Monday, July 13, 2015

What Difference Does It Make? Do Words, Facts, History, Truth, Law, or Morals Matter?

It has been a year since I posted anything here.  Perhaps I really did not have that much to say.  But, now I think I do on a matter of great importance, it seems.  I realize that what I write here and in the next posts is particularly pertinent to the United States, but I also think some of the general themes and implications have broader, international implications for civil society generally, and should be of interest.  Perhaps, many around the world are already dealing with some of these issues and those in the U.S. are just now facing what others have faced for years.

One of the characteristics of today's society, is a certain skepticism about a lot of things of importance.

Yet, at the same time, something of an expression of frustration when strongly held positions are really not subject to rational discussion.  It is a little like the response we frequently hear to a question or statement: "whatever?" Indeed, I don't think that it is a question at all that is meant to pursue a line of questioning or inquiry.

The response, "What difference at this point does it make?" given at a U.S. Congressional hearing expressed not only the sentiment about the specific matter in inquiry, in that case, what happened that led to the deaths of an American Ambassador and three others in Benghazi, Libya on 11 September 2012, but a frustrated attempt to cut off any discussion about what happened on that night.

The question does not simply arise out of the Congressional hearings regarding the attack on the American compound at Benghazi, but it seems to me to address something that has been going on for a while, and most recently in a series of U.S. Supreme Court decisions.  While the King v. Burwell decision relating to certain aspects of the Affordable Care Act, also known as ObamaCare, and Obergefell v. Hodges relating to the question of whether same-sex marriage is a Constitutionally protected right, the cultural and legal situation present in the United States, and no doubt elsewhere, raise questions about the place of words, facts, truth, history, law, and morality in cultural discourse and whether they have any importance in communications generally.

The question I have here is how this can affect the third sector, its integrity and transparency, its fundraising communication, its accountability, and, indeed its role in society, if there is such a role anymore, except as limited by government fiat or restrictions.

This reminded me of the first question recorded in human history.  Perhaps you remember it. Recorded in Bible, Genesis 3:1, we have the story of the crafty serpent coming to the woman and asking: "Did God really say, 'You must not eat from any tree in the garden?'!" misquoting what God really said: "You are free to eat from any tree in the garden; but you must not eat from the tree of the knowledge of good and evil, for when you eat of it, you will surely die."  This first question in the Bible seems innocent enough.  It seems to require a simple answer, and then we move on.  Any question, like this one, claims our attention to a particular feature of our world.

First, there is here the implicit attack on the character of God.  Indeed, many of our questions really do little more than attack the character of the person with whom we are speaking, and we not really seeking a responsive answer. But, also, there is a difference between asking a question, and questioning, that is, engaging in an exploration or dialogue.

This was brought home to me in a recent book by Matthew Lee Anderson, The End of Our Exploring."  Learning to question well is of vital importance, both with regard to being a part of a conversation that will not be shut down before the exchange of information, and for being open to wherever the conversation leads us to understand the world around us, or to understand what is going on, whether within the government, as was the case in the Congressional hearing, or into any inquiry regarding transparency and accountability of a charitable organization.

As Matthew Lee Anderson, wrote the goal of good questioning is truth.  "Unless [we] have some interest in the answer, some fundamental concern about the result, we would hardly say that they have begun 'questioning.'  Those who question (rather than merely ask questions) have something wrapped up in their pursuit, such as the meaning of their lives will be altered depending on what they see (or fail to see)."

So, where do questions come from?  Why should we search out the world if we did not think that we would find something better for us, or better than what we think we know?  The love of goodness and desire for truth precede our knowledge and stands beneath and within all of our exploring.  Questions bubble up from our communities and the challenges we face as we try to live well within them. These inquiries reveal what we make of ourselves, of the convictions we take for granted, and of our commitments, for as expressions of loves, they signify we we most care about

Good questioning cultivates an openness to the world, and the matter at the center of the discussion, and a willingness to consider things with the hope that the questioner might learn something.  The inquiries don't stay on the surface.  Rather, they explore the why and the how to discern the fundamental shape of things.  But, they are more than that.

I have spent the better part of 45 years in a courtroom, either as a trial lawyer or as a judge.  Lawyers questions are seldom neutral.  Lawyers and legal teams have an objective and their questions or examinations are worded accordingly.  Judges' questions may be a little different.  But both come from somewhere and take us somewhere. They slant our perspective in particular directions and make some answers or responses more plausible than others.

