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Saturday, March 01, 2014

Waldron v. Seidman, and the obligations of officials and the rest of us

"Never Mind the Constitution." That's the awesome title of this characteristically sharp and learned essay by Jeremy Waldron, reviewing in the HLR Mike Seidman's new book, On Constitutional Disobedience.  Seidman's got a cheeky and funny short reply to Waldron, entitled, appropriately enough, "Why Jeremy Waldron Really Agrees With Me."  I wonder if Seidman's Response will continue the apparent trend of the personal title for scholarship, e.g., Why Jack Balkin is Disgusting. If Susan Crawford's Response in the Harv. L. Rev. Forum to the review of her book by Chris Yoo is any indication, I suspect at most we can use these few data points only to identify a trend in favor of the  "meta" title and not make broader generalizations just yet.

Moving past the title to something like the merits, I'll confess I'm pretty skeptical toward the general thrust of Seidman's argument (as characterized by Waldron and as evidenced in his NYT oped from last year). He is, as Waldron notes, basically a philosophical anarchist and that's a position I find largely untenable under particular conditions of a reasonable well-working liberal democracy. (Importantly, some of Waldron's work on political obligation was what led me down that path but little of Waldron's work on that subject figures into his review of Seidman.) One last mildly interesting thing to note is that Seidman's embrace of philosophical anarchism and his export of it to constitutional theory basically coincides with the thrust of Abner Greene's recent book, Against Obligation.  There are differences between them, some of which are discussed here (review of Seidman by Greene) and here (review of Greene by Seidman). For those interested in these overlapping and important projects, the BU Law Review published a symposium on these two books last year, and you can find the contributions here, which I'm looking forward to exploring further, since, full disclosure, I am writing dreaming up something inspired by these various works on the moral and political obligations of prison or other corrections officials as a distinct class of officials).

 

Posted by Dan Markel on March 1, 2014 at 04:19 PM in Article Spotlight, Blogging, Books, Constitutional thoughts, Dan Markel, Legal Theory | Permalink

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Comments

Dan: philosophical anarchism is an ideal theory, and thus it cannot be untenable or tenable under the particular conditions of liberal democracy. Maybe what you mean is that, whatever currency the theory has, it is unrealistic given our present condition, which presupposes the modern state, etc. BTW, for a cogent post-Simmons defense of philosophical anarchism, see Michael Huemer's excellent treatment, The Problem
Of Political Authority (Palgrave, 2013)

Posted by: Fernando Teson | Mar 1, 2014 4:59:45 PM

Fernando, my point is that philosophical anarchism is not a persuasive theory of how we are to view our political obligations once certain conditions are satisfied. So in that sense, it's untenable in the sense that it is not persuasive; to embrace philosophical anarchism once those various conditions are fulfilled is to act unjustly or in a blameworthy fashion -- IMHO. (The full argument for this position is elaborated ad nauseum in my two pieces in Va. J. Crim Law in 2012, both of which are at danmarkel.com, and which draw on Waldron/Shapiro/Estlund etc *contra* Simmons and by extension Huemer.)

Btw, it was a piece by Huemer recently that left me adequately unpersuaded to think I should wade back into this mess :-)

Posted by: Dan Markel | Mar 1, 2014 6:13:10 PM

Are you familiar with Huemer's book on political obligation? It would seem part of the same conversation.

Posted by: David Friedman | Mar 1, 2014 6:29:32 PM

Yes, Fernando just mentioned the book above, and the intro is online. I haven't read past the intro yet (though I read some other stuff by Huemer), but I'll look forward to seeing more of it. Huemer seems to be taking political anarchism much more seriously, and from the TOC, seems much less interested in the questions of constitutional obligation that motivate Greene and Seidman. But I could be wrong.

Posted by: Dan Markel | Mar 1, 2014 6:46:15 PM

My only point is that it is important to distinguish between philosophical anarchism (which I personally find attractive) and political or all-things-considered anarchism, which, I agree, is harder to defend. I'm not sure where I'd put Seidman.

Posted by: Fernando Teson | Mar 1, 2014 7:24:22 PM

Fernando said, "for a cogent post-Simmons defense of philosophical anarchism, see Michael Huemer's excellent treatment, The Problem
Of Political Authority (Palgrave, 2013)"

People interested in the book might find the discussion here interesting:

http://bleedingheartlibertarians.com/2013/08/the-problem-of-political-authority-the-symposium-begins/

My own thought was that Christopher Morris, who is no big fan of expansive state authority, showed Huemer's approach to be deeply misguided, and that Massimo Renzo showed many other important problems. I don't actually think that Huemer has importantly or clearly moved past Simmons, and think that Simmons has been basically refuted by Anna Stilz, in her important book _Liberal Loyalty_, among other places, but others will obviously disagree.

