Archived Posts July 2005 - Page 2 of 9 | Acton PowerBlog

Blog author: dphelps
Thursday, July 28, 2005

Close at Home

The House of Representatives voted early this morning (12:03 am) to approve the Central American Free Trade Agreement (CAFTA) after weeks of intense lobbying on both sides. The final vote was a close 217-215.

My predictions: somehow, any dip in employment (if there is one) in the next six months will somehow be linked to CAFTA by its detractors. Detractors will attempt to take the moral high ground in American politics in ’06 and ’08, and even if we experience greater prosperity as a result of CAFTA, the hills will be alive with the sounds of “Where are the jobs?” and “I told you so.”

But here’s the other side of it that detractors will not draw your attention to in coming months: Central Americans will have access to cheaper goods. Cheaper goods mean higher productivity. Higher productivity means more wealth creation. More wealth creation means more prosperity, less poverty, and friendlier neighbors. Why friendlier? Because now, Central American workers have greater access to something that is indespensible in the market, something that affirms their dignity as workers and as persons: freedom. Free trade is nothing more than individuals and bodies excercising the truth about themselves, that they are free beings and ought to come into agreements freely, without governmental impediments like tariffs.

Here’s to free trade and our success together as neighbors.

Blog author: jballor
Wednesday, July 27, 2005

S. T. Karnick over at The Reform Club comments on a recent suit filed against DuPont over Teflon, claiming that “DuPont lied in a massive attempt to continue selling their product.”

Karnick observes that abuse of the tort system is rampant, in part because “it has been perverted into a proxy for the criminal justice system: a means of punishing supposed wrongdoers through the use of a weaker standard of proof—preponderance of the evidence instead of proof beyond a reasonable doubt.”

Trial by Fury

Law professor Ronald J. Rychlak outlines the changes over time to America’s tort law system in his recent book, Trial by Fury: Restoring the Common Good in Tort Litigation. The weakened burdens of proof is one of the trends that Rychlak investigates, in addition to increases in damage awards, the recognition of new torts, and the growth of class action suits.

Rychlak argues for a recovery of the purpose of the tort system. He concludes in light of the changes in tort law, “Effective tort reform, therefore, must return the system to one based on fault and causation, that holds responsible those who caused the damage, makes the injured whole, and does not impose upon the innocent.”

Mugabe: The Culprit

The United Nations has released a report on the ongoing upheavals in Zimbabwe, where tyrant Robert Mugabe has been punishing his political opponents under the guise of “cleaning up” the country’s cities. The effect of Operation Murambatsvina (meaning either “Operation Restore Order” or “Operation Drive Out Trash,” depending on who’s translation you believe) has been to leave some 700,000 people homeless, jobless, or both. A downloadable copy of the UN report is available here.

While the report does illuminate the brutality that has been going on for the last two months or so in the African nation, Claudia Rosett notes in today’s Wall Street Journal that the UN offers only one solution to the problem: more international aid:

With a delicacy over-zealously inappropriate in itself to dealings with the tyrant whose regime has been responsible for wreck of Zimbabwe, the report starts by thanking Mr. Mugabe for his “warm welcome” to the U.N. delegation, which visited the country from June 26 to July 8. The report, issued by the secretary-general’s special envoy Anna Kajumulo Tibaijuka, then proceeds to the usual U.N. prescription that what Zimbabwe needs is more aid, and a framework–here comes the UN lingo–“to ensure the sustainability of humanitarian response.” While the report also calls for the “culprits” to be called to justice under Zimbabwe laws, Mugabe himself is somehow excused from direct responsibility.

Instead, the report faults wealthy nations for not providing more aid already, and notes that “With respect to the funding issue, some in the Zimbabwe political elite and intelligentsia, as well as others of similar persuasion around the continent, believe the international community is concerned more with ‘regime change’ and that there is no real and genuine concern for the welfare of ordinary people.”

Somehow it doesn’t seem to occur to the UN and ‘others of similar persuasion’ that the desire for ‘regime change’ in Zimbabwe is directly related to a genuine concern for the welfare of ordinary people. In fact, those ordinary people that the UN professes so much concern for have themselves expressed a desire for ‘regime change’ in two consecutive elections, only to see their votes nullified by the rampant corruption of the Mugabe government.