We are not left without models of good questioning.  For example, engaging in dialogue through the art of questioning explores issues of logical consistencies or inconsistencies, personal bias and reasons for such biases, what cultural pressures exist that inform opinions of those engaged in the dialogue, what values are important,

The questions, or questioning, posed during the hearing on the Benghazi facility attack were attempts to get to the truth of the situation in Benghazi, whereas, it seems that the response to this hearing, "What difference does it make?" was meant to shut down the inquiry or the conversation.  It was like the question quoted above from Genesis 3:1.  But, it was also an attack against the U.S. Senate Committee and the character of the Committee members engaged in the inquiry regarding the violence and death at Benghazi.

I thought of this during some of the discussion regarding the recent U.S. Supreme Court decision in King v. Burwell.   The issue before the U.S. Supreme Court was whether tax credits authorized under the Affordable Care Act, which were to serve as subsidies to lower insurance premiums, were available to those enrolled in the Affordable Care Act health care system whether under Exchanges established and run by the States as the statute plainly says in seven places, or also through federal Exchanges.  So the issue before the Court was whether the premium assistance or tax credit was available to someone who buys insurance on an Exchange established by the Secretary of Health and Human Services notwithstanding the language in the statute that "each state shall establish an American Health Benefit Exchange . . . for the State"  If the State chose not to establish such an online exchange or marketplace for the purchase of health insurance, the Act provided that the Secretary of Health and Human Services shall establish and operate within such a state such an exchange."  The Act then provided that a tax credit was available to an enrollee in an insurance plan through "an Exchange established by the State under [an specified section of the Act]."

Aa it turned out, only 16 states and the District of Columbia established their own Exchanges, and the remaining 34 elected not to establish exchanges, thereby leading to the establishment of Exchanges for those states by the Secretary of Health and Human Resources.   Notwithstanding the language in the Act, the Internal Revenue Service (IRS), the same agency which provides nonprofit certification, promulgated a rule which made the tax credits available to enrollees on both State and Federal Exchanges.  The procedural history is a bit complicated, but suffice to say that the U.S. Supreme Court stated that "If the statutory language is plain, we must enforce it according to its terms." While the plain meaning rule would interpret this language exactly as it was written, the Court held that oftentimes the meaning or ambiguity of certain words may only become evident when placed in a context, suggesting here that "the Act may not always use the phrase 'established by the State' in its most natural sense."

What the Chief Justice, writing for the majority, said was that the words, "an Exchange established by the State" really meant was "all Exchanges established by the State or the [U.S.] Secretary of Health and Human Services."  According to the majority, the words "an Exchange established by the State" were ambiguous.  Perhaps these words were ambiguous because six members on the Court interpreted them one way while three members of the Court, and 34 States interpreted them another way, i.e., based on their plain meaning.

While it is clear that context does play a major role in the interpretation of statutes such as the Affordable Care Act, and instruments, such as contract.  As the dissent opined, "context is a tool for understanding the terms of a law, not an excuse for rewriting it."  Much of the analysis of the majority dealt with the overall policy objectives of the law and the danger of the so-called "economic death spiral" where "premiums rose higher and higher, the number of people buying insurance sank lower and lower, and insurers began to leave the market entirely."   It appeared that the words in the statute did not have their plain meaning, either in the words themselves, or the immediate context in which they were used (particularly within the specific statutory sections in which they were located), rather that for some reason, the Chief Justice writing for the majority was seeking to save the Act from such a disastrous result.

We might reasonably ask "Why?"

We have been reminded since Thursday, 25 June 2015, when the Court announced its decision in King v. Burwell, that the Chief Justice similarly in an earlier case,  National Federation of Independent Business v. Sibelius, seemingly rewrote the same statute to save it from a constitutional challenge.  There, the challenge was that the Commerce Clause of the U.S. Constitution did not permit the federal government to mandate everyone to buy insurance or face a penalty for failure to do so.  Although that challenge prevailed, the Supreme Court upheld the constitutionality of Affordable Care Act on the basis that the  word "mandate and penalty " did not really mean "penalty," rather it meant "tax," notwithstanding the fact that this "tax" did not originate in the House of Representatives as required by the Constitution, Article 1, Section 7, Clause 1.

