Sunday, December 30, 2007

Hans Blumenberg, The Legitimacy of the Modern Age: Part I, Chapters 6 and 7

65: "What mainly occurred in the process that is interpreted as secularization, at least (so far) in all but a few recognizable and specific instances, should be described not as the transposition of authentically teleological contents into secularized alienation from their origin but rather as the reoccupation of answer positions that had become vacant and whose corresponding questions could not be eliminated."

'residual needs' as key factor in retention of systems of questions across changes of epochs

67: system of explanatory values of Christianity reaches its 'crisis' in Scholasticism -- an interestingly Hegelian framing

Christianity also was shaped by the requirements of a transition of epochs: it found itself in the position of providing answers to systems of questions inherited from the thought of pagan antiquity.

Example: classical philosophy had well developed ideas about the nature of 'happiness' (and thus, I think Blumenberg is saying, of a complete life); Christianity found itself expected to give content to the 'salvation' promised in immortality, and filled this with the classical philosophical ideal of beatific contemplation.

Questions about originality of the materials of Christian thought were also raised by its opponents at the time of this epochal change. The early Christian response focused on the idea that all true knowledge found in the classical sources was in fact originally borrowed from Biblical revelation. Along with this Christian thought set up a model in which the original ownership of an idea is constitutive of the sole legitimate right to use it. But the modern idea of knowledge as something which any subject can produce -- and, more importantly, reproduce -- dissolves the authority of original ownership, and makes the charge of secularization itself an anachronism.

The attribution of absolute infinity to God, along with omnipotence, created the unbearable contradictions of Scholastic philosophy, and thus led to the self-destruction of the medieval system (forgive me for again thinking of Hegel).

On infinity as an attribute of progress: in this context, it is seen negatively, as a resignation, not positively, as a form of praise, as it was in the medieval conception of god

Saturday, December 29, 2007

Hans Blumenberg, The Legitimacy of the Modern Age: Part I, Chapters 4 and 5

Eschatology is itself a secularization of Christianity. Early Christians expected the the end of the world to come immediately -- within their own lifetimes, at least. But the world persisted, and Christians had to come to terms with it, to make a place for it in their thought. Eschatology, which stabilized the expectation of salvation while the actual day of salvation was postponed, was one response. Related to this was the institutionalization of the Church to administer this promise of salvation in the world. Further, this institution was distinguished from the political institutions not concerned with salvation, and the latter were identified as 'worldly' -- thus, 'worldliness' is created from the secularization of Christianity by means of eschatology.

Modern reason inherits a legacy of questions from medieval Christian thought which it is not really suited to answer, and overextends itself trying to answer them anyway. Thus it is that modern thought tries to extend the idea of progress into a philosophy of history to answer the inherited medieval questions about the shape of history (the question to which eschatology was the medieval answer).

53-54: "Augustine's explanation of the bad in the world as the result of human wickedness, as a species-wide quantity, made it necessary for any subsequent notion of progress that would undertake to diminish the bad in the world also to establish man's ability to lessen his culpability by his own efforts. The idea of progress, as was to become evident much later on, requires a reversal of the causal relation between moral and physical evils; it is founded on the assumption that in a better world it would be easier to be a better person."

Marquard - Modern philosophy of history takes on the function of theodicy. Here, Blumenberg's functional analysis of history actually provides a final foothold for the secularization thesis.

Blumenberg responds that philosophy of history as the story of progress cannot actually perform the function of theodicy. Theodicy requires a subject with perfect freedom to absolve God for the responsibility for bad things, but freedom is seen as the end of philosophy of history, not its presupposition. In any case, the functional analysis of philosophy of history seeks only to explain it as an ultimately unavoidable response to the provocation of medieval thought, it does not seek to justify it.

Tuesday, December 25, 2007

Hans Blumenberg, The Legitimacy of the Modern Age: Part I, Chapter 3

Lowith - uses secularization thesis to establish continuity between medieval and modern models of history, which are both linear, thus more effectively distinguishing both from pagan antiquity, and it's cyclical conception - Puts the great epochal shift between pagan antiquity and Christian middle ages

Blumenberg's critique - burden of proof to show a unity of substance between medieval and modern conceptions of history has not been met.

In particular, the modern idea of progress in history -- even in utopian variants -- has obvious discontintuities with Christian eschatology. Eschatology looks forward to an external event disrupting history, while progress is seen as a force immanent in history. Eschatology (by late middle ages) was a matter of fear and dread in the face of the arbitrary, absolute will of God, while the idea of progress expresses hope in what may be achieved by humankind.

