Scott Soames on 'Originalism & Legitimacy'.

 In an article titled 'Originalism & Legitimacy', Scott Soames- perhaps the only philosopher of any distinction to have said something nice about Trump- wrote

There are three main sources of sociological legitimacy of a legal system.

There is only one. Legitimacy is a purely legal concept and all Societies have recognized this.  Sources of law in a Society may be Religious, Customary, Legislative, Contractual or such as arises more or less spontaneously as the solution to coordination or collective action problems of a specific type. There may also be a notion of 'Natural' or 'unwritten' laws. If Courts or other institutions or coordinating mechanisms uphold such norms, they may be considered legitimate. 

It is a different matter that, at any moment, some may want particular laws to be changed or that they want particular institutions to be de-legitimized and replaced by others. This does not alter the fact that Sociological Legitimacy means what the Law considers legitimate. It has nothing to do with popularity or public approval or current ideologies popular with intellectuals.

Furthermore, it is not the case that Sociologists- i.e. shitheads teaching nonsense- represent Sociology anymore than shitheads teaching Economics are actually economizing on anything. 

One is prudential;

It is not prudent to grant the legitimacy of anything save for consideration. Why give a hostage to fortune? Take everything under advisement and don't take a position on what is or isn't legitimate unless that is what you get paid to do.  

Why do institutions or collective action mechanisms claim legitimacy or have such claims made by those who act in their name? The answer is not prudence but profit or utility (Pareto's word 'ophelimity' brings this out). Essentially a cost is reduced or revenue is enhanced in such a manner that claiming or enforcing legitimacy is 'incentive compatible'. 

That's why a person might go to law to establish he is the legitimate son and heir of a billionaire and thus entitled to a lot of money. If his dad was a hobo, he wouldn't bother. 

many must judge the system to be reasonably effective in enhancing their welfare and that of those they care most about.

No. One may grant the legitimacy of one's country's government but run away from it because it boring or poor or unable to defend itself from insurrection or invasion. 

Equally, one may happily move to an area where one is better off even if one thinks the government is illegitimate. 

The second source of legitimacy involves substantive justice. Many must think that the system enhances the general welfare, relative to other achievable systems, that natural rights are protected in important ways, and that the burdens and benefits the system imposes are not grossly unfair.

Nonsense! Only a fool would think any such thing obtained. We simply don't know what 'achievable systems' are. Moreover, we don't even know whether effective remedies for purely legal rights we have will be available or enforceable at this very moment. Madoff's investors thought they were sitting pretty. They would have a very comfortable retirement. After all, they had the right to receive sizable sums of money every year. They were mistaken. Their money had disappeared. They could get a judgment against Madoff, but they had no means of actually extracting a penny from him.  

The third source of legitimacy is participatory.

This is why everybody who participates in a gang-rape is recognized as the legitimate father of their victim's baby- right?  

Many must believe that the law-making process is, to a reasonable degree, representative of the governed, and so capable of being influenced by them.

No. The governed may consider a wholly foreign and unrepresentative government, imposing laws of its own, to be wholly legitimate.  

Sociological legitimacy is a graded notion.

It is nonsense. It is a different matter that a stupid person may have a stupid theory about why most people behave in the ordinary manner. Even if that stupid person gets a job teaching that stupid shite to cretins, the thing remains nonsense.  

Citizens of all minimally legitimate systems recognize some reasons, apart from the fear of punishment, for obeying the law; in more highly valued systems their motives for uncoerced compliance are stronger.

This was a convenient assumption made by shitheads who wanted to shit higher than their arseholes. Previously, it was enough to say 'people are God fearing. By respecting the laws of Man, they better fit themselves to obey the laws of God- their Creator, Judge, and the  source of ultimate Salvation or Damnation.' This was fine, because it was an article of Faith and Faith is founded on a mystery. What was foolish to try to get the same result on the basis of an inherently flawed 'Rational Choice' type theory. Why? Knightian Uncertainty militates for Regret Minimization. not Expected Utility Maximization.  Moreover, 'uncorrelated asymmetries' are arbitrary yet eusocial. They dictate 'bourgeois strategies'- e.g. the child born in wedlock being 'legitimate' and thus, ceteris paribus, having superior inheritance rights. 

But perfection along any 3 dimension of legitimacy isn't required.

There are no such dimensions. One may as well speak of the height or width of a fart.  

When a system ranks high in all dimensions, citizens will feel a strong prima facie obligation to obey its laws.