But, the Court was not done with interpreting language that seemed plain to many.  The U.S. Constitution, Article I, Section 4, Clause 1, provides:

The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof, but Congress may at any time make or alter the Regulations, except as to the Places of Chusing Senators.

Four days after its decision in King v. Burwell, i.e., 29 June 2015, the U.S. Supreme Court issued its decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.  Justice Ginsburg, writing for the majority (5 to 4), said that the word, "Legislature," in Article 1, Section 4 did nor really mean "Legislature"as argued by the State Legislature, rather it "simply meant "the power to make laws" and that this included "independent commissions," which had their legislative authority over redistricting of Congressional districts.  According to the Court, the Clause quoted above was "intended to act as a safeguard against the manipulation of electoral rules by politicians and factions within the States to entrench themselves or place their interests over those of the electorate."  Indeed, the majority held that this history and purpose of the Elections Clause weighed "heavily against such a preclusion [i.e., the power of the people of Arizona to create a commission operating independently of the State Legislature], as does the animating principle of our Constitution that the people themselves are the originating source of all powers of government."

The Arizona Legislature, sued the independent commission arguing that the word, "Legislature" in Article I, Section 4 of the U.S. Constitution, meant specifically and only the representative body which makes the laws of the people.  Accordingly, the State Legislature argued before the U.S. Supreme Court that the above quoted Elections Clause precluded resort to an independent commission created by an initiative to accomplish redistricting.  The independent commission argued that the Elections Clause did not confine the word, "Legislature," to elected representatives, rather the term encompassed all legislative authority conferred by the State Constitution.  Apparently, "Legislature" does not really mean "Legislature," rather is refers to the authority of making laws or power which makes them, namely, the people themselves which are the originating sources of all powers of government.

Chief Justice Roberts writing for the dissent, discussed that the 17th Amendment transferred power to choose United States Senators from the "Legislature" of each State, to the people thereof.  His dissent, dated the just four days after his majority opinion in King v. Burwell, took the majority to task for interpreting the word, "Legislature," as it had, rather than following the plain meaning of the word. Recounting the history of the "arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States," the Chief Justice noted that "Didn't they realize that all they had to to was interpret the term "the Legislature" to mean "people?"  He then simply notes: "What chumps!"

Part of my interest over the years, and especially when dealing with the operations of nonprofit organizations and monitoring against certain prescribed Standards, has been in language. Specifically, that we have become careless about language. Language is the means whereby our rationality and relationality are enabled simultaneously.  These are the attributes that distinguish us as human beings. Language is the means by which we know and name things and we know each other by sharing what we know.

Amazingly, just three days earlier, on 26 June 2015, the Supreme Court issued its decision in Obergefell v. Hodges.  Many of the issues raised in Obergefell v. Hodges will be discussed in the following post.  However, one point should be made when we think about language and definitions.

What was curious was that Justice Kennedy writing for the majority, did not address the definitional
issues surrounding the word, "marriage," although he did admit that the centrality of marriage had existed for millennia and across civilizations. Ignoring the long-held definition of marriage and how that definition was understood through the millennia and across civilizations, he attempted to propound the idea that same-sex individuals had the same right to marry just as those of the opposite sex.

The Chief Justice, dissenting with three other justices, was not so eager to go along with this, writing that "The fundamental right to marry does not include a right to make a State change its definition of marriage."  Further, "The real question in these cases is what constitutes 'marriage,' or - more precisely - who decides what constitutes 'marriage.'"  Or, "As the majority acknowledges, marriage 'has existed for millennia and across civilizations."  But, that "For all those millennia, across all those civilizations, 'marriage' referred only to one relationship: the union of a man and a woman."  The Chief Justice continues on this theme about the matter of words and the definition of marriage as clearly understood throughout the millennia of human history.   For example, Chief Justice Roberts wrote on page 2 of his dissenting opinion

     This universal definition of marriage as the union of a man and a woman is no historical coincidence.  Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history - and certainly not as a result of a prehistoric decision to exclude gays and lesbians.

