judicial concerns

CSGnet Archive CSG2005
1

[From Rick Marken (2005.11.03.1025)]

Tracy Harms --

> Case in point: Rick, I don't
> think PCT can distinguish conservatives from
> liberals by which of the canonical levels
> they can, will, or do
> apply to evaluating Supreme Court nominees.

Gee, I thought it was kind of a nice analysis.
But I'm certainly interested in hearing your
opinion. I don't suppose you'd be willing to
explain _why_ you think PCT can't distinguish
conservatives from liberals in terms of the
perceptual level at which their legal decisions
are made.

No problem, Rick. (For context, I'm including the
relevant paragraph from your prior post at the end of
this message.)

We are in agreement on the idea that people, including
(provisionally <wink>) judges and lawyers, cannot work
strictly at one level but not another. I consider
this applicability of all levels for all people (of
roughly similar capabilities) to preclude the bias
you've suggested. In particular, I assert that what
you interpret as disruptions at the rule level
actually engage the principles of strict
constructionists fully, not less than principles are
the concern of those who favor judicial activism.

Constructionism does not manifest as mere or
incidental attention to rule-conformance. Rather, it
is a complex preference that fits attempts to satisfy
various principles and ideals. The explanation you
proposed denies this, furthermore suggesting that
"progressives" are more conceptually sophisticated for
working at "higher" levels.

Admittedly, my own opinions favor strict construction,
and I explicitly denounce progressivism. The serious
differences between our political orientations does
not mean that we can't make headway on focused topics
such as this one. I'm certainly open to further
discussion.

Tracy B. Harms

···

--- Rick Marken <marken@MINDREADINGS.COM> wrote:

Some lawyers and judges are, in principle,
committed to paying attention to the law at
one level or another. Those who are committed
to paying attention to the law at the rule
level (logic level in PCT) are strict
constructionists; those who are committed to
paying attention to the law at the principle
level are liberal activists. I don't think
any lawyer or judge can work strictly at one
level and not the other. But the
constructivist goal is to try to stick to the
rules while the "activist" (I prefer
"progressivist") is willing to consider
things from the perspective of the principle
level (the spirit of the law) which is where
the Supreme Court apparently found the
principle of respecting people's privacy. I
bet the debate over Alito will be readily
interpretable in PCT terms as a debate over
the the level of perception that should be
used in extracting meaning from the
Constitution. Conservatives will want to see
a focus on the rule (also called the logic)
level while the Liberals will want to see an
ability to go up to the principle level.

--
"No one will be able to be
armed. We are going to take
all the weapons."
      Deputy Chief Warren Riley
      New Orleans Police Department
      September 9th, 2005

__________________________________
Yahoo! Mail - PC Magazine Editors' Choice 2005

2

[From Rick Marken (2005.11.07.0850)]

Tracy Harms --

Rick Marken (2005.11.03.1025)--

Tracy Harms --

Case in point: Rick, I don't think PCT can distinguish
conservatives from liberals by which of the canonical
levels they can, will, or do apply to evaluating
Supreme Court nominees.

Gee, I thought it was kind of a nice analysis. But I'm
certainly interested in hearing your opinion.

We are in agreement on the idea that people, including
(provisionally <wink>) judges and lawyers, cannot work
strictly at one level but not another. I consider this
applicability of all levels for all people (of roughly
similar capabilities) to preclude the bias you've suggested.
In particular, I assert that what you interpret as disruptions
at the rule level actually engage the principles of strict
constructionists fully, not less than principles are the
concern of those who favor judicial activism.

I didn't mean to imply that there was a capability difference between
constructionists and activists. I know that people from both of these
orientations are perfectly capable of perceiving the law in terms of rules
principles. I was just suggesting that the difference between
constructionists and activists could be conceived of as a difference in the
perceptual level at which one prefers (based on the requirements of
controlling for a constructionist or activist judicial philosophy) to
control for legal conclusions.