Fuck off! We feel a high obligation to obey laws- however illegitimate we may think them- if the consequences, for our kith & kin, of our failure to do so would be fucking catastrophic. By contrast, even if, for virtue signalling purposes, we  pretend to feel strong prima facie obligation to wipe the bums of hobos, we don't actually do so.  

But a system need not reach this level to be minimally legitimate. It is enough that people accord enough authority to its directives to take themselves to have some substantial reasons, beyond fear of punishment, to obey them.

Sadly, those 'substantial reasons' apply to virtue signalling or hypocrisy, not actual behaviour. Incentives are another matter. That is a subject for 'Law & Econ'. Philosophers or Sociologists can contribute nothing of value to the discussion.  

Nevertheless, the participatory dimension of legitimacy is especially important for the American legal system.

No. It is irrelevant. One may say 'I have a legitimating ideology for the American legal system in which such and such dimension is important'. If Judges or legislators or learned advocates begin appealing to your notion then it has salience. But it acquires this by the operation of the legal system, not in any other way. 

Because we are a democratic republic with a written constitution defining the scope and limits of governmental authority, and the obligations of public officials authorized to act on behalf of a sovereign people, the sociological legitimacy of our public institutions is hostage to the degree of fidelity to the Constitution the populace demands, which remains quite substantial.

Ludicrous! The populace isn't composed of constitutional lawyers. Even within that narrow class, the offer of a sufficient sum of money would induce most such people to argue that any crazy shit represents uttermost fidelity to the Constitution.  

Since the Supreme Court is uniquely charged with preserving the Constitution, its sociological legitimacy is heavily dependent on judgments about what that fidelity amounts to.

No. All that matters is whether it is obeyed or ignored.  

It is our difference on this point, more than anything else, that makes the debate between Professor Fallon

Richard H Fallon- a sensible enough realist. Still, it appears he was wrong on what would happen if Roe v Wade was reversed. Rather than SCOTUS being dragged into more and more 'abortion-umpiring' on constitutional grounds, the ball is back on the court of State legislatures. Dual Sovereignty has prevailed. I may be wrong about this. Who knows what the second half of Trump's presidency will look like?  

and originalists like me significant. Professor Fallon and I also have differences about moral legitimacy and its relation to sociological legitimacy. Unlike the latter, the moral legitimacy of the Supreme Court is tied to facts (not opinions, widely shared or not).

There are no moral 'facts'.  

Although the facts in question are broadly moral, not all such facts are equally relevant to normative evaluations of our legal and political system. Those that are clearly relevant involve the effectiveness of the system in advancing the welfare of individuals,

We don't know what advances our welfare till after the fact. That's how come many marriages end in divorce. If we can be wrong about our choice of life-partner, how much more so when it comes to 'evaluating the legal and political system'? The plain fact is, if what we will face next year is total war against shape-shifting lizards from Planet X, then our present system is decidedly sub-optimal. But if the future will be much like the past, we should muddle through well enough.  

the degree of substantive justice it achieves,

is unknowable 

and the procedural justice of its law-making processes.

which itself is only procedurally evaluable.  

These non-cosmopolitan facts provide a basis for evaluating the relationship between a nation state and its people, without significantly assessing moral and political relationships between the state and other states, or between it and the people of the world. 

Which is silly if the State is likely to get invaded or might face crippling sanctions. I suppose America- by reason of its Economic and Military might- is an exception.  

The intent of the moral evaluation is to track what members of a legal system owe one another (as opposed to all humanity).

Accountants can keep track of what we owe each other economically. Sadly, there is no accounting for tastes or scruples or righteousness. 

This is significant when considering the discretion the Supreme Court is legally authorized to exercise vs. the discretion it morally ought, as an institution of the government of the United States, to be authorized to exercise.

They are one and the same. Constitutional Morality means that which is consonant with the proper exercise of the Bench's constitutional authority.  Sadly, nobody knows what the 'extension' of this particular 'intension' is. Still, there is a 'buck-stopped' decision process and, if the Bench is ignored, there is also a way of predicting when and where those decisions matter. 

Theories of the Court's duties can be offered as descriptive theories of its actual legal duties or as a normative theories of what its legal duties ought to be.

Events may prove those theories half-baked. At the end of the day, the Law is merely a service industry. Its aim, as Hume said, is utility. It is likely to be disintermediated if it isn't useful.  

Only the non-cosmopolitan sense of normativity is relevant to this normative debate.

Everything or nothing is relevant to a debate where everybody just makes shit up.  