The situation seems ripe for another UN failure. In fact, today’s Boston Globe notes that Mugabe is continuing his disastrous “clean-up” operation:

Government authorities demolished huts and evicted people west of the capital yesterday, witnesses said, defying UN demands to halt the much condemned urban renewal program that the world body says has left 700,000 people homeless or without a job…

…The government authorities came at night, beat people, and burned huts at Porta Farm, a settlement the government set up in 1991 to house 3,000 squatters so that they would not be seen by visiting Queen Elizabeth II of Britain, a witness said. The number of inhabitants has grown to 30,000 in the past 14 years.

Thousands of people were told they have to move to rural areas, said the witness, who asked not to be identified for fear of reprisals.

For more insights on the current state of affairs, visit This is Zimbabwe.

The Service Employees International Union and the International Brotherhood of Teamsters have broken away from the AFL-CIO, complaining that the federation has focused too much on political activism in the face of declining union membership and influence.

Dr. Charles Baird was a featured guest on yesterday’s edition of Kresta in the Afternoon on Ave Maria Radio, discussing Catholic perspectives on unionism and whether the modern American labor union movement is compatible with church teachings. Dr. Baird is Chair of the Department of Economics at California State University and the author of Liberating Labor: A Christian Economist’s Case for Voluntary Unionism (part of Acton’s Christian Social Teaching series and available for purchase in the Acton Bookshoppe). To listen to the interview, click here (5.1 mb mp3).

John Paul II gave us all a tremendous gift by endorsing the terms Culture of Life and Culture of Death. But as with all great gifts, we must guard these terms carefully so as not to wear them out with misuse, robbing them of their relvence. Unfortunately, this is precisely what is happening in the current debate over CAFTA. A group called Catholics for Faithful Citizenship claims the following: “Clearly, supporting CAFTA is inconsistent with upholding a culture of life.” They provide a list of vague quotes by a Colorado bishop and conlcude (somehow–I cannot quite follow their reasoning) that free markets are “clearly” inconsistent with a culture of life.

To jump immediately to rhetoric like this–and what’s more, to do so without an actual reasoned argument behind it!–is not only irresponsible, but smacks of trite political lobbying. If this group is truly concerned with a better society, they will consider the freedom inherent in the people for which they claim to advocate and allow them fair access to greater markets. They ought to use some economic prudence here instead of resorting to sound-bite politics, throwing around “culture of life” as if it were the latest political buzzword.

Instead, they have slapped this powerful term onto their half-reasoned view of CAFTA, capitalizing on the term’s moral connotative power, using it to advance a half-truth. It is crucial that sound economic thought is employed by Christians before tossing out irresponsible rhetoric involving our most powerfully relevent terminology. Otherwise, we appear to be no different than other flapping mouths blasting the landscape with an irrelevent wind.

Blog author: jballor
Wednesday, July 27, 2005

Foreign Policy hosts this exchange on environmental issues and economics. Carl Pope, executive director of the Sierra Club, gets the first word and Bjørn Lomborg, adjunct professor at the Copenhagen Business School, gets the last word.

Blog author: jballor
Wednesday, July 27, 2005

I’m not quite sure what to make of this local story: “Four people are charged for their alleged involvement in killing two bald eagles.”

The details of the alleged crimes are as follows: “Prosecutors say two teenagers shot the eagles in the Muskegon State Game Area with a .22 caliber rifle in April 2004 and then chopped them up with a hatchet.” Since the bald eagle, one of the nation’s revered symbols, is an endangered animal, it is protected by both state and federal laws.

Given the law of the land (the Endangered Species Act), it makes some sense that those involved would be prosecuted for illegal killings of protected animals. But here’s the strange thing: two of the alleged participants are “charged with one count of animal cruelty, which is a four-year felony.” Unless I’m misunderstanding something, the eagles were “chopped…up with a hatchet” after they were killed. How can you be cruel to something after it’s already dead?

And just in case you were wondering which is considered more severe, the two men “are also facing one count each of killing a bald eagle, which is a 90-day misdemeanor.”

It’s hard for me to fathom why anyone would shoot and slaughter bald eagles, but that perversity is almost matched by the irrationality of the possible sentences.

Blog author: jballor
Tuesday, July 26, 2005

Mr. Phelps takes issue with my characterization of Stanley Fish’s position as amounting “to a philosophical denial of realism.”

Let me first digress a bit and place this comment within the larger context of my post. My identification of a position that “words and texts have no meaning in themselves” is really just an aside within the larger and more important question about what measure of authority authorial intent has in the interpretation of documents, specifically public documents like the Constitution.