What is interesting, and consistent with the Chief Justice's description of "marriage" is that the definition he provides in his dissent is consistent with the definitions I found in every dictionary, both abridged and unabridged.  The one possible exception is one of the recents editions of Black's Law Dictionary (Ninth Edition, 2009).  The word, "marriage" is defined in various contexts over more than three pages, all of which are ambiguous with regard to whether the word "marriage" includes heterosexual unions of one man and one woman, or same-sex unions.  The only place it is clear is in the definition of "same-sex marriage."  According to this definition. it is "the ceremonial union of two people of the same sex; a marriage-like relationship between two women or two men." As of the date of this dictionary, according to this definition, the United State government and most States did not recognize same-sex marriages, even if legally contracted in other countries such as Canada.

Professor E. D. Hirsch, Jr. wrote two helpful books on interpretation: Validity of Interpretation and The Aims of Interpretation.  In these, Hirsch argues differences between how professions interpret documents, such as lawyers, literary scholars, or Biblical scholars, are based on methods within the professions that rely on a wider range of immediate relevant knowledge.  However, the determination of general principles is properly the concern of general hermeneutics.  The problem, as Hirsch sees it, is that the conception of valid interpretation has come to be regarded with profound skepticism.  At stake is the right of any discipline to claim genuine knowledge.

The practical goal of every discipline, according to Hirsch, is consensus - the winning of firmly grounded agreement that one set of conclusions is more probable than others - and that is precisely the goal of valid interpretation.  Our task of interpretation has been made difficult by the assault of the past eight or more decades on the sensible belief that a text means what an author meant, and perhaps more importantly, what the words used actually and objectively mean.  Interpretation includes both functions whenever it answers the questions: "What does the text mean?" and "What use or value does it have?" In other words, meaning embraces every aspect of representation, including wording and that which serves as a unit of speech distinctive in a particular language.  Significance, is the meaning as it relates to something else.  Meaning is a principle of stability, and provides for, and limits the range of perspectives or interpretations available to determining if the text is meaningful.

The argument over the last century is that the meaning of a text changes from age to age and from reader to reader.  If such a theory of semantic mutability were true, then it would legitimately banish the author's meaning as the normative principle.  The same would hold true for words that have had established meaning and significance throughout an extended period of history.

According to Wittgenstein, "mind reading is not the duty of the interpreter, who is obliged to understand only those meanings which the public norms of language permit."  The norms of language refer to the principle of sharability.

What we have seen in society over the years has been the attempt to co-opt certain words that throughout history have had clear historical meanings and significance, and use them for something completely different.

Part of my interest over the years, and especially when dealing with the operations of nonprofit organizations and monitoring against certain prescribed Standards, has been in language. Specifically, that we have become careless about language.  Language is the means whereby our rationality and relationality are enabled simultaneously.  These are the attributes that distinguish us as human beings.  Language is the means by which we know and name things and we know each other by sharing what we know.

German philosopher, Josef Pieper, observed that words first convey reality, that is, that something is
real, and then these words identify that reality for someone else.  Secondly, words denote the interpersonal nature of human speech.  Since language sustains our engagement with reality and with one another, when words become corrupted, human existence itself will not remain unaffected.

George Orwell, picks up this theme in his novel, 1984, where he argued the central importance of language to human thought was that it structures and limits the ideas that individuals are capable of formulating and expressing.

If control of language is centralized in a political agency, Orwell argued, this could alter the very structure of language to make it impossible to conceive of disobedience or rebellious thought because there would be no words with which to think them.  However, it is not just disobedience or rebellious thought that is affected.  Where words have no reliable and sustained meaning, where there is no stability in language and words used to convey any thoughts, then there would cease to be words with which to think such things.

We are not simply talking about the evolution of "marriage" thought, as suggested by Justice Kennedy. What we are really addressing is the very corruption of language that makes it impossible to think about marriage in any reasonable terms.  This is why there are all these claims of marriage relating not only to same-sex coupling, but also to plural and incestuous marriage claims.  The lawsuits are just beginning, and the Supreme Court has opened up the gates of confusion and litigation, and probably heartbreak, with its corruption of the language.

For our immediate purpose, words such as, "trust," "truth," "integrity," "accountability," "justice," "equality," "equal opportunity," "fairness" "corruption" "gender," and "gay," for example, may have several meanings, often in conflict with each other.  And now, marriage!