In assessing the duties of the nation's highest court in settling disputes about the contents of its laws, the Court must prioritize the nation's people over those of other nations,

In the US, federal law takes precedence over International, treaty based, law. But the Bench has wide powers to interpret the Constitution. Consider Roper v Simmons. SCOTUS mentioned International precedents and then decided it was unconstitutional to execute those under 18 on the basis of 'evolving standards of decency'.  

in a way that private citizens need not, in any moral or political calculations it is authorized to make.

The author is pretending that 'private citizens' feel a moral obligation to wipe the bums of hobos on the other side of the world. SCOTUS, sadly, is forbidden to take so cosmopolitan a view.  

On the other hand, Soames is right to take issue with Fallon's claim that-

'The notion of moral authority is crucial...When the Court speaks in the name of the law in resolving contentious issues, it almost necessarily claims to make the morally and practically best decisions that the law allows.

Fallon's own personal morality may militate for his always placing the most favourable construction on the decisions of others. Thus, while being mugged, he may think that the mugger is acting as morally as the practical requirements of his profession allows. But, that is a personal matter. Someone else may believe that any decision made by a Court reflects the interests of the Capitalist class.  

The Constitution vests the Court with its powers

in the same way as it vested slave-owners in certain States with powers over their slaves 

based on the premise that its decisions will produce better and fairer results

We don't know that. It is isn't the case that the Constitution comes along with a list of the premises upon which its founders relied. Even where a particular phrase appears, which prima facie suggests otherwise, it may be dismissed as 'mere puffery' or ornamentation. 

-- within the limits that the law allows

nobody knows what they are 

--than would occur otherwise.

again, this is not knowable. All one can do is to speak of expectations which prevailed at a particular time amongst a certain class of persons. 

There are three salient points to notice. First, although Fallon understands the Court as having wide discretion in many cases, he recognizes that it is constrained to act within the limits of the law.

Fallon was a law professor. He was aware that a judgment might be set aside as wrong in law.  

Second, in the areas in which the Court has discretion to act as a significant lawmaker, Fallon maintains that its chief obligation is to produce the morally best policy that is practically achievable.

That is a personal opinion or preference. I suppose one can think that the chief obligation Donald Trump has is to go wipe the bums of homeless people who are too drunk to do the job themselves.  

Third, according to Fallon, the Constitution actually does vest the Supreme Court with precisely this moral and legal authority.

According to others, it vests the majority with the power to do what the guys who appointed them want them to do.  

Although there is some truth in these propositions, originalists differ sharply with him about how much.

I think the wider difference between originalists and realists arises from whether the framers of the Constitution were foolish enough to think what was expedient at the time should bind the Republic in perpetuity. On the other hand, the instrumental value of Originalism is that it discourages judicial activism- i.e. more and more 'judge made law'. The problem is that who are against it when their side is in the minority, may begin to see its advantages when the tables are turned. 

The disputed questions are about what the legal limits of the Court's discretion are, and about what principles properly guide such discretion when it is called for.

Soames calls his own version of originalism 'deferentialism'. 

My theory starts with section 1 of Article 1 of the Constitution, “All legislative power herein granted shall be vested in the Congress of the United States.”

But 'Executive Orders' can have the force of law.  

To take this seriously is to recognize that although judicial interpretation plays a role in the lawmaking process, broadly conceived, the courts are not themselves directly authorized to legislate.

D'uh! 

The first task in judicial interpretation is to

 determine the ordinary and plain meaning of the words in the statute, a principle known as the literal rule. This is done on the basis of 'purposive construction'- i.e. looking at the purpose for which the law was created. If the literal interpretation leads to an absurd conclusion, the 'golden rule' may be applied. Also, the 'mischief' the law was meant to curb will be kept in mind. 

determine what a legal provision says, asserts, or stipulates.

Says. A law does not assert or stipulate anything.  

Saying, asserting, and stipulating are speech acts (of either individual or collective agents). Each involves taking a stance toward the thought content expressed by a use of language.

Not when I am drunk. One may say it would be desirable if people took such a stance rather than just blathering away in a drunken, or psilosophical, fashion.  

To say or assert something is to commit oneself to that content’s being true.

No. Sadly, assertions not backed up by evidence may be disregarded. But the law itself asserts nothing.  

To stipulate is to make something true by asserting it.

Nonsense! A stipulation is a condition which is specified for some purpose. Thus, in a court case, stipulations may be used to  simplify or streamline the presentation of evidence. 