This aside is essentially a further claim than I need to make to demonstrate the flaws in Fish’s analysis. All that needs to be done to expose Fish’s error is to show that authorial intent or acontextual (deconstructionist?) interpretation are not the only two options. I argued, along with Ramesh Ponnuru and Ann Althouse, that the contemporary corporate understanding of a public document is the most definitive human factor in determining the meaning of a text. One way of putting it would be to say, it isn’t the Sitz im Leben of the author of a public document that norms meaning, it’s the Sitz im Leben of the document’s ratifiers, adherents, affirmers, et alia that is normative (or should I say “more” normative).

Blog author: dphelps
Tuesday, July 26, 2005

The recent blogpost by my colleague Jordan Ballor discusses an op-ed written by law professor Stanley Fish. I am more familiar with Stanley Fish from his days as a literary theorist, and perhaps a quick review of a younger Fish will contribute to the conversation.

Fish is known for, among other things, an idea of literary interpretation he called ‘interpretive communities’ that suggests meaning is not found in the author, nor in the reader, but in the community in which the text is received. His famous illustration of this theory is as follows: He once left a list of names of literary theorists on the board of his classroom, told the class it was a medieval poem, and asked them to interpret it. Of course the duped and eager students developed a wide array of convincing interpretations, thus illustrating the power of the interpretive community.

So you can image my mild suprise when I read Fish endorsing ‘authorial intent’ in opposition to what in literary circles is known best as Formalism, the idea that “the text itself” contains the meaning. Of course, the modernist and post-modernist theorists have shared a strong aversion to “the text itself” theories. But I think it is a mistake to suggest that simply because the Mods and Postmods attacked both Formalism and Realism, anyone who attacks Literary Formalism is attacking Realism. There are other theories and theorists who would not (properly speaking) align themselves with staunchly relativistic theories and yet would take issue with Formalism (a phenomonologist such as Wolfgang Iser I think would be one of them.)

How does this relate to the larger question of Constitutional Interpretation? To deny ‘textualism’ is not necessarily to suggest that meaning is subjective in the author, the reader, or the interpretive community. Denying texutalism is not necessarily to deny objective reality. One can question textualism and maintain absolutism. What allows for this is the fact that all language, especially in a publicly crafted document like our Constitution, is in some sense ‘corporate’ (the etymological connection between ‘communication’ and ‘communion’ speaks volumes on this point, I think).

As far as we humans are concerned, there is always an element of mystery in language, in the Word. To my knowledge, there is only one who can express an icon of meaning so perfectly as to unite the Utterance with its Reality. All (human) language is at best an attempt at meaning, a part of meaning, and never the last word.

Blog author: jballor
Tuesday, July 26, 2005

A week ago Stanley Fish, a law professor at Florida International University, wrote an op-ed in The New York Times about the principles of constitutional interpretation, especially as represented by Justice Antonin Scalia.

Fish takes issue especially with the notion that the text can have meaning “as it exists apart from anyone’s intention.” Fish essentially denies that texts are things that can have meanings in themselves, and it amounts to a philosophical denial of realism.

Part of Fish’s problem is that he sets up a false dichotomy: either you must believe only in meaning as intended by the author of a document, or you must believe in the meaning of the document apart from “anyone’s intention.” In reality the dynamics of interpretation involve a relationship between the two.

Fish’s intentions, I think, are clearly to protect and clarify what the Constitution means, founded on authorial intent. He states, “Without that constraint handed down by the past, law and predictability disappear and are replaced by irresponsibility and the exercise of power. If you can just make it up when interpreting the Constitution, you can also make it up when deciding whether or not to honor your contractual obligations, and so can everyone around you.”

Today’s BreakPoint commentary by Mark Earley addresses some of the problems with Fish’s analysis. Earley writes of Fish’s piece, ‘However well this kind of argument does in the academy, it doesn’t fly in the courthouse. As law professor Ann Althouse puts it, Fish’s analogy to a rock formation is “ridiculous, because no one ratified the rock formation.’ No one agreed to be bound by what they thought the rock formation said.”

And this is a key point in the hermeneutics of public or corporate documents, like the US Constitution or a Protestant confession like the Lutheran Augsburg Confession. Meaning is not solely conferred upon the text by the authors. What might be the decisive factor in understanding the meaning of such documents is the view held by those who ratified or affirmed these documents.

Merely because Philip Melanchthon wrote the Augsburg Confession didn’t mean that he could rewrite or amend it later on his own. It’s status as a corporate document meant that he no longer had a monopoly on determining the text’s meaning. The same is true, for example, of the Barmen declaration written by Karl Barth. These are not individual, personal, or private documents. They are public and corporate, and therefore have a meaning that is in some sense independent of the author’s original intent.