32: "[T]he idea of progress is precisely not a mere watered down form of judgment or revolution; it is rather the continuous self-justification of the present, by means of the future that it gives itself, before the past, with which it compares itself."

33: "The idea of method is not a kind of planning, not a transformation of the divine salvation plan, but rather the establishment of a disposition: the disposition of the subject, in his place, to take part in a process that generates knowledge in a transubjective manner." (Consider consequences of replacing disposition with discipline in this sentence.)

Moreover, the idea of progress in history can be satisfactorily accounted for by already existing models -- e.g., the advances of astronomy and the rejection of the canonical status of classical literature in the querrelle des anciens et des modernes. Furthermore, the tranformation of progress in history into an infinite process was not the appropriation of a divine attribute for it; it was instead compensation for the failure of immediate realization of the fulfillment of progress and also a regulative idea protecting against misappropriation of the concept for absolutist projects.

Hans Blumenberg, The Legitimacy of the Modern Age: Part I, Chapters 1 and 2

diversity in uses of and attitudes towards concept of secularization - some intellectual shadow boxing, as his antagonists here are mostly unspecified and sometimes I can't even guess who they are

descriptive secularization - historical decrease in practice and influence of religion and possessions of religions institutions

interpretive secularization - explaining modern secular concepts and institutions by reference to a supposed religious source

crisis theology - positive valuation of secularization, as a liberation of religion from entanglements of the world

secularization and worldliness - Arendt's distinction between these noted - secularization does not return modern man to immedicacy of classical relationship to the world - instead an intensification of alienation from the world

dispute with Gadamer, who contends that concept of secularization performs legitimate hermeneutic function of revealing hidden meaning of the present - Blumenberg

leads into dispute over significance of secularization (i.e., expropriation) of church property as a metaphorical touchstone for use of secularization as an interpretive concept - reference to background metaphorics

Sunday, December 23, 2007

Anthony Lewis, Gideon's Trumpet: Chapters 8 and 9

An interesting preliminary note: not only did Abe Fortas argue the case, but John Hart Ely drafted the brief as a summer law school intern.

Leading up to Gideon v. Wainwright, there were a few key Fourteenth Amendment cases bearing on the right to counsel for indigent defendants.

Powell v. Alabama (1932) required provision of counsel for defendants who had been unable obtain their own lawyers. It did not institute a general rule for provision of counsel, however. Leaving open the question of whether there was a universal requirement, it instead relied on a number of circumstances of that case -- a capital crime, a hostile public environment, and defendants incapable of conducting their own defense -- to find that lack of counsel had represented a denial of due process.

Johnson v. Zerbst (1938) required counsel to be provided for indigent defendants in all federal cases.

Betts v. Brady (1942) found that access to counsel for poor defendants was not a fundamental right secured by the due process clause's guarantee of a fair trial, while admitting that in some circumstances providing a lawyer was necessary to ensure fairness. In essence, it closed the door on a more expansive interpretation of Powell, making the existence of special circumstances a prerequisite for a due process entitlement to a lawyer.

Although Griffin v. Illinois (1956) did not directly address the issue of counsel for poor defendants, it invoked the equal protection clause of the Fourteenth Amendment to hold that a poor defendant could not be denied an appeal because of inability to afford a trial transcript.

The large number of recognized special circumstances under the Betts rule had provided a rich ground for appeals. In the years since Betts, the Court had reviewed a steady stream of indigent counsel cases, almost always ruling to overturn state court decisions where counsel had been denied. Fortas' brief used this history to turn the most potent objection to imposing a right to counsel on its head. He argued that the existing standard, far from being a bulwark of federalism, had instead required constant review and correction of the decisions of state judges. It had thus actually led to more federal interference in state courts than a straightforward requirement of counsel would.

Although overcoming concerns about federalism was the core of the case, there were a number of practical issues raised by a uniform requirement to provide access to counsel. Among these were the scope, timing, and retrospective impact of the requirement.

With respect to the first, Fortas' brief argued that the Court could exempt petty offenses.

When a lawyer should be provided was a more difficult issue, since Fortas thought a defendant really needed a lawyer immediately upon arrest. In the end, however, he only argued only for the necessity of providing a lawyer for the trial.

Finally, Fortas had to address the Court's hesitance to create grounds for overturning a large number of convictions. This was such a concern that it had even been mooted that the Court would prospectively overrule Betts -- that is, that it would let existing convictions stand while requiring counsel in all future cases. Fortas argued that states would still have the option to retry the cases if the convictions were overturned by the Court.