Conventions of language can sponsor different meanings from the same sequence of words, and interpreters can and do disagree.  But, when there are disagreements. how are they to be resolved? One interpretation may be as valid as another,  so long as it is "sensitive" or "plausible," in reading a text or in common use throughout society.  Moreover, although verbal meaning requires the determining will of the author or interpreter (here the Supreme Court), it is true that the norms of language exert powerful influence and impose an unavoidable limitation on the wills of both author and interpreter. From Lewis Carroll's Alice in Wonderland, Alice is right to say that Humpty Dumpty cannot successfully make words mean anything he wants them to mean.  Yet, this is just what Justice Kennedy and the majority in Obergefell v. Hodges did.

Lastly, in this regard, Justice Scalia, writing separately in dissent said: "The world does not expect logic and precision in poetry or inspirational philosophy; it demands them in law.  The stuff contained in today's opinion has to diminish this Court's reputation for clear thinking and sober analysis."

But, is any of this really a surprise?  In response to the cold logic of the Enlightenment, there arose a movement known as Existentialism.  Soren Kierkegaard insisted on the irreducibility of the subjective, the personal dimension of human experience and life, particularly with regard to the aspiration to "become an individual."  Martin Heidegger maintained that the answer to the question of being is to be found by a line of inquiry which begins with an inquiry into the existential constitution of human life which one discovers from an explanation of our actions.

Whereas some thinkers, such as Jurgen Habermas, referred to the period known as postmodernity as the state or condition of society which was said to exist after modernity, it also marked the end of modernity.  Jean-Francois Lyotard understood modernity as a cultural change characterized by constant change in the pursuit of progress, whereas postmodernity represented the culmination of that process.

The period, basically since the 1950s (although that is subject to debate) has been viewed as "anti-ideological," associated with various movements, such as, the feminist movement, racial equality movement, gay rights movement and in the late 20th century, some forms of anarchism and anti-globalism.  While none of these reflect all of these ideas, they borrow from them.  Doubt is a pervasive feature of modern critical reason, permeating into everyday life as well as philosophical consciousness. It forms the general existential dimension of the contemporary social world by institutionalizing the principle of radical doubt and insisting that all knowledge take the form of hypothesis.

Claims which may be true are in principle open to revision and may have to be abandoned at some point. Systems of accumulated expertise represent multiple sources of authority, frequently internally contested and divergent in their implications.  Notions of trust are particularly at risk.  Relationships exist sole for whatever rewards the relationship as such can deliver.  Trust can no longer be anchored in criteria outside the relationship itself, such as kinship, social duty, or traditional obligation.

Deconstructionism simply carries the project forward with its critical analysis of texts emphasizing inquiry into the variable projections of meaning and the message of the work.  Jacques Derrida in his Of Grammatology, influenced the theoretical enterprises in the humanities and social sciences, such as law, anthropology, historiography, linguistics, psychoanalysis, political theory, feminism, and gay and lesbian studies.  From the moments that there is meaning, there are nothing but signs; we think only in signs, and words have meaning only because of the contrast-effects with other words. Derrida argued that to be effective, deconstruction needs to create new terms, not simply to synthesize the concepts in opposition, but to mark their difference and eternal interplay.

Is it any surprise that "Exchanges established by the States" can mean "Exchanges established by the States and Secretary of Health and Human Services?"  Is it any doubt that the word, "Legislature" in Article 1, Section 4, Clause 1 of the U.S. Constitution does not really mean that?  That it actually means "the people" who have the power to make laws because of "some animating principle in the Constitution.

And how about the word, "marriage?"  Does it surprise anyone that this word, after many millennia across all civilizations, no longer refers to the unit of a man and a woman, the basic bedrock of society?

What does this have to do with civil society, how it functions in a larger society, how it communicates its mission, purpose, and programs, and how it submits to standards or norms of integrity and accountability?  If words do not have objective meanings, then how do we communicate rationally and relationally, and indeed, how do we even think about what  we are about?

Or in the words of Secretary Hillary Clinton, "What difference does it make?"  What difference does it make if we can no longer communicate or think about matters such as trust, truth, integrity, accountability, justice, equality, equal opportunity, fairness, corruption, gender (now that according the FaceBook, there are 58 gender classifications), or gay?  How do we establish Standards of governance, integrity, accountability, and truthfulness in communications if we have no idea what those words mean and how they apply to civil society organizations?  And, if we are unclear about Standards, because words are simply symbols with no objective meaning, how do monitoring bodies, government or independent/self-monitoring organizations, perform their obligations to the public and to civil society organizations being monitored?

Maybe like the Reformers of old, we are all Chumps!

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