Obviously, constructionists can perceive principles, like the principle of
"privacy", just as well as the activists. If they couldn't, they couldn't
debate the activists and say that they see no such principle in the
constitution. The difference I was suggesting was that the activists (for
higher level reasons) are trying to perceive principles (probably using a
considerable dollop of imagination) reflected in the rules written in the
constitution while the constructionists prefer to stick with the rules. If
there is no rule that allows abortion, for example, then that's that for the
constructionist. If there are a set of rules that seem to protect a person's
right to make private decisions (like the decision regarding what to say and
believe) then the activist will perceive a privacy principle in those rules
(with a little help from imagination, if necessary), a principle that
protects a person's right to decide to get an abortion.

The difference between constructionists and activists, according to my
proposed explanation, is not one of intelligence or morality. It's simply a
difference in the _kinds_ of perceptions of the law each prefers, this
preference being determined by the higher order goal of how one wants to see
oneself (judicially) -- as a constructionist or an activist.

Constructionism does not manifest as mere or incidental attention to
rule-conformance. Rather, it is a complex preference that fits
attempts to satisfy various principles and ideals.

If this is true then I would certainly have to reconsider my explanation.
What you are saying is that constructionists are just as willing as
activists to perceive the law in terms of principles. Something else, what
you call "a complex preference that fits attempts to satisfy various
principles and ideals", is what distinguishes the constructionist from the
activist. So what I would like to know now is what is that "complex
preference" that distinguishes the constructionist from the activist
approach.

The explanation you proposed denies this, furthermore suggesting that
"progressives" are more conceptually sophisticated for working at
"higher" levels.

Again, I did not mean to imply that progressives (I like that term better
than "activists") are any smarter or more conceptually sophisticated than
constructionists. Both progressives and constructionists are perfectly
capable of perceiving the law at the rule and principle level. All I was
suggesting was that it looks to me like, from an HPCT perspective,
constructionists prefer deciding legal questions in terms of "the rules"
while progressives are more willing to decide legal questions in terms of
"the principles" that they see reflected in the rules.

Best

Rick

···

--
Richard S. Marken
MindReadings.com
Home: 310 474 0313
Cell: 310 729 1400

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3

From [Marc Abrams (2005.11.07.1506)]

In a message dated 11/7/2005 11:51:46 A.M. Eastern Standard Time, marken@MINDREADINGS.COM writes:

···

[From Rick Marken (2005.11.07.0850)]

The difference between constructionists and activists, according to my
proposed explanation, is not one of intelligence or morality. It’s simply a
difference in the kinds of perceptions of the law each prefers,

Why would one like one kind and another like something different?

this preference being determined by the higher order goal of how one wants to see
oneself (judicially) – as a constructionist or an activist.

Constructionism does not manifest as mere or incidental attention to
rule-conformance. Rather, it is a complex preference that fits
attempts to satisfy various principles and ideals.

If this is true then I would certainly have to reconsider my explanation.
What you are saying is that constructionists are just as willing as
activists to perceive the law in terms of principles. Something else, what
you call “a complex preference that fits attempts to satisfy various
principles and ideals”, is what distinguishes the constructionist from the
activist. So what I would like to know now is what is that “complex
preference” that distinguishes the constructionist from the activist
approach.

Good question, and one your infinite regression model does not answer either. But now that you are going to be teaching a course in Cognition I think you may wind up rethinking a good many things you have cherished for so long without questioning, and that is a good thing. A very good thing

And how does that come about? Do I hear infinite regression here?

The explanation you proposed denies this, furthermore suggesting that
“progressives” are more conceptually sophisticated for working at
“higher” levels.

Again, I did not mean to imply that progressives (I like that term better
than “activists”) are any smarter or more conceptually sophisticated than
constructionists.

But you did imply it. By ‘suggesting’ that one group operates at a ‘higher’ level what did you think you were implying?

Both progressives and constructionists are perfectly
capable of perceiving the law at the rule and principle level.

OK, then why does one group operate at one level and the others at another level?

All I was suggesting was that it looks to me like, from an HPCT perspective,
constructionists prefer deciding legal questions in terms of “the rules”
while progressives are more willing to decide legal questions in terms of
“the principles” that they see reflected in the rules.

Yes, and that view was challenged by both myself and Tracy. Maybe you do in fact need to rethink this, but you won’t. Not until Bill Powers comes along and tells you to do so.

In fact that is what I have been attempting to do and failing at. I am not religious nor am I a fatalist, but sometimes things happen and work out in mysterious ways
Regards,

Marc