With regard to the concept of prospective overruling, I find it curious that Lewis does not draw the analogy to advisory opinions. In overruling prospectively, the Court decision would not be subject to the restraint imposed by the consquences of the case immediately before it, which seems to have the same dangers as the advisory opinions which the court has always abjured.

Monday, December 3, 2007

Anthony Lewis, Gideon's Trumpet: Chapter 6

Here we meet a couple of ideal types of Supreme Court justices. On one side, we have the justice as defender of constitutional liberties, seen as absolute principles before which practical considerations must give way. On the other side, we have the justice as apostle of judicial self-restraint, who temporizes Constitutional principles and defers to political leaders. Hugo Black is put forth as a representative of the former, and Felix Frankfurter of the latter, although the fit is a bit loose in both cases.

Judicial restraint in the mold of Frankfurter takes three forms. In the first place, a justice like Frankfurter grants wide latitude to legislators and government officials. There is not necessarily a faith involved that politicians will do the right thing, but there is certainly an attitude that they are better left to sort out their mistakes for themselves.

Another form of restraint is strict adherence to precedent. For all justices, the Court's past decisions guide their current jurisprudence. But here, that deference is often granted even when the Court's earlier decisions are acknowledged to have been in error. Finality trumps correctness.

Finally, there is deference specifically to state laws and officials. This is the principle of federalism. The key issue here by the time of Gideon's case was how much the Constitution limited the powers of state governments in light of the Fourteenth Amendment. For many decades, the Court declined to use either the amendment at all to impose the restraints of the Bill of Rights on the states. Since a 1925 case which upheld the right to free speech against state interference, however, the Court gradually conceded that some rights are so fundamental that they must also apply to state governments. Such rights were held to have been absorbed into the amednment's due process clause. The Court's advocates of restraint, however, were cautious about which rights could be absorbed.

For his part, Black was not satisified with the doctrine of absorption. He saw no firm principle to distinguish fundamental rights which should be absorbed from the others which should not. He saw too much latitude there for justices to make arbitrary decisions, and favored instead a simple, wholesale incorporation of the first eight amendments into the Fourteenth Amendment.

I don't doubt that Frankfurter is one of the great lights of the Court's history, but I can't muster much respect for his position here. Whatever it's uses for easing the path to enforcing Constitutional rights, the doctrine of absorption strikes me as nonsense on steroids. The privileges and immunites clause plainly applied the existing federal rights of citizens against the states, and if these rights were not those enumerated in the Bill of Rights then there really wasn't anything else for them to be.

Tuesday, November 20, 2007

Anthony Lewis, Gideon's Trumpet: Chapter 2

In Chapter 2, Lewis explains how the Supreme Court decides which cases to hear. It's clear and concise and worth summarizing.

Getting cases to the Supreme Court is hard. It doesn't seem like an exaggeration to say the Court works hardest at not deciding cases, and failing that at not deciding them on fundamental constitutional issues.

The first obstacle is jurisdiction. The Constitution limits the Court to hearing only a few types of appeals. The most important of these are cases where an issue of federal law or the Constitution is at stake. These are mostly cases that have been appealed from state courts (in fact, the Court's successful assertion of its right to review state court decisions regarding federal issues was an important early test of federal power).

Even if a federal issue is at stake, a number of precedents and statutes oblige the Court to reject some cases. In the first place, the case must be ripe. That is, federal law requires that all opportunities for appeal must have been exhausted at the state level before the Supreme Court can take a case. In any event, the federal issue must have been raised as early as possible in the case, unless state appellate courts have allowed it in at a later stage. Finally, the court will generally not review cases that were rejected in state courts on procedural grounds.

In addition to these requirements, a litigant must show a direct personal stake in the case. An adverse decision must be shown to have personally caused the litigant some injury. This shows that he or she has standing to bring the case.

All this may not yet be enough. For the Supreme Court is not generally obliged to hear an appeal, even if it meets all of the tests that would permit a review. The Judges' Bill of 1925 granted the Court discretion to choose among the cases it could legitimately take. The Court issues a writ of certiorari when it decides to hear an appeal, and denies the writ, usually without explanation, when it declines a case.

A refusal of certiorari doesn't always reflect satisfaction with the ruling of a lower court. A case with legal merit may be refused because members of the Court don't think, for one reason or another, that it presents the right opportunity to decide the issue. The facts of the case may be too confusing to serve as the basis of a clear decision. Justices may wish to see further exploration and development of the issue in other cases in lower courts before making a ruling. Sometimes a Justice who sympathizes with the claim will vote to refuse certiorari because of a fear that the case will lose, and so create an adverse precedent.