Posted by: Matt | Mar 1, 2014 8:33:13 PM

@Fernando,
I agree that political anarchism is much harder to defend than philosophical anarchism and not having seen any reference to political anarchism in your first comment, I still think philosophical anarchism is not persuasive under certain conditions, though I confess those conditions are rather stringent and demanding, and so, at the very least, I'll confess that I'm a philosophical anarchist in the absence of those conditions, much in the same way that I'm a negative legal moralist in the absence of those conditions too!

Posted by: Dan Markel | Mar 1, 2014 11:21:11 PM

I'm puzzled by what Fernando says about philosophical anarchism above, that it is an ideal theory. I don't see why that is the case. It would seem to hold under non-ideal conditions. Why would the fact that we don't live in a just or well-ordered society give us more reason to think we have general obligations to obey? If anything, wouldn't it be exactly the reverse?

Posted by: Micah Schwartzman | Mar 2, 2014 1:17:10 AM

Is Seidman a philosophical anarchist? According to Seidman, his argument is specific to constitutions of a certain age. His proposal is merely that contested issues in our country (and countries with a constitution as old as ours, which is basically a null set) be resolved by contemporaneously enacted statutes and regulations, not appeals to a constitution ratified in times very different from our own. I don't see how that's philosophical anarchy.

Posted by: Asher Steinberg | Mar 2, 2014 6:56:31 PM

You know, Asher, it's an interesting question you raise. The excerpts Waldron quoted from made it seem like Seidman was a straightforward philosophical anarchist--at least as I recall them from reading it yesterday. But then when pushed on the comparative front by Waldron, he seemed in his reply to qualify his claims in the way you suggest. So, not having read the Seidman book yet, I can't attest to whether Seidman's reply to Waldron is a concession to W's critique or a clarification of what he said in his book. I think there might be another option: namely, that philosophical anarchists will themselves frequently have good reason to accept constitutions as structures for resolving political disagreement particularly when those constitutions are performing that function in "new" polities as opposed to older/stable ones like the American republic. But if the test is: would Seidman think there's no good reason to stop at a red light in the desert in the middle of day with no traffic and no danger within even a new constitutional regime, then I think we can say he's a philosophical anarchist and whatever deference he gives to constitutional life in new polities is not actually deference but just more philosophical anarchism of a basic sort.

Posted by: Dan Markel | Mar 2, 2014 9:23:46 PM

I thought even the excerpts Waldron quoted seemed limited to the American constitution in the way I suggest. That said, supposing that Seidman were a philosophical anarchist, which he may well be, it's not obvious to me that his argument depends on philosophical anarchism, much less that he couldn't get to exactly the same place without philosophical anarchism. All I really see here is a repackaged version of the dead hand argument against originalism, expanded to encompass fidelity to the Constitution generally on the ground that any mode of constitutional obedience, whether it's living constitutionalism or common-law constitutionalism or political process or what have you, sees some constraints in the Constitution that aren't merely reflections of contemporary values and preferences, and therefore are all vulnerable (if to a lesser degree) to the same dead-hand objections often made to originalism. And as I understand the dead hand argument, the idea, stated very crudely, is that rule by the long-dead is illegitimate because the long-dead aren't members of the living political community that has to live under the long-dead's law, not that rule by the long-dead is illegitimate because law in general lacks moral legitimacy to bind. Judging by Waldron's excerpts, I'm not sure that Seidman's relying on the illegitimacy of old law; rather, the thrust of his argument appears to be that it's very unlikely we'll arrive at optimal solutions to policy disputes by appealing to constitutional law written by people who knew nothing of present conditions. But I don't think that's an anarchist argument either.

Posted by: Asher Steinberg | Mar 2, 2014 10:56:08 PM

Asher, at one point Waldron says re: Seidman:
Seidman is really a sort of “philosophical anarchis[t]” (p. 119). He asks why we should ever deviate from our own best judgment just because of what the text of some law requires. Now, he pulls back a little bit from this, saying that “[s]tates cannot function without laws, but they can function without constitutions” (p. 122). But his confusion about written constitutions leaves it unclear whether he thinks the UK can function without its constitutional statutes or New Zealand without the Constitution Act of 1986.

Posted by: Dan Markel | Mar 3, 2014 12:15:05 PM

One last point of information for me. I had been waiting for Simmons to write a response to the other democratic obligation people (Waldron, Shapiro, Christiano, Stilz), and particularly to see how he'd respond to those who thought they had overcome Simmons' powerful "particularity" objection lodged in earlier iterations of the debate. Well, through some stumbling and sleuthing, I now see that Simmons has a characteristically) cogent and illuminating piece. I've only read it once, and quickly, but it warrants more careful and repeated visits. Here's the link:
http://onlinelibrary.wiley.com/doi/10.1111/raju.12017/full

I'll be curious to see others' reactions, including Waldron and Stilz.

Posted by: Dan Markel | Mar 3, 2014 2:38:33 PM

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