For a proper authority to stipulate that the speed limit on highways is 60 mph is

to say 'you can legally drive on this highway on condition that you don't go over 60 mph.'  

for the authority to state that the speed limit is 60 mph and for the very act of making that statement to be a, or the, crucial component in making what is asserted true.

No. The authority has to actually notify the public and then take appropriate enforcement action. It could be a defence in law to show that nobody respects the speed-limit and nobody has been prosecuted.  

Precedent-making Supreme Court precedents are stipulations in roughly the same sense.

No. Unlike 'speed-limits' which must be notified to drivers, Judges and lawyers are expected to keep up with Supreme Court judgments though, no doubt, these are published or otherwise disseminated through various channels.  

To discover what the law asserts/stipulates is to discover what the lawmakers asserted/ stipulated in adopting a text.

It may be. It may not. There is such a thing as 'delegated legislation'.  

As with ordinary speech, the content of an assertion usually isn't a function of linguistic meaning alone;

it is on the literal interpretation. Only if this would lead to an absurd or mischievous outcome do you have to dig any deeper. 

the background beliefs and presuppositions of participants are also involved.

Why stop there? Why not bring in their subconscious impulses or epigenetic traits?  

What a speaker uses a sentence S to assert in a given context is,

up to the speaker.  

roughly, what an ordinarily reasonable and attentive hearer or reader who knows the linguistic meaning of S, and is aware of all relevant publically available features of the context of the utterance, would rationally take the speaker’s use of S to commit the speaker to.

Nope. Saying something doesn't commit you to shit.  

In ordinary interpersonal communication, all parties know (and presuppose that other conversational participants know) the linguistic meanings of the words and sentences used. They also know (and presuppose that the others also know) the overall purpose of the communication, the questions currently at issue, and the relevant facts about what previously has been assumed, asserted or agreed on. Because of this, what is asserted can usually be identified with what the speaker means and what the hearers take the speaker to mean by the words on that occasion. Applying this to legal interpretation, originalists look for what the lawmakers meant, and what an ordinarily reasonable person who understood the linguistic meanings of their words, the publically available facts, the recent history in the lawmaking context, and the background of existing law into which the new provision is expected to fit, would take them to have meant. That, more or less, is the content of the law. In saying this, I extend a well-understood model of linguistic communication among individuals to linguistic communication between collective speakers and collective audiences.

No. You talk worthless bollocks of the sort which people in your useless, brain dead, branch of academia gas on about. 

Originalists are merely saying that Congress should pass laws to meet changing times rather than leave it to the Bench to deal with 'wedge issues'. It is foolish to attribute current fads or virtue signalling fashions to guys in the Eighteenth Century who thought the only good Injun was a dead Injun. Darkies however make valuable slaves.  

This all-but-universal practice of articulating what lawmaking bodies assert or stipulate requires treating them as rational agents that use language to communicate with rational audiences.

No. A rational agent may speak strategically- e.g. by using 'reverse psychology'. Law-making bodies may be wholly irrational- e.g. guided by oracles or the Holy Spirit- but laws are not 'strategic'. That's why nobody has argued that the law against homicide is a 'reverse psychology' trick to get people to murder lots of people for the benefit of the Undertakers' Cartel. 

This, in turn, requires attributing various intentions to them, including intentions to assert or stipulate certain contents.

No. The law remains the law no matter what intentions we attribute to anybody. 

 We routinely speak of the goals, beliefs, statements, promises, and commitments of collective bodies, even though the goals, etc. aren’t aggregated sums of individual cognitive attitudes.

There are no such 'aggregated sums' anymore than flying unicorns exist.  

Collective bodies routinely investigate whether such and such, conclude and assert that so and so, and promise to do this and that. Since they can do these things, legislatures can intend, assert, and stipulate that such is such is to be so and so.

They are welcome to say so in the "findings," "declarations," or "recitals" section of the Bill. 

The contents of these linguistic acts are what is, in principle, derivable from the relevant, publically available, linguistic and non-linguistic facts.

No. There are rules of statutory construction specific to the Law.  To be fair, Analytical Philosophy focused on how language is used in ordinary life. The Law, however, is subject to its own protocols. This does not mean that it can't be very flexible. Indeed, it is for this reason that Philosophy- whose great attraction is that it promises to lay down in advance the trajectory of a discourse- is so utterly useless and misleading. The direction in which things appear to be moving can quite suddenly reverse itself.

I suppose Soames & Fallon lived in more innocent times. It was only 15 years ago that Soames published this. Perhaps, my own view that legitimacy is about the law, not what Elon Musk believes, might be considered naive 15 years from now.