do as you please! Either way, be sure to push the limits. Explore the fine line between horror and hilarity. Cosplay at the boundaries of the sense of self, and wonder at the natural totemism of a kid dressed up as a monster. If you’re not spending the evening with the kiddies, then transcend convention by drinking a lot, and getting laid while wearing a costume. Contemplate death. This one is about ritual decoherence.

Having blazed quickly through an overtly raucous existential combo, we move into a strange, more interiorized phase where we wrestle with a variety of problems: incoherence from deseasonalization through globalization (“harvest” means almost nothing to most people anymore, but we keep the imagery, which becomes ironic because most of us are engulfed in plenty year-round); the question of whether “Christmas” decorations should start to go up yet (which I interpret as a manifestation of guilt arising from the tension between our need for lengthy celebration and our drive to work as much as possible); and an obligation and a desire to express gratitude and contingency (which can sometimes be a challenging mental state to reach, given the year-round plenty that we’re also failing to make sense of), culminating in Thanksgiving, which is solidly a family event. No wild sex involved. This one isn’t about transcending conventions, but embodying them, getting our feet back on the ground after the haze of Halloween.

Then we drop the interiorized stuff, jump into overt consumerism and gluttony, move temporarily away from the family (now’s the time for awkward office parties!), eat and drink to excess, listen to sentimental music, put up our most intense decorations of the year, and begin the terrifying slide back to the family core, culminating in the Christmas Eve—Christmas Day cycle that is so oddly syncretistic that one of the most common traditional threads is having distinct, family-unique traditions. (When does your family open presents? What food does your family eat? Does your family always go see a movie together? Attend church together?) Now that you’ve decohered into death, re-embodied convention, and spread yourself too thin, it’s time to hook back into your own nativity. This is the great star of the holiday cycle.

And then, finally, there’s a weird pause, where we’re all in this supersaturated state of peaceful (or is it just relieved?) afterglow for a few days, and the whole thing finishes with a bang-up party to celebrate the coming of the New Year. And it’s decidedly not a family-centered event: now is the time to get back with friends, let down your hair, and be relieved of the pressures and appearances of the family Christmas gathering. The New Year’s party has an interesting symmetry with Halloween in that sense, where humor and sex have survived the cycle, but horror and death are as far away as can be.

After all of that, go for a single jog or take a single trip to the gym, and eat healthily for a day or two, to symbolize your new resolve to live better, and then get back to work.