There is a great debate on the Kelo case today on National Review Online between two friends of mine, Jonathan Adler and Scott Bullock. The debate concerns the original meaning and judicial effect the “public use” portion of the Takings Clause. The only sour note in the exchange is when Jonathan says:
I will not defend the justices in the Kelo majority on this score as they did not seek to rest their opinion on originalist grounds. Alas, there are others, including my friend Bullock, who seem willing to read their own ideological preferences into ambiguous constitutional text.
When you stop think about it, this is really a pretty serious insult that goes to the intellectual integrity of those about whom it is said. In essence, it is asserting that, while I have the integrity to set my own preferences aside when reading the Constitution, my opponent does not. It attributes a form of intellectual corruption to one’s opponent, in which he puts his interests above the truth, so much so that he is unable to tell the two apart. And it adds nothing substantive to any particular debate. Whether or not your opponent is guilty of this will depend entirely on the originalist evidence for his or her position, or the lack thereof.
Now when it comes to original meaning, I think that this form of corruption does exist. It exists especially when there is no good faith argument based on the original meaning of the text. But especially when we are discussing an ambiguity or vagueness in the text, we should generally refrain from casting this particular mud ball, and let our evidence and arguments speak for themselves.
I know that this accusation is so commonplace that Jonathan just slipped into it without thinking. But I think we all ought to realize the true implications of this particular form of (non)argument, and generally refrain from using it unless it is overwhelmingly justified.
Comments are closed.